NAIROBI, Kenya – The High Court has issued interim orders stopping the national government and public entities from hiring private lawyers or law firms to represent them in court, pending a constitutional petition challenging the practice.
The ruling also directs the Controller of Budget (CoB) not to approve public funds for external legal services until the matter is fully heard and determined.
The petition, filed by Dr. Benjamin Gikenyi Magare, Senator Okiya Omtatah, and others, questions the legality and prudence of public entities engaging private counsel while qualified State Counsel, County Attorneys, and in-house legal officers remain available.
Citing the Kenya Airports Authority (KAA), which reportedly engaged TripleOKLaw Advocates to defend a Sh243 million “Adani Deal,” the petitioners argue that such engagements result in unnecessary legal expenses at the taxpayers’ cost.
“The Auditor-General’s 2023/2024 audit report already highlighted the questionable practice of hiring private advocates when State Counsel remain idle,” the petition states. “This contravenes Article 201 of the Constitution on the prudent use of public resources.”
The petitioners further contend that even competitive procurement of private advocates violates constitutional principles of fairness, transparency, equity, and cost-effectiveness under Articles 10, 27, and 227(1).
According to the petition, the current practice economically favors private law firms while marginalizing State Counsel, County Attorneys, and public legal officers, undermining constitutional guarantees of equality, human dignity, and fair labour practices.
The petition also challenges attempts to circumvent safeguards on public wage bills and service provision, warning that taxpayer funds should not be used for self-enrichment through private legal engagements.
The High Court’s interim orders remain in effect until the petition is finally heard and determined, with further directions expected in the coming weeks.
