https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1141

Nakuru County Government v Gikenyi & 77 others (Civil Appeal (Application) E014 of 2026) [2026] KECA 1141 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1141 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Appeal (Application) E014 of 2026 JM Mativo, PM Gachoka & MB Kairaria, JJA June 12, 2026 Between Nakuru County Government Applicant and Dr. Magare Gikenyi & 77 others Respondent (An application for stay of execution pending hearing and determination of an appeal from the ruling and orders of the High Court of Kenya at Nakuru (S. M. Muhochi J.) made on 26th January, 2026 in Petition No. E001 OF 2026) Ruling 1.Before us is an application dated 5th February, 2026 filed by Nakuru County Government [the applicant ] seeking stay of execution pending appeal of the ruling and orders issued by S. M Muhochi J made on 26th January 2026 in Nakuru High Court Constitutional Petition No E001 of 2026[ Dr. Magare -Gikenyi B & 6 Others vs. Council of Governors, the Attorney General, the Law Society of Kenya & 69 Others]. The applicant also seeks costs of the application. 2.The application is brought under Rule 5[2] [b] of the Court of Appeal Rules 2022 which grants this Court power to order stay of execution, an injunction or stay of proceedings on such terms as the Court may think just in any civil proceedings where a notice of appeal has been lodged in accordance with rule 77. 3.The application is opposed by the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 16th respondents while the 8th, 10th, 19th, 44th, 47th, 73rd and 78th respondents support the application. The rest of the applicants, including the Attorney General did not participate in the proceedings. The bone of contention is whether the conservatory orders issued by the judge at the High Court on 12th January, 2026 as reviewed and varied on 26th January 2026 suspending the engagement of external counsel by the National Government, County Governments and other public bodies unless the prior written justification and approval in accordance with the conditions set out therein should be stayed pending the hearing and determination of the appeal. 4.The protagonists have taken diametrically opposed positions regarding the effect of the conservatory orders as varied on 26th January 2026. Those supporting the application protest that the said orders are bad and impede the seamlessly appointment of private legal practitioners to represent public entities to the detriment of the public interest. On the other hand those opposed to the application proclaim that the said orders are good and are necessary to protect public financial resources against wanton wastage which is in the public interest. 5.The essential background facts giving rise to the instant application are fairly brief and straight forward. On 1st January 2026, Dr. Magare Gikenyi, Eliud Karanja Matindi, Okiya Omtata Okoiti, Laban Omusundi, Philemon Abuga Nyakundi, Dishon Keroti Mogire and David Ngatia Njuguna filed a Constitutional Petition at the High Court of Kenya at Nakuru challenging the constitutionality of the ubiquitous practice of engaging external private legal practitioners to represent County government, National Governments and public entities at great public expense as highlighted in the Auditor General’s Report, despite the availability of publicly funded County Attorney and state Law offices across the country manned by qualified and competent counsels/attorneys engaged on a full time basis. 6.In the petition, the petitioners contend that the acquisition and engagement of the services of private legal practitioners[Advocates] by state organs and other Public entities despite the availability of state counsels, county attorneys, the Solicitor General and other legal officers employed in public entities as illegal, irregular and unconstitutional. They complained that the practice violates the constitutional doctrines of prudent utilization of public financial resources, cost effective procurement, fiscal sustainability, non-discrimination, constitutionalism, rule of law and legitimate expectations. 7.Simultaneously with the Petition, they filed a Chamber Summons application under a certificate of urgency, seeking interim conservatory orders to stem the practice pending the hearing of the application inter parties. The application and the petition were placed before S. M Muhochi J on 12th January, 2026 for consideration. 8.Upon reading the application together with the supporting affidavit by Magare Gikenyi J Benjamin, the judge was persuaded it was urgent. He certified it as such and directed that; both the application and petition be served forthwith upon all the respondents and interested parties not later than within the next three 3 days; the respondents and interested parties to file responses within seven [7] days of being served; the petitioner to file a rejoinder if need be within 14 days of being served with the responses and the matter be mentioned on 30th January 2026 for further directions. 