Why High Court has suspended State, private lawyer deals

Prof Tom Ojienda, representing the Senate and Nakuru County, argued that the Attorney-General and county attorneys had the right to outsource legal services. [File, Standard]

The High Court has suspended all legal service engagements between national and county government entities and private law firms with effect from January 12, 2026.

Justice Samwel Mohochi ruled that such engagements were unjustified, noting that the government already employs the Attorney General (AG), the Solicitor-General, State Counsel, county attorneys, legal counsels and legal officers to handle litigation.

The judge further barred the Controller of Budget (CoB) and all authorised public officers from approving or authorising any expenditure for the procurement of external legal services from the same date.

On Monday, Justice Mohochi partially dismissed an application by the Law Society of Kenya (LSK) and several law firms that had supported the engagements, arguing they would suffer hardship and prejudice if the ban was upheld.

He ruled that their claims were unsupported by evidence. “Despite a spirited fight, the applicants’ claims were unproven. No evidence was provided to show that they would suffer prejudice or undue hardship,” said Mohochi.

Acknowledging that the ruling would affect more than 18,000 advocates and hundreds of law firms, the judge modified his orders and outlined conditions under which government entities may engage private lawyers going forward.

For national government entities, Mohochi directed that any new engagement must receive express and formal approval from the Attorney-General on a case-by-case basis. Such approval must include a clear justification of the subject matter, the duration of the engagement and the total financial implications.

For county governments, the judge ruled that engagements must be approved by the county executive and recommended by the county attorney. These approvals must also demonstrate the need for specialised legal services and guarantee the prudent use of public resources.

He further ordered that before any funds are approved by the Controller of Budget or other authorised officials, the set conditions must be met to ensure accountability and prevent misuse of public funds.

However, Justice Mohochi clarified that the orders do not affect legal service engagements and undertakings entered into before January 12, 2026. He also varied the ruling to require that any engagements by the National Assembly and the Senate receive approval from the Speaker and the Clerk of each House.

According to the judge, all fresh engagements must be formally justified and demonstrate necessity, specialisation and value for money.

The ruling followed protests by the LSK after an earlier January 12, order halted both previous and new engagements.

In submissions, Prof Tom Ojienda, representing the Senate and Nakuru County, argued that the Attorney-General and county attorneys had the right to outsource legal services, warning the order was against public interest.

“The petitioners singled out the legal profession despite the fact that other professionals routinely engage with government entities,” Ojienda submitted.

LSK President Faith Odhiambo said lawyers were “angry and hurt”, insisting legal fees are regulated under the Advocates Remuneration Act.

The case was filed by Busia Senator Okiya Omtatah and Nakuru activists Dr Magare Gikenyi and Laban Omusundi, citing Auditor-General findings flagging misuse of more than Sh21 billion paid for legal services.