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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