Introduction
The High Court in Nakuru, in petition E 001 of 2026, issued conservatory orders suspending all engagements, pending payments, and the procurement of legal services of private advocates/law firms by all public entities, where there is already a hired attorney general, state counsel, solicitor general, legal officers, county attorneys, county legal counsel, and legal personnel. Consequently, this commentary assesses the legal implications of the ruling and orders in two broad limbs as follows:
- The constitutionality of the ruling, and
- The role of external lawyers in public entities
The Constitutionality of the Ruling
Article 227 of the Constitution of Kenya permits public entities to contract for goods and services in a fair, equitable, transparent, competitive, and cost-effective manner. Legal services fall squarely within services required by public entities, in the exercise of their mandate. The constitutional provision is operationalized by the Public Procurement and Asset Disposal Act (PPDA), 2015. The High Court in Republic v Public Procurement Administrative Review Board ex parte Kenya Power and Lighting Company [2020] KEHC 10455 KLR, shed light on the constitutional provision, thus;
“… I find it convenient to state that public procurement in Kenya has been afforded a constitutional status. Article 227 of the Constitution establishes primary and broad secondary procurement objectives. This article is the cornerstone against which the requirements of public procurement are to be assessed… The Constitution is the supreme law of the land, and all other law is subject to it…”
Within the framework of the PPDA, section 25(2) of the Attorney General Act 2012 and section 22(2) of the Office of the County Attorney Act 2020 allow for the procuring of external counsel to aid the AG or the County Attorney in their role, where it is reasonably necessary. These provisions acknowledge that in-house legal capacity, although essential, may not always be sufficient to address some complex and specialized cases. In Republic v Attorney General ex Parte Law Society of Kenya – Nairobi Branch [2020] KEHC eKLR J Ngaah J held as follows:
The services of external counsel are competitively procured by state agencies and public institutions through an elaborate and detailed statutory mechanism set out in the Public Procurement and Asset Disposal Act. For example, organs of state procure goods and services either by way of quotations or through a tendering process, which must be within threshold values as determined by the National Treasury from time to time. And according to section 134 of the PPDA, the accounting officer of a public entity or authority has the responsibility of preparing contracts after the award of a tender. It is only in the awards that exceed the value of Kshs. 5 billion that the Attorney General’s clearance is necessary before contracts are signed… Once such contracts are signed and concluded, they are subject to the principles of contract and any other law that regulates contractual relationships between the contracting parties. Such contracts cannot be terminated or entered into by an executive fiat.
Secondly, every person is entitled to services of reasonable quality as guaranteed under Article 46 of the Constitution. The essence of procuring legal services from external counsel is to tap into their specialization and expertise in resolving legal complexities that may otherwise not be adequately addressed if they were to be left exclusively to counsel within internal legal departments, ultimately to the detriment of the public interest. Public entities serve crucial public roles that are routinely scrutinized and tested in courts and tribunals; hence, the need to procure quality legal services to protect their interests cannot be gainsaid.
Thirdly, the Constitution provides for the right to legal representation of one’s choice under Article 50, which forms part of the non-derogable rights to a fair trial. While this provision is invariably used in criminal proceedings, it embodies the broader principle of autonomy and fairness in legal representation. To impose a blanket ban on procuring external counsel undermines this important constitutional right.
The issuance of the conservatory orders in this case, therefore, falls short of constitutional edicts and may not withstand constitutional scrutiny.
The Role of External Counsel in Public Entities
As alluded to above, external counsel complements the capacity of in-house counsel in public entities where specialized expertise and experience are required. External counsel also provides strategy in technically complex cases, where internal capacity may not be sufficient. External lawyers serve a complementary role rather than a substitutive one. They augment the institutional capacity of internal counsel in handling cases. Having experienced and competent counsel on board ensures that the indispensable mandate served by public bodies is well safeguarded for the benefit of the public. Anything short of this risks, among others, the speedy resolution of public entity disputes or quality legal services in complex disputes.
Integral to the role of external counsel is the question of legal fees. The petition in this case brought up concerns of exorbitant legal fees being paid to external legal counsel. In Kenya, charging legal fees is not in the abstract. It is done in an itemized and systematic manner as prescribed under the Advocates Remuneration Order, 2014, and is subjected to further scrutiny through the process of taxation by judicial officers. This promotes transparency and proportionality in charging legal fees, to ensure remuneration is within the contracted services and commensurate with the services rendered.
Conclusion
The conservatory orders issued in this case raise patent constitutional concerns. Imposing a blanket ban on outsourcing external counsel infringes on constitutional guarantees on choice of lawyers under Article 50 of the Constitution, the right to quality services under Article 46 of the Constitution, and the right to public procurement of services under Article 227 of the Constitution of Kenya 2010. If allowed, the petition risks far-reaching consequences not only on advocates, but on the public that these public entities serve.
