NAIROBI, Kenya, Jan 13 — County Attorneys from all 47 county governments have issued a strongly worded statement expressing grave concern over ex-parte conservatory orders issued by the High Court in Nakuru that purport to suspend all public entities, including county governments, from engaging private law firms.
The County Attorneys argue that the orders raise serious constitutional, procedural, and governance concerns, warning that they risk undermining devolution, due process, and access to justice.
In their statement, the attorneys questioned how such far-reaching orders could be issued ex-parte, without hearing affected parties, and appear to operate retrospectively.
“Ex-parte relief is exceptional and reserved for demonstrable urgency and irreparable harm,” the statement said, adding that neither threshold had been met in this case.
The County Attorneys emphasized that county governments are independent constitutional entities, not departments of the national government, and cannot be subsumed under the Office of the Attorney-General.
They warned that the orders undermine county autonomy and operational independence, noting that counties face unique litigation risks, including constitutional petitions, procurement disputes, land and environmental cases, arbitration, and international litigation.
“Such matters cannot be centrally managed,” the statement said, adding that counties must retain discretion to engage external counsel where capacity gaps or conflicts of interest arise.
The attorneys reaffirmed that counties are expressly authorised by law to engage private advocates when necessary, citing Sections 16 and 22(2) of the Office of the County Attorney Act, the Public Procurement and Asset Disposal Act (PPADA), the Advocates Act and Senate resolutions contained in a March 2025 report approving the engagement of private law firms by counties.
They expressed surprise that one of the petitioners is a Senator, noting that the Senate has previously deliberated on and endorsed these frameworks.
While acknowledging that many counties have restructured to handle most legal work internally, the attorneys said severe capacity and wage bill constraints make it impossible to rely solely on in-house teams.
They highlighted long-standing challenges facing county advocates, including underpayment compared to peers in national government institutions, delayed salaries, non-payment of allowances such as non-practising and prosecutorial allowances and discriminatory remuneration decisions by the Salaries and Remuneration Commission (SRC).
Despite handling cases worth billions of shillings, county lawyers remain under-resourced, the statement said.
The County Attorneys cautioned that a blanket ban on engaging private counsel would paralyse critical public litigation, expose counties to legal and financial risk, and disrupt governance.
They likened the situation to other sectors where government routinely outsources services despite having internal professionals, such as IT systems, infrastructure development, and procurement.
“If internal capacity is to be relied upon, it must be properly resourced, applied uniformly across all professions, and fairly compensated,” the statement noted.
The County Attorneys affirmed that county governments retain lawful authority to engage external counsel until a competent court rules otherwise.
They further maintained that the Nakuru High Court orders are legally unsustainable and interfere with devolution.
