Court refers case on private legal firms to Koome

Chief Justice Martha Koome. [File, Standard]

The High Court has referred a petition  challenging legal service engagements between government entities and private law firms to the Chief Justice to constitute a bench to hear the case.

The petition, filed by Busia Senator Okiya Omtatah and two Nakuru activists, Dr Magare Gikenyi and Laban Omusundi, targets both national and county governments and their agencies.

Yesterday, Justice Samwel Mohochi ruled that the matter raises a substantial question of law that requires a multi-judge bench.

He noted that he could not determine the case alone, as doing so would conflict with prior judgments issued by judges of similar jurisdiction. Some of these judges had previously allowed public entities to hire private law firms and lawyers and authorize payments for their services.

“This matter is of public interest and raises a question of whether public funds are properly utilized. It is referred to Chief Justice Martha Koome to constitute a bench,” ruled Mohochi. The bench will provide directions on the way forward.

The ruling followed an application by the Law Society of Kenya through lawyer Muthomi Thiankolu, who argued that the petition raises a question of law on whether public entities with internal legal counsels can retain private law firms.

He warned that a decision in the petitioners’ favour would make Kenya the first country to prohibit public-private legal engagements.

“In all countries, public entities are major purchasers of professional services from the private sector, including engineering, accounting, architecture and more,” Muthomi said.

He added that singling out the legal profession would amount to discrimination and could invalidate previous judgments from courts of equal jurisdiction.

He attached three rulings from 2011, 2018 and 2020 that supported government engagement of private law firms.Omtatah and Gikenyi opposed the application, arguing that a single judge could handle the matter, focusing solely on the prudent use of public resources.

The decision follows a court order issued four days ago suspending all new legal service engagements as of January 12, 2026, unless formally approved by the Attorney General.

The court barred the Controller of Budget and other officials from authorizing payments for external legal services but exempted engagements made prior to that date.