Law Society of Kenya (LSK) Warns of Judicial Overreach as Court Orders Threaten Private Legal Practice
By Archeadious kubai
Nairobi, Kenya
The Law Society of Kenya (LSK) has raised alarm over what it terms a growing pattern of judicial overreach, warning that recent court orders could undermine the independence of the legal profession, restrict access to justice and disrupt the effective functioning of public institutions.
Speaking at a press conference at the LSK headquarters in Nairobi, Society President Faith Odhiambo said petitions and court orders seeking to bar public entities from engaging private advocates amount to a sustained effort to cripple private legal practice and weaken constitutional safeguards.
At the centre of the dispute is Nakuru Petition E001 of 2026, in which ex parte orders were issued restraining public institutions from outsourcing legal services to private advocates. Odhiambo described the petition as the latest phase in a long-running campaign to exclude private practitioners from the public sector legal ecosystem.
She traced the issue back to July 2020, when a Cabinet resolution directed state departments to seek approval from the Attorney General before hiring external legal counsel and to terminate contracts entered into without such approval. The directive was challenged by the Law Society and quashed by the High Court in July 2023.
In that ruling, the court affirmed that public procurement must comply with constitutional principles of fairness, equity, transparency, competitiveness and cost-effectiveness, cautioning against leaving procurement decisions to unfettered discretion.
Despite the judgment, LSK says similar efforts have resurfaced through fresh litigation and legislative pressure. A Senate committee report released in March 2025 warned that fully restraining county governments from engaging private advocates would violate the Constitution, the Public Procurement and Asset Disposal Act, and laws governing the offices of the Attorney General and County Attorneys.
The Society dismissed claims that private advocates burden public institutions with excessive legal fees, noting that fees are regulated by law and subject to negotiation, assessment and taxation by the courts. Odhiambo said suspending legal services in the name of fiscal discipline is both unlawful and impractical.
According to LSK, private practitioners play a critical role in bridging capacity gaps within government legal offices, handling complex litigation, managing conflicts of interest and preventing case backlogs that could paralyse service delivery. The engagement of external counsel, she added, is standard practice globally.
The Society also criticised the retroactive application of the court orders, warning that suspending payment for services already rendered unfairly prejudices advocates and law firms that have fulfilled their contractual obligations.
Beyond economic concerns, LSK warned that the orders threaten the constitutional right to legal representation, weaken access to justice and erode public confidence in the judiciary. The Society expressed concern over what it described as a growing culture of judicial impunity marked by blanket orders issued without hearing affected parties.
LSK has called on the judiciary and other arms of government to uphold constitutional principles, respect due process and safeguard the independence of the legal profession in the public interest.
