County Governments have mounted a strong legal and political pushback against ex-parte conservatory orders issued by the High Court at Nakuru, warning that the directive could paralyse public litigation across the country and roll back hard-won gains of devolution.
The orders, which temporarily suspend all public entities including county governments from engaging private law firms, have been described by county legal chiefs as procedurally unfair, legally unsound, and an existential threat to county autonomy.
In a detailed statement released on Monday, the County Attorneys of Kenya, speaking on behalf of all 47 county governments, expressed “grave concern” over the decision, arguing that it was issued without hearing affected parties and on a matter of far-reaching public interest.
The attorneys questioned how such sweeping orders could be granted ex-parte, noting that such relief is meant to be exceptional and reserved for cases of clear urgency and demonstrable irreparable harm conditions they say were not met.
“It is difficult to comprehend how a court could issue orders of such magnitude without hearing counties, and even more troubling that the orders appear to operate retrospectively,” the statement read, warning that the move undermines procedural fairness, proportionality, and due process.
At the heart of the dispute is the role of counties in managing their own legal affairs under Kenya’s devolved system of governance. County Attorneys insist that county governments are not departments of the national government and therefore cannot be legally or practically substituted by the Office of the Attorney-General in handling county litigation.
They argue that counties face unique governance risks and complex legal disputes ranging from land and environmental cases to procurement challenges, constitutional petitions, arbitration, and even international litigation that require specialised expertise. While many counties have restructured and strengthened internal legal departments over the years, the attorneys say internal capacity alone remains insufficient to handle all matters effectively.
The statement highlights chronic staffing and remuneration challenges facing county legal departments. Under strict wage bill ceilings and remuneration frameworks set by the Salaries and Remuneration Commission (SRC), counties say they are unable to recruit enough advocates or offer competitive pay to retain experienced counsel.
County advocates, according to the caucus, handle cases worth billions of shillings, shielding counties from significant financial, legal, and reputational exposure, yet remain underpaid and face delayed salaries and unpaid statutory allowances, including non-practising and prosecutorial allowances. The attorneys argue that this discriminatory treatment especially when compared to counterparts in the Offices of the Attorney-General, the Director of Public Prosecutions, independent commissions, and other national entities undermines the sustainability of in-house litigation.
The County Attorneys maintain that the engagement of private law firms is not only practical but lawful. They cite provisions of the Office of the County Attorney Act, the Public Procurement and Asset Disposal Act (PPADA), and the Advocates Act, all of which allow counties to instruct external counsel where justified. They further note that the Senate, in a report adopted in March 2025, expressly affirmed the legality of counties engaging private law firms.
Of particular concern to the caucus is the involvement of a Senator as a petitioner in the case that led to the Nakuru orders. The attorneys say it is “puzzling” that a lawmaker who participated in Senate deliberations affirming counties’ legal authority to outsource would now advance a position that appears to contradict those resolutions.
Legal experts warn that a blanket ban on external counsel could grind critical public litigation to a halt. Many ongoing cases—already at advanced stages are currently being handled by private law firms due to their specialised nature or conflicts of interest that prevent internal counsel from acting. Abruptly cutting off external representation, the attorneys say, exposes counties to default judgments, missed deadlines, and massive financial losses.
“This is an onslaught on devolution and an attack on the legal profession,” the statement said, drawing parallels with other sectors where government routinely outsources services such as IT systems, road construction, and specialised engineering works despite having professionals on payroll.
The County Attorneys have taken a firm stance, affirming that county governments retain lawful authority to engage external counsel until a competent court, after hearing all parties, rules otherwise. They insist that interim orders cannot suspend devolution or hold governance hostage to procedural shortcuts.
They also renewed calls for urgent reforms to address remuneration inequities and resourcing of county legal departments, warning that without fair, competitive, and risk-responsive compensation, counties will struggle to sustain internal litigation capacity.
