Omtatah and Magare Petition Court to Bar Public Offices From Hiring Private Lawyers

The High Court in Nakuru has temporarily halted all public offices from hiring private law firms, marking a significant shift in how government bodies handle legal services across Kenya.

The ruling, issued on Monday, January 12, follows a case filed by activists Okiya Omtatah Okoiti andDr. Magare Gikenyi J. Benjamin, who that it wasunconstitutional for public institutions to spend taxpayer money on private lawyerswhen qualified legal officers are on staff.

According to them, this practice drains public funds and contradicts the principles of transparency and accountability.

The court, presided over by the High Court in Nakuru, certified the matter as urgent and issued conservatory orders stopping public offices from engaging private advocates until the petition is heard and determined.

Additionally, the court directed the Controller of Budget and other public officers not to approve any payments for external legal services during this period.

In its order, the court stated that the application raised important constitutional questions regarding the management of public funds and whether the hiring of private lawyers contravenes the principles of fairness, competitiveness, and cost-effectiveness outlined in the Kenyan Constitution.

In the petition, more than 70 respondents, including the Council of Governors, the Attorney General, all county governments, and several national agencies, were listed. The Office of the Auditor General, Office of the Controller of Budget, and Katiba Institute were named as interested parties in the case.

Senior Counsels Omtata and Magare asked the court to declare that Article 156(7) of the Constitution, which outlines the powers of the Attorney General, does not allow government agencies to outsource legal work.

They argue that the Attorney General and other public legal officers, such asState Counsels and County Attorneys, are sufficient to represent public bodies in all matters.

If upheld, the order could prevent counties, parastatals, and ministries from retaining private law firms, a move that would significantly disrupt long-standing arrangements between public institutions and the legal profession. Critics say this barrier by the High Court could stall ongoing cases that rely on external expertise.

Reacting to the ruling,the Law Society of Kenya (LSK)quickly condemned the court decision, terming it “an ill-advised attack on the livelihoods of advocates.” In a statement, LSK President Faith Odhiambo said the decision threatens to cripple a vital sector of Kenya’s economy that supports thousands of legal practitioners.

Odhiambo argued that public bodies have a right to seek outside legal assistance under the Office of the Attorney General Act and the Office of the County Attorney Act, which both allow public entities to hire private advocates when necessary. She added that all such contracts follow procurement rules and fee regulations under Kenyan law.

“We are shocked by this order, which deprives advocates across the country of the opportunity to serve the public,” Odhiambo exclaimed. “The legal profession is an essential part of the country’s economic ecosystem, and this decision threatens to destabilise it.”

The LSK announced plans to take immediate legal action to overturn the ruling, warning that it could create confusion in public service and undermine access to professional legal support. The society maintains that retaining private firms is sometimes unavoidable, especially in complex or specialised cases.

The case will return to court on January 30, 2026, for an inter partes hearing, where all parties will present their arguments.