Ban on lawyers representing public entities undermines legal practice, Wanyama says

In orders issued on January 12, 2026, Justice Samuel Muhochi, sitting in Nakuru, prohibited all public entities in Kenya from hiring external lawyers and law firms. The court further directed that pending payments owed to advocates should be frozen.

The decision has sparked sharp criticism from members of the Bar, who argue that the orders are far-reaching, legally untenable, and unconstitutional.

Advocate Peter Wanyama, who is also seeking Law Society of Kenya (LSK) presidency for the 2026–2028 term, warned that the ruling threatens the survival of legal practice in the country and undermines the constitutional role of advocates.

According to Wanyama, Article 227(1) of the Constitution expressly allows public entities to procure services—including legal services—provided the process is fair, equitable, transparent, competitive, and cost-effective. He argued that a court cannot suspend or negate a clear constitutional provision through interim orders.

He further noted that public institutions routinely engage external counsel to bridge capacity gaps, manage conflicts of interest, and handle complex or novel cases that cannot reasonably be managed by in-house legal teams.

“Some matters involve massive public exposure running into billions of shillings. In such cases, external counsel plays a critical role in legal risk management,” he said.

In a statement on Monday, Wanyama highlighted the importance of professional indemnity insurance, which law firms are legally required to maintain. Such cover, Wanyama argued, protects public entities against losses arising from professional negligence—an assurance that does not exist where matters are handled exclusively by in-house counsel.

He also cited election-related litigation instances like the 2017 general elections, where the Independent Electoral and Boundaries Commission (IEBC) faced more than 400 election petitions filed concurrently. With only a handful of internal lawyers, the commission relied on external advocates to respond to the cases within strict constitutional timelines.

Wanyama also questioned the legality of issuing such sweeping orders at an ex parte stage, particularly where the directives affect institutions and parties that are not before the court.

Of particular concern to advocates is the freezing of payments for legal services already rendered. 

Wanyama pointed out that some of the fees subject to the freeze arise from valid contracts and court orders.

He warned that such a situation creates a direct conflict in the enforcement of court orders, a scenario that Kenyan public policy expressly discourages.

Wanyama urged Justice Muhochi to re-examine the orders, noting that while judges are entitled to err, decisions that are manifestly and consciously wrong risk undermining confidence in the judiciary and destabilizing the legal profession.

Wanyama announced his intention to seek to be enjoined in the Nakuru petition with a view to challenging and setting aside the impugned orders.

“This decision is not an isolated mistake. It reflects a broader pattern of attempts to weaken the legal profession,” he said, adding that a strong, assertive Bar is necessary to protect both advocates and the administration of justice.