LSK Warns Courts Are Pushing Lawyers to the Edge
By Peace Muthoka.
The Law Society of Kenya has sounded the alarm over what it calls a worrying drift within the Judiciary, warning that recent court orders risk choking legal practice, hurting public service delivery and weakening access to justice.
At the centre of the storm are ex-parte conservatory orders issued by the High Court in Nakuru. The orders suspend the hiring and payment of private lawyers by public institutions. To LSK, the move is not just disruptive. It is dangerous. The Society says it fits into a long pattern of decisions aimed at cutting private advocates out of public sector work.
LSK argues that this battle did not begin today. It traces the tension back to July 2020, when the Attorney General directed all State departments to seek his approval before engaging external lawyers. Existing contracts were also ordered terminated. At the time, the legal profession pushed back, warning that the directive was unlawful and unfair.
That challenge ended in court. In July 2023, the High Court struck down the directive. The court ruled that public procurement must remain fair, transparent, competitive and cost-effective, as demanded by the Constitution. The judge warned that allowing one office to control all legal engagements undermined these principles and opened the door to abuse.
For LSK, that judgment should have settled the matter. Instead, the Society says, new attempts quickly emerged. In 2024, a petition landed in the Senate seeking to block county governments from outsourcing legal services. Once again, the proposal failed. A joint Senate committee warned in March 2025 that such a move would violate the Constitution and existing laws. It also noted that both national and county laws clearly allow public bodies to hire external lawyers when needed.
Despite these clear signals, LSK says the same arguments keep resurfacing. The latest petition before the High Court in Nakuru raises familiar claims. Petitioners argue that government lawyers already exist, that private advocates charge high fees and that public spending must be controlled. LSK dismisses these claims as misleading and shallow.
The Society insists that legal fees do not operate in a vacuum. They follow clear rules set out in law. Fees are negotiated in good faith. Where disputes arise, courts step in through taxation. According to LSK, suspending legal services in the name of cost control ignores these safeguards and creates chaos where none existed.
The impact, LSK warns, goes far beyond lawyers. The Nakuru orders carry a retroactive effect. They threaten to block payment for work already completed and approved by courts. Law firms that spent years handling public cases now face uncertainty, despite having followed the law. LSK says this disrupts public institutions and stalls critical services.
There is also a constitutional concern. The Society argues that the orders strike at the heart of the right to legal representation. The Constitution guarantees every person the freedom to choose their lawyer. That freedom, LSK notes, means nothing if advocates cannot appear in court or receive payment for their work.
LSK also challenges the idea that government lawyers can handle everything alone. Private advocates, it says, fill real gaps. They handle complex and specialised cases. They step in where conflicts of interest arise. They help manage heavy caseloads that would otherwise paralyse public offices. This practice, LSK notes, exists across the world and strengthens institutions rather than weakens them.
The Society faults the court for failing to weigh these realities. It argues that the orders ignored the public interest and harmed parties who were never heard. While courts have the power to issue conservatory orders, LSK insists that such power must be exercised with care, balance and respect for constitutional order.
LSK says the Nakuru decision reflects a broader and troubling trend. It points to recent cases where court orders were lifted or altered without clear explanation, fuelling public unease about consistency and accountability within the Judiciary.
As pressure mounts, the Society is calling for restraint. It urges all players to respect settled law and constitutional principles. LSK warns that pushing private advocates out of public work will not save money or improve governance. Instead, it will hurt livelihoods, slow justice and weaken the rule of law.
For now, the Society says it will not back down. It vows to defend the independence of the legal profession and challenge any action it believes crosses constitutional lines. In its view, the fight is no longer just about lawyers. It is about justice itself.
