In a ruling delivered by Justice Samwel Mohochi, the court made it clear that public entities may only hire external legal counsel with formal, express approval from the Attorney-General or relevant county authorities, where in-house legal officers exist.

“Until the respondents demonstrate that the engagement of external counsel is necessary, justified, and constitutes prudent use of public funds, the conservatory orders will remain in force,” Justice Mohochi said.

“This court will not lift the orders at this stage, pending full evidence from the Attorney-General, state corporations, and county governments of how they use prudent they use the resources.”

The ruling follows an attempt by over 100 lawyers led by LSK President Faith Odhiambo to have the orders vacated, arguing that outsourcing legal services is lawful and often necessary for complex matters requiring specialised expertise.

The judge, however, declined their application, noting that respondents had failed to provide sufficient material to justify the continued engagement of private advocates.

Under the court orders, effective January 12, 2026, no public entity shall procure, continue to procure, or engage private lawyers where in-house legal officers exist unless the engagement is formally approved and properly justified.

Similarly, no public officer may release or approve funds for external legal services without fully meeting the strict conditions set by the court.

For national government bodies, formal approval must come from the Attorney-General, while county governments are required to obtain approval from their County Executive Committees or a recommendation from the County Attorney, confirming that the engagement is necessary and that public funds are used prudently.

The court further clarified that any engagement of private lawyers must be supported by formal justification.

This includes detailing the nature of the case and the subject matter involved, the expected duration of the proceedings, the fee structure and overall financial implications, and a demonstration that the matter requires specialised expertise not available within the entity’s in-house legal team.

Justice Mohochi stressed that the orders do not affect ongoing legal matters or instructions given prior to January 12, 2026, which may proceed unaffected.

The ruling stems from a petition challenging what the court described as the runaway and routine outsourcing of legal services by public institutions, which the petitioners argue has wasted taxpayers’ and pensioners’ funds.

The petitioners, including Magare Gikenyi and Busia Senator Okiya Omtatah, contend that the practice violates Articles 1, 3, 10, 201(a) and (d), and 227(1) of the Constitution.

The court has scheduled the matter for inter partes hearing and further directions on January 30, 2026, when respondents are expected to present evidence justifying the engagement of private advocates.

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In a press statement dated January 13, 2026, LSK President Faith Odhiambo warned that the legal profession would not tolerate the abuse of judicial powers.

The controversy stems from Nakuru Petition E001 of 2026, where the High Court granted ex-parte conservatory orders that could effectively cut off private practitioners from public sector work.

LSK views this as the culmination of years of attempts to restrict lawyers’ access to government contracts.

The battle began in July 2020 when the Attorney General issued a directive requiring written approval before state departments could hire external legal counsel.

LSK challenged this through judicial review, and in July 2023, Justice Jairus Ngaah ruled in their favor.

The judge emphasized that procurement must be fair, equitable, transparent, competitive and cost effective, noting these values would be undermined if such a task was left to the whim of an individual.”

Despite this victory, a fresh challenge emerged in 2024 when petitioners sought to restrain county governments from hiring private law firms.

A Senate committee’s March 2025 report acknowledged that completely prohibiting outsourcing would violate constitutional provisions and procurement laws.

Both the Office of the Attorney General Act and Office of the County Attorney Act explicitly allow retention of external counsel when necessary.

Now, several petitioners led Busia Senator okiya Omtatah have returned to court in Nakuru, citing concerns about high legal fees and fiscal responsibility.

LSK dismissed these arguments as lacking novelty, calling them symbolic of a tired rhetoric against a profession that unreservedly dedicates itself to upholding constitutional values.

The Society emphasized that private lawyers fill critical gaps in the public sector by handling conflicts of interest cases, providing independent expertise, and managing workload excesses.

Legal fees, they noted, are strictly regulated and subject to court taxation when disputes arise.

LSK argued the ex-parte orders violate Article 50 of the Constitution, which protects the right to representation of choice.

The orders also contradict the UN Basic Principles on the Role of Lawyers, which bars courts from refusing to recognize lawyers’ rights to appear for clients.

Most troublingly, the retroactive nature of the orders threatens to suspend payment of lawful dues already assessed by courts.

The Odhiambo cited other recent examples of concerning judicial conduct, including Justice Bahati Mwamuye’s reversal of orders halting police recruitment and a three-judge bench suspending the Judicial Service Commission’s constitutional functions.

“We are apprehensive that the current pattern of abuse of Judicial powers threatens to spark outrage among both the public and our members,” Odhiambo stated.

She warned that unless the trend is stopped, LSK is “prepared to agitate for a radical surgery as a means to uphold our Constitution.”

LSK announced it is documenting instances of judicial misconduct and has filed an application to review and set aside the Nakuru orders.

While committed to serving the public, the Society pledged equal commitment to protecting its members’ livelihoods and the legal practice environment.

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