NAIROBI, Kenya — The Law Society of Kenya (LSK) has moved to the High Court seeking to overturn orders barring public entities from hiring private law firms, warning that the directive could trigger a constitutional and operational crisis across government institutions.
In an urgent application filed this week, the lawyers’ umbrella body said the orders issued on January 12 threaten to disrupt ongoing litigation involving public bodies and could expose state institutions to multiple claims, penalties and legal paralysis.
LSK argued that the directive goes beyond preserving the status quo and instead amounts to final relief issued at a preliminary stage of the proceedings, effectively denying public entities legal representation of their choice in active cases before courts and tribunals nationwide.
“The orders have triggered and continue to threaten widespread constitutional and operational paralysis,” LSK Chief Executive Officer Florence Muturi said, adding that their immediate effect is already being felt across public institutions.
According to LSK, the orders were obtained through a petition filed by Busia Senator Okiya Omtatah and Dr Magare Gikenyi, who challenged the practice of public entities engaging private advocates despite having in-house legal officers.
The petitioners argued that millions of shillings are spent annually on private law firms without constitutional justification, leading to wastage of public funds.
However, LSK accused the petitioners of concealing material facts, noting that a similar attempt to restrict the hiring of private lawyers by public institutions had previously failed in Parliament.
The society further warned that the directive could cripple the legal profession, particularly private law firms currently representing public entities.
“It is likely to force a sizable portion of the legal profession to default on countless third-party contracts, including the payment of staff, landlords, lenders and suppliers,” Ms Muturi said.
LSK also faulted the selective exclusion of private legal services, arguing that it lacks objective justification and violates principles of equal treatment under procurement law.
“It departs from established procurement practice and constitutes unequal treatment of similarly situated service providers,” the society said.
While the High Court has scheduled the matter for mention on January 30 for further directions, LSK maintained that the consequences of the orders are already threatening the normal operations of public institutions.
Senator Omtatah, however, opposed the lifting of the orders, insisting they were properly issued to preserve the status quo and safeguard public interest pending the hearing of the case.
“The orders do not constitute final relief but merely suspend unconstitutional practices that threaten fiscal sustainability and the rule of law,” he said.
He dismissed claims of discrimination against private advocates, arguing that public entities are legally equipped to provide internal legal services, unlike specialised services such as highway construction or heart surgery.
“The differential treatment has a clear, objective and lawful justification: preventing the wastage of public funds on duplicative services,” Senator Omtatah said.
