Questions were raised Monday when two senators appeared in court as part of Nairobi Governor Mike Sonko's defence team with critics arguing that it raises serious issues of conflict of interest on the part of the legislators.
Leader of Majority Kipchumba Murkomen (Elgeyo Marakwet) and Minority Whip Mutula Kilonzo Jr (Makueni) were part of the 12 advocates that lined up in court to defend the governor who is facing 19 counts related to corruption and other economic crimes at City Hall.
The presence of the two in court follows a tradition that has been sustained by Siaya Senator James Orengo, who has maintained his legal practice despite the fact that he is a legislator.
Critics argue that the legal position they have adopted prejudices their duty as senators who have the mandate to oversee counties.
Article 96 of the Constitution gives the senate the exclusive mandate to protect counties and their governments.
It is the senate and the county assemblies that consider and vote on the financial accounts of the 47 county governments.
As senators, Mr Murkomen and Mr Kilonzo Jr will have to cast their vote when the matter finally gets to the House through the report of the watchdog committee that considers the accounts.
Mr Murkomen dismissed the accusation, saying there is presumption of innocence on the part of Mr Sonko and that nothing in the law stops him from representing a client.
"What you are seeing is a coordinated assault on the counties and their governments," Mr Murkomen said, adding that he got involved in the case in line with Article 96, which mandates the senate to protect counties.
He protested that the issue was merely cropping up because of his involvement in the case.
The issue of legislators representing clients in court was part of a heated debate between the Office of the Director of Public Prosecutions, Mr Orengo and Nyamira Senator Okong'o Omogeni in the petition filed by Deputy Chief Justice Philomena Mwilu after her arrest and arraignment in court.
The DPP filed an application in the high court seeking the disqualification of Mr Orengo and Mr Omogeni from acting for Ms Mwilu, because by virtue of their positions as lawmakers, they had accessed information that prejudiced the prosecution case.
Apart from Ms Mwilu, Mr Orengo has also represented Busia Governor Sospeter Ojaamong in his corruption trial.
On the issue of conflict of interest, the high court ruled that a party alleging a conflict of interest bears the burden of presenting clear evidence that the person said to be acting in conflict of interest is acting in a manner prejudicial to the interests of the other party.