Who Should Advise the State? Public Sector’s Reliance on External Counsel in Kenya

A closer look at the questions raised in Nakuru County Government v Dr. Magare Gikenyi & 77 Others

For decades, the engagement of private law firms by national and county governments, State corporations, and other public entities has been treated as an unremarkable feature of how the public sector conducts its legal affairs. Ministries retain external counsel for complex litigation. County governments brief private advocates on land disputes, procurement challenges, and constitutional petitions. State corporations maintain long-standing relationships with law firms for transactional and regulatory work. The practice is so entrenched that it rarely attracts scrutiny. However, the issue of the public expenditure associated with the practice has raised serious questions.

That is precisely the tension the Court of Appeal was asked to confront in Nakuru County Government v Dr. Magare Gikenyi & 77 Others, and while the Court’s Ruling was narrow and interlocutory, the position to uphold  the conservatory orders pending appeal, deserve a wider conversation.

Public interest litigation challenging the propriety of specific government contracts is common in Kenya. What made this petition different is its structural ambition.Rather than challenging a single engagement or a single fee note, the petitioners sought to challenge the practice itself, asking the court to treat the very existence of salaried public legal officers as a bar, or at least a serious constraint, on the ability of public entities to instruct private advocates.

This is not a new debate in principle. The Auditor General’s reports have, for several years, flagged the scale of legal fees paid by national and county governments to external law firms, often running into billions of shillings annually across the public sector. What the Nakuru petition did was translate that recurring audit concern into a constitutional argument grounded in Articles 201 and 227, the principles of prudent, transparent, and cost-effective use of public resources, and competitive, fair procurement of services. Framed this way, the question stops being merely one of accounting oversight and becomes one of constitutional compliance, with all the consequences that entails for how public entities structure their legal engagements going forward.

It would be a mistake, however, to read the conservatory orders , or the Court of Appeal’s refusal to stay them, as an indictment of the practice of engaging external counsel as such. Complex commercial arbitration, specialised regulatory matters, cross-border transactions, and high-value litigation frequently require expertise, capacity, or independence that in-house teams, however capable, may not always be resourced to provide. Public entities also face genuine capacity constraints, County Attorneys’ offices are often small relative to the volume and complexity of litigation a county government faces, and the Attorney General’s Chambers cannot realistically absorb every brief.

The more precise question, then, is not whether external counsel should ever be engaged, but under what conditions, with what oversight, and against what documented justification. That is the practical space the High Court’s varied orders have opened up, not a prohibition, but a compliance discipline.

Procurement of Legal Services: An Underdeveloped Framework

Part of what makes this matter significant is that it exposes a gap in Kenya’s public procurement framework. Legal services occupy an unusual position, they are professional services subject in principle to the Public Procurement and Asset Disposal Act, yet the specialised, often urgent, and sometimes confidential nature of legal work does not always sit comfortably within standard tendering processes designed for goods, works, and generic services. Many public entities have historically treated the engagement of external counsel as falling outside conventional procurement scrutiny, relying instead on informal panels, historical relationships, or direct instructions from accounting officers.

The conservatory orders, requiring express approval from the Attorney General or County Executive Committee, together with documented justification of subject matter, timelines, fee notes, and the need for specialised expertise, effectively import a procurement-style discipline into an area that has often operated without one. Whether or not the underlying constitutional petition ultimately succeeds, this petition has already surfaced a legitimate policy question; Whether Kenya should develop a dedicated framework, whether through Treasury circulars, Attorney General’s guidelines, or legislative amendment, specifically governing how and when public entities may engage external legal counsel?

The Court found the Nakuru County Government’s intended appeal arguable, identifying live questions as to whether the High Court usurped Parliament’s legislative function by crafting conditions for the procurement of legal services, whether it acted within jurisdiction, and whether it improperly overturned decisions of courts of concurrent jurisdiction. None of these questions has been resolved; they remain reserved for the bench that will eventually hear the substantive appeal, Civil Appeal No. E041 of 2026, alongside the underlying constitutional petition itself.

What the Court did decide, at this interlocutory stage, was narrower: that the applicant had not shown, on the nugatory limb of the Rule 5(2)(b) test, that compliance with the conservatory orders ,would render a successful appeal nugatory. That is a procedural finding about the balance of convenience, not a constitutional ruling on the merits of restricting engagement of external counsel.

Practical Reality for Law Firms and Public Entities

In the interim, however, procedural findings have real consequences. Public entities currently instructing, or considering instructing external counsel, where in-house legal capacity exists ,should expect to build and retain a documented justification trail.That is, the specific subject matter requiring specialised expertise, timelines that in-house capacity cannot meet, fee notes, and financial implications, together with the relevant formal approval. Law firms holding or pursuing public sector briefs should likewise expect their instructing entities to request this documentation more rigorously than before, and should be prepared for delays or renegotiation of existing mandates as public entities work out how to comply.