High Court Bars Government from Hiring Private Lawyers While State Counsel Remain Idle
The Court also directed the Controller of Budget (CoB) not to approve any public funds for external legal services, including payments to private lawyers and law firms, until the matter is fully resolved
By : Mweru Mbugua
The High Court has issued interim orders preventing the national government and public entities from engaging private lawyers or 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
The Court also directed the Controller of Budget (CoB) not to approve any public funds for external legal services, including payments to private lawyers and law firms, until the matter is fully resolved
The petition challenges the constitutionality and prudence of public entities hiring private legal practitioners when qualified State Counsel, County Attorneys, and in-house legal officers are available
As an example, the petition cites the Kenya Airports Authority (KAA), which allegedly hired TripleOKLaw Advocates to defend a Ksh.243,185,700 “Adani Deal” in court
The petition questions why such substantial legal fees were incurred while competent KAA legal officers and State Counsel were already available
The Auditor-General’s 2023/2024 report similarly questioned the wisdom of engaging private lawyers while government legal officers remain idle, noting that such practices contravene the constitutional requirement for prudent use of public resources under Article 201
The petitioners argue that normalizing the wasteful or imprudent use of public funds erodes constitutional values and public confidence in governance
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They contend that even if private lawyers were procured through competitive processes, such arrangements would still violate Articles 227(1) and 27 of the Constitution by producing costly, discriminatory, and unfair outcomes for taxpayers
They further state that these practices economically benefit private lawyers while undermining the livelihoods and professional standing of State Counsel, County Attorneys, and public legal officers, contrary to Articles 27, 28, 41, and 43, which guarantee equality, human dignity, fair labor practices, and socio-economic rights
The petition also challenges attempts to bypass constitutional safeguards on public wage bills and service provision, emphasizing that taxpayers have already shouldered significant public expenditure and should not fund private legal services for individual 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 fully heard and determined
