Sheria House in Nairobi in this photo taken on July 10, 2020. The State Law Office employs hundreds of State Counsel and senior litigation experts.
One of the largest and best-staffed law firms in Kenya is the Office of the Attorney-General.
The State Law Office employs hundreds of State Counsel and senior litigation experts. Yet, in recent years, the Attorney-General has seldom appeared in court without being flanked by a battery of private advocates — in election petitions, multibillion-shilling procurement disputes, constitutional challenges and complex commercial litigation.
Counties copied the template. When devolution was rolled out in 2013, every county established a legal department staffed by county attorneys, directors of legal services and counsel on the public payroll. Still, year after year, counties brief external firms to defend routine litigation.
The most notorious example is the Independent Electoral and Boundaries Commission (IEBC).
In the 2017 election cycle, the IEBC spent about Sh202 million defending itself in court. In 2022, that figure exploded to over Sh4 billion. Of this, Sh2.3 billion was paid in the financial year ending June 2023, with about Sh1.92 billion carried forward as pending bills. The Commission paid Sh502.3 million to 28 law firms to defend the presidential petition alone. This is not a legal defence. It is a windfall.
Across government, Kenyans are paying twice for legal work. They fund permanent legal departments — and then fund private firms on top of them. Meanwhile, counties sit on over Sh170 billion in pending bills, a significant portion of which comprises unpaid legal fees, court awards and unsettled retainers.
The firms that land these briefs are rarely strangers to power. Many are politically connected. Some are repeat beneficiaries.
Defence of disputes
The official justification is predictable: heavy workload, specialised expertise, conflict of interest. Sometimes those explanations hold. Often, they do not.
The result is double exposure. Taxpayers pay salaries and retainers. They pay for in-house lawyers and outsourced counsel. They pay for the defence of disputes that often arise from avoidable governance failures in the first place.
This casual habit collided with the Constitution in January when Justice Samuel Mohochi issued interim orders restricting routine engagement of private lawyers by public entities unless strict justification and approvals are provided. The petition — supported by, among others, Okiya Omtatah — argues that hiring external lawyers, where in-house counsel exists, is wasteful and unconstitutional.
The question before the courts is straightforward: Why is the government paying twice for legal brains?
Legal outsourcing has become one of the most opaque expenditure lines in public finance. Retainers are issued without transparent procurement. Emergency briefs are handed out without any competitive process. Repeat instructions flow to the same firms. Bills accumulate. Decrees attract interest. Pending liabilities grow.
Much of the underlying litigation originates in preventable failures — flawed procurement processes, poor human resource management and weak contract drafting. Counties generate disputes through mismanagement, then go on to hire private advocates to defend the consequences.
In some counties, law firms function less as service providers and more as political affiliates. Retainers can resemble patronage, where legal fees sometimes find their way back into the governor’s slush funds. Litigation can be prolonged into billable cycles.
Counsel of choice
Predictably, sections of the profession have protested. They argue that public entities are entitled to counsel of choice, that complex matters demand specialised expertise, and that advocates’ livelihoods are at stake. The recent elections in the Law Society of Kenya have not provided a clear way forward.
If a ministry, commission or county maintains a legal department, the burden lies on it to demonstrate why outsourcing is necessary.
Justice Mohochi’s ruling does not outlaw private practice. It demands justification. It imposes constitutional discipline on executive discretion — and discipline, in Kenya, is often mistaken for hostility.
If the expanded bench affirms this reasoning, budgets will adjust. Legal votes will shrink. Procurement processes for legal services will attract sharper audit scrutiny. The Controller of Budget may decline poorly justified payments. Internal legal departments will have to perform rather than coexist with parallel private teams.
There will be turbulence in the near future. Ongoing engagements may stall. Disputes over unpaid fees may multiply. Governors and commissions will complain of judicial interference. But something more important could follow.
Public entities can begin to litigate strategically rather than reflexively. They can pursue mediation instead of fighting every case to the bitter end. They can tighten procurement systems instead of outsourcing the defence of flawed contracts. They can prevent decrees rather than accumulate them.
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The writer is a board member of the Kenya Human Rights Commission and writes in his individual capacity. @kwamchetsi; kwamchetsi@email,com