9.Additionally, the judge issued two conservatory orders which read:“e]A conservatory order is hereby issued suspending the engagement ,procuring ,continuing to procure,pending payments ,all engagements of private advocates /law firms by all public entities where there is already hired attorney general ,state counsels ,solicitor general ,county attorneys ,county legal counsels ,legal officers and legal personnel of All public entities pending the hearing and determination of this application and the petition.f]A conservatory order is hereby issued directing the Controller of Budget and all public servants [whether state officer or public office[r] or any person not to approve any vote /funds for acquisition of external legal services /advocates /firms for All Public entities ,pending the hearing and determination of this application and the petition.’’ 10.Once served, the applicant moved quickly to challenge the two conservatory orders. It filed an application dated 16th January, 2026 before the High Court seeking to review, set aside, vary or otherwise modify the said orders contending that; the orders were issued ex-parte without jurisdiction in outright violation of Art. 227 of the Constitution, sections 22[2] of the Office of County Attorney Act and section 25[2] of the Office of the Attorney General Act; in violation of the doctrine of separation of powers and the orders had caused a national crisis and legal quagmire. 11.The judge considered the application seeking to review, set aside, vary or modify the conservatory orders on 26th January2026. He varied and modified the conservatory orders issued on 12th January, 2026 in the following terms set out paragraph 11 of the ruling dated 26th January, 2026:“A]A conservatory order is hereby issued as from 12th January 2026,suspending the fresh engagement,procuring ,continuing to procure ,or engagements of private advocates /law firms by all public entities when there is already hired Attorney General, State Counsels,Solicitor General ,County Attorneys,County Legal Counsels, Legal Officers & Legal Personnel of All Public entities pending the hearing and determination of this application unless:i.The public bodies falling within the National Government has obtained the express and formal approval of the Attorney General for the specific engagement[s ],procurement,continuing procurement ,or engagement[s] of private advocates pending hearing and determination of the application.ii.The specific engagement ,procurement,continuing [additional] procurement ,or engagement[s] of private advocates /law firms has formal and express justification of the subject matter ,case file[s] ,period[s] taken to complete the case[s], fee note[s ] and overall financial implications that such case[s ] may have on the agency ,commission ,County Executive or County Assembly.iii.The specific engagement ,procurement,continuing procurement ,or engagements of private advocates /law firms has formal justification on the need for the specialization and assurance of prudent use of public resources.iv.A formal approval from the County Executive Committee or recommendations from the County Attorney indicating the want for such an area of specialization and guaranteeing that the commitment is hinged on prudent use of public resources .B.A conservatory order is hereby issued directing the Controller of Budget and all public servants [whether state officer or public officer or any person authorized in this regard Not to approve any vote/funds for acquisition of external legal services/advocates/firms from 12th January,2026 for all public entities pending the hearing and determination of this application unless the following conditions are fully met and discharged:i.An express and formal approval of the Attorney General for the specific engagement (s),procurement,continuing procurement ,or engagement [s] of private advocates /law firms from 12th January ,2026 ;ii.A formal approval from the County Executive Committee or recommendations from the County Attorney indicating the want for such an area for specialization and guaranteeing that the commitment hinged on prudent use of public resources;iii.The specific engagement ,procurement,continuing procurement ,engagements of private advocates /law firms has formal justification on the need for the specialization and assurance of prudent use of public resources.iv.A formal approval from the County Executive Committee or recommendations from the County Attorney indicating the want for such an area of specialization and guaranteeing the commitment is hinged on prudent use of public resources.’’ 12.The applicant is aggrieved by the conservatory orders issued on 26th January, 2026 and filed a notice of appealed dated 28th January, 2026 closely followed by the instant application filed on 5th February, 2026 and a memorandum and record of appeal. 13.The grounds of the application are; the applicant has appealed against the interim ruling dated 27th January, 2026; the appeal is arguable with high chances of success based on grounds that the judge gravely erred in law by inter alia:i.violating the principle of separation of powers by usurping the legislative mandate of parliament in violation of Articles 94,95 and 96 of the constitution;ii.purporting to re-write the law regulating procurement of external counsels to include restrictions and consequently amending or suspending Art. 227 of the Constitution, Sections [22][2] of the office of County Attorney Act and Section 25[2] of the Office of the Attorney General Act;iii.sitting as an appellate court and setting aside two separate decisions issued by courts of concurrent jurisdiction;iv.reviving and