Counties cry foul over Nakuru court order barring use of private lawyers

The orders, which temporarily bar all public entities—including county governments—from engaging private law firms, have been sharply criticised by county legal chiefs as procedurally flawed, legally unsound, and an existential threat to county autonomy.

In a statement issued on Monday, the County Attorneys of Kenya, speaking on behalf of all 47 county governments, expressed “grave concern” over the decision, arguing that it was issued without affording affected parties an opportunity to be heard despite its far-reaching public implications.

The caucus questioned how such sweeping conservatory orders could be granted ex-parte, noting that such relief is intended to be exceptional and limited to situations of clear urgency and demonstrable irreparable harm—thresholds they argue were not met in this case.

“It is difficult to comprehend how a court could issue orders of such magnitude without hearing counties, and even more troubling that the orders appear to operate retrospectively,” the statement read, warning that the move undermines procedural fairness, proportionality, and due process.

At the centre of the dispute is the constitutional mandate of county governments to manage their own legal affairs under Kenya’s devolved system of governance. County Attorneys argue that counties are distinct legal entities, not departments of the national government, and therefore cannot be represented or substituted by the Office of the Attorney-General in county litigation.

They further note that counties routinely handle complex and high-stakes disputes—including land and environmental cases, procurement challenges, constitutional petitions, arbitration, and even international litigation—that often require specialised expertise beyond the capacity of in-house legal teams.

While acknowledging that counties have invested in strengthening internal legal departments, the attorneys say internal capacity alone remains insufficient. They cite chronic staffing shortages and remuneration constraints arising from wage-bill ceilings and frameworks set by the Salaries and Remuneration Commission (SRC), which limit counties’ ability to recruit and retain experienced advocates.

According to the caucus, county advocates routinely handle cases involving billions of shillings, shielding counties from significant financial, legal, and reputational exposure, yet remain underpaid and frequently face delayed salaries and unpaid statutory allowances, including non-practising and prosecutorial allowances.

The attorneys argue that this disparity—especially when compared to counterparts in the Office of the Attorney-General, the Director of Public Prosecutions, and other national entities - threatens the sustainability of in-house litigation.

The County Attorneys maintain that the engagement of private law firms is both lawful and necessary. They cite provisions of the Office of the County Attorney Act, the Public Procurement and Asset Disposal Act (PPADA), and the Advocates Act, all of which permit counties to instruct external counsel where justified. They also point to a Senate report adopted in March 2025 that expressly affirmed the legality of counties engaging private law firms.

The caucus also raised concern over the role of a Senator as the petitioner in the case that resulted in the Nakuru orders. They described it as “puzzling” that a lawmaker who participated in Senate deliberations affirming counties’ authority to outsource legal services would advance a position that appears to contradict those resolutions.

Legal experts warn that a blanket ban on external counsel could severely disrupt ongoing public litigation. Many cases—some already at advanced stages—are currently being handled by private firms due to their specialised nature or conflicts of interest that prevent in-house counsel from acting. Abruptly terminating such representation, the attorneys warn, exposes counties to default judgments, missed deadlines, and substantial financial losses.

“This is an onslaught on devolution and an attack on the legal profession,” the statement said, drawing parallels with sectors where government routinely outsources specialised services such as ICT, infrastructure development, and engineering, despite having professionals on payroll.

The County Attorneys have insisted that county governments retain lawful authority to engage external counsel until a competent court, after hearing all parties, determines otherwise. They argue that interim ex-parte orders cannot suspend devolution or hold public governance hostage to procedural shortcuts.