https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3149

Onyango & 6 others v County Government of Bungoma & 2 others (Environment and Land Petition E001 of 2026) [2026] KEELC 3149 (KLR) (4 May 2026) (Ruling) Neutral citation: [2026] KEELC 3149 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Environment and Land Petition E001 of 2026 AK Bor, J May 4, 2026 Between Monica Adhiambo Onyango 1st Petitioner Emmanuel Wekesa Luvisia 2nd Petitioner Ruth Milly Makori 3rd Petitioner Caroline Mamai 4th Petitioner Mourice Wangila Werunga 5th Petitioner Fred Wamalwa 6th Petitioner Rose Nanjokho Wanyama 7th Petitioner and County Government of Bungoma 1st Respondent Department of Lands, Urban & Physical Planning Housing & Municipalities, Bungoma 2nd Respondent Bungoma Municipality 3rd Respondent Ruling 1.Through the preliminary objection dated 22/1/2026, the Petitioners argued that the intended representation of the Respondents by the firm of Kienga & Odhiambo Advocates was unlawful and directly contravened subsisting conservatory orders issued by a court of competent jurisdiction suspending the engagement, procurement, payment and continuation of the services of private law firms by public entities until the petition was heard and determined. The Petitioners argued that being public entities, the Respondents were bound by those conservatory orders and could not retain or contract private advocates during the subsistence of those orders. 2.The Petitioners urged that any Notice of Appointment and documents filed pursuant to such unlawful instructions were void and that allowing the advocates to come on record on behalf of the Respondents would amount to aiding and abetting contempt of court. They urged that the Respondents’ conduct and that of their advocates offended the doctrine of constitutional supremacy under Article 2 of the Constitution since court orders bind all persons and State organs without exception. They added that public entities are required to comply with court orders and that the representation of the Respondents by the external advocates raised a fundamental conflict of interest and ethical breach because it was founded on an illegal contract. The Petitioners went on to add that the Respondents were already adequately represented by constitutionally established legal offices including the Office of the Attorney General, County Attorneys and County Legal Officers and that the engagement of private counsel was unjustified, unlawful and a waste of public resources. 3.The Petitioners urged that this court lacked jurisdiction to entertain pleadings or appearances founded on illegality and that it must down its tools at the earliest opportunity. 4.The Petitioners invited this court to uphold the preliminary objection, strike out the notice of appointment filed by the Respondents’ advocates and expunge from the record or pleadings, affidavits and documents filed by that law firm. In addition, they sought to have this court bar the law firm from appearing or addressing the court on behalf of the Respondents during the subsistence of the conservatory orders. The Petitioners sought to be awarded the costs of the preliminary objection. 5.The preliminary objection was canvassed through written submissions. The Petitioners submitted that court orders bind all persons and entities, whether or not they were parties to the proceedings. The Petitioners contended that illegality vitiates everything and that the advocates’ instructions flowed from an illegal act prohibited by a court order. They urged that the notice of appointment and documents filed by the law firm were a nullity and that the advocates lacked locus standi to address the court. 6.The Petitioners submitted that under Article 156 of the Constitution, the Attorney General was the Principal Legal Advisor to the Government and that County Governments are served by County Attorneys and County Legal Officers established under statute. They argued that the Respondents could not bypass constitutional legal offices and procure private legal services in defiance of court orders. 7.The Petitioners urged that jurisdiction was everything and that where pleadings were founded on illegality, the court must down its tools. They argued that upholding the preliminary objection would protect the authority of the court, enforce compliance of court orders and uphold constitutional accountability in the use of public funds. 8.The Respondents submitted that while a judge of the High Court would follow the decision of another judge of concurrent jurisdiction to maintain certainty and uniformity, such a judge was not bound to do so if persuaded that the earlier decision was clearly wrong. They argued that although judicial comity encouraged consistence and discouraged conflicting decisions, it did not fetter the discretion of a court of equal status from departing from an earlier decision if convinced that the earlier decision was wrongly decided, distinguishable or inconsistent with superior authority. 