enforcing through judicial orders ,a requirement for prior written approval by the Attorney General for engagement of private advocates notwithstanding that two different courts of concurrent jurisdiction had quashed similar directives ,contrary to the doctrines of stare decisis and judicial comity;v.clothing himself with jurisdiction to deal with issues of taxation of legal fees in violation of the Advocates Act and the Advocates Remuneration Order;vi.Clothing himself with jurisdiction to deal with issues of procurement of legal services which questions can only be addressed by the Public Procurement Administrative Review Board in the first instance.vii.issuing orders that;a.discriminate against the legal profession andb.interfere with the statutory and operational autonomy of public entities.viii.by granting final orders in an interlocutory application in violation of the principle that conservatory orders ought to solely maintain the substratum of the matter. 14.The applicant reckons that the appeal will be rendered nugatory should this Court fail to stay the execution of the conservatory orders as varied on 26th January, 2026 because the judge has imposed stringent unconstitutional conditions involving prior written justification and approval criteria for engagement of external counsel by national government, county governments and other public entities. 15.Specifically the applicant asserts that:a.the National Government and County Government entities are sued in hundreds of matters on a daily basis making it impossible for internal counsel to handle all the said matters personally;b.the court legislated restrictions of 27th January 2026 are currently in place thus inhibiting the seamless engagement of external counsel in outright violation of Article 227 of the Constitution Sections 22[2] of the Office of the County Attorney Act and Section 25 [2]of the Office of the Attorney General Act;c.the government entities will be unable to procure legal services which are more often than not extremely urgent thus not only denying them legal representation but also exposing the Government and County Government entities to legal liabilities due to undefended claims pending receipt of authority from the Attorney General County Executive Committees;d.the legal claims instituted against the various government and County Government entities from 12th January 2026 will have gone undefended due to lack of legal representation thus rendering the appeal nugatory and lastly;e.it is in the public interest the ruling be stayed so that there is no hindrance to procurement of legal representation and government entities are not exposed to avoidable liabilities and or judgements. 16.In response Dr. Magare Gikenyi [1st respondent] filed a replying affidavit dated 1st March, 2026 on his behalf and on behalf of his co-petitioners. They opposed the application on grounds that:a.It is wholly alarmist ,unmerited, speculative and an abuse of the court process, designed to circumvent a lawful and well reasoned decision aimed at safeguarding public resources;b.it is not clear what the applicant wishes to stay the High Court having reviewed the initial order and granted the applicant all that they had requested by providing specificity, clarifying that it would be effective from 12th January 2026 and detailing how the conservatory orders are to be implemented;c.the applicant has painted an imaginary picture of a national crisis and total ban on legal representation yet the impugned ruling does not ban the procurement of external legal services as contended;d.The conservatory orders are a preservative ,interim measure that suspends fresh engagement,procurement from 12th January,2026 where in house legal personnel exists unless strict transparent and constitutionally anchored conditions as set out in the ruling are met. 17.The 1st respondent further contends that the judge did not judicially craft conditions for procurement or amend statutes or usurp the role of parliament arguing that the applicant’s assertions in that regard have no factual basis as all the court did was to enforce constitutional provisions on prudent utilization of scarce public financial resources to achieve the cost effectiveness doctrine as per Article 227 of the Constitution. 18.The 1st respondent denied that the learned judge disregarded and effectively overturned decisions of courts of concurrent jurisdiction arguing that the applicant’s contention in that regard has no legal basis, those matters being materially different from the current petition. 19.The 1st respondent further contends that the applicant has misunderstood the hallmark of the issues raised in the petition before the High Court. The petition challenges the Constitutionality of the systemic abuse of public resources, where there is already in house lawyers and is not a procurement dispute nor a taxation reference between an advocate and client. 