The Law Society of Kenya (LSK) has accused the Judiciary of overreach and impunity, following the issuance of ex-parte orders barring public entities from hiring private law firms to represent them in legal matters.

In a strongly-worded statement issued on Tuesday, January 13, 2026, LSK President Faith Odhiambo described the conservatory orders granted by the High Court in Nakuru in Petition E001 of 2026 as a blatant act of judicial overreach that threatens the livelihoods of private legal practitioners.

“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,” Odhiambo stated.

Long-running battle

The LSK president argued that the Nakuru orders were the culmination of a prolonged effort to exclude private advocates from the public sector legal ecosystem, noting that this is the latest in a series of efforts dating back to 2020.

She traced the dispute to July 2020, when the then Attorney General issued a directive requiring written approval before state departments could contract external legal counsel, stating that LSK successfully challenged that directive in court, with Justice Jairus Ngaah quashing it in July 2023.

“The procurement of goods and services is such a crucial task that Article 227 (1) of the Constitution is categorical that it is an exercise that must be fair, equitable, transparent, competitive and cost effective,” she stated, quoting the 2023 ruling.

Despite the ruling, LSK said similar attempts resurfaced in 2024 when a petition was presented to the Senate seeking to bar county governments from hiring private law firms.

She noted that a joint Senate committee report from March 2025 had concluded that restraining county governments from outsourcing legal services would violate the Constitution and the Public Procurement and Asset Disposal Act.

“Notwithstanding the clear rationale of the High Court on the matter of contracting of external counsel, a further onslaught was waged against this otherwise lawful and standard practice in 2024,” Odhiambo said.

Constitutional and statutory basis

The LSK president argued that both the Office of the Attorney General Act and the Office of the County Attorney Act provide for the retention of external counsel at sections 25(2) and 22(2) respectively.

“For the avoidance of doubt, the Office of the Attorney General Act and the Office of the County Attorney Act both provide for the retention of external counsel as may be necessary,” she stated.

“This does not only allow room for public entities to utilize specialized expertise of private practitioners, but also addresses the fundamental concern of the capacity of the Attorney General’s and County Attorneys’ offices to handle the volume of work they have,” she added.

Addressing arguments raised in the latest Nakuru petition, including claims of high legal fees and the presence of government-employed lawyers, Odhiambo said the claims were misleading.

“We register our concern over this outright misunderstanding and mischaracterisation of the work Advocates undertake in favour of public entities,” she stated.

She emphasised that the hiring of external counsel follows a competitive procurement process and allows public institutions to access specialised expertise, manage conflicts of interest and meet strict constitutional timelines.

“Ultimately, the engagement of external counsel fills otherwise insurmountable gaps in effective functioning of public entities,” Odhiambo said.

LSK also rejected claims that legal fees are arbitrary, noting that fees are regulated by law and subject to court taxation where disputes arise.

“It is, therefore, untenable to suspend legal services altogether in the name of capping expenditure on legal fees, as the law provides adequate avenues through which fees can be regularised,” the statement read.

The Society further criticised the retroactive effect of the Nakuru orders, saying they unfairly suspend payment for services already rendered.

“This is in no uncertain terms, an absurdity of the highest degree,” Odhiambo said.

Warning to Judiciary

In a stern warning, the LSK president said the society would not tolerate continued abuse of judicial powers.

“These orders are indicative of a sharp deviation from the binding principles applicable to discharge of judicial authority, and constitute a blatant act of judicial overreach,” she stated.

“Unless this trend is nipped in the bud, and with the requisite firmness, we are prepared to agitate for a radical surgery as a means to uphold our Constitution,” she added.

Odhiambo cautioned that judicial independence should not be mistaken for immunity from accountability.

“While the constitution affords [judges] a degree of independence and immunity, it does not grant them the privilege of invisibility or unbound reverence. We shall not sit back and watch the Judiciary, the last line of defence for the people of Kenya, run rogue against its people,” she said.

She disclosed that LSK has instructed an advocate to act on its behalf in the Nakuru case and has filed an application seeking to review and set aside the conservatory orders.

While reaffirming the Society’s commitment to public service, Odhiambo said LSK would continue to defend the legal profession.

“We retain equal commitment to protecting the legal practice environment and ensuring the livelihoods and well-being of our members is not interfered with, undermined or interrupted,” she stated.