9.The Respondents submitted that every person had a right to be represented by legal counsel of their choice and that the Constitution recognized the right to legal representation as a critical component of the fundamental right of fair hearing. They cited Article 50 (2) (g) which guarantees the right to a fair hearing. They went on to argue that it was not the business of the court to dictate which advocate should act for a litigant unless it could be shown that the interest of justice would not be served if that advocate were to represent that litigant in the matter. 10.The Respondents argued that while courts had recently entertained challenges to the practice of public entities retaining public advocates, the law emphasized that the engagement of external advocates was governed by the Public Procurement and Asset Disposal Act, which requires that such engagements be conducted through a fair, competitive, open and accountable procurement process. 11.The Respondents argued that the authority of a public body to hire external counsel must satisfy the constitutional principles of public finance and management under Article 201 of the Constitution and must meet the requirements of Articles 10 and 227 including good governance, transparency, value for money, integrity and public participation. They contended that compliance with procurement procedures did not abrogate a public body’s right to choose competent external counsel where necessary. They added that the essence of complying with procurement laws was to ensure competitive selection, equal opportunity and objectivity but was not intended to prevent a public body from engaging advocates through lawful tendering processes. 12.The Respondents concluded that the County Government of Bungoma had the right to appoint the advocates on record having followed the procurement laws as required of it. They urged that the preliminary objections should be dismissed for not raising pure points of law. 13.The issue for consideration is whether this court should uphold the preliminary objection and strike out the documents filed by the Respondents’ advocates as sought by the Petitioners. The preliminary objection is anchored on the conservatory orders issued in Nakuru High Court Constitutional Petition No. E001 of 2026 – Dr. Magare Gikenyi B & 6 Others v Council of Governors and 71 Others. The court has looked at the interim determination made by Judge Muhochi in that case on 27/12026. The judge varied and modified the orders he had issued on 12/1/2026 by directing that public bodies falling within the National Government needed to obtain the approval of the Attorney General for engagement or procurement of private law firms pending the determination of the application before that court. 14.The Judge directed that the engagement or continued engagement or procurement of law firms had to be justified based on the parameters set by the court including justification on need for specialization and the assurance of prudent use of public resources. Regarding Counties, a formal approval from the County Executive Committee (CEC) or recommendations from the County Attorney indicating the necessity for specialization and guaranteeing the prudent use of resources. The court gave conditions upon which the Controller of Budget and relevant public officers could approve funds for the acquisition of external legal services. One of the conditions is that the CEC or County Attorney has to demonstrate the need for specialization and commit to the prudent use of public resources. 15.This court notes that the petition before the Nakuru High Court has not yet been heard and determined on merit. It is not clear when the instructions in this matter were given to the Respondents advocate. The directions given by Judge Muhochi were that the conservatory orders which he issued did not affect instructions or undertakings made prior to 12/1/2026. The Judge was to give further directions on 30/1/2026. However, the parties in this matter did not submit on the prevailing orders in the Nakuru Case. 16.Based on the directions of Judge Muhochi given on 27/1/2026, there is room for the CEC and the County Attorney to comply with the conditions set by the Nakuru court. It would not serve the public interest or common good if the documents filed by the Respondents’ advocates in opposition to the petition and application for conservatory orders were to be expunged as the Petitioners sought. 17.There is no doubt that it is in the best public interest that suits against the County Government are defended irrespective of whether it is by the County Attorney or external advocates. This is to obviate hefty monetary awards or compensation being made by the court against County Governments where the suits are not defended by the counties as this would increase the financial burden to the public coffers, which appears to be the spirit and intention behind the suit filed before the Nakuru High Court. 18.The preliminary objection dated 22/1/2026 is dismissed with each party bearing its costs. 19.The County Attorney of the County Government of Bungoma is granted 30 days to comply with the directions given by Judge Muhochi in the Nakuru High Court case on 27/1/2026 regarding the engagement or continued engagement of external advocates by public entities in Nakuru High Court Constitutional Petition No. E001 of 2026. DELIVERED VIRTUALLY AT BUNGOMA THIS 4TH DAY OF MAY 2026.K. BORJUDGEIn the presence of: -Mr. Muyala Kibaba for the PetitionersMr. Timothy Ogolla for the RespondentsCourt Assistant- Josephat Bett