The recent Nakuru court order (January 2026) restraining government agencies from outsourcing crucial legal services has to be analysed with constitutional, statutory, and jurisprudential eyes for it carries genuine public interest.
As construed, the ruling is conservative in nature and not a final determination of the legality of outsourcing legal services by public institutions.
Constitutionally, Article 10 enshrines national values and principles of governance. These values do not mandate exclusivity in the provision of legal services but instead require public institutions to adopt mechanisms that best advance service delivery. Further, Article 201(d) of the Constitution obliges public entities to ensure the responsible and prudent use of public resources.
Statutorily, the Public Procurement and Asset Disposal Act, 2015, Section 2 expressly defines professional services to include services rendered by professionals whose qualifications are regulated by law, which encompasses legal services provided by advocates under the Advocates Act (Cap 16). Section 53 of the Act further grants accounting officers discretion to procure services necessary for the efficient functioning of public entities. Therefore, there is no statutory prohibition against the outsourcing of legal or litigation services by government agencies.
Judicial precedent supports this interpretation. In Kenya Pipeline Company Limited v Glencore Energy (UK) Limited [2015] eKLR, the High Court recognised the propriety of state corporations engaging external counsel in complex commercial and litigation matters, noting that such engagement is often driven by the need for specialised expertise and does not, of itself, offend principles of public accountability.
Best case scenario being the current 900B tussle that the office of the Attorney General deemed fit to outsource such a brief, knowing the other side probably has recruited the best litigants available. Point being, the magnitude of the brief.
Yes, the public uproar over the Nakuru decision is devoid of the reality that public legal departments cannot reasonably be expected to possess exhaustive expertise across all areas of law. Against the legal backdrop, a blanket restriction on outsourcing such services risks collapsing a nuanced administrative and constitutional question into an absolute prohibition. Such an approach overlooks the technical and specialised nature of litigation, which demands procedural tact, advocacy experience, and subject-matter depth—qualities frequently mastered through sustained courtroom practice.
Importantly, the Nakuru court order does not settle these substantive issues. It remains an interim, conservative judicial measure pending full hearing and determination. Until a final judgment is rendered, any interpretation suggesting a permanent or categorical bar on the outsourcing of government legal services is legally unfounded and doctrinally unsustainable.