20.The application was heard before us on 10th March, 2026 by way of written submissions and were highlighted orally. In support of the application, Professor Tom Ojienda [S.C] for the applicant relied on written submissions dated 17th February, 2026 cited Stanley Kangethe Kinyanjui v Tonny Ketter & 5 Others [2013] eKLR to buttress his argument that the intended appeal is arguable. He submitted that the appeal raises numerous bona fide issues for determination, which he asserted consists of arguable grounds as disclosed in the draft memorandum of appeal. Senior Counsel submitted that it is arguable whether; the learned judge usurped the legislative mandate of parliament by crafting conditions to govern the procurement of external legal services; the judge’s decision disregards and effectively overturns binding decisions of court’s of concurrent jurisdiction thereby violating the doctrines of stare decisis and judicial comity contrary to the Dicta in Wambui vs. Wambui Civil Appeal 272 of 2019] [2024] KECA 474[KLR];the trial court had jurisdiction to deal with matters taxation of advocates fees and procurement of legal services in the first instance. 21.On the question of whether the appeal will be rendered nugatory, the Senior Counsel submitted that the appeal will be rendered nugatory because the compliance with unconstitutional guidelines will be impossible to reverse; the public service and the National Government cannot enjoy the freedom to hire lawyers; the court act without jurisdiction and any act done outside the purview of the law becomes nugatory and cannot be recover. Counsel added that the restrictions put in place prevent the engagement of private advocates or the best legal services at the present moment and it will be impossible to recover them later. He asserted that there are certain matters that will go unattended unless stay is granted. 22.Lastly, counsel submitted that public interest will suffer because government entities are likely to accrue liabilities if they fail to defend cases in matters that require specialized services because they are not able to go through the processes imposed by the judge in the impugned ruling. Counsel finally contended that the best thing this Court can do is to stay the orders appealed from and allow things to proceed normally. 23.Dr.Muthomi Thiankolu [SC] appearing for the Law Society of Kenya relied on submissions dated 20th February 2026 and added that there is an arguable appeal, with several issues being raised including whether the judge of the High Court can reinstate policy directives previously declared unconstitutional by judges of equal jurisdiction. He submitted that threshold of arguability had been met. Counsel further submitted that the threshold of whether the appeal would be rendered nugatory had also been met in the unique circumstances of this case as highlighted at paragraph 13 of his submissions. He reckoned that public entities are sued every day and government agencies cannot obtain effective legal representation within the typical deadlines and timelines involved in public law litigation with the conditions imposed by the judge. He invited the Court to take judicial notice that the approach to an election year which heralds extremely urgent public law litigation and quipped that no one can honestly say that public agencies will be able to effectively participate in such litigation. 24.Dr. Muthomi further argued that though the conservatory orders were varied, and on paper the judge appear to have mitigated, the crisis caused by his decision has not abated and the variation of the orders does not resolve the problem of nugatory. He concluded his submission by asserting that there is no presumption of constitutionality of what is being impugned before the court. He cited the Supreme Court decision in the Cabinet Secretary For The National Treasury and Planning & 4 Others Vs Okiya Omtatah Okoiti & 52 Others [Petition E031,E032 & E033 of 2024 [Consolidated] [2024] KESC 57 [KLR] to support the proposition that the criteria of nugatory would be deemed to be automatically met on the peculiar public law aspect where the effect of the orders sought to be stayed is to arm string public bodies with far reaching implications on orderly functioning of government. For those reasons, counsel beseeched the Court to stay the impugned decision. 25.Mr Ouma advocate for 73rd respondent supported the application. He relied on written submissions dated 5th March 2026. He emphasized on arguability of the appeal and the nugatory aspect as submitted by counsel for the applicant, stating that the judge imposed non satisfactory parameters that are not backed by statute. On the question of the appeal being rendered nugatory absent stay, counsel stated that the court imposed unnecessary restrictions on contracting external counsel and suspended operation of two earlier decisions of the High Court. The 73rd respondent asserted that they continue acting for various state corporations which have now to go through the rigorous process of getting approval from the Attorney General which are not forthcoming. According to counsel the requirement for seeking approval of the A.G is a distraction that impacts negatively on service delivery to government entities. Counsel concluded that it is necessary for this Court to tamper with the conservatory order to allow them represent Corporations without any unconstitutional hindrances imposed by the judge. 26.The Council of Governors supported the application and relied on submissions dated 6th March 2026 without highlighting as indicated by Dr. Muthomi SC who appeared as holding brief Mr. Eugene Advocate. So did the 78th and 19th respondents represented by Ms Mutua advocate. 