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 a constitutional petition filed by Dr. Benjamin Gikenyi Magare, Senator Okiya Omtatah, and others.
In the same ruling, the Court directed the Controller of Budget (CoB) not to approve any public funds for external legal services, including payments to private advocates and law firms, until the matter is fully heard and determined.
The petition challenged the constitutionality and prudence of public entities engaging private legal practitioners despite having qualified State Counsel, County Attorneys, and in-house legal officers.
The petitioners cited the Kenya Airports Authority (KAA), a State corporation, which allegedly engaged TripleOKLaw Advocates to defend a Sh243,185,700 “Adani Deal” in court.
The petition questioned the justification for incurring substantial legal fees for private counsel while competent and experienced State Counsel and KAA legal officers were available.
The Auditor-General, in the 2023/2024 audit report, similarly questioned the “wisdom” of engaging private advocates when State Counsel and County Attorneys remained idle in their offices.
The report noted that such practices contravene the constitutional requirement for prudent utilisation of scarce public resources, as envisaged under Article 201 of the Constitution.
The petitioners argued that Kenya must not normalise fraud, waste, or imprudent use of limited public finances.
They contend that the engagement of private advocates undermines constitutional values and erodes public confidence in governance and accountability.
Further, the petition asserted that even if, for argument’s sake—and the petitioners emphasised the word “assume”—the private advocates were competitively procured by the Office of the Attorney General or any public entity, such procurement would still offend Articles 227(1) and 27 of the Constitution.
They argued that the purported “competitive procurement” that results in discriminatory and costly outcomes for taxpayers fails to meet the constitutional standards of fairness, equity, transparency, and cost-effectiveness.
According to the petitioners, such practices also violate the national values and principles of governance under Article 10, as read together with Articles 27, 28, 73, 201, and 227(1) of the Constitution.
They further contended that the prevailing state of affairs has economically empowered and dignified private advocates while leaving State Counsel, County Attorneys, and public legal officers economically bruised and professionally undermined.
This, they argued, is contrary to Articles 27, 28, 41, and 43 of the Constitution, which guarantee equality, human dignity, fair labourpractices, and socio-economic rights.
Additionally, the petition challenged what it terms as an attempt to circumvent constitutional safeguards on public wage bills and service provision.
The petitioners argued that Kenyans have already cushioned themselves against excessive public expenditure, and that respondents cannot introduce private legal services through the “procurement limb” while charging privately for self-enrichment, contrary to Article 230 of the Constitution.
The matter is scheduled for further directions, with the interim orders remaining in force until the petition is heard and determined.
The Law Society of Kenya president Faith Odhiambo said that not only is the Petition an ill-advised onslaught on the livelihoods of our members but equally offends the economic rights of advocates and threatens to cripple a crucial sector in Kenya’s economy.
“We are shocked with the order of the High Court at Nakuru, which ostensibly deprives Advocates across the country of an opportunity to serve the public.”
“The retention of private practitioners by public entities is neither novel nor inconsistent with any law,” she said.
She added 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. Further, all procurement of legal services by public entities is undertaken in strict adherence with the Public Procurement and Assets Disposals Act and the fees payable towards the same are determined in accordance with the Advocates Remuneration Order and subject to lawful negotiations and assessments.
“We forewarn that this action and court order threaten to unsettle the entire economical ecosystem which is anchored in the reliance on competent professionals to support the public service.”
“Were this not the case, the entire concept of public procurement of services as we know it, which is the backbone of the Kenyan economy, would be rendered moot,” she said.
She said they will be taking immediate action to not only reverse this iniquitous decision, but to also oppose and defeat the so called onslaught on the legal profession.
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