LSK challenges AG's circular blocking hiring private law firms to represent parastatals, ministries

A fresh row over the retention of private lawyers to represent the government in cases has erupted.

This is after the Law Society of Kenya (LSK) sued the Attorney General, Dorcas Oduor, arguing that it is illegal for the Kenya Kwanza administration to order Ministries and Parastatals not to continue, renew contracts or take up new legal services from private law firms unless given a green light by the AG.

LSK’s lawyer Jackline Gaichura said that the September 11, 2026, circular will have a ripple effect as it automatically terminated existing contracts.

She argued that there are fears that those who have offered legal services will not be paid, and the circular also expressly indicated that any contracts taken would not be binding on the National Government.

“Such actions may disrupt the representation of public entities in pending and threatened court proceedings, arbitrations, negotiations, transactions and other legal matters, with the attendant risk of missed hearings, court deadlines, limitation periods and other procedural requirements,” argued Gaichura.

 The battle over hiring private lawyers to represent the government has been in court twice in different cases.

In one of the cases, the High Court in Nakuru blocked the hiring.

LSK in its fresh case argued that the temporary orders could not be taken as final. According to Gaichura, the circular had ultimately determined the case even before it was heard and determined.

“By converting interlocutory conservatory orders into an executive compliance and enforcement framework, the Circular offends the doctrine of sub judice, prejudices the pending proceedings and pre-empts the final determination of the questions before the Court,” she said.

According to her, the legal services procurement limitation can only be effected if Parliament enacts a law or amends the current law.

The first case on public entities hiring external lawyers was filed by Busia Senator Okiya Omtatah, Nakuru-based surgeon Dr Magare Gikenyi, and five others.

Justice Samwel Mohochi suspended the engagement, procurement, continuation, and pending payments to private advocates and law firms by all public entities.

The court further directed the Controller of Budget and all public servants, whether state officers or public officers, and any other persons not to approve funds for the acquisition of external legal services by public entities pending the hearing and determination of the case.

Omtatah, Gikenyi, Shallum Kaka, Laban Omusundi, Philemon Abuga, Dishon Keroti, and David Ngatia have sued the Council of Governors, the Attorney General, the Law Society of Kenya, the Senate, the Public Service Commission, and all 47 county governments, among others.

The Office of the Auditor General, the Controller of Budget, and Katiba Institute are listed as interested parties.

Yesterday, Gaichura stated that Mohochi had clarified that the orders were temporary.

She insisted that his orders cannot be used as the authority to terminate or block ministries and parastatals from procuring legal services from external law firms.

LSK CEO Florence Muturi said the circular will affect advocates practising in Kenya to obtain, maintain and enforce retainers with public entities and creates immediate uncertainty concerning payment of professional fees,

“The circular purports to require Ministries, State Departments and State Corporations to obtain the prior express written approval of the Attorney- General before engaging, procuring, renewing, extending or continuing the engagement of external counsel. It aggrieves the petitioner because it purports to impose substantive requirements upon public entities and external advocates beyond the provisions of the Constitution and applicable legislation,” said Muturi.

The AG in the circular indicated that the number of approvals sought from her office by the ministries, parastatals and state departments had increased.

She observed that although it may be out of special circumstances, they would be approved based on a coherent, transparent and legally consistent framework, founded upon demonstrable need, institutional capacity, specialization, proportionality, value for money and prudent utilization of public resources.

“The engagement of external counsel is therefore exceptional rather than routine, and should only arise where the concerned entity demonstrates reasonable, specific and verifiable justification for why the matter cannot appropriately or effectively be handled through the available Government legal resources. In furtherance of this understanding, Government agencies are therefore encouraged to ensure sufficient capacitation of their respective legal departments,” said Oduor.