High Court halts use of private advocates by all public entities

The High Court has issued sweeping conservatory orders halting the engagement and payment of private advocates by all public entities.

In a ruling delivered by Justice Samuel Mukira on Monday, the court suspended all ongoing and future engagements of private law firms by public bodies.

The order applies in cases where government-employed lawyers already exist, including the Attorney-General, state counsel, county attorneys, and other in-house legal officers.

“A conservatory order is hereby issued suspending the engagement, procuring, continuing to procure, pending payments, all engagements of private advocates/law firms by all public entities when there is already a hired attorney general, state counsel, solicitor general, county attorneys, county legal counsels, legal officers and legal personnel of all public entities,” Justice Mukira ordered.

In a second directive, the judge barred the Controller of Budget and all public officers from approving or authorising any funds for the acquisition of external legal services by public entities pending the hearing and determination of the case.

The orders follow a constitutional petition filed at the High Court in Nakuru in which all 47 county governments, alongside several state agencies, were sued over their alleged continued use of private advocates despite having fully established in-house legal departments.

The case was filed by seven petitioners led by Magare Gikenyi, with Busia Senator Okiya Omtatah among the co-petitioners. 

They argue that the routine outsourcing of legal work by counties and public institutions is unlawful, unconstitutional and wasteful.

According to the petitioners, counties have established legal departments staffed with county attorneys, solicitors, and legal officers whose salaries are funded by the public. 

They argue that despite this, some counties continue to engage private advocates, leading to additional legal costs.

They contend that this practice violates article 201 of the Constitution, which requires public money to be used in a prudent and responsible way, and Article 227, which demands that procurement of services be cost-effective.

"That while the County Attorney, the County Solicitor and County Legal Counsel have been barred from engaging in any other gainful employment/private practice, counties and public bodies have been engaging private advocates with exorbitant prices essentially discriminating the county legal counsels, county attorney and county solicitor general and in the process Kenyans have lost a lot of money," the petition states.

The petition relies heavily on reports by the Auditor-General and the Controller of Budget, which show that counties have cumulatively spent billions of shillings on legal fees over recent financial years.

Nairobi City County alone is cited as having spent more than Sh21 billion, accounting for over 70 per cent of total county legal expenditure during the period reviewed. 

Other counties named include Machakos, Kisumu, Nakuru, Tana River and Mandera, each having spent hundreds of millions of shillings on external legal services.

At the centre of the dispute is the Office of the County Attorney Act, which mandates county attorneys to represent county governments in court and other legal proceedings. 

The petitioners argue that routine engagement of private advocates renders the Act “self-defeating” and undermines devolution by sidelining county legal offices established under the Constitution.

In their application, the petitioners argue that the case raises substantial questions of law. 

They are requesting that the matter be referred to the Chief Justice for the empanelment of an expanded bench—comprising an uneven number of judges—under Article 165(4) of the Constitution.