Private law firms are facing tighter access to government legal work after Attorney-General (AG) Dorcas Oduor introduced rules requiring ministries and State agencies to justify hiring of external advocates.
In an internal circular seen by the Business Daily, the AG has blocked ministries, State departments and corporations from hiring private lawyers or renewing the existing legal services’ contracts without her prior approval, a move that could shrink a lucrative business of government legal work for private law firms.
The circular also warns State accounting officers/chief executive officers that they could be held personally accountable for authorised engagement of external lawyers.
The new framework makes external lawyers an exception, requiring public institutions to show that their in-house lawyers or State counsels cannot handle a matter before seeking private representation and justify hiring of the external advocates.
Private law firms have long secured legal briefs from ministries, State agencies and corporations, including litigation and specialised work, creating a significant public-sector market for advocates.
However, with the s prior written authorisation requirement, that is likely to be affected.
‘Accounting Officers/Chief Executive Officers who authorise or continue any such unapproved engagement shall be held personally accountable,’ the circular says, adding that ‘government agencies are encouraged to ensure sufficient capacitation of their respective legal departments’.
The six-page circular, dated September 11, 2026, is addressed to all Cabinet Secretaries, Principal Secretaries, chief executives of statutory entities and State corporations.
It is also copied to Prime Cabinet Secretary Musalia Mudavadi, Head of Public Service Felix Koskei, Solicitor-General Shadrack Mose and Office of the Deputy President’s Chief of Staff Chris Wanjau.
It says the AG’s office has noted increasing requests from public entities seeking approval to engage, procure or continue using external advocates and law firms in judicial and quasi-judicial proceedings.
The circular says requests must be considered under a ‘coherent, transparent and legally consistent framework’ based on demonstrable need, institutional capacity, specialisation, proportionality, value for money and prudent use of public resources.
‘The framework is intended to ensure that requests are subjected to a uniform and objective assessment, and that approval is not sought or granted as a matter of routine, convenience or institutional preference,’ it says.
The circular cites Article 156 of the Constitution and the Office of the Attorney General Act. It specifically cites Section 17, which requires a ministry or department to obtain AG approval before engaging a consultant for legal services relating to the AG’s functions.
The AG says ministries, State departments and Government agencies should first use existing in-house counsel and the public legal services structure.
External lawyers may be considered where an entity provides reasonable, specific and verifiable reasons why the matter cannot be handled through available government resources.
‘The engagement of external counsel is therefore exceptional rather than routine,’ the circular reads.
The AG’s office says the framework also takes account of High Court orders issued at Nakuru in January 2026, which initially suspended public entities’ engagement, procurement and payment of private advocates where government legal personnel were available in those cases.
The circular says the court initially suspended engagement, procurement, continued procurement and payment of private advocates and firms by public entities.
After applications for variation, the court required express and formal AG approval for external counsel for National Government bodies and the Public Service Commission.
The new rules say no ministry, State department or State corporation may initiate, procure, instruct, renew, extend or continue external counsel where AG approval is required without first obtaining that approval.
This removes the entities’ discretion to hire or procure external lawyers independently in cases covered by the circular. Approval must also be ‘matter-specific and engagement-specific’ and cannot operate as a blanket authorisation.
Each application must address eight areas, including in-house capacity, specialised expertise, complexity and novelty, urgency, financial exposure, budget and procurement compliance, case history and public interest.
Requests must be written, addressed to the AG and signed by the relevant Cabinet Secretary, accounting officer or chief executive. They must contain case details and explain the parameters relied upon.
Any external engagement without prior written approval ‘shall be of no legal effect against the National Government,’ while public funds cannot be used for related fees or expenses.
Once approved, private lawyers must prepare a written assessment of the case’s merits and risks. They must keep the government entity informed, report major developments and maintain records and periodic progress reports.
They must also work alongside designated in-house or State counsel. The circular says the purpose is to strengthen government legal capacity and enable government lawyers eventually to take over matters where appropriate.
The rules allow immediate procedural action during emergencies to preserve the Government’s legal position and meet court or statutory deadlines. The entity must then notify the AG and explain why prior approval could not reasonably be obtained.
‘Accordingly, all Ministries, State Departments and State Corporations are hereby directed to ensure strict compliance with this Circular,’ Ms Oduor concludes.
‘No request for the engagement, procurement, renewal, extension or continuing engagement of external counsel shall be submitted without addressing the prescribed parameters and furnishing the supporting documentation set out herein,’ she said.