27.Dr Magare led the charge in opposing the application. He relied on his replying affidavit and submissions dated 1st March, 2026. He submitted that the issue for determination is whether the appellant has met the legal threshold for grant of stay pending appeal as enunciated in the case of Stanley Kangethe & Others (supra). He contended that the applicant has not met the threshold of arguability and nugatory. He argues that the applicant has tried to create an imaginary picture of a national crisis without any factual basis. He stated that the allegation that the conservatory orders have grounded operations of public entities is far from the truth as the impugned ruling does not ban the procurement of external lawyers. To the respondents, the applicant’s appeal is not arguable and is frivolous because the issue at hand is the constitutionality of abuse of public resources that go against the rules of prudent utilization of public resources and cost effectiveness as provided in Article 201 and 227. Based on those submissions, he invited the Court to find that the application is frivolous and has no arguable point of law. 28.On the issue of whether the appeal will be rendered nugatory, he submitted that the appeal will not be rendered nugatory since the public entities have not been barred from being represented by legal counsel. First, public entities have in house employed state and county counsels and legal officers to represent them and if they require private legal counsel, the conservatory orders allow it but require public entities to justify the need as per articles 201 and 227 of the Constitution. 29.Dr. Magare further submitted that the applicant’s case is based on speculation and not evidence. He asserted that the applicant just made sweeping statements to the effect that government entities are sued in hundreds of matters daily and face unimaginable liabilities without any evidence. He saw the applicant’s portrayal of total paralysis as a deliberate misrepresentation designed to manufacture a crisis because the orders sought to be appealed are not absolute but conditional permitting engagement of external counsel only where justification exists, approval mechanisms are followed and fiscal prudence demonstrated. 30.He further contended that any alleged prejudice is reversible on a case by case basis because courts of law retain the discretion to set aside default judgments. Finally, he submitted that public interest and convenience tilts in favor of denying the stay since the matter involves the prudent use of public funds and the conservatory orders seek to prevent irreversible misuse of public funds which has been highlighted in Auditor General’s Reports demonstrating that billions of shillings of public funds have been irregularly expended. He reckoned that once public money is paid out in potentially unlawful transactions, it is extremely difficult if not impossible to recover. Based on those submissions, he urged us to dismiss the application dated 5th February, 2026 with costs to the 1st -7th respondents. The 3rd and 4th respondents appeared at the trial and associated themselves with the submissions by the 1st respondent. 31.M/S Manani appeared for the Public Service Commission, the 16th respondent and aligned herself with the submissions of Dr. Magere the 1st respondent. Pointing out that the main petition is still pending before the High Court. She contended that the issue were raised by Prof. Ojienda [SC] and Dr. Muthomi [SC] as arguable ought to be conclusively determined at the High Court and escalated to this Court. She submitted that the appeal cannot be rendered nugatory because public entities have in house counsel who can appear in court on their behalf for urgent matters. She pointed out that in the instant proceedings, she appeared for PSC as its employee while the National Assembly and Senate were represented by their employees. She asserted that where there are urgent matters the Attorney General would appear on behalf of public entities in urgent matters while constitutional commissions would appear on their own behalf. She noted that the court did not prevent the Attorney General from appearing on behalf of state corporations and public universities. 32.As regards public interest counsel submitted that PSC is by dint of Art. 234 responsible for promotion of values of public service in Article 232 of the Constitution. She observed that one of those values under Art. 132 is to ensure efficiency and effectiveness in the use of public resources and asserted that: ‘it is not in the public interest to continue to hire external counsel expensively, when there are in house counsel who are paid salaries through public coffers.’’ Counsel argued that it will not be in the public interest to stay the orders and neither will the appeal be rendered nugatory if the orders of stay are not granted. For those reasons, counsel urged us to dismiss the application. 33.Next we heard Mr. Omtata the 4th respondent who opposed the application. He associated himself with the submissions in opposition by the parties and learned counsel. He said that there is no arguable appeal and denying the orders sought will not render the appeal nugatory. He urged us to dismiss the application with costs because it is an abuse of the Court process and let the ruling and orders of the High Court remain in full force and effect pending the hearing and determination of the appeal. 