The Law Society of Kenya (LSK) has pushed back against what it described as attempts to block private lawyers from representing State agencies and county governments, even as audits expose the growing burden on taxpayers.
In the 2023/2024 financial year alone, a report showed that the legal fees hit Sh39 billion.
A court petition filed in Nakuru that froze payments for external legal services has revived the debate on the huge fees governments continue to incur by hiring private law firms yet ministries, State agencies and county governments have thousands of lawyers among their staff.
Law Society of Kenya President Faith Odhiambo has resigned as Vice Chair of the Protests, Victims Compensation Panel.
Photo credit: File | Nation Media Group
In a statement, LSK President Faith Odhiambo said the society would seek a review of the orders, arguing that they were issued without giving affected parties a chance to be heard.
She described the case as the culmination of a “protracted and cyclical” effort to exclude private legal practitioners from the public sector’s economic ecosystem.
The High Court in Nakuru issued temporary orders barring county governments and State agencies from procuring the services of private law firms for work that can be undertaken by State counsels and county attorneys.
The court further directed Controller of Budget Margaret Nyakang’o and all public officers not to approve any votes or funds for the acquisition of external legal services, pending the hearing and determination of the case.
Controller of Budget Margaret Nyakang’o.
Photo credit: File | Nation Media Group
The petition was filed by Nakuru-based Dr Magare Gikenyi and Busia Senator Okiya Omtatah, together with five others.
The petitioners questioned why public institutions continue to engage lawyers in private practice despite having in-house counsel, arguing that the practice—through which the firms “gobble millions of shillings”—is contrary to several provisions of the Constitution.
According to a report by the Controller of Budget, county governments spent Sh30 billion on private law firms in the 2023–24 financial year. The national government spent about Sh8.5 billion in the same period.
The Independent Electoral and Boundaries Commission (IEBC) owes 11 law firms at least Sh1 billion in pending bills for various legal services procured for the 2022 elections petitions.
Documents presented to Parliament by the electoral agency Chief Executive Officer Hussein Marjan show that the amount is about 20.4 percent of the Sh4.9 billion owed to the law firms since 2013.
IEBC chief executive Marjan Hussein Marjan.
Photo credit: Lucy Wanjiru | Nation Media Group
An audit report for the 2022/2023 financial year expressed concern over the failure by IEBC to provide agreements on fees chargeable.
“Review of documents for legal dues, arbitration and compensation revealed that the Commission paid legal fees amounting to Sh713,814,134 to law firms to represent it. However, engagement terms in the letters of instructions indicated that the fees would be paid as per the Advocates Remuneration Order but did not indicate any ceiling. Further, the fee notes did not indicate specific charges/rates in reference to the Advocates Remuneration Order. In the circumstances, the accuracy and completeness of the legal dues, arbitration and compensation totalling Sh2,348,660,000 could not be confirmed,” the report states.
Auditor-General Nancy Gathungu also flagged the Sh569 million incurred in the 2022 presidential election petition, noting that it lacks the requisite documentation.
Auditor-General Nancy Gathungu.
Photo credit: Alex Odhiambo | Nation Media Group
An audit report on national government expenditure for 2021/2022 highlighted suspect spending under the guise of legal fees by the ministry of Energy.
“During the year under review, the ministry had budgeted to spend an amount of Sh50,000,000 on legal fees which was later revised to Sh25,000,000 through a supplementary budget.
“However, although no legal services were procured during the year, an expenditure of Sh12,847,512 was incurred under the budget item while commitments amounting to Sh4,080,205 were made in the vote book and remained outstanding as at 30 June, 2022. Further, records held at the legal department indicated that all ministry’s legal matters were being handled by the Office of the Attorney-General,” the report stated.
The petition filed in Nakuru states that Kenya Airports Authority paid a law firm to represent it in the Adani Group case, while the government paid a total of Sh142 million to several law firms to defend it in the Social Health Authority cases.
On Tuesday, Ms Odhiambo said all law firms that represent and act on behalf of public entities are required to demonstrate a set standard of competency, capacity and experience. She said these qualities speak to the necessity and reasonableness of engagement of private practitioners to handle matters on behalf of public entities, which is a common practice world over.
