The Law Society of Kenya (LSK) has condemned a petition seeking to block public institutions from hiring private lawyers, terming it an attack on the economic rights of advocates and a threat to the legal profession nationwide.
The petition filed by Dr Benjamin Gikenyi Magare, Busia Senator Okiya Omtatah, and others has prompted the High Court in Nakuru to issue interim conservatory orders suspending the engagement of private advocates by public entities.
In a statement on Monday, LSK President Faith Odhiambo described the petition and the court order dated January 12, 2026, as “an ill-advised onslaught on the livelihoods of members” that offends the economic rights of advocates and threatens to cripple a crucial sector in Kenya’s economy.
The LSK expressed shock at the High Court’s decision, saying it “ostensibly deprives advocates across the country of an opportunity to serve the public.” Odhiambo stressed that the retention of private practitioners by public entities is neither novel nor inconsistent with any law.
“As a matter of fact, it is well entrenched under Section 17 of the Office of the Attorney General Act and Section 16 of the Office of the County Attorney Act,” she said.
She added that “all procurement of legal services by public entities is undertaken in strict adherence with the Public Procurement and Asset Disposal Act; and the fees payable towards the same are determined in accordance with the Advocates Remuneration Order and subject to lawful negotiations and assessments.”
The society warned that the petition and the court’s interim order could destabilise the country’s economic system, which depends on skilled professionals to support public services. It argued that without the ability to engage private legal practitioners, the framework of public procurement, a key component of Kenya’s economy, would be effectively undermined.
LSK pledged that it will take immediate action to not only reverse the “iniquitous decision, but to also oppose and defeat this onslaught on the legal profession.”
The High Court issued interim orders barring the national government and public entities from procuring private advocates and law firms to represent them in court, pending the hearing and determination of the constitutional petition. The Court further directed the Controller of Budget not to approve any public funds for external legal services, including payments to private advocates and law firms, until the matter is fully heard.
The petition challenges the constitutionality and prudence of public entities engaging private legal practitioners despite having qualified State Counsel, County Attorneys, and in-house legal officers. It cites the Kenya Airports Authority (KAA) as an example, alleging that the corporation engaged TripleOKLaw Advocates to defend a Sh243,185,700 “Adani Deal” in court, questioning the need to incur substantial legal fees when competent public legal officers were available.
The petition references the Auditor General’s 2023/2024 audit report, which questioned the “wisdom” of engaging private advocates when State Counsel and County Attorneys remained idle. The report noted that such practices contravene Article 201 of the Constitution, which requires prudent use of scarce public resources.
The petitioners argued that Kenya must not normalise fraud, waste, or imprudent use of limited public finances. They contended that engaging private advocates undermines constitutional values and erodes public confidence in governance and accountability. Even if private advocates were competitively procured, the petition argues, such procurement “would still offend Articles 227(1) and 27 of the Constitution,” failing standards of fairness, equity, transparency, and cost-effectiveness. The petition also contends that current practices economically empower private advocates while leaving State Counsel, County Attorneys, and public legal officers “economically bruised and professionally undermined,” contrary to Articles 27, 28, 41, and 43 on equality, human dignity, fair labour practices and socio-economic rights.
The petition additionally challenges what it terms attempts to circumvent constitutional safeguards on public wage bills and service provision, arguing that “Kenyans have already cushioned themselves against excessive public expenditure and respondents cannot introduce private legal services through the procurement limb while charging privately for self-enrichment,” contrary to Article 230 of the Constitution.
The Nakuru High Court certified the matter as urgent and issued conservatory orders suspending the engagement, procurement, continuation of procurement and pending payments for all private advocates and law firms where there are already employed Attorney General, State Counsels, Solicitor General, County Attorneys, County Legal Counsels, Legal Officers and legal personnel. The court also directed the Controller of Budget and all public servants not to approve any vote or funds for external legal services.
The case, filed under HCCHRPET/E001/2026, involves multiple public entities, including Baringo, Laikipia, Nakuru, Narok, Kajiado, Kericho, Bomet, Kakamega, Vihiga, Bungoma, Busia, Siaya, Kisumu, Homa Bay, Migori, Kisii, Nyamira, Nairobi City counties, Kenya Airports Authority, TripleOKLaw Advocates, and others. Interested parties include the Office of the Auditor General, Controller of Budget and Katiba Institute.
The matter is scheduled for mention on January 30, 2026, at 11:30 am.
The petition seeks declarations that procuring private legal advocates in the presence of already qualified and employed public legal personnel is unconstitutional, null and void, citing Articles 156(7), 201, 227(1), and 230 of the Constitution.
EastLeigh Voice