Court says AG has to approve engagement of private advocates formally
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The High Court in Nakuru ordered that public entities may only engage private advocates or law firms with the express and formal approval of the Attorney-General.
In a ruling delivered by Justice Samwel Mohochi, the court directed that, effective January 12, no public entity shall procure, continue to procure, or engage private advocates where in-house legal officers exist unless the engagement is properly justified and approved in accordance with the Constitution.
Under the orders, public bodies within the national government must obtain express approval from the Attorney-General before instructing external counsel.
County governments, must secure formal approval from their respective County Executive Committees or a recommendation from the County Attorney, confirming the need for specialised legal services and guaranteeing the prudent use of public resources.
The court further ordered that any such engagement must be supported by formal justification, including the nature of the case, the subject matter involved, the expected duration of the proceedings, fee notes, and the overall financial implications to the public entity.
Public bodies must also demonstrate that the matter requires specialised expertise not available in-house.
Additionally, the court directed the Controller of Budget and all public officers authorised to approve public expenditure not to approve or release funds for external legal services unless all the conditions set by the court are fully met pending hearing and determination of the petition.
Justice Mohochi said that the orders do not affect legal instructions or undertakings made before January 12, 2026 and that existing matters may proceed unaffected.
The ruling arises from a petition challenging what the court described as the runaway engagement of private legal services by public entities, which petitioners argue has led to the wastage of taxpayers’ and pensioners’ funds in violation of Articles 1, 3, 10, 201(a) and (d), and 227(1) of the Constitution.
The court said that respondents, largely State organs and public officers, failed to place sufficient material before it to justify the continued engagement of private advocates, despite being given an opportunity to do so.
The petitioners led by Magare Gikenyi, with Busia Senator Okiya Omtatah among the co-petitioners argued that the routine outsourcing of legal work by counties and public institutions is unlawful, unconstitutional and wasteful
The matter will be mentioned for inter partes hearing and further directions on January 30.