Kenya's Attorney General, Dorcas Oduor, has introduced new rules that tighten access to government legal work for private law firms. According to an internal circular seen by Business Daily Africa, ministries, State departments, and corporations can no longer hire private lawyers or renew existing contracts without the AG's prior approval. This move is expected to shrink the lucrative business of government legal work for private law firms.
The circular, dated September 11, 2026, is addressed to all Cabinet Secretaries, Principal Secretaries, chief executives of statutory entities, and State corporations. It warns State accounting officers and chief executive officers that they could be held personally accountable for unauthorized 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.
The AG's office has noted increasing requests from public entities seeking approval to engage 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. This framework aims to ensure that requests are subjected to a uniform and objective assessment.
The circular cites Article 156 of the Constitution and the Office of the Attorney General Act, specifically 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 AG's office says the framework also takes account of High Court orders issued at Nakuru in January 2026.
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. 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.
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. The purpose of the new rules is to strengthen government legal capacity and enable government lawyers eventually to take over matters where appropriate.
Key points
- The Attorney General's new rules require government agencies to obtain prior approval before hiring private lawyers.
- The framework aims to ensure that requests for external counsel are subjected to a uniform and objective assessment.
- The rules allow for immediate procedural action during emergencies to preserve the Government's legal position.
