Gov't bodies barred from procuring private advocates as state lawyers sit idle

In the same ruling, the Court directed the Controller of Budget (CoB) not to approve any public funds for external legal services, including payments to private advocates and law firms, until the matter is fully heard and determined.

The petition challenges the constitutionality and prudence of public entities engaging private legal practitioners despite having qualified State Counsel, County Attorneys, and in-house legal officers.

As a case in point, the petitioners cited the Kenya Airports Authority (KAA), a State corporation, which allegedly engaged TripleOKLaw Advocates to defend a Ksh.243,185,700 “Adani Deal” in court.

The petition questions the justification for incurring substantial legal fees for private counsel while competent and experienced State Counsel and KAA legal officers were available.

The Auditor-General, in the 2023/2024 audit report, similarly questioned the “wisdom” of engaging private advocates when State Counsel and County Attorneys remained idle in their offices.

The report noted that such practices contravene the constitutional requirement for prudent utilisation of scarce public resources, as envisaged under Article 201 of the Constitution.

The petitioners argue that Kenya must not normalise fraud, waste, or imprudent use of limited public finances. They contend that the engagement of private advocates undermines constitutional values and erodes public confidence in governance and accountability.

Further, the petition asserts that even if, for argument’s sake—and the petitioners emphasised the word “assume”—the private advocates were competitively procured by the Office of the Attorney General or any public entity, such procurement would still offend Articles 227(1) and 27 of the Constitution.

They argue that the purported “competitive procurement” that results in discriminatory and costly outcomes for taxpayers fails to meet the constitutional standards of fairness, equity, transparency, and cost-effectiveness.

According to the petitioners, such practices also violate the national values and principles of governance under Article 10, as read together with Articles 27, 28, 73, 201, and 227(1) of the Constitution.

They further contend that the prevailing state of affairs has economically empowered and dignified private advocates while leaving State Counsel, County Attorneys, and public legal officers economically bruised and professionally undermined.

This, they argue, is contrary to Articles 27, 28, 41, and 43 of the Constitution, which guarantee equality, human dignity, fair labour practices, and socio-economic rights.

Additionally, the petition challenges what it terms as an attempt to circumvent constitutional safeguards on public wage bills and service provision.

The petitioners argue that Kenyans have already cushioned themselves against excessive public expenditure, and that respondents cannot introduce private legal services through the “procurement limb” while charging privately for self-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 heard and determined.