“We register our concern over this outright misunderstanding and mischaracterization of the work advocates undertake in favour of public entities. For the avoidance of doubt, the retention of external legal counsel follows a strict, rigorous and competitive procurement process in accordance with the Public Procurement and Assets Disposals Act,” she said.
Ms Odhiambo added that the right to representation of one's choice is a fundamental right enshrined under Article 50 of the constitution and is at the core of the fundamental principles of social justice, access to justice, the rule of law and human rights.
Law Society of Kenya headquarters pictured on April 30, 2025.
Photo credit: Wilfred Nyangaresi | Nation Media Group
She stated that the petition lacked any novelty and ingenuity, but the grounds are “symbolic of a tired rhetoric against a profession that unreservedly dedicates itself to upholding constitutional values and protecting the public interest”.
“Accordingly, we are minded that the ex-parte conservatory orders granted by the Court are inconsistent with the Constitution, violate international norms, and ignore the attendant public interest arising from access to adequate, quality and effective professional services by public entities,” she said.
Ms Odhiambo added: “The retroactive effect of the orders poses significant prejudice to several law firms which have put in their time and craft in delivering services to public entities. It proposes to suspend payment of lawful dues owed to legal practitioners even after they have been rightfully assessed as costs by courts of competent jurisdiction. This is in no uncertain terms, an absurdity of the highest degree”.
The LSK president explained that the engagement of external counsel fills huge gaps in public entities. She said private practitioners handle matters from which conflicts of interest may arise on the part of government-employed advocates, offer independent expertise on governance structures and issues and mitigate workload excesses that would create backlogs and non-compliance.
“Calculation of legal fees is a statutorily regulated mathematical process that is both traceable in law, and subject to good faith negotiations with and assessments by the relevant public entities,” she said.
The senior counsel bar, through its chairperson Philip Murgor, also expressed dissatisfaction with the order and said it was time for the legal profession to take up a position against what he termed judicial overreach.
But lawyer Suiyanka Lempaa supported the petition saying individual lawyers have been condemning corruption in the tendering processes throughout the government but charging exorbitant fees for simple cases.
“There is no difference between an advocate who drafts an affidavit for the county government of Mandera, Nairobi or Nakuru and charges it at Sh2 million or Sh500,000 and a ‘tenderpreneur’ who is selling a pen to the government at Sh200,” he said.
Controller of Budget report shows that national and county governments incurred legal services bills of Sh39billion in 2023/2024.
The city advocate added that Kenyans are forced to pay legal fees amounting to billions of shillings because some advocates have friends in government. He noted that many State counsels have a lot of experience and are brilliant but legal briefs that attract billions of shillings are taken to private law firms.
In a report by the Senate’s Justice and Legal Affairs and Human Rights committee dated April 2, 2025, concerning a petition restraining county governments from hiring law firms to represent them, the CoB made several recommendations. These included having county governments set up alternative dispute resolution mechanisms and engaging the Attorney-General to support the county governments in enhancing the capacity of the office of county attorney to handle county legal matters.
“In the unlikely event of the need for complex or specialised legal services, county governments should procure legal services through the office of the county attorney, whose overall costs should be capped under the advice of the Attorney-General or through policy legislation by the Senate,” the CoB stated.
The 2023/2024 report by the Auditor-General shows that county executives routinely outsource legal services at exorbitant costs, despite maintaining salaried legal teams. The report further reveals that some of the law firms enjoy a steady stream of county funds with little oversight, often without proper documentation and with no evidence of court appearances.
In counties such as Nairobi, Trans Nzoia and Homa Bay, the report flags multi-million-shilling legal payments made without proper documentation or legal contracts awarded irregularly.
According to the report, Nairobi is facing a staggering Sh21.3 billion in outstanding legal costs. Of this, Sh6.2 billion is owed to just four advocates. The audit also found that 65 of 159 legal cases were assigned to just eight advocates, without clear justification for how these firms were selected.
In Kilifi, Sh71.5 million was paid to six private legal practitioners as part of a Sh276.2 million bill. However, auditors found no formal records of instructions given to the lawyers, no court attendance records, and no evidence of the fees being taxed as required by law.