34.In a brief rejoinder Prof. Ojienda [SC] submitted that in public interest litigation the court considers the public interest to determine which direction it will tilt. In the instant case,counsel argued the balance tilts towards stay in favor of protecting existing legal rights especially where a pronouncement has been made on the constitutionality of regulations. Counsel faulted the judge for imposing guidelines which impugn the entire system of hiring and employment of the legal profession without conducting an audit and overturning decisions of courts of concurrent jurisdiction which he asserted is embarrassing to the institution of the judiciary. He concluded by submitting that no damage or irreparable damage will be suffered by the respondents if the court grants stay orders pending the expeditious hearing of Civil Appeal No. E041 OF 2026. 35.We have carefully considered the application, the supporting affidavits , the replying affidavits and the submissions by the parties. We note that though the parties addressed and made forceful arguments on a wide range of issues some of which bordered on the merits and demerits of the main appeal, our mandate under Rule 5[2] [b] is a narrow one requiring us to evaluate whether the appeal or intended appeal is arguable and if so whether that arguable appeal would be rendered nugatory. The only question for determination is whether, the applicant demonstrated an arguable appeal and will the appeal be rendered nugatory absent stay. 36.We have carefully considered the grounds of appeal in the draft memorandum of appeal and we are satisfied that they disclose several arguable issues that are worthy the consideration of this Court. It is arguable whether the judge acted without jurisdiction, violated the doctrine of separation of powers and in effect set aside decisions of courts of concurrent jurisdictions as contended by the applicant. 37.Though the 1st, 3rd and 4th respondents strongly urged us to find that those grounds are frivolous in the circumstances of this case that is not for us to say at this stage. The merits of the appeal and whether the grounds of appeal is not within our jurisdiction when considering an application under rule 5[2] [b] . We will leave that question to the bench that will ultimately hear the appeal. For the present we are satisfied that the applicant has satisfied the first limb for grant of stay. 38.But that is not enough. The applicant is also required to show that the appeal if successful will be rendered nugatory absent stay. On this we are far from being persuaded. Though applicant states that the effect of the conservatory orders is to cause a national crisis in the engagement of counsel to represent public entities the 1st ,3rd 4th and 16th have countered that no such crisis exists because the conservatory orders as varied on 26th January 2026, do not totally ban the engagement of external counsel by public entities; and only require that the use of external counsel be formally justified and approved. 39.It is trite that whether an appeal will be rendered nugatory or not depends on the circumstances of each case. In Stanley Kangethe & Others.( supra), the Court stated that ‘’the term ‘nugatory’ as to be given its full the meaning. It does not only mean worthless, futile or invalid. It also means trifling. [See Reliance Bank limited vs. Norlake Investments ltd [2002] 1 EA 227 at page 232. 40.We note that the orders that the judge issued gave express conditions that Government agencies and County governments should comply with. It has not been demonstrated how the intended appeal will be rendered nugatory if the conditions are complied with. As already noted, the attorney general, the principal adviser to the government has not taken a position that the impugned order has created a crisis. 41.On the question of public interest we agree with the respondents that in the circumstances of this case, the scale tilts in the favour of declining to issues the order of stay. In the upshot, this application fails and is hereby dismissed with costs. 42.Before we pen off this ruling, we find it necessary to voice this Court’s displeasure over the lack of participation of the Office of the Attorney General throughout the proceedings giving rise to this ruling. We note that while the protagonists battled and justified their divergent positions before the Court on the basis of protecting the public interest, the voice of the Attorney General of Republic of Kenya is completely mute. This is despite these proceedings having been brought to the attention of that office by way of service of the pleadings filed by the contending parties as well as service of the hearing notice by the Court registry. The silence of the official defender of the public interest in this matter where the applicant say that a national crisis has been precipitated by the orders sought to be stayed is not only disturbing and deplorable but to our mind smacks of very serious abdication of the duty of that office to assist the Court in arriving at a fair and just determination of the dispute. DATED AND DELIVERED AT NAKURU THIS 12TH DAY OF JUNE 2026.J. MATIVO....................................JUDGE OF APPEALM. GACHOKA C. Arb, FCIArb.....................................JUDGE OF APPEALMURUNGI B. KAIRARIA....................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR