Professional Ethics and Responsibility 2015

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COUNCIL OF LEGAL EDUCATION
KENYA SCHOOL OF LAW

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THE ADVOCATES TRAINING PROGRAMME

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PROFESSIONAL ETHICS
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4TH MARCH 2015
Joe Kadendi Wachosi Page 1

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CHAPTER 1
INTRODUCTION TO PROFESSIONAL ETHICS
1.1 PHILOSOPHY AND ETHICS
Ethics, also known as moral philosophy is a branch of philosophy that addresses questions about morality—
that is, concepts such as good and evil, right and wrong, virtue and vice, justice, etc.
Etymologically, ethics is the philosophical study of moral values. The study involves systematizing,
analyzing, evaluating, applying, defending and recommending concepts of right and wrong behavior. In
general terms, morality has to do with the dos and don‘ts as expecting of a rational human person. In
modern times, Philosophers divide ethical theories into three general subject areas: meta-ethics, normative
ethics, and applied ethics.
1.1.1 THE PROFESSION

A profession is a vocation requiring advanced education and training.1 It may also be defined as a learned
activity that involves formal training, but within abroad intellectual context.2 According to Boone (2001)3a
Profession is based on, first, philosophy acquired through advanced training. Second, professionals render
unique public services which require extensive training. Third, professional work needs thorough
preparation because of its unique nature. Fourth, professions are based on specialized skill. Fifth,
professional services should be rendered for the benefit of the public.
1.1.2 CHARACTERISTICS OF A PROFESSION
There are a number of corollaries that distinguish a profession from other occupations. Below follows a
discussion of each of these corollaries.
a) Restrictions
Professions impose restrictions in two ways – in terms of entry requirements and in terms of operation of
the profession.
 Entry Requirements
Professions impose anti – competitive rules and barriers to entry in order to regulate the number of people
joining the profession. Accordingly, a person can only become a member of the profession after having been
certified by some established body of the profession.
 Professional Operation
The profession usually control the conduct of its members in a number of aspects. The argument for this
position is that ―professions must maintain dignity, and that, advertising and price competition are not
conducive for dignity.‖4
Again, professions prevent unnecessary competition among its members by ensuring that the number of
people joining the profession is regulated by having strict entry requirements.
1 Bryan A Garner, Black’s Law Dictionary,(8th ed. 2004) at 1246.

2Danniel Bell, The Coming of Post- Industrial Society (1973) at 374 as quoted by Ronald D. Rotunda and John S. Dzienkowski, (ibid)note 1
3 Boone, T., 2001, „Constructing a Profession’ Professionalization of Exercise Physiology online: An international electronic journal for exercise
physiologists
4Ibid

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b) Regulation of Performance
Regarding professional regulation and performance, a number of points are worth noting. First, professions
offer peer review for the members of the profession. The aim is to evaluate the performance of their
members and to instill the accepted code of behaviour in their members at all times and to ensure that the
quality of services offered to the public is not compromised.
Second, professions focus on the duty to serve the good of the community as a whole and not just one‘s
own good or that of one‘s clients. This implies the performance of the members of that profession is
regulated to factor in this position. Consequently, professionals are supposed to conduct their affairs with
decorum at all times and to avoid engaging or doing anything that may bring the name of the profession into
disrespect.
Third, professionals are not allowed to engage in unauthorized practice. This does not merely mean that a
person is not qualified to practice as a professional. For instance, in Kenya, only certified members of the
bar are allowed to practice law. The argument for this is that it is one thing to qualify as a lawyer and yet,
another thing to qualify to practice law.5
Fourth, professional evaluation is, in most cases, based on the standards of malpractice as opposed to
negligence6 so that a professional will only be held liable where he/she conducts himself/herself in manner
that is not befitting to that profession. However, in certain instances, a professional may be held liable for
negligence where the same is proved against him/her.
Fifth, professions are self regulating so that it is other members of that profession who set professional rules
and decides on whether a professional is in error. The essence is that a professional must be judged by an
expert in that field and not a lay person. It is argued that the review by experts is an advantage to
professionals as there are no swift disciplinary actions taken.
c) Professional Advancement
The starting point is that professions do not exist for business purposes; they exist to serve the best interest
of their clients, therefore, they emphasize on quality.7 Again, when serving the clients, professionals must
always have in mind and avoid engaging in practices that may inflict unnecessary harm to the public because
the services the professionals offer aim at benefiting the public as a whole and not mere individuals who pay
for those services. This explains why professionals, especially, lawyers have an obligation to always balance
the interests of their clients against other competing interests such as the interests of the public and the
court. In this regard, where there is a conflict between individual interest and public interest the public
interest takes pre-eminence. Again, where there is a conflict between a lawyer‘s obligation to the client and
a lawyer‘ obligation to the court, then the lawyer‘s obligation to court will prevail. The reasoning is that
professionals are more interested in public service rather than individual self-aggrandizement explains why
courts have forced advocates to continue representing their clients even where the client has not paid the
advocate.8
5Infra,note 69.
6Supra note 13 at 31.
7Ibid at 32.
8See the case of P. Machira v Abok James Odera[2006] eklr.

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d) Fiduciary Relationship
Professions emphasize on the fiduciary nature of the relationship the professionals have with their clients. It
is argued those professionals are fiduciaries of their clients. For this reason, they are expected to act as
trustees for their clients in all circumstances. Accordingly, it behooves a professional to act in utmost good
faith and due diligence when dealing with their clients and when handling their clients‘ property.
Professionals are prohibited from using their client‘s information or money or property unfairly. Besides,
professional are prohibited from unreasonably overcharging their clients for their services.
1.2 ETHICS AND THE LEGAL PROFESSION

―The legal profession has existed for over two thousand years; from the Greek city-states and the Roman
Empire to the present day. Legal advocates have played a vital and active role in the formulation and
administration of law. Because of their role in society and their close involvement in the administration of
law, lawyers are subject to special standards, regulation, and liability‖.9
The rules of professional conduct, as we know them today, have a long history that goes back over two
centuries. For instance, there was a time when the legal profession was never regulated so that lawyers
were solely guided by their moral conscience.10 However, times have changed and the nature of a lawyer‘s
work has also changed. The law practice has become more of a business than a profession as it originally
used to be. Lawyers can no longer be left to regulate their own conduct by use of common sense as this
would lead to absurd consequences. Accordingly, lawyers have to be regulated because they have fiduciary
duties to their clients; duties which are more than mere contractual obligations.11
Many jurisdictions world over regulate the conduct of the legal profession through enactment of relevant
statutes and codes of professional conduct and ethics. These codes prescribe what is regarded as ethical and
unethical in the practice of law. Regard must be had to the fact that what is unethical according to the
standards of the legal profession may not necessarily be what is regarded as unethical in ordinary standards.
Legal ethics involves regulation of legal professionals in a manner that conforms to minimum moral
standards required by the legal profession. However, there is a distinction between morality as generally
understood and morality as expected of a lawyer and as used in this context. The former denotes the
standard of conduct that is generally accepted as right and proper in society. It denotes value that societies
consider as virtuous and acceptable. The later however signifies value that diverse societies consider
virtuous of a lawyer as a professional.
The society demands exemplary services from lawyers so that a lawyer does not have a carte blanche in the
performance of his duties once a brief is accepted.12 As a safeguard, the following questions ought to linker
in the mind of a lawyer at all times whenever a lawyer engages in a particular act or conduct:
1) Is the conduct in question prohibited? If yes, what is the penalty?
2) Doe the conduct in question give rise to ethical or moral concerns?
9Dr. Destiny Tom Namwambah, “Ethics; A Philosophical Inquiry”, 2009.

10See Russel G. Pearce, Rediscovering the Republican Origin of Legal Ethics code, 6 Georgiatown Journal of Legal Ethics (1992) at 241.
12See Richard Du Cann, The Art of the Advocate at 13.

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3) Does the conduct in question give rise to legal concerns?

4) How should a lawyer act when confronted with two equally conflicting situations?
5) Should a lawyer be held liable for acting in a particular manner? How should a lawyer act under
such circumstances?
1.3 PROFESSIONAL ETHICS AND PROFESSIONAL RESPONSIBILITY

Professional ethics refers to a way of behaviour considered as correct in a particular profession. It is the
accepted mode of behaviour of a particular profession. The meaning of professional ethics is almost similar
to the meaning of professional etiquette which also is the acceptable code of conduct in a particular
profession; the morals of the profession. It deals with reconciling the use of rules to regulate the conduct of
Lawyers and the expectation that lawyers will conduct themselves in an acceptable ethical manner. 13These
rules give rise to professional responsibility so that it is expected that lawyers exude confidence to the
public by upholding the morals of the profession and to uphold the high level of standards expected of them
by the society. Consequently, professional responsibility refers to obligations and mandate relating to or
belonging to a profession. It revolves around taking responsibility for the acts and or omissions of members
of a profession
1.4 THE LEGAL PROFESSION

The practice of law is regarded as one of the oldest professions in the world and its origins are traced back
to the Roman Empire Age; in the period before Christ. At that time, some people in society particularly
persons of high social status often persuaded adjudicators in a tribunal to decide a case for somebody i.e. it
was common for persons of high social status to speak up on behalf of those not articulate enough.
Law is considered to be one of the learned professions the others being Medicine and the
Ministry/priesthood. Learned professions share common and differentiating characteristics:
1. They are learned in the sense that one goes through a period of education, training and
apprenticeship before being admitted to engage in the profession; law degree, law schools for bar
exams and trained and exposed to the procedures relevant to the profession and the bar exams
should expose one to procedure and ethics;
2. The prospective professional must first be subjected to a process of testing by persons who are
already in practice and they must be certified as minimally competent to practice as professionals.
For advocates the prospective advocate services pupillage under a pupil master who should be an
advocate of at least 5 years standing. This pupil master should subject the pupil to testing.
3. Professionals specifically the small class of professions enjoy an advantage in social prestige on
account of the following:
(i) High Income because lawyers particularly doing well have a high income;
(ii) On account of assumed wisdom
(iii) Nature of the work which gives social prestige that other members of society don‘t
enjoy.
13John F. Sutton, Jr and John S. Dzienkowski, Cases and Materials on professional Responsibility of Lawyers,(2nd ed. 2002) at 1.

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4. Professionals enjoy a significant amount of autonomy as a group what is known as professional

independence. This is because only other members of the profession have the intense special
learning of the profession.
5. Organised groups of members of the profession attempt to exercise relatively rigid control over
other group members i.e. they tend to organize themselves into organizations that exert control
over members of that organization exercised in terms of a code of ethics
6. The profession enjoys a monopolistic control over its own affairs and income but with a measure
of state support. The affairs of the legal profession are largely controlled by the Law Society of
Kenya a body created by statutes. The income of the members if regulated by law there is the
Advocates Remuneration Order which is subsidiary legislation made under the Advocates Act
which gives guidelines on how lawyers should charge for their services. The figures stated in the
Advocates remuneration order are usually prepared by the Law Society of Kenya and approved
by the Chief Justice.
1.5 THE LAW AS A PROFESSION

What distinguishes professionals today?
 There is a members List of professionals, for example, the Roll of Advocates
 They possess Special Skills
 Professionals are regulated by a Code of Conduct derived from rules of legal ethics.
 Discipline- Professionals have a disciplinary process that is self-governed.
 Professionals are licensed.
There are certain features of law practice that make it a profession as distinct from a business or trade. The
practice of law has four characteristic features that make it a profession:
The first characteristic is that law is a public calling which entails a duty to serve the good of the
community as a whole, and not just one‘s own good or that of one‘s clients. Anthony Kronman: ―In the
second chapter of the Wealth of Nations, Adam Smith makes the famous observation that ‗it is not from the
benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to
their own interest. Smith goes on to explain how each of these, pursuing his business with an eye solely to
his own advantage, produces by means of an invisible hand an addition to the public good. With lawyers, it
is different. Like the butcher, the brewer, or the baker, the lawyer also expects an income from his work.
Like them, the lawyer generally is not motivated by benevolence to do what he does. But in contrast to
smith tradesmen, it is a part of the lawyer‘s job to be directly concerned with the public good- with:
 the integrity of the legal system,
 with the fairness of its rules and their administration
 With the health and well being of the community that the laws in part establish and in part aspire to
create.
We say that every lawyer is an ―officer of the court.‖ What we mean is that lawyers, like judges are bound
by their position to look after the soundness of the legal system and must take steps to insure its justice-

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conscious, direct and deliberate steps, not those indirect and unanticipated ones that lead the butcher and
his friends from a preoccupation with their own advantage to the surprising and wholly unintended
production of a public good. A lawyer who is doing his job well dwells in the tension between private
interest and public good and never overcomes it. He struggles constantly between the duty to serve his
client and the equally powerful obligation to serve the good of the law as a whole.
The second characteristic is the non-specialized nature of law practice. The education that lawyers
receive reflects this.
A Third source of the lawyers professionalism-related to this second one- is the capacity for judgment.
The goal of legal education is not to impart a body of technical knowledge but to develop certain general
principles or abilities: the ability for example, to see facts clearly, and to grasp the appeal of points of view
one doesn‘t embrace. The good lawyer- the one who is really skilled at his job- is the lawyers who possesses
the full complement of emotional and perceptual and intellectual powers that are needed for good
judgment; a lawyer‘s most important and valuable trait.
The fourth characteristic concerns time, and the location of law within it. To enter the legal profession
is therefore to come into an activity with self-conscious historical depth, to feel that one is entering an
activity that has long been under way, and whose fulfillment requires collaboration among many
generations. It is to know that one belongs to a tradition. By contrast, in many lines of work- even those
with a long history- all that matters is what is happening now, and the temporal horizon of one‘s own
engagement in the work shrinks down to the point of the present.
1.5.1 THE ROLE OF LAWYERS IN THE SOCIETY

Ray Simon/Murray Schwartz said the following about lawyers in their text Lawyers and the Legal
Profession
They warned law students that they are about to enter a profession which is under constant attack. They
said ―lawyers are not popular, they are not trusted, and lawyers are not respected. You are embarking on a career that
will lead you to ridicule, criticism and suspicion, your work will seldom be understood or appreciated by your friends, by
the public or even by your own clients...”
They go on to say that everywhere you look lawyers are under attack, they are attack in court, you will be
under attack in the press, in the business world, and they are attacked in the legislature. The suggested two
cheque system was an attack on lawyers so that the decretal amount could go directly to the client since a
lawyer is likely to embezzle client‘s money.
Lastly they are also under attack in the political arena. President Moi was fond of attacking lawyers in
public and is credited with a piece of legislation that was trying to do away with lawyers in land transactions
(Cap 300). Charles Dickens whose novels have also savaged the law and lawyers and has never had a
kind word for lawyers. Jonathan Swift another writer of the 13th century described lawyers as a society of
men bred up from their youth in the art of proving by words multiplied for the purpose that white is black
and black is white according as they are paid. Benjamin Disraeli is reported as saying that the legal mind
consists of illustrating the obvious and explaining the self evident.
1.5.2 WHY IS THE IMAGE OF LAWYERS SO BAD?

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This has something to do either with the nature of the lawyer‘s profession or the workings of the legal
profession or it has something to do with impropriety on the part of advocates or both. This is in the sense
that when one is representing a criminal, not many people will understand why one is representing a
murderer for example.
According to Lord Simonthe law troubles only those who put themselves in trouble. Those
who are in trouble will seek a lawyer and it is therefore not surprising that a painful prejudice would be
created against those who appear to live on other peoples‘ misfortunes. A lawyer‘s work is therefore
viewed as being rather dirty.
Professor Robson calls it a lawyer‘s dilemma; he says that a defeated client would abuse his own attorney
for ineptitude and that the advocate for the opponent was deceptive. His successful antagonist on the other
hand would resent having to pay for what he believed in the first place were his rights and he would have a
grudge against the advocate for the other side for having subjected him to unnecessary delay and expense.
1.5.3 ROLE OF LAWYERS IN THE SOCIETY IN VIEW OF THE ABOVE

Ethics in the legal profession should be discussed in the context of the lawyers‘ role in society - the
promotion of social, political, and economic progress. Gone are the days when the role of the lawyer was
restricted merely to the traditional duty of being a guardian and watchdog for the protection of the rule of
law only. While that role still remains significant and fundamental, the role of the lawyer, especially in a
developing country such as Kenya transcends this age-old traditional role. This position was fortified by
Lord Denning in Rondel v. Worseley14 reiterated in Groom v. Crocker.15
Where he summarised the role/duties of a lawyer as being:-
i. Duty to his client
ii. Duty to the profession
iii. Duty to court, and
iv. Duty to himself.
Lawyers certainly believe that they have a role in society but that what they do cannot be seen by the naked
eye or what they do is not perceived as being very useful.
Lawyers have a duty and a responsibility to society. The lawyer‘s very existence is service to society. The
principles governing the legal profession require advocates or lawyers to provide service to clients of
whatever class. They have no choice; they are not required to pick and choose clients because everyone is
entitled to access to justice. One may say that a client has a dream and it is the lawyers‘ duty to help the
client achieve that dream. The client doesn‘t know how to achieve his dream and advocates must help
clients do things that they cannot themselves do.
Our role as lawyers is not limited to what we do for our clients; it extends beyond the lawyer client
relationship. We are expected as lawyers to play a much larger role in society in various transactions. It is
said that American lawyers contributed substantially in the formation of the States of America, they are
credited with drafting the Federal and State Constitutions of the United States, which are said to form one
of the most complex federal systems of government in the world.
Justice Simmons once remarked that the lawyer must be a teacher of the law and government and that he
must furnish the public with leadership in matters of government. Another US Jurist by the name of

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Arthur Vanderbilt said that in a free society, every lawyer has the responsibility of acting as an intelligent
and selfish leader of public opinion. Our training prepares for public service and leadership positions in
society.
Lawyers also have a calling to the enforcement of human rights and advocates on admission to the bar take
an oath swearing to defend the constitution and the rule of law. If there is any area where lawyers can be
counted as true heroes, it is in the defence of human rights, it is where they speak out for the rights of
others and the public in that respect views them as fearless champions of the rights of the individual. In the
words of Lord Atkin, ―there is no other profession which has done more in the way of both effort and sacrifice to
maintain the supremacy of the law of a over force hand to preserve the safeguards of liberty against any form of invasion
whether from the autocracy of a sovereign or from the domination of a class or from the seductions and threats of a
crowd.”
The work of a lawyer must therefore include the curbing of abuse and misuse of power and the setting of
limits to power. A lawyer is expected to hold two fundamental beliefs:
1. That all social activity including politics has rules and limits, there is absolutely nothing without
limits; and
2. Those lawyers have to participate in remedying injustice and the abuse of power.
The role of lawyers is set out in the objects of the Law Society of Kenya Act at Section 4. There are several
but two are crucial
1. To assist the government and the courts in all matters affecting legislation and administration of
justice in Kenya; note that we are talking of all matters affecting legislation and public
administration.
2. To protect and assist the public in Kenya in all matters touching or incidental to law.
Separation of Powers
It is argued that the full meaning of separation of powers can be achieved only with the help of lawyers
through an independent bar and the judiciary. The doctrine of separation of power cannot work without
assistance of lawyers. The rule of law requires an independent bar and bench. With this regard the
Constitution of Kenya 2010 adopts the multi-dimensional approach to the organisation of governance by
adopting both the horizontal and vertical separation of powers. Under the horizontal separation of powers
the Constitution creates three distinct arms of government and thereafter delineates specific powers and
functions to each or these arms. For example, the Legislature is created and its functions specified under
chapter VIII, the Executive under chapter IX and the judiciary vide chapter X.14
Independence of the Bar

 Advocates are enjoined by their oath to work fairly and without favouring parties in their choice of
clients. They are called upon to work independently.
 The rule of law requires not only an independent judiciary, but also an independent bar.
14Mayende, S.N. (2011) ‘The Concept of Constitutionalism: A Study of the Constitution of Kenya 2010’.A Submitted Moi University School of Law
Dissertation,pp. 71.

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 The bar must be independent from the executive, the judiciary, the client and must be independent
from the desire to win at any cost.
An independence of the Bar entails four main things
a) Independence from the Executive;
b) Independence from the Judiciary;
c) Independence from the Client;
d) Independence from wining at any cost or the temptation to win at all costs.
Independence from the Executive

The advocate must be free as the judges must be free of any suggestion that he/she is dependent upon the
executive or compliant with its wishes or unable to resist its demands. The professional requirements of an
advocate‘s work necessitate those decisions relating to a client‘s case must be made in the interests of the
client upon the facts and the applicable law. Such decisions must not be made by reference to the desires of
the executive or its directions.
Independence from the Judiciary

It is important that the advocate retains his independence from the expressed or implied suggestions and
directions of the court. The advocate is entitled to take every defense or maintain every position that a
client can take or maintain for herself / himself. It is the advocate‘s duty to do so. An advocate should
gratefully and gracefully accept such proper suggestions from the court but must always remain conscious
that that is not the court‘s function, and that the conduct of his client‘s case is his sole preserve. To quote
Madan JA:
“The litigant and their professional advisers are the best judge of their affairs.”
An advocate ought to test court suggestions against the following criteria:
i. The client‘s best interests: Do the court‘s suggestions further them?
ii. The advocates own professional judgement: How do they compare?
Independence from the Client

While strenuously acting in the client‘s best interests, advocates must endeavour to remain independent
from them. Usually, most clients seek professional advice from an advocate. However, there are certain
clients both corporate and individual, who see the advocate as an employee. An advocate should be alive to
the fact that his legal / professional fees do not buy him (the advocate), they buy his/her best professional
judgement and advice and be prepared to even lose the brief. This is rendered necessary by the fact that the
moment an advocate loses his independence to the client, he loses his professionalism. Accordingly, she/he
cannot protect his client‘s best interests.
Independence from winning at any cost

 A temptation faced by an advocate throughout his career. This is because its insidious nature attacks
both senior and junior counsel.

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 This temptation must be resisted. It will always lead to a breach of professional rules and etiquette. It
logically defies all other laws as well; i.e. the law of statistics, you cannot win them all; the more one
becomes desperate and thus employs desperate means.
Summary of the Role of Advocates in Society

The International Commission of Jurists in a Congress held in Rio de Janeiro in 1962 in Brazil defined the
role of the lawyer in a changing world as follows:
1. They stated that the scale and knowledge of lawyers are not to be employed solely for the benefit of
clients but should be regarded as held in trust for society – that is why we are saying that the calling
of a lawyer is to public service
2. It is the duty of lawyers in every country both in the conduct of their practice and in public life to
help ensure the existence of a responsible legislature. They should help in ensuring a responsible
legislature elected by a public process and an independent judiciary and to be always vigilant in the
protection of civil liberties and human rights;
3. Lawyers should be concerned with the prevalence of poverty, ignorance and inequality in human
society and they should take a leading role in providing measures which will help eradicate these
evils. This is of concern to lawyers because so long as these evils prevail in the society human
beings cannot fully enjoy their civil rights and liberties; lawyers are therefore required to engage
actively in promotion of legal aid providing services to poor free of charge so that the poor can have
access to justice and enjoy their civil rights.
4. Lawyers should endeavor to promote knowledge of and to inspire the rule of law and an
appreciation of all people of their rights under the law. Therefore the responsibility on the
shoulders of lawyers is immense as society expects a lot from lawyers. This is because lawyers are
called to perform higher duties i.e. they have a higher duty than that of ordinary citizens and it is
this higher duty which demands a higher degree of personal integrity on the lawyers part and it is
failure to attain this high standard of integrity and discipline that exposes lawyers to failure;
1.6 HISTORY OF THE LEGAL PROFESSION IN KENYA

The legal profession was introduced here by colonialism. It is an English tradition and not indigenous. In
the very early days of colonialism, there were two branches of the legal profession; there was the colonial
legal service and the judiciary. These were the lawyers in public service. The colonial legal service would
refer to the lawyers working in the Crown Law office or the Attorney General‘s office and the various
registry i.e. Lands Registry.
The other branch was the private legal profession and the persons in this branch were individually known as
advocates. The profession in Kenya from the very early days was fused with the advocate performing the
duties of both barristers and solicitors it was fused because there were not many lawyers in the market and
therefore they were allowed to do both duties. Entry into the profession required that the advocates
basically had to qualify as barristers for admission to practice as advocates they had to qualify as barristers.

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The origins of the legal profession in Kenya are traced to the year 1901 when Barristers and Solicitors and
pleaders from the Indian High Court were allowed to practice in Kenya. Disciplinary control over the
advocates was exercised at that time by the High Court. There was not organized body of the advocates at
the time and it fell on the high court to control the conduct. At this time lawyers did not have monopoly of
practice. They were not the only people who could practice law, the senior judge of the High Court could
licence other persons of good character to practice, he could licence lay persons who had shown themselves
to be of good character to practice.
In 1911 non-lawyers were forbidden from practising in Kenya. In the same year lawyers from the
commonwealth were permitted to practice in Kenya i.e. Lawyers from any commonwealth country.
The regulation of the legal profession in Kenya by an organized group within the legal profession started
with the Mombasa Law Society which was founded in those early years. The first High Court was
established in Mombasa in 1911 and the legal profession really started at Mombasa. The Mombasa Law
Society was a voluntary organization membership was not mandatory. When Nairobi was established as a
centre of commerce and administration and a High Court established here, the lawyers practising in Nairobi
formed the Nairobi Law Society which was also a voluntary organization.
The two societies merged sometime in the 1920s to form the law society of Kenya. Therefore the LSK was
born in 1920s. Currently membership of the Law Society of Kenya is mandatory. The Mombasa Law
society remained in existence as a voluntary body, the Nairobi Law Society disappeared when LSK was
formed but Mombasa Law Society remained in existence as a voluntary body and remains so to this day.
The Mombasa Law Society normally nominates a Mombasa Advocate to sit at the council of the Law Society
of Kenya.
The Advocates Act and the Law Society Act of Kenya were enacted in 1949. These are the two
pieces of legislation for the regulation of the legal profession. The LSK Act Cap 18 established the existing
Law Society of Kenya as an incorporated body and made its membership mandatory. The two statutes
remain in force to date, several amendments have been inserted over the years and the only other statute to
be enacted in recent years is the Council for Legal Education Act Cap 16A Laws of Kenya. The
Council for Legal Education mainly addresses the issues relating to pupillage and bar examinations. The
Advocates Act Cap 16 on the other hand deals with among other things qualifications for admission to
the bar in Kenya. The regulation of the legal profession in General in terms of issuance of practising
certificates, remuneration of advocates, discipline and related matters.
The Law Society of Kenya Act establishes the Law Society and sets out its objectives and the administration
of the society.
1.6.1 DEVELOPMENTS IN THE LEGAL PROFESSION AFTER 1949

In 1949, Acts were passed which placed the organization and control of the legal profession on a new
footing.6 The Law Society of Kenya Act7 established the existing Law Society as an incorporated body
having among its main objects the maintenance and improvement of standards of conduct of the legal
profession in Kenya, the representation and protection of, and assistance to members of the profession as
regards their conditions of practice and otherwise, and the protection and assistance to members of the
public in all matters touching law.8 The council governing the society was to make rules on a variety of

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topics, among them the grounds for expulsion from the society. These rules did not have to be approved by
any other person or body, any more than did any other actions of the council. This did not perhaps matter
too much, for membership of the society remained voluntary, and expulsion there from did not prevent an
advocate from continuing to practice.9
To remedy the above defect, the Attorney General represented the Advocates Act,10 in introducing into the
legislative council.11 The Act established bodies and conferred powers where none had previously existed as
a matter of law. The two important new bodies that were established were the Advocates committee and
the Remuneration Committee. Specifically, the Advocates‘ committee was given certain responsibilities in
the field of discipline.12 Any one could make a complaint concerning the conduct of an advocate. The
complainant and the advocate complained of were heard by the committee, which submitted a report to the
court, together with all the evidence, if it considered that there was a prima facie case to answer. 13
The Law Society of Kenya (LSK) has among its objects the maintenance and improvement of standards of
conduct and of the learning of the legal profession in Kenya, assistance to the government and the courts in
all matters affecting, inter alia, the administration and practice of the law and protection and assistance of
the public in all matters touching, ancillary or incidental to the law. More specifically, unlike during the
colonial era when it served the colonial interest, the LSK operates as a democratic institution necessary for
the promotion of the rule of law and a buttress of democracy.
1.6.2 SUMMARY OF THE HISTORY OF THE LEGAL PROFESSION IN KENYA

3 phases of the development of legal practice
1. Colonial Bar
We inherited two segments i.e. public and private from the colonial era. The government invested a lot in
public bar which was by persons who came from England and the private bar was mainly for people of
Indian Descent.
The concerns of the bar at the colonial era were at three levels, the question of their independence at a
statutory level, there was no comprehensive statute that regulated the conduct of the bar. The colonial bar
identified with the government of the day and was able to push a lot of benefits which were beneficial to the
practice of law. they were able to pursue a legislative framework.
There was a concern to keep the bar European and issues to do with independence of the bar.
The LSK was concerned with questions of self regulation and by 1952 the LSK was major player in the
question of disciplining its members and there was a great desire to ensure that the LSK was a self regulating
body. Compulsory memberships enable LSK to speak with one voice. The issue of whether compulsory
membership is viable is open to debate.
The downside of the colonial bar support for the government was its support for some of the government‘s
excesses like the emergency regulations etc. The LSK was more of a Trade Union organization rather than
a body for public service.
2. Post Independence Bar

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The first concern is the question of integration, membership of the LSK and there were not enough lawyers
of local extraction. The entry was through articleship or because you came from England and were
therefore allowed to practice. From 1961 Africans started fighting for a parallel way to enter into the legal
profession through university education but the problem was there was not university teaching law in the
country.
The other issue was access to corporate work and at that time the corporations were being Africanized and
there was clamour to Africanize the legal profession as well. Under the colonial bar the LSK did not
identify with public interest. The English lawyers did not want to be seen to be taking a voice against the
emerging African States. Lack of involvement in public interest was a price that the LSK was later to pay.
Upto 1985 or mid eighties, later with the rise of democratisation and all the changes that were happening
globally the character of the lawyer in Kenya began to change. The lawyers of the 80s are marked by the
rising clamour for democratisation. Despite of all the things that happened in 1949 to 1962, there were
few structural changes until around the mid eighties.
The LSK became very divided in the early 90s between those who were pro government and those opposed
to it. This remained the character of the LSK until the multi party elections. At this point the LSK was in
charge of the disciplinary process but at the same time the government started the complaint commission
which was a department at the AGs and the government was now beginning to use this commission to reign
in lawyers.
There was an increase in government bar tensions at this time, the government was always complaining
against lawyers and the unfortunate thing was that the bar was not supported by the public.
Lawyers have started involving themselves in issues of public interest and now the profession becomes
redefined in terms of its involvement with the public service.
By 2002 the Judiciary was in such disrepute that the average lawyer was asking for a purge of whatever
nature. The process was bungled although the principle was right. Currently the nature of persons who
need to enter the bar becomes crucial because of the numbers. The LSK is not able to handle this and these
are just some of the challenges. For every season there were challenges for the LSK to survive in terms of its
capacity to thrive in this environment.
CHAPTER TWO
STATUTES IMPACTING ADVOCATES; AN OVERVIEW
2.1THE ADVOCATES ACT 15
2.1.1 ADMISSION TO THE BAR
Any person whose name is duly entered into the Roll of Advocates is admitted to the bar, so too is any
person whose name has been entered into the Roll of Senior Counsel. There are two categories of advocates
who are allowed to practice in Kenya. These are the Kenyan trained advocates and foreign advocates.
The relevant Sections relating to admission are S. 12 and 13. Section 12 sets out the citizen‘s
qualification for admission. The two conditions that have to be satisfied under Section 12 are that the
15Chapter 16 laws of Kenya

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applicant should be a citizen of Kenya Uganda and Tanzania. The Applicant must satisfy the requirements
of Sections 13 of the Advocates Act.
Section 13 sets out the professional and academic qualifications for admission to the Kenyan
Bar. The first condition is that the Applicant must have or be eligible for the conferment of a degree in law
of a recognized university in Kenya or any university approved by the council for legal education. This
latter provision largely covers institutions awarding law degrees but based outside of Kenya. Previously
council for legal education used to keep a list of approved institutions i.e. institutions whose degrees the
council for legal education recognized but this was discontinued sometime back giving a wide discretion to
the Council for legal education when it comes to considering the applications of the persons seeking
admission to the Bar. The Council for Legal Education also introduced a requirement under the Council for
Legal Education Act, which affects mainly candidates who have obtained law degrees from universities
outside Kenya that they must have a B in English.
Section 13 is a very controversial provision. Previously the provision was for a certain number of
universities in a list and most of the universities were in the Commonwealth jurisdiction. Then the section
was amended in 1989-90 giving the Council of Legal Education more discretion to decide on which
universities and the provision was made rather general.
And it presented a problem because some students went overseas and came back with a law degree after
only two years (sub-standard?). In the matter of an Application by Rita Biwott HCCA 238 of 1994
(unreported) , Rita Biwott had obtained a lawyer degree after 2 years and the Council of Legal Education
was of the opinion that she did not satisfy the condition and she challenged the decision of the council in a
judicial review and the court found that she satisfied the requirements of section 13.
See also OchaloOmaro and others, students who had obtained law degrees from different universities in
India and they were denied admission to the Kenya School of Law on the basis that though they had a law
degree they had not attained the required credits in the English language. And the court found they had
satisfied the requirements of section 13 and that the Council did not have any clear criteria when it came
to approving foreign institutions.
In addition to the Academic qualifications, the candidate must have done pupillage with an Advocate of such
class as may be prescribed and received instructions in the proper business practice and employment of an
advocate. Under Section 13 pupillage is for a period which does not exceed one year. For the time being,
candidates are required to serve pupillage with an advocate of not less than 5 years standing. In addition to
pupillage the applicant must also pass such examinations as may be prescribed apart from the examinations
passed by the Applicant for the purpose of the law degree. This requirement deals with the bar
examinations, i.e. exams set by the council for legal education.
Section 13(2) empowers the Council for Legal Education to exempt candidates from pupillage and the Bar
Examinations. It is under this provision that we shall be sitting for 6 council for legal education papers.
Section 13(1) (c) makes a person duly qualified for examination if he passes any other qualifications that
are acceptable and recognized by the council. In the past this provision enabled lay magistrates to be
admitted as Advocates upon passing the Council for Legal Education qualifying examinations. Such lay

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magistrates did not have to do pupillage and they did not have a law degree. The fact that they had worked
for many years as magistrates was seen to be qualification enough.
Section 13 (1) (d) provides that candidates from Uganda and Tanzania qualify for admission so long as
they are advocates for the time being of the High Court of Uganda or the High Court of Tanzania which
means that they don‘t have to do the bar exams here and it means that a fresh law graduate from Uganda
cannot be admitted in Kenya and has to be admitted in Uganda first similarly to Tanzania Citizen.
Section 10 of the Act provides for person who are not advocates but who may be regarded as advocates
by virtue of their office. In this category we have officers in the AG‘s office, who discharges duties normally
done by an advocate. He is an advocate to the extent of his office; he is regarded an advocate for purposes of
his office and not otherwise. In this category we also have registrars working in the Lands Office and
officers working with a Local Authority such as Town and Municipal clerks, offices ordinarily held by
advocates.
A. Advocates of the Commonwealth [Foreign Advocates]

An advocate from any Commonwealth country may be admitted by the Attorney General to practice as
such in Kenya as if he/she qualified in Kenya. The qualifications for such advocates to be admitted to
practice in Kenya are that they should be practitioners who are entitled to appear before superior courts of a
Commonwealth country and should not have been disqualified or suspended from practicing as advocates.16
However, it is noteworthy that such foreign advocates may only be allowed to practice in Kenya after they
have paid the Registrar the prescribed admission fees17 and they are appearing in court with or have been
instructed to appear in court by the officers mentioned under section 10 of the Advocates Act. 18
Section 11 of the Act provides for the admission of foreign lawyers to practice as advocates in Kenya. They
can only be admitted by the A.G at his discretion. In recent times the AG has generally declined to allow
foreign lawyers to practice in this country. East African lawyers are not regarded as foreign lawyers.
Applications by Matiba and KoigiwaWamwere; Matiba sought in 1992 to engage a barrister from England
to lead his legal team in his election petition against President Moi. The matter went to court and Matiba
lost because AG has absolute discretion. Koigi made similar application when he was being tried for treason
and the application was refused on similar grounds.
Foreign lawyers can only be admitted for a specified suit or matter. They are not admitted to practice
generally and once that matter is over they are expected to go back to their own country. They must also be
instructed by the AG or the advocate, i.e. they cannot be instructed directly by the client and he or she
cannot be allowed to practice unless he appears in court with the instructing advocate. The foreign lawyer is
not allowed to file or sign pleadings.
B. Kenyan Trained Advocates and Admission to the Bar
16Section11 (1) of the Advocates Act

17Section 11 (2) of the Advocates Act.
18 Supra note 56.

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The rules governing the qualification and admission of advocates of the High Court of Kenya are contained
in the Advocates Act. Section 9 of the Act outlines three qualifications that a person must have in order to
be qualified as an advocate. Thus, no person shall be qualified to act as an advocate unless–
1. he has been admitted as an advocate;
2. his name is for the time being on the Roll; and
3. he has in force a practising certificate (Each of these requirements is discussed below)
1. Has been admitted as an advocate [Ss. 12 -15]

Conditions for admission of advocates are provided in section 12 – 15 of the Advocates Act. Section 12
requires that a person must be a Kenyan, Ugandan or Tanzanian Citizen for him/her to be admitted as an
advocate subject to section 13. Sections 13 to 15 of the Act give the professional and academic qualifications
that a person must have in order to be admitted as an advocate. Thus, once one has qualified for an LLB
degree, he/she must sit for and pass all the examinations organized by the CLE after which he/she must
have worked as a pupil for not less than 6 months under an advocate of 5 years standing to be trained in the
business of being an advocate before being admitted as an advocate of the High Court of Kenya.
Once these conditions have been fulfilled, one may petition the Chief Justice for admission into the Roll of
Advocates pursuant to section 15(1) of the Advocates Act. This section provides that;
“Every person who is duly qualified in accordance with this Part may apply for admission as an advocate, and the
application shall be made by petition in the prescribed form, verified by oath or statutory declaration addressed to the
Chief Justice, and filed with the Registrar together with a notice intimating that the petition has been so filed together
with such other documents as may be prescribed and the applicant shall also deliver a copy of the petition and of any
document delivered therewith to the secretary of the Council of Legal Education and to the secretary of the Society”.
2. His name is for the time being on the Roll [s. 16]
Once an advocate has been admitted as such, his/her name is entered and maintained in what is called the
Roll of Advocates. The Roll of Advocates is a register showing the names of persons who are recognized to
practice in Kenya as advocates of the High Court of Kenya. Section 16 of the Advocates Act provides that
―[the] Registrar shall keep the Roll of Advocates in accordance with this Act and any directions as to its form
and the information to be recorded as the Chief Justice may give, and shall allow any person to inspect the
Roll during office hours without payment.‖ The implication of this provision is that the only conclusive
authority that one is recognized as an advocate is the presence of his/her name on the Roll of Advocates.
Accordingly, the absence of an advocate‘s name on the Roll disqualifies that advocate from practising as
such. Again, it is the Roll of Advocates which gives validly to the practising certificate. This means that even
where an advocate has a current practicing certificate but his/her name has been struck off the Roll, that
practicing certificate will expire automatically. The proviso to section 24 of the Act provides that ...‖where
the name of an advocate is removed from or struck off the Roll, the practising certificate (if any) of that
advocate shall expire forthwith.‖
3. Has in force a practising certificate[Ss. 21- 30 ]

An advocate must have a current practising certificate in order to be allowed to practice law. This
certificate is issued by the Law Society of Kenya on application by an advocate. The rules on practicing

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certificate are found in sections 21 to 31 of the advocates Act. The absence of a practising certificate
disqualifies advocate from signing any legal document or from appearing in any court as an advocate.
Section 21 authorizes the Registrar to offer Practising Certificates authorizing advocates named therein to
practice as advocates. However, the Registrar can only issue the certificate where an advocate has applied
for the same. Accordingly, it is incumbent upon the advocate to have a current practising certificate at all
times. Pursuant to section 22 of the Act, it is the responsibility of an individual advocate who meets all the
requirements specified in the section19 to apply for a practising certificate from the Registrar. This means
that the statutory declaration must accompany the application for the certificate as well as a copy of the
receipt issued to an applicant by the Society upon payment of the necessary dues as provided in the
Act. Upon issuance of a practicing certificate, without payment of any other fee, subscription, election,
admission or appointment, an advocate becomes a member of the Law Society of Kenya and the Advocates
Benevolent Association.20
A practising certificate takes effect from the day it is issued. Section 24(1) of the Act provides that ―every
practising certificate shall bear the date of the day on which it is issued and shall have effect from the
beginning of that day: Provided that a practising certificate which is issued during the first month of any
practising year shall have effect for all purposes from the beginning of that month‖. The implication of this
is that a practising certificate cannot have a retrospective application.
The Court of Appeal decision in Kenya Power & Lighting Company vs Chris Mahinda T/A Nyeri
Trade Centre21is relevant.This is a case in which the Respondent filed an appeal against the Applicant. The
Applicant, in response, filed the present application seeking the appeal to be struck out as the Notice of
Appeal and Memorandum of Appeal had been filed by an advocate who did not have a practicing certificate.
The Respondent argued that the advocate had paid for his fees on time and the failure to get the practicing
certificate was occasioned by the negligence of the Law Society of Kenya staff. In allowing the appeal, the
court held that the advocate must be one competent to practice under section 9 of the Advocates Act so that
in the present case, prior to the date of issue, the advocate did not have in force a practicing certificate and
was therefore not qualified to act as an advocate under the Act thereby making the documents he signed
incompetent. Further, the court explained that a practicing certificate does not have retrospective effect.
Accordingly, if no practicing certificate had been issued when the act was done the advocate was not
qualified to do that act at the time he did it.
From the above case, it is clear that failure to obtain a practising certificate even where the name of the
advocate is on the Roll invalidates all transactions done by that advocate in his/her capacity as an advocate.
The reasoning is that failure to obtain practising certificate is a question of law that goes to the very roots of
the matter so that the only reasonable thing to do is to invalidate the transaction done by an advocate who
19Section 22(1) (b) and (c) require the applicant to produce satisfactory evidence that the applicant has paid to the Society the fee prescribed for a
practising certificate and the annual subscriptions payable for the time being to the Society and to the Advocates Benevolent Association; and to
produce a written approval signed by the Chairman of the Society stating that there is no objection to the grant of the certificate.
20See section 23(1) of the Act. Also see the case of Willis Evans Otieno vs. Law Society Of Kenya& 2others [2011] eKLR
21 Civil Appeal (Application) 148/2004,

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does not have a current practising certificate. Such pleadings are incompetent and the provisions of article
15922 of the Constitution cannot be used as a panacea for admitting pleadings filed by unqualified persons. 23
The validity of a Practising certificate depends on the name of the advocate in question being on the Roll. In
other words, a practicing certificate is in force as long as the name of the advocate remains on the Roll.
Consequently, a practising certificate shall be deemed not to be in force at any time while an advocate is
suspended by virtue of section 27 or by an order under section 60 (4).‖ 24Pursuant to section 27 of the
Advocates Act, an advocate‘s practising certificate may be suspended when the advocate is suspended by an
order of the Disciplinary Committee or by an order of a court of law, or the adjudication in bankruptcy of
an advocate. Once an advocate has been suspended, he/ she cease to be an advocate immediately and
suspend his/her practising certificate for the time such suspension is in force.
In effect, any person who acts as an advocate without meeting the said conditions will be found liable under
the Act. The case in point is OburaVs Martha Koome25, in whichthe Appellant had filed an appeal against
the Respondent. It was found that the Memorandum of Appeal filed on 21.06.2000 was signed by one
Anthony Khamati, Advocate who did not hold a practicing certificate in the year 2000. The
Respondent (as applicant) applied to have the appeal struck out on the ground that it was incompetent
having been filed by an unqualified person. The Appellant (as Respondent to the application)
contended that the act of an unqualified person ought not to render his acts invalid unless
the client was aware of such lack of qualification.
The submission by the Appellant was founded on the common law position. Two issues were considered by
the Court, namely, the definition of an advocate, and, the effect of lack of qualification to the acts done by
such unqualified person. The court upheld the definition of ―an advocate as provided for under section 9 of
the Advocates Act. As regards the signing of the Memorandum of Appeal by an advocate who did not have a
practicing certificate, the court held that ―the provisions of Section 9 (of the Advocates Act) are
unambiguous and mandatory and the principles of the common law do not apply as the jurisdiction of the
Court of appeal is to be exercised in conformity with the Constitution and subject thereto all other written
laws26 In those circumstances, the memorandum of appeal [was] incompetent having been signed by an
advocate who is not entitled to appear and conduct any matter in (the Court of Appeal) or any other court.‖
A practising certificate expires after the end of the practicing year and should be renewed immediately.
Alternatively, a practising certificate may expire when an advocate‘s name has been struck off the
Roll.27When an advocate‘s practising certificate expires, he/she cannot practice law as he/she will not be
qualified during the period the certificate is so expired.28
22The Article provides that…

23 See Willis Evans Otieno vs. Law Society Of Kenya& 2others [2011] Eklr
24Section 9 of the Act.
25Court of Appeal, Civil Appeal Number 146 of 2000.
26Section 3(1) of the Judicature Act Cap 8, Laws of Kenya.
27See section 24(3) of the Act.
28See Nationalbank of Kenya vs. Wilson Ndolo Ayah(2009)Eklr

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The Registrar is required to publish the names of those who have renewed their practicing certificates. The
published names act as conclusive evidence that the persons so published are qualified to act as advocates.
Section 30 of the Act provides in this regard that ―any list purporting to be published by authority of the
Registrar and to contain the names of advocates who have obtained practising certificates for the current
year before the 1st February in that year shall, until the contrary is proved, be evidence that the persons
named therein as advocates holding such certificates as aforesaid for the current year are advocates holding
such certificates.29 The absence from any such list of the name of any person shall, until the contrary is
proved, be evidence that that person is not qualified to practice as an advocate under a certificate for the
current year, but in the case of any such person an extract from the Roll certified as correct by the Registrar
shall be evidence of the facts appearing in the extract.30
The licensing procedure has the effect of ensuring that lawyers comply with the requirement of the
Advocates Act as well as acting as a source of revenue to the government.
2.1.2 PRECEDENCE AND SENIORITY IN THE BAR [S. 20]

The seniority in rank of advocates in Kenya is stipulated in section 20 of the Advocates Act which provides
that the Attorney-General, the Solicitor-General, Senior Counsel or Queen‘s Counsel according to the date
of their appointment as such, the chairman and the vice-chairman (if not a Senior Counsel) of the Society
shall, in that order, take precedence of advocates who, inter se, shall take precedence according to the date
upon which they signed their names on the Roll. Accordingly, the seniority in advocates depends on the
date on which they signed the Roll of Advocates.
2.1.3 SENIOR COUNSEL [SS. 17 -18]

Senior counsel is the name given to advocates of a high rank [advocates who have practiced for a long time
and distinguished themselves in the legal profession] in Commonwealth countries. It is equivalent to the
Queens counsel in England. This title is created under section 17 of the Advocates Act which provides that
the President may grant a letter of conferment to any person of irreproachable professional conduct who
has rendered exemplary service to the legal and public service in Kenya conferring upon him the rank and
dignity of Senior Counsel.31 In Kenya, the first group of senior counsels was appointed in 2003 by the
Kibaki government although the procedure for appointment was still shrouded in unclear circumstances
since there were no clear guidelines for appointment.
The qualifications for one to be enrolled as a senior counsel are provided in section 17(2) of the Act.
Accordingly, one must be enrolled as an advocate of the High Court of not less than fifteen years‘ standing
or secondly, being a person to whom section 10 applies, he/she must hold, and should have held for a
continuous period of not less than fifteen years, one or other of the qualifications specified in section 13
29Section 30(1) of the Advocates Act.

31Section 17(1) of the Act.

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(1).32Section 18 of the Act creates a Roll of senior counsels.33 All advocates with the rank of senior counsel
are supposed to sign the Roll in the presence of the Registrar. 34
The practice demands that it is the senior counsel who should introduce other lawyers in court when they
are appearing in a matter. Accordingly, it is the senior counsels who lead other junior lawyer in matter
before the high Court and the Court of Appeal and they are supposed to receive instructions only from
other advocates and not directly from clients.
2.1.4 AN ADVOCATE AS AN OFFICER OF COURT [S. 55]

An officer of the court, means any person who has an obligation to promote justice and effective operation
of the judicial system, including judges, the attorneys who appear in court, bailiffs, clerks, and other
personnel. An advocate is an officer of the court. Section 55 of the Advocates Act stipulates that every
advocate and every person otherwise entitled to act as an advocate shall be an officer of the Court and shall
be subject to the jurisdiction thereof and, subject to this Act, to the jurisdiction of the Disciplinary
Committee.
Accordingly, as officers of the court advocates have an absolute ethical duty to tell judges the truth,
including avoiding dishonesty or evasion about reasons the attorney or his/her client is not appearing, the
location of documents and other matters related to conduct of the courts35
Besides, an advocate must act as an officer of the court, respecting the need for truth and truth-seeking
within the confines of the adversary system and as an active participant of a system that places justice as a
core value.
2.1.5 AN ADVOCATE AS A FRIEND OF COURT

An advocate is regarded as a friend of the court [Amicus Curia]. This means that he/she is allowed by the
law to address the court at any stage on any matter to which he/she is not a party. The reason why the
advocate may address the court is to help the court resolve a matter.
2.1.6 AN ADVOCATE AS A COUNSELOR

Judicial officers refer to advocates as counsels. This name originates from the reasoning that advocates
usually counsel their clients on legal matters.
A. THE CLIENT [SS. 2, 60A (7)]

The definition of a client can be found in sections 2 and 60A (7) of the Advocates Act. Pursuant to section
2, a client includes any person who, as a principal or on behalf of another, or as a trustee or personal
representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or
employs, or is about to retain or employ an advocate and any person who is or may be liable to pay to an
32Supra, note 56.

35 Ibid.

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advocate any costs.36 Then section 60A(7) provides that for the purposes of this section, ―client‖, in relation
to any matter in which an advocate or firm of advocates has been instructed, includes any person on whose
behalf the person who gave the instructions was acting.
CHAPTER 3
CREATION OF ADVOCATE CLIENT RELATIONSHIP
A. INTRODUCTION
Based on the definition of a client, an advocate –client relationship may be created in a number of ways.
First, it may be made between the individual client and the advocate. This occurs where a client [in person]
approaches an advocate and enters into an agreement for legal services with the advocate.
Second, the relationship may be established between the advocate and the client‘s authorized agent, trustee
or representative. Consequently, it is not mandatory that the advocate agrees with the client in person;
he/she may enter into an advocate client relationship with a duly authorized agent of the client, trustee or a
legal representative.
Third, the relationship may be created either expressly or by implication. This appears to be the Common
law position of the creation of advocate- client relationship. There need be no formality in the creation of
the relationship for the advocate to be bound. Accordingly, an advocate would be bound even in
circumstances where he /she would otherwise not be bound under normal circumstances. The case of Way
vs. Latilla37 is illustrative on this position. Pursuant to this case, the need there need not be formality in the
creation of an advocate client relationship because the same can be created by implication. This position,
however, begs the question as to when does the advocate client relationship begin? Supposing as an advocate
you meet an accident victim and she asks you of the chances of succeeding in a claim against the driver of
the vehicle and you advice her, would she be your client? The position appears to be in the affirmative.
However, this depends on whether one is an advocate. If he/she is not an advocate he/she may not be held
liable.
Again, there are many instances in Kenya when the courts have held that advocates had obligations to act
when they did not have to. When holding briefs some courts have ordered advocates to continue with the
case even where the advocate says that his/her instructions were merely to seek for an adjournment. This
implies that where an advocate instructs another to hold brief for him/her does so as a representative of
his/her client so that where the advocate so instructed does so wrongly, he/she may be held liable.38
Where an armature gives advice as an expert, the law will hold that armature liable for that advice. 39 The
rationale for this appears to be that when you are giving advice which is likely to be acted upon by the
recipient, you are supposed to exercise due diligence to avoid misrepresentation. You will be held liable if
36Section2 of the Advocates Act.

37(1937)3ALL ER 759. Also see the American case of Togstad vs. Vesely, Otto, Miller and Keefe291 N. W. 2d 686 (Minn. 1980)
38Ibid note 79
39Hedley Byrne vs. Heller and Parteners()

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the recipient acts on that advice to his/her detriment. The same position holds for advocates. In this regard,
an advocate is obligated to offer correct legal advice to his/ her client so that where he/she offers incorrect
advice, he/she will be held liable for the same. However, an advocate may only be sued for negligence
where he owes a duty of care to the client. Prove of a duty of care is intertwined with prove of the
existence of advocate/client relationship.
Fourth, the relationship may be created through retainer agreements or by employment. Retainer
agreements occur where a client enters into an agreement to retain an advocate so that the advocate may be
available to him/her when the client needs legal services. These agreements will be discussed in details later
in this work.
Lastly, the relationship may be created between an advocate and any person who pays the advocate fees.
The advocate Act acknowledges that a client may include any person who pays the advocate fees.
In conclusion, it is apparent that the definition of a client is very fluid; it could put an advocate in a situation
where he/she is liable but with no pay.
B. THE NATURE OF THE ADVOCATE CLIENT RELATIONSHIP

The nature of advocate/ client relationship is multifaceted. It may be categorized into three: as contractual,
as fiduciary and as an agency relationship. These relationships are as discussed below.
2) Contractual Relationship
An advocate agrees to offer legal services to the client through a contract. The contract may either be
express or implied depending on the circumstances. However, at some point the contract between the
advocate and the client should be made explicit and the must be signed by the client to show the terms as
agreed between them. This contract is regulated by the ordinary principles of contract law save that it
factors in the fiduciary nature of the advocate- client relationship. In this regard, it is expected that the
agreement as to the fees to charge should be reasonable based on the circumstances of the case and should
be written and signed.40 This explains why advocates fees are subjected to taxation before approval. Again,
where the client does not know how to read and write, it is incumbent upon the advocate to read to the
client the contract and let the client make an informed decision about it.
3) Fiduciary Relationship
The advocate – client relationship is fiduciary in nature because of the trust the client has in the advocate.
The rules of professional conduct and ethics, therefore, prescribe how an advocate should behave under
such circumstances. For instance, there are rules on disclosure which prohibits an advocate from disclosing
certain communications which are regarded privileged.41 Again, there are rules which regulate how an
advocate is supposed to handle the client money and other properties to the best interest of the client. Rules
on conflict of interest prohibit an advocate from engaging in conduct that are likely to create conflict of
interest or conduct which is likely to embarrass the process of court and defeat the course of justice. The
overriding requirement is that an advocate should always have the client in mind.
40 This is intended to avoid future conflicts as to the payment of legal fees.

41 For instance section 134 of the Evidence Act, Cap 80, Laws of Kenya.

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4) Agency Relationship
Both universally and as a rule of the thumb, an advocate is an agent to his/her client in all matters, including
receipt of money on his/her behalf and signing of contracts. As an agent, an advocate is expected to do all
that the client would have done, whether with or without the authority of the client. Again, an advocate is
obligated to disclose all the information that may affect the client‘s judgment whether the client has asked
for and is aware of such information or not.
C. RIGHTS, OBLIGATIONS AND PRIVILEGES OF THE ADVOCATE
Sources of Ethical Obligations
 Statutes impacting on the advocate e.g. the Advocates Act, the law society of Kenya act the LSK
Digest of Ethics Public Officers Ethics Act
 Common Law
 Codes of conduct and ethics
 Generally accepted standards of conduct
There are a number of obligations of an advocate which flow from the advocate- client relationship.
Obligations of an advocate are divided into the following main categories- obligations of an advocate to the
client, obligations to himself, obligations third parties and other advocates, obligations to the court and
obligations to the country.42
All these obligations are sanctified under the Constitution of Kenya, the Advocates Act, the council of legal
education Act as well as the Advocates Code of Ethics. The starting point is article 50 of the Constitution of
Kenya which provides for a fair hearing in case of an accused person. A fair hearing can only be done when
an accused person is well represented either by himself/herself or by an advocate of own choice. Article
50(1) provides in this regard that that every person has the right to have any dispute that can be resolved by
the application of law decided in a fair and public hearing before a court or, if appropriate, another
independent and impartial tribunal or body. Then pursuant to article 50(2) (g ) and (h), every accused
person has the right to a fair trial, which includes the right— to choose, and be represented by, an
advocate, and to be informed of this right promptly; to have an advocate assigned to the accused person by
the State and at State expense, if substantial injustice would otherwise result, and to be informed of this
right promptly. These constitutional provisions appear to recognize the fact that substantial justice may
occur where an accused person is not competently represented by an advocate.
An attorney must act as an officer of the court, respecting the need for truth and truth-seeking within the
confines of the adversary system and as an active participant of a system that places justice as a core value.
Lawyers cannot be hired guns – they cannot be hired to advance a stand just because their client wants them
to.
1. THE DUTIES OF AN ADVOCATE TO THE CLIENT

Lord Brougham is quoted as having once said:
42See Richard Du Cann, The Right of the Advocate, 1980, Great Britain at p.32, and the case of Groom Vs. Crocker [1938] 2 All E.R 394.

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“An advocate, by the sacred duty which he owes his client, knows in the discharge of that office but one person in the
world – the client and none other. To save the client by all expedient means, to protect the client at all hazards and costs
to all others and among others to himself, is the highest and most unquestioned of his duties; and he must not regard the
alarm, the suffering, the torment, the destruction which he may bring on any other. Nay, separating even the duties of a
patriot from those of an advocate and casting them if need be to the wind, he must go on reckless of the consequences, if
his fate it should unhappily be to involve his country in confusion for his client‟s protection.”
The above quotation, no doubt, captures the general rule as to an advocate‘s duty to his client. Be that as it
may, the duty is relative in the sense that such duty is subject to the Advocates Act and other written laws.
Indeed, Lord Chief Justice Cockburn asserted that it is the duty of an advocate ―to the utmost of his power
to seek to reconcile the interests he is bound to maintain and the duty it is incumbent on him to discharge
with the eternal and immutable interests of truth and justice.‖
There is no complete codification of obligations of an advocate to clients. Some obligations are imposed by
statutes, other imposed by ethics and yet others are merely exercised as a matter of practice and tradition.
Besides, the obligations of an advocate are dynamic and not static as they cut across nearly all legal systems.
Therefore, two points are worth noting. First, the most important point to an advocate is always to act with
caution when in doubt. Second, when looking for the obligations of an advocate to the client, it is always
good to look beyond the statute; look at the culture of the profession because the statutes are not
exhaustive. Some of the obligations of an advocate include the following.
The case of Norton v Ashburton43brings out a principle that the duties owed by an advocate to his client
can be seen to be drawn from the duties of an agent to his principal. It applies only to oral and written
communication made by the client to the advocate with the intention of seeking legal advice or instituting
legal proceedings. An advocate is under a duty to keep all information provided by his client completely
confidential.
A. CONFIDENTIALITY
An advocate is obligated to maintain the secrets of the client at all times during the subsistence of the
advocate and client relationship and even after the relationship ceases. This duty flows from the fiduciary
nature of the relationship which makes all the communications between an advocate and the client
privileged thus protected from disclosure unless the client waives that right. This position is premised under
sections 134, 135, 136 of the Evidence Act. Accordingly, no advocate shall at any time be permitted
unless with his clients express consent to disclose any communication made to him/her in the course of and
for the purpose of his employment as and advocate by or on behalf of his client or to state the content and
condition of any document with which he has become acquainted in the course of and for the purpose of his
professional employment or to disclose any advice given by him to his client in the course and for the
purpose of such employment.44
It is noteworthy however that the privilege contemplated in section 134 does not extend to any
communication made in the furtherance of any illegal act, and to any fact observed by any advocate in the
course of his employment as such showing that any crime or fraud has been committed since the
43 (1914) AC 932
44Section 134 of the Evidence Act

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commencement of his employment whether the attention of such advocate was or was not directed to the
fact by or on behalf of the client.45
The advocate client privilege is so wide that it continues even after the employment of the advocate has
ceased and only cease when the client waives the same.46 Again, this privilege applies to all interpreters,
clerks or servants of the advocate as well.47Privilege extends to oral communication and documentary
information received from a client in the course of acting for a client and survives the death of a client, so
long as there is an issue in which interests are in question.
In King Woolen Mills and Another –vs– Kaplan and Stratton Advocates48 the court held that the
fiduciary relationship created by the retainer between client and advocate demands that the knowledge
acquired by the advocate while acting for the client be treated as confidential and should not be disclosed to
anyone else without that client‘s consent. This principle exists even where an advocate acts for more than
one party as a common advocate and continues long after the matter for which the retainer was created has
been concluded.
Section 137 extends privilege to other parties communicating with Advocates. The exceptions to privilege
are:-
a) If there is any fraud or illegality
b) Where there is a joint retainer
c) The names of your client, his address or the fact he has sworn an affidavit.
d) If there is an independent source of information.
e) Letter before action or communication between co-plaintiffs.
f) If any advocate‘s clerk joins another firm that is acting for an adversary, it is prudent that you stop
acting.
The Justification for the advocate client privilege is on the premise on two points: that an accused is entitled
to legal counsel without any hindrance, and that the judiciary and the bar should be independent and
advocates must be given a free hand to prepare for the case and defend their clients. This is deemed to be an
essential ingredient for a fair trial.
B. HONEST AND GOOD FAITH

The advocate is supposed to represent his/her client in honesty and good faith. This is such a wide duty that
implies that the advocate should not pursue his/her own interests in the matter but should always have the
interest of the client as first priority. Again, the advocate is supposed to inform the client about the progress
of the case and other matters that may be relevant to the client. The law prohibits an advocate from
engaging in matters or situation that may lead to conflict of interest in the course of representation.
45 Ibid.
46 Sec Section 134 (2) of the Evidence Act Technically, the privilege belongs to the client and the client can waive it. Under section 136(2) of the Act, if
any party to a suit or proceeding calls any advocate, interpreter, clerk or servant as a witness, he shall be deemed to have consented to such disclosure
as is mentioned in section 134 (1) only if he questions such witness on matters which, but for such question, the witness would not be at liberty to
disclose.
47 Section 135 of the Evidence Act
48 Nairobi Civil Appeal No.55 of 1993

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C. EFFECTIVE REPRESENTATION/ ZEALOUS ADVOCACY

An advocate should use all his/he skill to represent the clients competently to the best of his/ her ability.
The law presumes that advocates are highly learned people who should use their knowledge for the benefit
of the society. Accordingly, there is a heavy duty on the advocate to show his/her competence in the
representation of their clients at all times because the advocate- client relationship entrusts the advocate
with the rights, liberties, money and the hopes of the client which should be protected at all times.
Therefore, the requirement of competent and zealous advocacy happens to be premised on the ground that
only qualified people should be allowed to practice law. No armature should be entrusted with such serious
interest.
Accordingly, the consequences of incompetence are grave and may lead to payment of fine and even
disbarment of the concerned advocate on the worst part. The law allows an aggrieved client to lodge a
claim against an incompetent or negligent advocate. However, the question that arises is: Should an
advocate represent all the clients who would like to be represented by him? The quick answer is yes. An
advocate is not allowed to refuse to represent any client [Including the unpopular ones] because he/she is
not associated with the client‘s case and he/she should not refuse to take instructions just because of his/
her convictions. The only exceptions where an advocate may disqualify himself/herself are on grounds of
incompetence and conflict of interest.
D. FOLLOW THE DIRECTIONS OF THE CLIENT

An advocate is engaged by a client to pursue the interests of his client. He is not employed to promote and
pursue and litigate in self-interest with a passion. An advocate should not decide for the client, instead
should follow the client‘s instructions. However, the advocate must exercise control not to injure other
third parties and the legal profession just because he/she is following the instructions of the client. This is
because in as much as the advocate represents the client, he/she is also a member of the legal profession an
officer of court, to which he/she is also obligated.
Consequently, the advocate should not accept instructions from a client to pursue a matter or to engage in
an act or conduct which will breach the code of ethics. Again, it is the advocate who has control of the
matters before the court and should not be instructed on what to do before the court of on what defences to
plead or on what evidence to tender in court as this would breach the ethical standards required of an
advocate.
E. DUTY TO KEEP CLIENT INFORMED
An advocate must always keep his client informed of any new legislation that may affect his client‘s case.
He must not deceive his client nor should he deceive third parties. While handling a matter for a client, he
should not disclose any details of the matter to a third party even if he is related to the client. Under Rule 4
of the 1998 Advocates (Practice) Rules, where an advocate acts in a suit on the instructions of a client, the
advocate must furnish the client with filed copies of all pleadings in the suit bearing the stamp of the registry
of the court in which the suit was filed.
F. DUTY TO DISCLOSE PROFIT

An advocate while acting must always disclose all financial benefits to his client. The duty to disclose profit
arises from the agency relationship between an advocate and his client that demands, inter alia, good faith

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and transparency. InUnited Insurance Co. Ltd –vs– DorcasAmungain49,AlnashirVisram stated that an
advocate is the agent of his client. Their relationship is governed by the retainer which is the contract that
determines their rights and liabilities subject to terms which the law will infer in the particular
circumstances. The authority of an advocate to act for his client will therefore arise from the retainer. The
conduct of the advocate under the retainer will also be governed by the Advocates Act.InKenya Bus Services
Ltd –vs– Susan Muteti50the court stated that generally an advocate is authorised to act as his
client’s agent in all matters not falling within an exception which may reasonably be
expected to arise for decision in the course of the proceedings.
G. DUTY TO DISCLOSE CONFLICT OF INTEREST

An advocate should not act in a matter where he is likely to be called as a witness. An advocate must ensure
that there‘s no conflict of interest and there is no likelihood of such a conflict arising subsequently during
the trial process. In King Woolen Mills and Another –vs– Kaplan and Stratton Advocates51, the
respondent firm of advocates had acted in a mortgage transaction for the lenders during the negotiations and
the preparation of the loan agreement and security documents. Thereafter, the firm had acted as the
common advocate for both the lender and the borrower. The firm had prepared the loan agreement, the
guarantee, the debenture and the legal charge on behalf of both parties and also furnished the requisite legal
opinion
Subsequently, the borrower had defaulted on repayment and had questioned the validity of the security
documents. Subsequently, the firm had purported to enforce the said security and the appellant sought a
grant of injunction to stop the firm. The Court of Appeal held that since the firm was aware that there was
likely to arise a conflict between the lender and the borrower, and since having acted for both parties they
were in a position to be privy to information pertaining to the appellant‘s case, they would not purport to
enforce the said securities to the prejudice of the appellants.
H. DUTY OF DUE CARE AND DILIGENCE

A lawyer owes a duty of care to the client as a result of the professional relationship between them in which
the lawyer is expected to act professional and not negligently.
Lord Denning MR in Abraham –vs–Justsun52 stated:
“[It is an] advocate‟s duty to take any point which he believes to be fairly arguable on behalf of his client. An
advocate is not to usurp the province of the judge. He is not to determine what shall be the effect of legal
argument. He is not guilty of misconduct simply because he takes a point which the tribunal holds to be bad. He
only becomes guilty of misconduct if he is dishonest. That is, if he knowingly takes a bad point and thereby
deceives the court.”
The Act recognizes that an advocate may be liable to his clients for negligence. Section 46 of the Advocates
Actstates that ―……..Nothing in this Act shall give validity to- …….(b) Any agreement relieving any
49 Nairobi HCCC No. 462 of 2000

50 Nairobi CA No. 15 of 1992
51Supra Note 26
52 [1963] 2 All ER 401 at p.404

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advocate from responsibility for professional negligence or any other responsibility to which he would
otherwise be subject as an advocate.‘‘
In Ross –vs–Caunters53, it was held that lawyers owe a duty of care both to their clients and to third parties
who suffer loss or damage. In that case, the lawyers failed to prevent a beneficiary from attesting the will. In
Gran Gelato Ltd –vs–Richcliff (Group) Ltd54 which involved a solicitor‘s replies to preliminary
enquiries in a conveyancing transaction, the court stated a solicitor owes a professional duty of care to the
client and no-one else. He is subject to professional rules and standards, and owes duties to the court as one
of its officers.
The ruling in Flavio Rodrigues –vs– Apollo Insurance55 suggests that it can amount to professional
negligence when a lawyer fails to turn up in court.
The holdingin Hedley Byrne –vs– Heller & Partners56 suggests that an advocate who gives out
professional advice aware that the person to whom the advice is given would be relying thereon could not
argue that because there was not contract for the service, he could not be held liable. In that case, the court
found that there was a special relationship between an advocate and a client that gave rise to a duty of care.
2. THE DUTIES OF ADVOCATES TO THE PUBLIC

The duties of an advocate are not limited to the client; they also extent to the third parties and the public at
large. This is because an advocate is first a citizen before he/she became an advocate. It is therefore only
prudent that the advocate should be made obligated to the public as well. Some of the obligations of an
advocate to the public include the following.
a. An advocate has a responsibility to prevent unnecessary harm to third parties and the general
public. In this regard, an advocate should not participate to perpetuate conduct which may be
prejudicial to innocent third parties. This means that the advocate has a right to refuse to take
instructions from clients which are likely to lead to unnecessary harm to the public.
b. An advocate has a responsibility to promote a just and effective legal system. In this regard, an
advocate should be interested in the pursuit of truth and veracity and not victory as the ultimate
goal. This obligation calls for respect of the core values such as honesty, fairness and good faith
which form the foundation of a justice system.
c. An advocate should help to develop a wide range of appropriate dispute resolution processes that
can respond to particular individual and societal interests at stake. It should be emphasized at this
stage that dispute resolution is not all about going to court. Best solutions are sometimes made
through the use of Alternative Dispute Resolution [ADR] processes. It is for this reason that the
Constitution and the Civil procedure Act and rules emphasize on the use of ADR techniques where
appropriate.57
53 [1970] 3 AER 580

54 (1992) Ch 560
55Nairobi HCC No. 431 of 2002
56 [1963] 2 All E.R. 575
57

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d. Affordable and convenient access to justice. This obligates an advocate not to charge exorbitant
prices for their legal services. However, in an effort to make legal services affordable, an advocate
is not supposed to charge less than the amount prescribed in the Advocates (Remuneration) Order.
When Sir UdoUdoma in Sewava vs. Uganda58 remarked that ―Bearing in mind that the appellant was not
defended by counsel which unhappily cast an extra burden on the magistrate to do his best to afford
assistance on legal points to the appellant…‖ he was recognizing the fact that advocates have a duty to use
their knowledge to help those who may not be well versed in the law. Lawyers have an obligation to work
outside the context of representing clients to improve, reform, and maintain the framework of justice.
Robert W. Gordon in Why Lawyers Can‟t Just Be Hired Guns equates clients to fish thus: Think of lawyers as
having the job of taking care of fish. As lawyers, we have to feed the fish. But the fish, as they feed, also
pollute the tank. It is not enough to feed the fish. We also have to help change the water.
3. DUTY TO THE OPPOSITE PARTY

Mentioning of authorities to be used in court
Advocates should inform their opponent on the authorities they intend to use so as to as to prevent the
court from being misled by failure to cite the relevant cases. If an advocate omits a relevant case or
provision or makes an incorrect reference to it, it is the duty of the other advocate to draw attention to it
even if it assists the other side. Advocates should also bring procedural irregularities before the court during
the hearing and not reserve these matters to be raised on appeal.
Duty not to unnecessarily embarrass an opponent

This is a matter of professional courtesy. Embarrassing an opponent not only undermines the reputation of
the advocate but also that of the legal profession. Lawyers should strive to maintain the honour and dignity
of the legal profession.
Duty to show courtesy and respect towards colleagues

Opponents are entitled to respect and courtesy in court and outside court. This in turn helps them gain the
other parties respect and advances the cause of their clients and their own careers. Lawyers who treat their
opponents rudely are unlikely to gain their respect and can not be expected to be treated politely.
Duty not to inconvenience or harass opponents

It would be unprofessional to deliberately harass or inconvenience opposing counsel. There should exist
courtesy between opposing counsel this enables them to relate well in the case proceedings .For example,
by delaying service of notice to inconvenience opponent giving them little or no time to work on their
preparation.
Duty, when prosecuting to provide evidence assisting the defence
58 (1966) EA 491-492

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All prosecuting lawyers are required to ensure that all relevant evidence is either presented by the
prosecution or made available to the defence. This duty applies only to the prosecution and the defence is
exempted this is because the prosecution usually has the burden of proving a case.
Duty to avoid Personality Conflicts

Trial lawyers should always remember that the clients are the litigants and the lawyers should therefore be
impartial and keep their personal feeling aside.
Duty to obtain the consent of opponents before presenting new materials to the court
Opponents consent should be acquired when presenting new and relevant evidence to the court. This is
usually information that is likely to influence the judgment of the court in the matter. This generally follows
the principle that advocates are agent of the court and help it come to the truth.
4. DUTIES TO THE COURT
A. OVERRIDING DUTY TO THE INTEREST OF JUSTICE
InAaron GitongaRingera& 3 Others –vs– Paul K. Muite& 10 0thers59 J.W Mwera, J stated that an
advocate has the duty to the court that supersedes the one that he owes to the client and where a client
instructs an advocate to do that which will compromise the advocate‘s duty to the court, then the advocate
should be better off declining to execute such instructions. Further, an advocate has a duty to be courteous
in his interaction with other officers of the court – judges, magistrates, and fellow counsel.
An advocate, as an officer of the court by oath and by law, has an overriding duty to the court to act with
independence in the interests of justice; he must not deceive or knowingly or recklessly mislead the court.
An advocate must not compromise his professional standards in order to please his client, the court or a
third party.
An advocate must never assert as true that which is not true nor attempt to substantiate a fraud; if a client
makes a confession to a lawyer before a trial he should withdraw. When an advocate holds himself out as a
‗hired gun‘, he goes against the fundamentals of fairness because there will be many instances in which the
interests of fairness will best be served by the victory of the opponent. The advocate is not to employ
shrewdness at the expense of truth.
Allied to an advocate‘s duty not to assert a perjury or a fraud is the duty not to assist in any dishonorable or
improper way, both in and out of court. If a client instructs an advocate to act in a manner that would be
contrary to the advocate‘s duty to the court, then the advocate must advise the client that it is his duty to
act in compliance with his duty to the court. If the client refuses to allow the advocate to do so, the
advocate should withdraw from the case.
59 Nairobi HCCC No. 1330 of 1991

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Lord Reid in Rondel –vs– Worsley60 noted that in addition to the duty owed to his client, [an advocate]
owes an overriding duty to the court, to the standards of his profession, and to the public which may, and
often does, lead to a conflict with his client‘s wishes or with what the client thinks are his personal interests.
B. DUTY TO CORRECT THE COURT

It is a duty of an advocate to draw to the attention of the court any errors as to the commencement date of
recent relevant legislation, sentencing power of the court e.t.c. In R –vs– Clarke ( R.W.W.)61,Lawton
LJ stated:
“We judge that counsel as a matter of professional duty to the court, and in the case of defending counsel to their
client, should always before starting a criminal case satisfy themselves as to what the maximum sentence is.”
C. DUTY OF DISCLOSURE
Advocates have a duty to disclose the law and not to mislead as to facts or conceal from courts facts which
ought to be brought to the attention of the court or knowingly permit a client to attempt to deceive the
court. The duty of disclosure arises from ―public policy‖ requirement that was established in 1791 in the
case of Fell –vs– Brown62 and followed in the Rondel–vs–Worsely63.This duty is so essential that Smith
L.J in Vernon –vs–Bosley64 opined that in a case where a client refuses disclosure, a counsel should
consider withdrawing.
An advocate must withdraw from the case if the client instructs him not to disclose a relevant non-
privileged document or not to draw an adverse authority to the attention of the court because the advocate
is under a duty to the court to ensure that proper disclosure is made and that the court is aware of all
relevant authorities, even if they do not support that advocate‘s argument. In Re G Mayor Cooke65it was
stated that evidence that is before court should be drawn to judge‘s attention notwithstanding that it might
be adverse to counsel‘s case. Boulton, commenting on this issue in his book66, states that ―as regards a point
of law, counsel is called upon to put before the court any relevant binding decision which is immediately in
point, whether it be for or against his contention.‖ However, this general duty of disclosure is subject to
qualifications in that while lawyers are obliged to act honestly in all positive statements they make in court-
room, they are not ordinarily required to disclose the identity of an adverse witness to the other side. The
duty of disclosure might appear to conflict with the duty of confidentiality owed to client; the position is set
clear in R –vs–Derby67where the House of Lords held that duty of confidentiality to client is paramount
when it arises by reason of legal professional privilege.
As Lord Taylor of Gosforth C.J puts it, once the privilege is established a lawyer‘s mouth is ―shut for
ever‖. This is justified on public interest ground that communication between clients and lawyers should be
60 [1969] AC 191
61 59 Cr App R 298 at p.301
62(1791) 1 Peake 131
63Supra Note 5
64(No 2)(1992) 3 W.L.R 683
65(1889).T.L.R 407 at 408
66Conduct and Etiquette at the Bar p. 58
67Magistrates Court (1996)

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uninhibited. However, public interest basis can be criticized as it can be argued that as the very basis of
the privilege is public interest a balancing exercise is essential, as public interest by its very nature is not
immutable. This duty of disclosure calls for a lawyer to know the law, prepare the case & advise the judge.
D. DUTY NOT TO PROLONG CASES

An advocate is under a duty not to prolong cases unnecessarily. In Ashmore–vs– Corporation of
Lloyd’s68 Lord Templeman said:
―The parties and particularly their legal advisers in any litigation are under a duty to cooperate with the court by
chronological, brief and consistent pleadings which define the issues and leave the judge to draw his own
conclusions about the merits when he hears the case. It is the duty of the counsel to assist the judge by simplification
and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points
the judge will be capable of fashioning a winner. In nearly all cases the correct procedure works perfectly well. But
there has been a tendency in some cases for legal advisers, pressed by their clients, to make every point conceivable
and inconceivable without judgment or discrimination.”
Lawyers have duty to present the issues in a case as clearly as possible and to avoid waste of time, prolixity
and repetition.This duty will be breached when lawyers fail to observe the usual courtesies. Lawyers should
not use rules as weapon to punish other lawyers with whom they have a grudge. There is growing
perception that lawyers should be required to cooperate for purposes of reducing unnecessary disputes, so
it is a theme of the ―Access to Justice Final Report‖ that where the parties do not cooperate not only are
they likely to incur costs which are unnecessary but the litigation process is likely to be drawn out and the
courts task more difficult.
Indeed in the USA, it has been suggested that there should be means to ―punish parties who frustrate the
process by failing to act cooperatively.‖ The administration of justice should not be frustrated by lawyers
advancing unreasonable or hopeless arguments, the paramount duty to court is to advance only points that
are arguable.
In R –vs– Wilson and Grimwade69 it was said that part of the responsibility of all counsel in any trial,
criminal or civil, is to cooperate with the court and each other so far as is necessary to ensure that the
system of justice is not betrayed. If the present system of litigation is to survive, it demands no less.
E. DUTY NOT TO ABUSE THE COURT PROCESS

The integrity of judicial process requires lawyers to desist from making allegations or bringing proceedings
for ulterior purposes; that is, not to settle scores. A lawyer should not take a matter to gratify the client‘s
own malice for to do so, he will be acting improperly.70 Once lawyers give undertakings as officers of
court, they are expected to abide by them. An undertaking which is not honoured may result to process of
68 1992] 1 WLR 446, at p.453

69(1995) 1 V.R 163 at pg 180
70 See R v Weisz

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court being abused; furthermore, courts should have confidence that lawyers, as officers of the court, will
honour their undertakings.71In addition, an advocate must comply with any orders that the Court may give.
F. DUTY TO THE HISTORY AND TRADITION OF THE LEGAL PROFESSION
Because we ourselves have been successors to those who came before us in the profession, and because we
use their efforts in our daily work, and because the law outlives each one of us, and because we follow one
another, in thousands, lawyers are part of a tradition. The advocate must emulate only those actions that
will bring justice in the present and the future.
OkechOwiti writes in The Lawyer in Society72 that an advocate ―…must…know which laws have been
passed and which institutions have been established; their objectives and whether they do achieve, or are
capable of achieving, the declared goals. He must be able to analyse them in their historical and
contemporary contexts, relate them to practical problems in order to solve the same, and identify attendant
loopholes, vacua or weaknesses and suggest possible solutions.‖
The Goldenberg scandal, for example, holds several lessons for the advocate. The responsible advocate is
the one who will campaign for greater vigilance on the part of the Central Bank of Kenya to ensure that
money is not borrowed without collateral; that the monetary authority maximizes on its supervisory role to
ensure that banking institutions are not used to siphon Government funds and that innocent depositors do
not find their monies lost in such scams.
Another case in point is the issue of land in Kenya. When we have periodic interethnic conflicts concerning
land, it is the duty of the advocate to interpret the law in the most equitable and judicious manner and go
about advocating for reform in situations where justice is absent. The advocate must not in this case render
his service on the basis of political persuasion or tribe but be directed by what is morally and legally
acceptable.
5. LAWYER’S DUTY TO THE LEGAL PROFESSION

A. DUTY AGAINST PROFESSIONAL MISCONDUCT
Professional misconduct refers to the breach of rules set up in the Advocates Act. The following amount to
professional misconduct, and are therefore proscribed by the Advocates Act:
(i) under section 35, drawing or preparing documents or instruments and not endorsing your
name thereon;
InJambo Biscuit –vs– Barclays Bank73the words―drawn by” were not inserted by the advocates when the
document was drawn.
(ii) under section 36, ―undercutting‖;
(iii) under section 37, sharing of profits with unqualified person(s);
(iv) under section 38, ―touting‖;
(v) under section 41(1), employing a person who has been struck off from the roll; and
(vi) Under section 42, non-disclosure by people who are disqualified to act as Advocates.
71A Ltd v B Ltd (1996)

72Law Curriculum Development in An African Context, 1991 p. 120
73 Law Africa 2001

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Case law abounds on the subject of professional misconduct. We choose to use only threecases here below
to illustrate how courts have generally frowned upon attempts by advocates to disregard professional
etiquette in the course of their professional duties.
In Re A Solicitor74 and Re Lydell75, the House of Lords held that a solicitor who carried on the practice of
undisclosed profit sharing with another who presented conflicting interest was guilty of professional
misconduct.
InAllison –vs– Gen Med. Council76, it was held that if a man in the pursuit of his profession has done
something with regard to it which will be regarded as disgraceful or dishonorable to his professional
brethren and to his good repute and competence, then it is open to say that he has been guilty of
misconduct in a professional respect.
B. DUTY AGAINST UNPROFESSIONAL CONDUCT

It is a lawyer‘s duty to the legal profession that he should not engage in unprofessional conduct. Tom
Ojienda defines ―unprofessional conduct‖ as including the breach of good manners in practice. He gives the
following examples as amounting to unprofessional conduct:
(i) Chewing gum in court;
(ii) Attending court while drunk;
(iii) Running a brothel or living from the earnings of prostitution;
(iv) Bad language – where an advocate cannot express himself properly in English;
(v) Insults to the public; and
(vi) Incompetent representation by an advocate.
6. LAWYER’S DUTY TO HIMSELF

A. DUTY TO HONOUR PROFESSIONAL UNDERTAKING
An advocate‘s undertaking is the bedrock of the system of the transfer of property and conveyancing in
society. It shows how much society trusts the undertaking given by an advocate. It is a serious pledge within
the profession. It is not lightly given. But once given, it cannot be breached. Its breach is policed by the
court and by statute77. PherozeNowrojee says that ―an advocate‘s word is his bond.‖
An advocate must only give a professional undertaking upon instructions from his client and when he is
certain that the funds forming the basis of the undertaking have been deposited with him.In Kenya
Reinsurance Corporation –vs– V. E. MugukuMuriu& Company78the court held that having given a solemn
professional undertaking to pay a certain sum of money, an advocate is bound and cannot
resile there from. The court further stated that a careful advocate would obtain very clear
instructions from his client before giving a professional undertaking on his behalf.
74 93 LT 838
75 1901] 1KB 187
76 (1894) 1 QB 750
77 Order 52, Civil Procedure Rules

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In KarsamLalji Patel –vs– Kimani& Co. Advocates79,the court compelled the advocates to honour their
professional undertaking which they had issued to the purchaser in the subject matter of the case.
B. DUTY TO ACT REASONABLY, MORALLY AND HONORABLY

Ken J. Crispin in Ethics and the Adversary System80 opines that in asserting their clients‘ autonomy,
lawyers must not sacrifice their own. Their representative role may make it appropriate for them to take
steps on behalf of a client that they would not take on their own behalf. However, it will never be
appropriate for a lawyer to embrace a standard which involves abdicating their own responsibility as a moral
human being.
InAllison –vs– Gen Med. Council81, it was held that if a man in the pursuit of his profession has done
something with regard to it, which will be regarded as disgraceful or dishonorable to his professional
brethren and to his good repute and competence, then, it is open to say that he has been guilty of
7. CONFLICTING OBLIGATIONS
Subjectively, there seems to be a conflict in the obligations of an advocate to the various stake holders- the
client, the court and the public and the advocate him/herself. An advocate is supposed to effectively and
zealously represent his/her client. At the same time, he/she is supposed to be a good officer of the court.
Yet again, the advocate has an obligation not to hurt innocent third parties in the course of representing the
client. Still, the advocate has a competing self interest of winning the case, in order to build his/her
professional name, attract many clients and lead a good life befitting to the legal profession.
The conflict notwithstanding, it must be emphasized that the fact that an advocate is a representative of the
client does not mean that he/she should represent the client to the exclusion of all other stakeholders.
Good practice is to let the client know this fact at the earliest possible opportunity that the lawyer has other
obligations as well. Again, the fact that an advocate is an officer of court does not mean that his/her
obligation to court should always be upheld over and above his/her obligations to other stakeholders. Yet
again, an advocate‘s obligation to third parties should not affect the way he/she represents his/her client-
the advocate works for the client and not third parties. Yet still, the advocate has a life to live which must
also be comfortable- a life of a lawyer. But how should advocates balance these conflicting interests? The
answers lie in the codes of ethical conduct. Most codes of ethical conduct usually apply to advocates in any
setting. The implication of this is that the codes apply to an advocate in his/ her practice setting. A state
counsel for example cannot blame her superior for any unethical conduct.
Besides, the obligations of the advocate are not prioritized by these codes so that all the stakeholders have a
legitimate interest in the advocate upholding their obligations to them. Consequently, all the advocates, no
matter what area of law they practice in, have a responsibility that goes beyond merely advocating for one
of the stake holders. Consider the following scenarios. First, suppose a court compels an advocate to breach

80Zadok Paper, Autumn 1998
81 (1894) 1 QB 750

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the obligation of confidentiality, should the advocates blame the court? The answer is NO. It is important to
let the court know that you owe an obligation of confidentiality to the client. Second, suppose the client
compels an advocate to hide the truth or to hide an authority that may assist the adverse side, should the
advocate do so? The answer is NO. The advocate should never attempt to hide the truth from the court.
Third, suppose you an advocate‘s financial position tempts him/her to use all unethical means in order to
get money or to win at all costs what should the advocate do? The answer is he/she should behave
professionally and ethically in all circumstances. This happens to be the position in all circumstances.
In conclusion, the legal profession places an advocate in a very tough ethical and professional situation. All
these difficult ethical and professional problems arise from conflict between a lawyer‘s responsibilities to
clients, to the legal system and to the lawyer‘s own interest in remaining an ethical person while earning a
satisfactory living82 in an environment which makes it very hard for the advocate to remain ethical and
professional and yet earn a decent living. Much is left to be desired.
CONFLICT OF INTEREST TO THE COURT AND THE CLIENT

Where Advocates are faced with a conflict of interest between the duty towards their client and that of the
court, the advocate should remember that under section 55 of the Advocates Act they are officers of the
court, a duty which takes precedence83 requiring an advocate to only advance the interest of his client to the
extent that is it is consistent with their function as an officer of the court. If a client discloses anything that
conflicts this duty, preventing his advocate from mounting an effective defence, it could be said that the
laws of ethics would in that case penalize the client for such a disclosure.
The South Africa General Council of the Bar Uniform Rules 4.11 which are useful guidelines for lawyers
states that in such situation the advocate should explain to the client that he will be willingly for the client
only if:
1. The advocate may not in the proceedings assert that which he knows to be untrue, nor may he
attempt to substantiate untruth.
2. The advocate may appropriately argue that the evidence offered by the prosecution is insufficient to
support conviction and may take advantage of any legal matter which might relieve the accused of
criminal liability.
3. The advocate may not set up an affirmative case which he or she knows to be inconsistent with the
confession.
Therefore, in the scenario given, where Feldman introduced evidence of the victim‘s parents having a
‗swinging lifestyle‘ thus inferring opportunity for a guest at one of the parties to commit the crime, he was
in breach of his duty to the court by making assertions which he knew to be untrue. One could argue that in
doing so though arguably ethical as provided above in the Michigan case, Feldman wrongly prioritized his
82See the Preamble to the ABA Model Rules of professional conduct (2009)
83 Basic Trail Advocacy skills by Robin Palmer 2000 pg 23

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duty to his client over his duty to the court.84 This would be the case with regard to the introduction of
expert testimony which he knew to be false.
However, where the advocate discovers an illegality or irregularity that has long passed, non-disclosure of
such information would not amount to breach of duty unless such illegality would render his client
completely disreputable and dishonest.
Thus in relation to the David Westerfield case, an advocate has the option to withdraw from representing
his client as long as he is doing so bona fide. If an advocate feels like he wants to withdraw then he should
seek leave of court and abide by the rules of withdrawal. This is also an aspect of an advocate‘s duty as an
officer of the court. This case is supported by Kenya Commercial Bank v Specialized engineering Co.
Ltd {1982} KLR 485
In the judgment of the case of Republic vs. Chomondeley, it was held that the accused was guilty of the
lesser charge of manslaughter. He had been charged with murder of one Robert Njoya. The accused
admitted having shot the accused but he had no intentions to shoot. He was guilty as far as the common man
is concerned but in the eyes of the law, he was not guilty of murder but of manslaughter as he did not have
the intention to kill. The judge in his judgment stressed the facts of the case that the conduct of the accused
after the shooting clearly showed that he had no intention to kill. The accused covered the wound with his
handkerchief, gave directions for the accused to be taken to hospital and later on paid the hospital bill. He
later on recorded a statement at the police station. Thus the charge of murder was reduced to
manslaughter.
Therefore, guilt may not even be factual as shown above, it may be legal. Factually the accused above shot
and killed MrNjoya. Legally however, his defence counsel argued there was no intent and the prosecution
could not prove beyond reasonable doubt that it was murder. The parties to the weighing scale of justice
should perform their duty and no party should purport to perform the part of the other.
POPULAR CULTURE
When the Lawyer Knows the Client is Guilty: David Mellinkoff's 'The Conscience of a Lawyer', Legal Ethics, Literature,
and Popular Culture UCLA School of Law Research Paper No. 06-44 Cardozo Legal Studies Research Paper No. 181
Popular culture is what people actually believe. In a legal sense the public believe that a good lawyer is the
one who ensures that the public interest prevails over that of his client and that the guilty people don‘t get
acquitted. The idea here is that people‘s opinion is that lawyers should be held responsible for assisting such
clients whom they know to be guilty. If judged according to popular culture Feldman would have been
required to lead the court in finding justice by disclosing all material facts he knows about Westerfield
leading to his conviction. This is due to the system of morality that places a higher value upon one‘s moral
rectitude with respect to lying, than upon the preservation of an innocent person‘s life.
This is how the public perceive advocates who defend criminals who have committed heinous crimes, such
as murder. The public perception is that the guilty shall be convicted and the innocent be acquitted. The old
84Rondel v Worse(1969) 1 A.C 191.

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English case of Courvoisier captures how the public perceive lawyers who defend clients who are guilty,
and the advocate has knowledge of the client‘s guilt. In that case the client confessed his guilt and insisted
that the lawyer should represent him. The lawyer did not decline but instead he continued inferring that
other people had committed the crime. In the end his client was convicted and word got out that he was the
murderer. There was a public outcry and the press sensationalized the story which greatly affected the
reputation of the lawyer involved in the case. He was criticized for his aggressive defence. This was due to
the fact that he knew his client was guilty but still he insisted on making assertions which he knew to be
untrue.
In the common law jurisprudential system, the judge is the pivot that weighs the scale of justice between the
prosecution and the defence to ensure fairness and justice. The justice system is in such a way that the judge
should deliver the verdict on the accused, the advocates work is to prepare the defence and to bring out the
guilt of the accused.
Divided loyalty-Lord Hoffman in Arthur J.S Hall and Co. v. Simons

 Lawyers conducting litigation owe a divided loyalty. They have a duty to their clients, but they may
not win by whatever means.
 They also owe a duty to the court and the administration of justice.
 They may not mislead the court or allow the judge to take what they know to be a bad point in their
favor.
 They must cite all relevant law, whether for or against their case.
 They may not make imputations of dishonesty unless they have been given the information to
support them.
 They should not waste time on irrelevancies even if the client thinks that they are important.
 Sometimes the performance of these duties to the court may annoy the client.
 So, it was said, the possibility of a claim for negligence might inhibit the lawyer from acting in
accordance with his overriding duty to the court.
 That would be prejudicial to the administration of justice.
THE ‘CAB RANK RULE’ –PER LORD HOFFMAN (IBID)

It is a valuable professional ethic of the English bar that a barrister may not refuse to act for a client on the
ground that he disapproves of him or his case.
Every barrister not otherwise engaged is available for hire by any client willing and able to pay the
appropriate fee.
This rule protects barristers against being criticized for giving their services to a client with a bad
reputation and enables unpopular causes to obtain representation in court

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8. CONFLICT OF INTERESTS
An advocate must remain independent in judgement, loyal and objective at all material times during the
subsistence of a client- advocate relationship. This independence and objectivity are needed in order for an
advocate to discharge his/her duties well for the interest of justice. This independence is multi-faceted:
independence from the client, from the court from the public, from the third parties and from winning at
all costs. Rules of professional ethics, therefore, require an advocate to decline instructions where there is a
possibility of this independence being interfered with.
The implication is that even though is not allowed to refuse to take instructions from a client, the law
allows him/her to decline the instructions on the basis of conflict of interests for this would cause
embarrassment to the court. An advocate should not accept a brief where the possibility of embarrassment
is high; where there appears to be real mischief and if taking the instructions will prejudice the course of
justice. In this regard, the lawyer should only take such representation where the client consents which
must be confirmed in writing.85
Where a conflict of interest is discovered in the course of representation, the advocate must withdraw from
the representation unless he/she has obtained the informed consent of the client. 86 This means that the
client must be fully aware of the circumstances surrounding the case and appreciate how his/her interest
would have been affected had the advocate failed to disqualify himself. For the purposes of the client having
a clear knowledge of the circumstances of the case, the rules of professional conduct obligates an advocate
todisclose to his/her client any conflict of interests in any matter that affect the client either directly or
indirectly. The conflict could arise during litigation or non- litigation. Failure to inform the client about the
impending conflict of interest may lead to disciplinary consequences being taken against the advocate apart
from casting doubts into the moral and ethical probity of the concerned advocate.
The case of King Woolen Mills &Anor vs. Kaplan & Stratton Advocates illustrates a scenario where
the Defendant acted for both the borrower and the lender in a borrowing transaction and a conflict of
interest was created as information that was privileged was disclosed to an adversarial party being
represented by the same advocate. In the above-stated case, court stated:
“…. once a retainer is established, the general principle is that an advocate should not accept instructions to act…where
there is a conflict of interest…”
The information acquired which is confidential by reason of a fiduciary relationship between the opponent
client and the common advocate will place the former client at a disadvantage or worse still the privileged
information may be used against the client.
The cardinal principle is to ensure that the client can confide completely and without reservation in his
advocate and the privilege extends to communications made to the advocate‟s agents and counsel where the
advocate acts as a solicitor. Rule 20 of the Law Society of Kenya Digest of Professional Conduct and
Etiquette provides for the privilege of the client and that it is only subject to waiving by the client himself
and not by the advocate. Representation of two clients with conflicting interests results to a prejudice on
the client.
85See section 134 of the Evidence Act.


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RULES GOVERNING CONFLICT OF INTEREST

(i) An advocate should not accept instructions to act for two or more clients where there is a conflict
or likelihood of a conflict between the interests of those clients whether the client is a personal
client or a client of the firm or association. An advocate should not accept a brief without the
consent of his client when there is a possible or real conflict of interests with a client represented by
a partner in the same firm.
(ii) If an advocate has acquired relevant knowledge concerning a former client during the course of
acting for that client, the advocate must not accept instructions to act against the client.
(iii) An advocate must not continue to act for two or more clients where a conflict of interest exists
between those clients.
(iv) An advocate must not act where his or her interests conflict with the interests of a client.
(v) An advocate should seek a specific waiver before acting for clients with a common interest if he
reasonably believes that he can represent each of them without adversely affecting the other.
(vi) An advocate who holds a power of attorney from a client must not use that power to gain a benefit
which, if acting as a professional adviser to that client, he or she would not be prepared to allow to
an independent third party.
a) Except as provided in paragraph (ii), a lawyer shall not represent a client if the representation
involves a concurrent conflict of interest. A concurrent conflict of interest exists if: the
representation of one client will be directly adverse to another client; or
b) There is a significant risk that the representation of one or more clients will be materially
limited by the lawyer's
Appearance before relatives:

Relatives who are on the benches, i.e. Judges or Magistrates: It is not considered improper for an advocate
to appear before his relatives, there is nothing wrong with someone appearing before their kin. It‘s up to an
advocate to disqualify themselves if they feel they cannot perform. If an advocate finds that in some
proceedings that the advocate in the opposite side is a relative, there is still nothing wrong with appearing in
that matter.
Pecuniary Interest: It is undesirable for an advocate to appear in a matter in which he is himself
financially interested. If the Defendant for example is ones debtor and a client instructs one to sue the
defendant, the advocate should decline because they have a pecuniary interest in the matter.
HOW CAN YOU DETERMINE IF THERE IS CONFLICT OF INTEREST

You have to determine whether the instructions received by an advocate create an impression in the mind of
the public that the advocate is acting unfairly or using his office for undue benefit of the client (or himself).
A lawyer who has formerly represented a client in a matter shall NOT thereafter represent another person
in the same or substantially related matter in which that person‘s interests are materially adverse to the
interest of the former client. A former client must give informed consent, confirmed in writing

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In Central Bank of Kenya v Uhuru Highway Development and KamleshPattni87 the issue of conflict
of interest arose whereby the firm of Oraro&Rachier Advocates had acted for Central Bank in the
preparation of a charge over L.R. No. 209/9514 with the Defendants. The firm and particularly George
Oraro Esquire (Counsel) had then purported to act for the Defendants when question of the validity of this
charge arose. The issue in contention was that Counsel had acted for both parties in the preparation of the
Charge and he may not act for one against the other as this was in breach of Counsel‘s duty in acting for
both in the same transaction and therefore violating the principles laid out in King Woolen MillsLtd and
Anor v. Kaplan & Stratton Advocates. The second issue was the fact that Counsel was in breach of Rule 9
of the Advocates (Practice) Rules which bars an advocate from acting in a matter where he may be called to
give evidence whether verbal or by affidavit
In allowing the appeal, the court held that by Counsel acting for the Defendant, then he would consciously,
unconsciously or inadvertently use confidential information obtained during the preparation of the charge.
In the case of National Bank of Kenya v KipkoechKorat and Another88 the court held that in the case of
Rule 9 of the Advocates (Practice) Rules an advocate may be barred from acting in a matter where he may
be called to give evidence whether verbal or by affidavit. However the court held that this did not disqualify
the whole firm of advocates from acting on a particular matter.
In H.F. Fire Africa v A.M.F. Ghareib.89Ghareib made an application that the firm of Omar K. Amin
Advocates, and particularly Salah Amin Esquire (Counsel) should cease acting as advocates for the Plaintiffs.
The reason was that the firm had acted in mediation and resolved a dispute between one of the Plaintiffs and
Ghareib. However the court held that this did not cause or prohibit the firm or counsel from acting on
behalf of the Plaintiffs in the original action and the court held that there was no conflict of interest.
In Charles GitongaKariuki v Akuisi Farmers Limited90the court held that the fact that an advocate had
acted for a litigant did not per se bar the advocate from acting in other matters. The court required that any
party alleging conflict of interest was to provide evidence showing how and where the conflict arose.
DUTIES OF ADVOCATE TO HIS FORMER CLIENT

a. A lawyer who has formerly represented a client in a matter shall not thereafter represent another
person in the same or a substantially related matter in which that person's interests are materially
adverse to the interests of the former client unless the former client gives informed consent,
confirmed in writing.
b. A lawyer shall not knowingly represent a person in the same or a substantially related matter in
which a firm with which the lawyer formerly was associated had previously represented a client;
a. whose interests are materially adverse to that person; and
87 Civil Appeal No. 286 of 2001

88 HCCC 97 OF 1997
89 (2005) eKLR
90 (2007) eKLR

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b. About whom the lawyer had acquired information that is material to the matter; unless the
former client gives informed consent, confirmed in writing.
c. A lawyer who has formerly represented a client in a matter or whose present or former firm has
formerly represented a client in a matter shall not thereafter:
a. use information relating to the representation to the disadvantage of the former client
except as these Rules would permit or require with respect to a client, or when the
information has become generally known; or
b. reveal information relating to the representation except as these Rules would permit or
require with respect to a client.
If these duties cannot be adhered to then the firm of Advocates and/ or their agents should withdraw from
acting in the matter. Failure to do the same, a formal application may be made by the adverse party for the
disqualification of the firm as witnessed in the case of CarnevaliFausto& another vs. GianluigiLuigi & 2
others. A general exception to the rules would be once the advocate seeks informed consent of both
concerned parties. If there is any likelihood of success on the same then the advocate on record should
reasonably foresee or believe that there is no likelihood of prejudice that may be occasioned or detrimental
to the adverse party‘s case. This is clearly reflected in the case of Prince Jefri&BolkiahVs KPMG16, the
judgment stresses that where a person is acting as a fiduciary, he can‘t act for two clients with conflicting
interests without their informed consent.
9. TRIAL ADVOCATE’S DUTY TO WITNESSES

A witness is someone who has firsthand knowledge about a crime or dramatic event through their senses
(e.g. seeing, hearing, smelling, touching), and can help certify important considerations to the crime or
event. In R (on the application of Kelly) v Warley Magistrates Court(the Law Society intervening)Lord
Justice Laws stated:
„… It is clear that litigation privilege attaches to the identity and other details of witnesses intended to be called in
adversarial litigation, civil or criminal, whether or not their identity is the fruit of legal advice.‟
1. Duty of Courtesy
As a general rule, trial lawyers should as far as possible, be courteous to witnesses at all times. Witnesses
must be treated with courtesy and respect as they are doing a public duty by coming to Court. It‘s more
likely that counsel will get the information that he or she requires from a witness if a polite and cooperative
relationship is developed with the witness concerned. An argumentative attitude is likely to elicit much less
information and to irritate the court. An advocate has a duty to ensure that evidence in support of their
client‘s case is presented to the best possible effect and that witnesses, especially vulnerable ones, are put at
ease and understand what is expected of them
2. Duty not to harass witnesses

Advocates should refrain from harassing or badgering witnesses. Such conduct will not ensure cooperation
from the witness and will also irritate the court. Additionally, few witnesses are likely to be badgered into

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making admissions that they do not make. It is better to expose inconsistencies in a witness‘ evidence
through polite carefully structured questions.
On television, lawyers go up and lean on the witness stand, or point their finger, or yell at the witness.
This is not allowed. The rules of courtroom decorum require that advocates stay seated at counsel table
unless they are walking an exhibit up to the witness. They should be addressed as Ms. or Mr. and should be
treated with respect because the judge will require it, and will not appreciate an advocate who yells at a
witness.
3. Duty During Cross Examination Not to make unsubstantiated remarks on the character
of a witness
Questions which affect the credibility of a witness by attacking his or her character but are not otherwise
relevant to the inquiry should not be put unless the advocate has reasonable grounds for believing that the
imputations conveyed are well founded or true.
It is also the duty of an advocate to guard against being made the channel for questions which are only
intended to assault or annoy the witness.An Advocate should always treat adverse witnesses with fairness
and due consideration, and he should never minister to the malevolence of prejudices of a client in the trail
or conduct of a case.
The client has no right to demand that his Advocate shall abuse the opposite party or indulge in offensive
arguments
4. Duty during Cross Examination not to Keep Defamatory Statements within Qualified
Privilege.
An advocate is not an amanuensis or spokesperson for a client who wishes to place irrelevant or
unsupported and scandalous material on public record under cover of privilege. For this reason, no issue
should be submitted merely because of a client‘s desire to raise it. To this end no allegation of moral or
legal turpitude against a witness should be made without a prima facie case being disclosed by the facts and
no such allegation should be made in the hearing against any person without evidence to support it.There
may be a relevant issue the raising of which would reflect adversely upon the client‘s reputation, in which
case counsel may decline to plead the issue without specific instructions to do so.
An advocate may not give information derogatory to the witness or make statements that are offensive or
disparaging to the witness, unless such information or statements are necessary for the proceedings or
otherwise for a due protection of the client´s interests. The client cannot be made the keeper of the
Advocate‘s conscience in a professional matter.
As per Snyman vs. Azo 1974 (1 SA 808 T) ―No cross examiner is entitled to insult a witness or to treat
him in a manner in which these witnesses were treated without there being a very good reason for it.‖
On the other hand, there can be no refusal to submit an issue, however unpalatable or unpopular, which
will, if the issue is resolved in the client‘s favour, advance the client‘s cause.
5. Duty not to wantonly or recklessly accuse the witness of a crime

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An advocate defending a client on a criminal charge is not entitled to wantonly or recklessly attribute to
another person the crime with which his or her client is charged. The advocate may not do so unless the
facts or circumstances given in the evidence or rational inferences drawn from them raise at least a
reasonable suspicion that the crime may have been committed by the person to whom the guilt is so
imputed. Improper speech is not excusable on the ground that it is what the client would say if speaking in
his own behalf.
6. Duty not to interview witnesses who have been sworn in

It is generally undesirable to interview any witness after he or she has been sworn in or has made solemn
declaration to tell the truth. It is also improper to interview a witness who is under cross examination
unless circumstances make such an interview necessary. If such a circumstance exists, the lawyer should
inform his or her opponent before doing so. If the opponent objects, the court should be asked for
permission. Generally, it is considered improper for an advocate who called a witness to communicate with
that witness without leave of the court while such witness is under cross-examination.
An advocate may properly seek information from any potential witness but should disclose his interest and
take care not to subvert or suppress any evidence or procure the witness to stay out of the way. Regardless
of whether a witness has been produced by the opposing party, an advocate may in advance make contact
with the witness in order to discover what information the witness is able to provide. There is no rule that a
defence advocate cannot interview a witness that may be called for the other party.
7. Duty to consult one’s witnesses before trial.

All advocates should consult with their witnesses before trial to prepare them for the ordeal of testifying in
court. It is helpful to explain to the witness the procedure concerning examination in chief, cross
examination and re examination as well as how they should dress for court and address the court. The
lawyer should also take them through the evidence. Morris suggests that lawyers should prepare the
witnesses for cross examination as follows;
“It is permissible to prepare the witness in the general sense for cross examination somewhat in the following terms: “listen
to the question before you answer, if you don‟t understand it, say so. If you don‟t know any answer, don‟t guess; just say
that you don‟t know. Don‟t worry about what the man has in mind when he asks his questions. Just give a direct answer.
Answer as shortly as possible and don‟t make speeches.”
It can be very difficult dealing with witnesses without crossing the line from the legitimate assistance in
helping a witness to prepare to the improper coaching of a witness in what to say. Improper witness training
may lead to an honest witness feeling influenced to alter their evidence in support of a particular set of facts
and a dishonest witness rapidly calculating how his evidence may be improved.
Familiarisation could and should include:
 Explaining court procedure;
 How to dress for court.
 Advising witnesses to give their evidence slowly and address the judge or magistrate;
 Letting the witness know that it is vital to make it clear if they don‘t know the answer to a question
or didn‘t understand it;

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 It is also possible to provide expert guidance to expert witnesses who were to give evidence of a
technical nature to resist the pressure to go further in evidence than their specific expertise.
10. ADVOCATES AND PROFESSIONAL UNDERTAKINGS

A professional undertaking refers to any unequivocal declaration by a professional [an advocate or a member
of the advocate‘s staff] in the course of practice to someone who reasonably places reliance on it. An
undertaking need not be made in the course of practice where it is made by an advocate himself/ herself.
Besides, an undertaking may be made either orally or in writing provided it is unequivocal and
unambiguous.
Once an undertaking has been made, it binds an advocate at a personal level and creates obligation which
must be upheld by the advocate. Consequently, where an advocate makes an undertaking on behalf of the
client, he/she will be bound even where the client later changes her mind. In other words, an advocate
cannot, after giving an undertaking that was unambiguous, unequivocal and binding, qualify the same on
account of accounting disputes between the parties. This means that an advocate is supposed to act with due
diligence and obtain very clear instructions from his/her client before making a professional undertaking on
his/her behalf. If he does so without that elementary precaution, then he must take the consequences.
The case in point is Kenya Reinsurance Corporation vs V.E. MugukuMuriu T/A M/S V.E.
MugukuMuriu& Company91in which the Respondent, an advocate of the court, wrote to the Appellant
seeking to know the amount his client owed them in order to prepare a discharge in order to transfer the
property to a third party. The appellant wrote to its advocates and copied to the Respondent, stating the
entire loan amount. The respondents thereafter wrote to their colleague advocates seeking the title
documents on their professional undertaking to redeem the mortgage owing in the Appellant‘s advocate.
However, a dispute arose between the Respondent‘s client and the Appellant over the amount owing and
the Respondent tried to escape from the undertaking arguing that it was to be read together with his client‘s
letter setting out the amounts owing.
The court held that having given a solemn professional undertaking to pay a certain sum, an advocate is
bound by the same and he cannot resile from them. The Respondent‘s advocate undertaking was
unambiguous, unequivocal and binding on him. An advocate cannot, after giving such an undertaking,
qualify the same on account of accounting disputes between the parties.
Two points must be noted in this case. First, when the appellant‘s lawyers sent title documents to the
Respondent, it was on reliance of his undertaking. It was therefore incumbent on the Respondent to return
the documents if his client was disputing the correctness of the amount due under the charge. He however
proceeded to register the discharge of charge and transfer the property. Accordingly, the Respondent by
attempting to pay the Appellant‘s advocates a lower amount was bringing in the dispute between his client
and the appellant to qualify his clear undertaking. This is wrong as it would allow advocates to resile from
their undertakings. The appellants‘ advocates were right in refusing to accept payment of a sum less than
91Civil Appeal No. 48/1994.

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the amount covered by the undertaking because if they had done to they ran the risk of tying themselves to
it.
Second, the Respondent had no locus standi to sue in his own name while claiming damages on behalf of his
client. Further the Respondent cannot be heard to claim that the procedure adopted by the appellant was
wrong when he entered appearance and filed a defence and counterclaim.
Rule 46 of the LSK Digest

 A commitment by an advocate backed by his professional name.
 Must be clear and unambiguous.
 It creates a binding agreement and can be enforced against the advocate.
It amounts to professional misconduct not to honour an undertaking. In Walker Kontos Advocates v. S.

Mwirigi& Co. Advocates Civil Appeal No.20 of 1997, the respondents had obtained documents of title in
respect of a piece of land which was the subject of a change. They gave an undertaking to secure the
discharge upon completion of a transaction involving the subject title. Thereafter they purported to resile
from the undertaking on account of a dispute as to the interest rate applicable. It was held that the fact that
there was a dispute as regards the interest payable on the charge did not of itself entitle the respondents to
resile from the solemn undertaking. The solemn and binding nature of a professional undertaking was
reiterated in the case of Kenya Reinsurance Corp. v. V. E. MugukuMuriu t/a MugukuMuriu& Co. Civil Appeal
No.48 of 1998 where the advocates in question on facts similar to the ones in the Walker Kontos case sought
to qualify their undertaking on account of a dispute between their client and the appellant corporation. It
was held that having given a solemn undertaking to pay a certain sum of money an advocate is bound by the
undertaking and cannot resile there from. The same result was reached in the case ofKarsamLalji Patel
v. Peter KimaniKairu practicing as KimaniKairu& Co. Advocates Civil Appeal No.135 of 1999.
CHAPTER 4
CHAPTER UNQUALIFIED PERSONS ACTING AS ADVOCATES
A. UNQUALIFIED PERSONS ARE NOT ADVOCATES [S. 31]

Qualifications of practising as an advocate have already been discussed in the preceding chapter of this book.
At this point, it must be emphasized that the provisions of sections 9-13 of the Advocates Act are absolute
so that any person who purports to practice law as an advocate without complying with the said provisions
will be held liable for acting as an advocate when unqualified. Section 31(1) of the Act provides that Subject
to section 8392, no unqualified person shall act as an advocate, or as such cause any summons or other
process to issue, or institute, carry on or defend any suit or other proceedings in the name of any other
person in any court of civil or criminal jurisdiction.93 Pursuant to this provision, there are three
consequences for contravening this subsection. First, it may attract contempt of court proceedings and
appropriate punishment against any person who contravenes it. Second, any person who contravenes this
92Section 83 provides in this regard that “[Nothing] in this Act or any rules made there under shall affect the provisions of any other written law
empowering any unqualified person to conduct, defend or otherwise act in relation to any legal proceedings.”
93Section 31 (1)

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provision shall be incapable of maintaining any suit for any costs in respect of anything done by him in the
course of so acting. Third, such a person shall be guilty of an offence punishable under section 85 of the
Advocate Act.94
B. WHEN TO PRACTICE ON OWN BEHALF [SS. 32 - 33]

The advocates Act and the Council of Legal Education Act are very clear on when a newly admitted
advocate is allowed to practice on his/her own. Accordingly, even after getting a practice certificate, an
advocate is not supposed to engage in practice on his own behalf either full-time or part time unless he has
practised in Kenya continuously on a full-time basis for a period of not less than two years after obtaining
the first practising certificate in a salaried post either as an employee in the office of the Attorney-General
or an organization approved by the Council of Legal Education or of an advocate who has been engaged in
continuous full-time private practice on his own behalf in Kenya for a period of not less than five years. 95
The rationale for this requirement is malti-faceted. First, it helps to protect the public from unqualified
persons purporting to practice law and second, to protect the professional standards.
In Mohammed Ashraf Sadique& another Vs Matthew Oseko T/A Oseko& Co Advocates,96the

applicants filed various Originating Summons through their advocates, M/s Koceyo&Amadi
Advocates. Under the said Originating Summons the applicants required the Respondent, the firm of
Oseko& Co Advocates, to deliver a cash account in respect of certain cases in which the firm of Oseko&
Company Advocates had represented the applicants after receiving a deposit sum of just over One Million
Kenya Shillings from the applicants, so that the balance from the deposit, if any, would be refundable to the
applicant. The Respondent filed Grounds of Opposition and a Replying Affidavit in which he raised issues
that the Plaintiff‘s firm of advocates had no capacity in law to draw and lodge the applications since the
advocates did not qualify to practice law on their own as provided for by the mandatory provisions of the
Act. The brief factual basis for this objection was that the firm of Koceyo and Amadi Advocates consisted of
two partners, Titus Koceyo and Eddie Jatiang‘aAmadi. The firm was registered on 13 th July 2006 by both
Mr Koceyo and Mr Amadi. Mr Amadi had been engaged as a salaried employee of M/S Oseko& Co
Advocates on 1.06.2006 after being admitted to the Role of Advocates on 18.05.2006. Mr Amadi,
therefore, began to practice law on his own, although in partnership with Mr Koceyo, barely 43 days after
starting his said employment with Oseko& Company Advocates. The primary issue was, therefore whether
the conduct of the two advocates was unlawful and contrary to the express provisions of the Advocates Act.
On the issues as to when does an advocate qualify to engage in legal practice on his own behalf, the court
pronounced itself as follows:
“(Pursuant to Section 32 of the Advocates Act) a new advocate who has for the first time been admitted to the bar and
issued with a practicing certificate does not qualify to engage in legal practice on his own behalf whether full time or part
time; whether alone or in partnership, unless and until he has, for a continuous period of two years practiced as a
salaried employee of a legally qualified person or organization. Such qualified person or organization includes the
94 Section 31(2)
95Section 32(1) of the Advocates Act
96

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Attorney General‟s office or any other organization approved by the Council of Legal Education. It also includes any
advocate who has been engaged in a continuous full time legal practice for a minimum of five years.”
Thus, the requirement to serve as a salaried employee by the newly qualified or admitted advocate is
mandatory. This means that neither the advocate nor the person or body authorized to give the advocate a
practicing certificate to practice full time or part time has discretion to waive or remit the period of two
years prescribed. No one has power to reduce the two year period prescribed in the law or alter the nature
of it. The period of twenty four months (2 years) may be served from time to time and may also be served
under more than one employer. Nonetheless, the cumulative period must add up to 24 months before a
certificate of compliance is issuable.
C. CONSEQUENCES FOR ACTING AS ADVOCATE WHEN UNQUALIFIED [SS. 33- 34]

Any unqualified person who willfully pretends to be, or takes or uses any name, title, addition or
description implying that he is, qualified or recognized by law as qualified to act as an advocate shall be
guilty of an offence.97 Again, an unqualified person is prohibited by the law from taking instructions or
drawing or preparing any document or instrument and further from accepting, receiving directly or
indirectly any fee, gain, or reward for taking of any such instructions.98 Accordingly, any person who
contravenes this requirement shall be guilty of an offence pursuant to section 34(3) of the Act and any
money received by an unqualified person in contravention of this section may be recovered by the person by
whom the same was paid as a civil debt recoverable summarily.99
It is noteworthy that sections 33 and 34 apply both to persons who have been admitted as advocates as well
as persons who are not qualified as advocates. Are regards persons who are not qualified as advocates [those
who have not been admitted to the Roll of Advocates] the position is crystal clear – they are forbidden from
practising as advocates. However, as regards advocates who have been admitted as such but they are
disqualified by the fact that they lack a current practising certificate, the position is quite controversial.
This position was considered in the case of National Bank of Kenya Ltd vs. Wilson Ndolo Ayah100 in
which the respondent executed a charge over property known as L.R. No 7336/14 situate in Nairobi, in
favour of the appellant to secure repayment by Bungu Investments Limited of Kshs 10 million on 23 rd July
1990. The charge was drawn by one V. Nyamodi, advocate who did not hold a current Advocates
Practicing Certificate, and was therefore not qualified to draw those documents in view of the provisions of
section 34 of the Advocates Act, Cap 16 of the Laws of Kenya. The respondent argued that since the
advocated did not have a current practicing certificate, the documents drawn by her were incompetent and
97Sections 33 of the Advocates Act

98Section 34 of the Act outlines the legal instruments which should not be prepared by an unqualified person. Thus, no unqualified person shall, either
directly or indirectly, take instructions or draw or prepare any document or instrument– (a) relating to the Conveyancing of property; or (b) for, or in
relation to, the formation of any limited liability company, whether private or public; or (c) for, or in relation to, an agreement of partnership or the
dissolution thereof; or (d) for the purpose of filing or opposing a grant of probate or letters of administration; or (e) for which a fee is prescribed by
any order made by the Chief Justice under section 44; or (f) relating to any other legal proceedings.
nor shall any such person accept or receive, directly or indirectly, any fee, gain or reward for the taking of any such instruction or for the drawing or
preparation of any such document or instrument:
99section 34(2) of the Advocates Act.
100[2009] Eklr

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that a charge and Deed of Guarantee, both in favour of the appellant, dated 23 rd July 1990 and 17th
October, 1990, respectively were null and void ab initio. The trial court found that at the time the advocate
drew the documents she did not have a current practicing certificate and was therefore not qualified to draw
those documents in view of the provisions of section 34 of the Advocates Act, Cap 16 of the Laws of Kenya
and that the documents were therefore null and void and that the sums of money they purportedly secured
were irrecoverable. This position was upheld by the Court of Appeal.
Based on this case, a number of points are worth noting. First, qualifying as an advocate is quite different
from qualifying to practice as an advocate. One qualifies as an advocate once his/her name is entered on the
Roll of Advocates. However, the fact that an advocate‘s name has been entered on the Roll does not entitle
that person from practising as an advocate. Section 9 of the Advocates Act is clear that for one to qualify to
practice as an advocate, he/she must inter alia have in possession a current practising certificate. The
implication of this provision is that a current practising certificate is mandatory and that when read with
section 34 of the Act, failure to obtain a current practising certificate goes into the legality of the document
that an advocate prepares.
Second, it may be argued that section 34 was intended to protect the public as well as the legal profession
and the course of justice. The section protects the public from unqualified persons acting as advocates
because public policy demands that people who deal with the public should be appropriately qualified
before they can offer services at a fee. Accordingly, courts will always strike out documents prepared by
unqualified people although this depends on construction of the relevant statute. In Shaw v Groom101 the
Court of Appeal in England held as per head note (2) where an illegality is committed in the course of
performing a legal contract, the test as to the enforceability of the contract is whether on a true
consideration of the relevant legislation as a whole Parliament had intended to preclude the plaintiff from
enforcing the contract.
The Kenyan position is that section 34 of the Advocates Act makes it an offence for an advocate not holding
a current practicing certificate preparing or drawing any documents for a client for a fee. The section
however remains silent on the validity of such documents.
Nevertheless, an analysis of the Advocates Act and the relevant case law seems to reveal that Parliament had
intended to preclude the plaintiff from enforcing the documents prepared in contravention of this
provision. There are two arguments for this. First, such advocates are punished so that pursuant to section
85 of the Advocates Act. A fine of Kshs.50,000 is provided for acting as an advocate while not holding a
practicing certificate. The advocate is also liable to disciplinary proceedings. Besides, any money received
by an unqualified person in contravention of section 34 of the Advocates Act is recoverable summarily by
the person by whom the same was paid, as a civil debt. Second, if on invalidating or striking out of an
unqualified advocate‘s documents or suits lead to injury to an innocent party, the injured party has a
remedy in either in starting the suit afresh or seeking leave to file the process out of time or even seeking
exemption from the Limitation of Actions Act to start the suit afresh or as a last resort, the injured party
can sue for damages for professional negligence or for any other remedies.
101[1970] 2 B (C.A)

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Thus, documents signed by unqualified advocates are incompetent and cannot be relied upon in evidence.
This was the position in the case of Geoffrey OraoObura vs. Koome102in which the Court of Appeal held
that a memorandum of appeal signed and filed by an advocate who did not hold a current practicing
certificate was incompetent because the advocate was not entitled to sign and file that document.
The rationale for invalidating documents signed by incompetent advocates was explained in details by the
same court in the case of National Bank of Kenya Ltd vs. Wilson Ndolo Ayah.103Therelevant part of the
explanation which is as follows:
“It is public policy that citizens obey the law of the land. Likewise is good policy that courts enforce the law and avoid
perpetuating acts of illegality. It can only effectively do so if acts done in pursuance of an illegality are deemed as being
invalid. The English courts have distinguished the act by the unqualified advocate, and the position of the innocent
party who would stand to suffer if and when the act by that advocate for his benefit is invalidated. The gravamen of
their reasoning is that the client is innocent and should not be made to suffer for acts done contrary to the law without
prior notice to him. There is good sense in that. However, a statute prohibiting certain acts is meant to protect the
public interest. The invalidating rule is meant for public good, more so in a country as ours, which has a predominantly
illiterate or semi illiterate population. There is a need to discourage the commission of such acts. Allowing such acts to
stand is in effect a perpetuation of the illegality. True, the interests of the innocent party should not be swept under the
carpet in appropriate cases. However it should not be lost sight of the fact that the innocent party has remedies against
the guilty party to which he may have recourse. For that reason it should not be argued that invalidating acts done by
unqualified advocates will leave them without any assistance of the law.”104
It is noteworthy; however, there are a number of circumstances when an unqualified person may also
prepare these documents. First, the law allows any public officer to draw or prepare such documents or
instruments in the course of his duty. Secondly, any person employed by an advocate and acting within the
scope of that employment may draw or prepare them. Third, any person may be employed but merely to
engross any such documents or instrument.
D. THE NAME AND ADDRESS OF THE DRAWER OF A DOCUMENT OR AN INSTRUMENT

As a consequence, pursuant to section 35(1) of the Act, every advocate who prepares a document must
have their name and address be entered on that document for record purposes. The section provides in this
regard as follows:
“35(1) Every person who draws or prepares, or causes to be drawn or prepared, any document or instrument referred to in
section 34 (1) shall at the same time endorse or cause to be endorsed thereon his name and address, or the name and
address of the firm of which he is a partner and any person omitting so to do shall be guilty of an offence and liable to a
fine not exceeding five thousand shillings in the case of an unqualified person or a fine not exceeding five hundred
shillings in the case of an advocate:
102[2001] KLR 109

103[2009]Eklr
104National Bank Of Kenya Ltd vs. Wilson Ndolo Ayah[2009] Eklr

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This provision raises two important points. First, that it is an offence punishable by a payment of a fine if an
advocate does not to endorse his/her name on the document. Second, it is punishable for unqualified to
draw documents under section 34 of the Act.
The provision, however, acknowledges circumstances where unqualified persons may also draw such
documents. However, where the document or instrument is drawn, prepared or engrossed by a person
employed, and whilst acting within the scope of his/her employment, by an advocate or by a firm of
advocates, the name and address to be endorsed thereon shall be the name and address of such advocate or
firm.105 This provision seeks to prevent the persons who are employed by advocates such as legal assistants
and secretaries from endorsing their names on the documents or instruments when they are not qualified.
Another point worth noting is that pursuant to section 35(2) the Registrar recording the documents
prepared under section 34(1) is empowered to refuse to accept or recognize any document or instrument
referred to in section 34 (1) unless such document or instrument is endorsed in accordance with this
section.
Accordingly, the overall position is that documents which are drawn in contravention of section 34 and 35
of the Act are invalid and cannot be recognized in law. This position was emphasized in the case of Travel
Shoppe Limited vs Indigo Garments EPZ Limited & Others106in whichthe Plaintiff filed a suit against the
Defendants. Thereafter it filed the present application seeking to stop the Defendants from selling or
transferring assets of the 1st Defendant. The grounds of the application were that it had a judgment against
the 1st Defendant which remained unsatisfied. It subsequently filed a winding up petition but the 2 nd
Defendant was appointed by the 3rd Defendant pursuant to a debenture. The Applicant argued that the
debenture was unlawful as it did not show the advocate who drew it, contrary to section 34
and 35 of the Advocates Act. It also claimed that the receiver manager had thereafter advertised the 1 st
Defendant‘s property for sale and this will negatively impact its claim. The Defendant argued that Section
34 and 35 of the Advocates had been complied with and the appointment of the receiver manager was
therefore valid.
In dismissing the application, the court held that under section 34 of the Advocates Act, any person who
draws or prepares a document must indicate that they are the drawers. Failure to do so makes the
document invalid. Again, the debenture was between the 1st Defendant and the 3rd Defendant. There was
therefore no privity of contract with the Plaintiff and it could not bring an action on a document it was not a
party to.
CHAPTER 5
REMUNERATION OF ADVOCATES
A. Advocate Fees
Advocates, like any other professional, are paid for their professional services. There are four ways through
which advocates get paid. First, they are paid an hourly fee based on the time they spend in doing an
105Proviso to section 35(1) of the Act.

106Civil Suit No. 586/2004.

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activity. This time is normally multiplied by an hourly rate. Second, they are paid a flat fee. Third, they are
paid a contingent fee when they get a favourable outcome. Fourth, they are paid a proportional fee which is
computed as a percentage of the value of a given transaction.107
Lawyers charge their fees in most cases based on the contract they enter into with their clients so that all of
the above fees may feature in what a lawyer finally gets. However, sometimes that fees that the lawyers
charge are regulated by the ethical principles and rules. A lawyer is not allowed, for instance, to charge
below a particular scale. The implication of this is that the fees charged by the lawyer must be reasonable-
must neither be illegal nor unconscionable.
B. FACTOR THAT DETERMINE THE FEES CHARGED

Three points must be considered in determining whether the fees charged are reasonable and
unconscionable108, viz;
1) Whether the client made an informed decision in entering into the contract.
2) Whether the fees charged are within the acceptable range charged in transactions of similar nature.
3) Whether the circumstances have changed since the making of the contract that have made the
contract unreasonable.
Advocates are supposed to take their bill of costs for taxation in court. The rationale for this is to protect
the clients especially those who are unsophisticated in matters of a lawyer‘s compensation, when a lawyer
has overcharged.109 This arises because clients do not know how the layers charge and they cannot
effectively bargain at an arm‘s length with the lawyers.110
C. FEE AGREEMENTS AND CONFLICT OF INTERESTS

It is noteworthy that an advocate must be paid his/her professional fees whether or not he/she obtains a
favourable outcome. But this does not relieve an advocate from his/her obligation to their clients. Again, an
advocate should avoid as much as possible instances where his/her personal interests will conflict with the
client‘s interests. This is always the case with fee agreements where a layer‘s interests conflict with those of
the client.
Fee agreements are not illegal and are common in the system because they do not raise serious professional
issues. However, it is proper practice to have such agreements in writing so that there is no
misunderstanding between the lawyer and the client.111 All the costs that t he client will incur must be
explained to the client in a letter during the engagement of the lawyer.
D. REMUNERATION AGREEMENTS [S. 45]
Pursuant to section 45 an advocate may exercise three options in charging fees.112 He may either use the
Advocates Remuneration Order in charging or he may enter into an agreement with the client as to cost as
or he may charge ex gratia. Where he enters into an agreement with the client as to costs, such agreement
shall be valid and binding on the parties provided it is in writing and signed by the client or his agent duly
107 Paul T. Hayden, Ethical Lawyering (2003) at 252

108Ibid para 2
109Ibid at 253 para. 3
110Ibid.
111Ibid at 255
112Section 45(1) of the Act

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authorized in that behalf. Section 45(2) allows a client who is not satisfied with the agreement on the fees to
have the agreement set aside or be varied or challenged within one year 113 from the date of its making or
three months after demand is made in writing by the advocate on the grounds that it is harsh and
unconscionable, exorbitant or unreasonable.114 When this agreement is challenged, the court in which this
challenge is brought may order any of the following four-
(a) that the agreement be upheld; or
(b) that the agreement be varied by substituting for the amount of the remuneration fixed by the
agreement such amount as the Court may deem just; or
(c) that the agreement be set aside; or
(d) that the costs in question be taxed by the Registrar; and
(e) that the costs of the application be paid by such party as it thinks fit.
Where an advocate dies or becomes incapable of acting after having performed part of the business to which
the agreement relates or if the client changes the advocate even when the agreement continues to subsist,
any party to that agreement, or their legal representative may apply to a judge in chambers pursuant to
section 45(2) to have the agreement set aside or be varied.115 Where a client changes an advocate, this will
be considered as breach of the agreement and the advocate shall be entitled to a full recovery of the legal
fees as it had been agreed. However, the advocate will not recover the full legal fees where the court is of
the opinion that there has been default, negligence, improper delay or other conduct on the part of the
advocate affording to the client reasonable ground for changing his/her advocate
Where there is agreement on costs pursuant to section 45, the issues of taxation does not arise116 and the
costs cannot be subjected to section 48 of the Act.117 However, a party claiming that there was an
agreement pursuant to section 45(6) must produce evidence of the same. Again, a party contesting the
quantum of fees charged under section 45 can do so by lodging an appeal to the High Court and no other. If
he/she is not satisfied by the decision of the court, he may appeal to the court of appeal. An illustrative case
on this point is the case of OchiengOnyangoKibet&Ohagavs Adopt a Light Limited118in whichthe
Applicants filed a Bill of Costs against the Respondents, their former client. However, the Client filed a
preliminary objection arguing that under section 45(6) of the Advocates Act, taxation cannot proceed
where there is an agreement on costs between the advocate and the client. The taxing master however
dismissed the objection on the grounds that the agreement of fees was not produced. The client then filed
the present application seeking a hearing of its objection to the taxing master‘s decision. The advocates
113Section 45(2A) of the Act

117 Section 48 of the Act provides in this regard that;
“48(1) Subject to this Act no suit shall be brought for the recovery of any costs due to an advocate or his firm until the expiry of one month after a bill
for such costs, which may be in summarized form, signed by the advocate or a partner in his firm, has been delivered or sent by registered post to the
client, unless there is reasonable cause, to be verified by affidavit filed with the plaint, for believing that the party chargeable therewith is about to quit
Kenya or abscond from the local limits of the Court‟s jurisdiction, in which event action may be commenced before expiry of the period of one
month.
(2) Subject to subsection (1), a suit may be brought for the recovery of costs due to an advocate in any court of competent jurisdiction.
(3) Notwithstanding any other provisions of this Act, a bill of costs between an advocate and a client may be taxed notwithstanding that no suit for
recovery of costs has been filed.”
118 Misc. Cause No. 654/2006.

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however opposed the application on the grounds that there was no valid reference as the client could only
approach the High Court after the taxation and decision of the taxing officer had been made. The client
however stated that there as there was no procedure to appeal a decision under section 45(6) of the Act the
court‘s inherent jurisdiction would be utilized
In dismissing the appeal, the court raised four important points. First, that since section 45(6) does not state
that it can be entertained by the Deputy Registrar, the section can only be entertained by the High Court.
The client therefore chose the wrong forum to present its application. However, since there is presently a
valid Ruling by the Deputy Registrar, the decision stands until it is appealed or set aside. Second, since no
taxation had been undertaken the client had no right to invoke paragraph 11(1) of the Advocates
(remuneration) Order. However, the use of that paragraph was not fatal. Third, the client‘s application was
not seeking an application but for the court to hear its objection to the taxation as if it is a court of first
instance. However, the only way for the client to challenge the decision was by way of appeal to the High
Court. Fourth, the client had also failed to attach a copy of the taxing master‘s decision.
However, there are some agreements between the lawyer and the clients are prohibited by the law. This is
the position under section 46 of the advocates Act as explained below.
E. INVALID AGREEMENTS ACT [S. 46]

An advocate must not be a party to any agreement that is seen as breaching the rules of professional ethics
and responsibility. For this reason, section 46 of the Advocates Act invalidates the following types of
agreements-
a) Any purchase by an advocate of the interest, or any part of the interest, of his client in any suit or
other contentious proceeding.
b) Any agreement relieving any advocate from responsibility for professional negligence or any other
responsibility to which he would otherwise be subject as an advocate.
c) Any agreement by which an advocate retained or employed to prosecute or defend any suit or other
contentious proceeding stipulates for payment only in the event of success in such suit or
proceeding or that the advocate shall be remunerated at different rates according to the success or
failure thereof.
d) Any agreement by which an advocate agrees to accept, in respect of professional business, any fee
or other consideration which shall be less than the remuneration prescribed by any order under
section 44 in respect of that business or more than twenty-five per centum of the general damages
recovered less the party and party costs as taxed or agreed.
e) Any disposition, contract, settlement, conveyance, delivery, dealing or transfer which is, under the
law relating to bankruptcy, invalid against a trustee or creditor in any bankruptcy or composition.
F. THE (ADVOCATES) REMUNERATION ORDER [SS.44, 48]

1. INTRODUCTION
The fees the advocates charge are regulated by the provisions of the Advocates Act as well as the
remuneration Order. The remuneration order is made by the chief Justice on the recommendations of the

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Law Society of Kenya. 119 The order is divided into two main parts - the rules and the schedules. The rules
prescribe how charging is to be done while the schedules show the scales for different types of businesses.
2. OBJECTIVES OF THE REMUNERATION ORDER

The order has a number of objectives as follows. First, it seeks to protect to protect the public from
exploitation by advocates by controlling the fees the advocates charge. Second, prevents the advocates from
engaging in professional malpractices such as undercutting and unfair competition. Third, it seeks to make
legal services affordable to the public. Fourth, it seeks to remunerate advocates in order to enable them lead
a good life as expected of the profession.
3. MATTERS CONSIDERED IN THE REMUNERATION ORDER

Pursuant to section 44 of the Advocates Act, after considering the recommendation of the Council of the
Society, the Chief justice may by order, prescribe and regulate in such manner as he thinks fit the
remuneration of advocates in respect of all professional business, whether contentious or non-contentious.
The order that the Chief justice make under this section may take into account the following five matters.120
First, the position of the party for whom the advocate is concerned in the business, that is, whether as
vendor or purchaser, lessor or lessee, mortgagor or mortgagee, and the like. Second, the place where, and
the circumstances in which, the business or any part thereof is transacted. Third, the amount of the capital
money or rent to which the business relates. Fourth, the skill, labour and responsibility involved therein on
the part of the advocate. Fifth, the number and importance of the documents prepared or perused, without
regard to length.121
4. DIVISION OF THE REMUNERATION ORDER

Remuneration is divided into two parts: the rules part and the schedules as explained below.
1. The Rules 1 - 79]

The rules section contains provisions on how advocates of the High Court are supposed to charge their fees
in contentious and non contentious business in High court, , in subordinate courts (other than Muslim
courts),in a Tribunal appointed under the Landlord and Tenant (Shops, Hotels and Catering
Establishments) Act and in a Tribunal established under the Rent Restriction Act. 122 It also contains
guidelines how the bills of costs are to be drafted by advocates, how the assessment of the fees should be
done by the magistrate courts and how taxation of the bills should be done by the taxing officer.
Additionally, it contains provisions on how advocates can recover their fees from clients who do not want
to pay and the procedures of appeal in the High Court and the Court of Appeal.
The Remuneration order only gives the minimum amount that an advocate is allowed to charge. Rule 3 of
the Order prohibits an advocate from agreeing to remuneration that is below the scale provided in the
119 See section 44 of the Advocates Act.

122Rule 2.

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Order. Therefore, an advocate is allowed to charge any amount above the minimum provided it is not too
exorbitant and subject to the agreement of the client. Again, the amount charged depends on the
complexity of the case in question and varies from advocate to advocate. Rule 4(1) provide in this regard
that where any business requires and receives exceptional dispatch, or, at the request of the client, is
attended to outside normal business hours the advocate shall be entitled to receive and shall be allowed such
additional remuneration as is appropriate in the circumstances. The circumstances that may warrant an
additional fee are provided for in rule 5(2). Thus, in assessing such special fee regard may be had to the
following four.
a) the place at or the circumstances in which the business or part thereof is transacted;
b) the nature and extent of the pecuniary or other interest involved;
c) the labour and responsibility entailed; and
d) the number, complexity and importance of the documents prepared or examined.
The business of advocacy is divided into two major categories- contentious business and non- contentious
business as explained below.
Contentious Business and Non-Contentious Business

Contentious business" means any business done by an advocate in any court, civil or military, or relating to
proceedings instituted or intended to be instituted in any such court or any statutory tribunal or before any
arbitrator or panel of arbitrators.123 The rules regarding contentious business are provided in part III of the
Remuneration Order [rules 49 - 79]
Non-contentious business" on the other hand means any business done by an advocate other than
contentious business.124 The rules regarding non- contentious business are provided for in rules Part II of
the remuneration Order [Rules 18- 48]
2. Schedules Showing Scales of Fees

The order has ten schedules with each schedule providing for scales for specific business as follows.
a. Conveyancing, Companies and Intellectual Property [Schedules 1-4]
Schedule 1 deals with conveyancing matters. This schedule is divided into four scales. The first scale is
divided into two parts. The first part deals with matters regarding sales and purchases affecting land
registered in any registry. The second part relates to fees on mortgages and charges affecting land registered
in any registry. The second scale is a scale of charges relating to memoranda of equitable mortgages by
deposit of documents or charges by the deposit of title. The third scale deals with charges relating to
debentures. The fourth scale is a scale of negotiating commissions deals with on sale and mortgages.
Schedule 2 is a scale for charges for preparation of leases, agreements for lease and tenancies at a rack
rent.
Schedule 3 gives the charges for formation and incorporation of companies.
Schedule 4 gives a scale for charges for all matters relating to trademarks, copyrights and patents.
123Section 2 of the Advocates Act.

124Section 2 of the Advocates Act.

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b. Matters Not Provided for [Schedule 5]

This schedule provides for all matters in respect of the business the remuneration is not otherwise
prescribed or which has been the subject of an election under paragraph 22 of the Order. This schedule
allows the advocate to enter into a fee agreement with the client on legal fees. There are two ways through
which the fees may be charged under this schedule- on an hourly rate basis or on an alternative assessment
basis.
1. An Hourly rate basis

Pursuant to paragraph 2 of schedule 5, an advocate may charge his/her fees at such hourly rate as may be
agreed with the client from time to time.
2. Alternative method of Assessment

The advocate is allowed to charge instruction fees, drafting of documents etc, attendance of court, time
engaged, correspondence, drafting of opinions, debt collection, drafting of documents under the Chattels
Transfer Act including all the necessary and proper searches, affidavits, stamping and registration of
documents.
The Remuneration order does not give the scales for criminal matter although criminal cases are charged
under schedule 5.125
c. Party and Party Costs and Advocate Client Costs [schedules 6- 10]
Schedules 6 to 10 deal with how to determine party and party costs as well as advocate client costs before
the courts and other tribunals.
1. Party and Party Costs
These are cost between the successful party and the losing party to litigation. They include costs which a
court may require the losing party to pay the winning party but exclude the advocate‘s fees. The rationale
for payment of the party and party costs rises from the rules of indemnity so that the losing party should
indemnify the winning party by paying all their legal costs they incurred as a result of the case.
However, the award of party and party costs is not an absolute right as this depends on the discretion of the
presiding officer of the court. Accordingly, in determining whether to award the costs and the quantity of
costs to award, the presiding officer considers what will be in the best interest of the winning party as far as
the circumstances of the case are concerned. As regards the circumstances of the case, the court considers
whether such costs are necessary or proper. Where the court is of the opinion that such costs are neither
necessary nor proper in the attainment of justice, it may order that no costs be paid. Another fact the court
considers in determining the party and party costs is whether the party used the most economical
alternative. In this regard, a cost will be disallowed where a party used an uneconomical alternative as per
the circumstances of the case.
125legal notice 73 of 1983.

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In Kenya, an advocate is supposed to draw a bill of costs which is then carefully assessed and taxed by the
taxing Master who in this case is the Registrar of the High Court of Kenya. Determination of the costs is
done on the basis of the relevant scale as per the remuneration Order regard being had to the special
circumstances of the case. Accordingly, the advocate is supposed to give itemized details of each cost
together with evidence as appropriate.
Schedule 6 deals with costs of proceedings in the High Court. This schedule is divided into two parts. The
first part covers party and party costs. These include fees for getting up or preparing for trial, fees for
getting up an appeal, costs for drawing of documents, costs for making copies of documents, attendance of
courts, perusal of documents, service of documents, making plans and models, costs for making
translations, costs for execution proceedings, costs for objections for execution proceedings, fees allowable
on certificate of costs under paragraph 68A.
2. Advocate Client Costs
These refer to the costs that a client agrees to pay an advocate for legal representation. Advocate Client
Costs Are covered under second part of schedules 6- to. As regards these costs, the Order gives three ways
of calculating these costs; Thus, the minimum fees shall be any of the following.
a. Party and party costs increased by one half or;
b. The fees ordered by the court increased by one half
c. The fees agreed by the parties under paragraph 57 of the Order126 increased by one half, as the case
may be, such increase to include all the proper attendances on the client and all necessary
correspondences.
Schedule 7 provides for costs for services in respect of matters before subordinate courts. This schedule
also deals with party and party costs as well as advocate client costs.
Schedule 8 provides for matters before tribunals under the Landlord and tenant (Shops, Hotels and
Catering Establishments) Act.
Schedule 9 provides for matters in tribunals under the Rent Restrictions Actor any legislation amending or
replacing the same.
Schedule 10 deals with probate and administration matters
G. RETAINER AGREEMENTS
1. Introduction
A retainer or engagement fee is a fixed amount of money that a client agrees to pay in order to secure the
services of a lawyer.127 It is a separate a non- refundable payment by a client to a lawyer simply to guarantee
126Paragraph 57. Provides as follows: “57 (1) If, after the disposal of any proceedings by the Court, the parties thereto agree the amount of costs to be
paid in pursuance of the Court‟s order or judgment therein, the parties may instead of filling a bill of costs and proceeding to taxation thereof, request
the registrar by joint letter to record their agreement, and unless he considers the amount agreed upon to be exorbitant the registrar shall do so upon
payment of the same court fee as is payable on the filling of any document for which no special fee is prescribed. (2) Such agreement where recorded
shall have the same force and effect as a certificate of taxation by the taxing officer: Provided that, if the taxing officer considers the amount so agreed
upon to be exorbitant, he may direct the said costs to be taxed in accordance with this Order and paragraph 11 shall apply in regard to every such
taxation.”
127Note that the statutory definition of a client involves a person who retains an advocate. S 2 of the Advocates Act.

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that the lawyer will be available to perform services if asked.128 A retainer fee does not include the fees paid
for the actual work done by the lawyer. This means that an extra fee must be paid where extra work is
involved, such as the case going to court.
The amount of retainer to charge depends on the prevailing circumstances. However, even under such
circumstances, the fee should be within reasonable limits. Some lawyers have had to charge very high costs
as retainer fees until the courts have had to reduce the fees basing on the justifications for such fees.
Whether a retainer fee is justifiable depends on the inconveniences that a lawyer goes through in being
available when needed by the client and the inconveniences the lawyer faces in turning away other clients in
order to work for the client.129 Again, the reasonableness of the retainer fees depends on the type of the
client and their experience in paying such retainers. In this regard, if a client is experienced in paying such
retainers and has the ability to carefully negotiate at an arm‘s length with the lawyer, then such retainers
will be held as reasonable. On the other hand, if the client does not have enough experience in paying
retainers and the lawyer is seen to have overcharged, that retainer may be considered as unreasonable.
A retainer ensures that a client has the services of a lawyer anytime the client wants.
2. Modes and Duration and Termination of Retainer
There are five widely used forms of retainers- the general or traditional retainer, the special or specific
retainer, the non-refundable retainer, the security retainer, and "the hybrid retainer.
A specific retainer subsists for a specific reason, such as to carry out a particular litigation. Where this is the
case, the duration of the retainer will depend on the duration that specific activity takes to be completed.
A general retainer on the other hand is only intended to secure the services of an advocate to offer the
client legal services when needed in the ordinary non- contentious business. Under such circumstances, the
retainer will run indefinitely and the advocate may need to ask payment from time to time from the client.
A general retainer ends when either party gives a notice for termination to the other party.130
A retainer is often paid in a single, lump sum, or on an ongoing basis (typically monthly or quarterly.131
The parties to a retainer agreement may agree as to the duration of the agreement. However, it should be
pointed out that the duration of the retainer depends on the existence of the advocate- client relationship.
Where the advocate - client relationship still subsists, the advocate is obligated to discharge his/her duties
to the client failure of which may constitute professional negligence. Again, the retainer may be terminated
by the operation of the law such as where the contract has become illegal or where one of the parties to the
agreement dies among others.
Where the advocate has concluded the business he/she was retained to perform, he/she should
communicate this information to the client both orally and in writing. The communication should clearly
indicate that the advocate is no longer obligated for that client. The reason for this explanation is to avoid
any confusion that may arise.

129Ibid.
130 Warmingtons v McMurray [1937] 1 All ER 562, 565, CA;
131 Supra note 147.

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H. AUTHORITY ON FEES AND RECOVERY OF FEES BY THE ADVOCATE

[Lien and interest and Taxation– ss. 44, 49, 50, 51, 52 and Rules 6, 11 1nd 12 of the
Remuneration Order]
Disputes between lawyers and clients about fees are very common. Clients in most cases dispute the fees
charged by their advocates on the basis of unreasonableness and excessiveness. Sometimes these disputes
end up in court for determination. In order to minimize this problem, the Advocates Act gives an advocate
authority on the legal fees for the services rendered.
Consequently, an advocate may take from the client security for payment of any remuneration to be
ascertained by taxation or otherwise. Again, an advocate is allowed to charge interest on his/her fee after
the deadline for which the client was to pay has passed.132 Rule 6 of the Advocates (Remuneration) Order
stipulates in this connection that an advocate may accept from his client and a client may give to his
advocate security for the amount to become due to the advocate for remuneration and disbursements in
business to be transacted or being transacted by him and for interest on such amount,133 but that interest is
not to commence until the amount due is ascertained either by agreement or taxation. It should be noted
that taxation of bills of costs of advocates in respect of non-contentious business is, subject to section 45, be
regulated by the Order.134 However, if after taxation a party is uncomfortable with the taxed fees, ruler 11
and 12 of the order allow an aggrieved party to lodge an appeal from the taxation of the registrar to a judge
by chamber summons. Again, if a party is not satisfied by the decision of the judge, he/she can appeal, with
the leave of the judge, to the court of appeal.
I. ENFORCING FEE AGREEMENTS [SS. 51, 52]

Each party bears its advocates fees regardless of whether the advocate wins or loses the case. A client is
supposed to pay his/her advocate as they have agreed in the contract. However, sometimes the client may
fail to pay because of various reasons. When this happens, two options will be open to the lawyer. First,
enforcing the fee agreement through a lien, and second, enforcing the agreement by suing the client for
recovery of the fees. The lien can either be a charging lien or the retaining lien. A charging lien allows a
lawyer to claim against the proceeds of the settlement or a judgment in the amount of unpaid fees.135 A
retaining lien on the other hand allows the lawyer to retain the client‘ documents prepared by the lawyer
until the fees are paid.136
If the advocate opts to sue the client for the recovery of the fees, he/she should first send a fee note to the
client. If the client contests the fee note, the advocate should file an advocate-client bill of costs. This
should set out all the services rendered to that client. This bill should be filed in the high court, which is
132 Section 44(3)

133Rule 7 provides that the rate of interest is 14%.
135 Under section 52 of the Advocates Act, any court in which an advocate has been employed to prosecute or defend any suit or matter may at any
time declare the advocate entitled to a charge on the property recovered or preserved through his instrumentality for his taxed costs in reference to
that suit or matter, and may make orders for the taxation of the costs and for raising money to pay or for paying the costs out of the property so
charged as it thinks fit. Accordingly, all conveyances and acts done to defeat, or operating to defeat, that charge shall, except in the case of a
conveyance to a bona fide purchaser for value without notice, be void as against the advocate. The implication of this provision is that the interest of
the advocate will override any other interest. However, the order will be barred if the right to recover the costs is barred by limitation.
136Supra note 146.

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then taxed by the taxing master who is in most cases the Registrar of the High Court. Section 49(a) of the
Act provides in this regard that no judgment shall be entered for the plaintiff, except by consent, until the
costs have been taxed and certified by the taxing officer. The certificate of the taxing officer by whom any
bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs
covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case
where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with
costs.137
If the client refuses to pay even after taxation, the advocate should file a suit for recovery the fees. He may
then file the bill of costs in the same court but as a different suit. It is noteworthy that the client may file a
suit to challenge the claim by the advocate. Where this happens, the advocate may file a fully itemized bill
of costs showing each item which may then taxed by the court before the hearing of the suit.138
It should however be noted at this point that an advocate should only sue if the client has refused to pay
after the case has been finalized or after the payment has become due but the client has defaulted in
payment. The case in point is P. Machira v Abok James Odera139in which the court observed that it is a
duty for an advocate to defend his client to the conclusion of the suit even if that client fails to pay his fee.
Once a suit is concluded an advocate is permitted to sue for his fees. Accordingly, an advocate should never
abandon a case on the grounds that he had not been paid his fee but as stated above must conclude the suit
to its finality then sue for his fees.
J. CLIENT’S PROPERTY AND CLIENT’S MONEY

S.2 of the Advocates Act defines a client as anyone who is about to employ or retain an advocate or anyone
who has retained or employed an advocate. A client is also defined as anyone who is liable to pay any
advocate costs.
The conduct of advocates with respect to client property and client money is governed by rules made by the
L.S.K. Council pursuant to S.83 of the Advocates Act1. The Chief Justice must approve these rules before
they attain validity.
Four categories of rules have been made by the L.S.K. council pursuant to the powers conferred by S.83
i. Advocates (Practice) Rules
ii. Advocates (Accounts) Rules
iii. Advocates (Deposit) (Interest) Rules
iv. Advocates (Accountant Certificate Rules.
137Section 51(2) of the Advocates Act

138Section 49(b) of the Act provides that unless the bill of costs on which the suit is based is fully itemized, the plaintiff shall file a fully itemized bill of
costs within fourteen days from the date of service of the defence, or such further period as may be allowed by the court, and shall serve a copy
thereof on the defendant, and, if the total amount of such bill exceeds the amount sued for, the prayer of the plaintiff shall, subject to the court‟s
pecuniary jurisdiction, be deemed to be increased accordingly and all consequential amendments to the pleadings may be made;
139[2006] eklr.
1 Cap 16

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The definition of an advocate subsumes a partnership. Accordingly, a breach of the said rules by a partner
amounts to a breach by all partners. A breach renders an advocate liable to face Disciplinary proceedings
and the consequential effects.
CLIENT MONEY
Rule 2 of the Advocates (Accounts) Rules defines ―client money‖ as any money held or received by an
advocate on account of a person for whom the advocate is acting (client).
 Such money could be received as fees, or disbursements yet to be earned or incurred as expenses
(legal)
 An advocate can also receive and hold client money as any agent, trustee or bailee, stakeholder or in
any other capacity.
The general principle is that any client money must be paid into the client account without delay.
 Pursuant to R.5 of the 1998 Advocates (Practice) Rules, any money payable to a client who is sui
jurisshall be released to the client not later than 21 days from the date on which the proceeds are
actually paid into the Advocate‘s Client Account.
CLIENT ACCOUNT
R.2 of the Advocates (Accounts) Rules defines a client account as a current or deposit Account at a bank or
a building society / financial institution as defined in the banking Act, in the name of the advocate but in the
title of which the word ―client‖ or ―trust‖ appears.
CLIENT PROPERTY
 In most cases apart from criminal law cases, where there is an advocate – client relationship, the
question of client property will always arise.
 In dealing with client money and property, an advocate is usually in the position of a trustee and is
accordingly required to carry out the duties of a trustee.
THE ADVOCATES (ACCOUNTS) RULES

As noted, r.2 defines ―client money‖, ―client account‖ and ―an advocate‖ for the purposes of the rules.
 R.3 thereof, an advocate is required to keep one or more client accounts.
 R.4 requires an advocate to pay into the client account any client money held or received by him
without delay.
 R.5 allows an advocate to pay into the client account any trust money and any money belonging to the
advocate for the purpose of maintaining the account etc.
 R.6 requires that any money paid into the client account which is not client‘s money to be paid out as
soon as possible.
 R.7 categorically prohibits payment of any other money being client‘s money into the client account.

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 R.9 allows an advocate to withdraw money properly required for payment of clients any money that
he is transferring to another client account and any money properly required for payment of a debt
due to the advocate from the client.
 R.9 also requires that any cheque drawn upon a client account to bear on its face the word ―client
account‖ or ―trust account‖.
 R.10 categorically prohibits any withdrawals from client account of any sum in excess of amount held
by the advocate to the order of the client.
BOOKS OF ACCOUNTS
Pursuant to R.13, every advocate is strictly required to keep at all times, properly written up, such books
of accounts as may be necessary to show;
i. Every receipt of him by client‘s money for each separate client.
ii. Every payment by him from clients accounts for each separate client.
iii. The amount held by him for the time being in a client account for each separate client.
iv. The moneys expended by him for the costs charged by him to each separate client.
Such books may be;
 Cash books or
 Ledger books
And must be supplemented by records showing the particulars of all Bill of Costs delivered by the advocate
to his clients,; distinguishing between profits, costs and disbursements. Pursuant to R.14, the books of
accounts must be preserved for not less than 6 years from the date of the last entry.
Under the 1998 Advocates (Practice) Rules R.5 thereof, any money payable by an advocate to a client who
is sui juris shall be paid to the client not later than 21 working days from the date on which the proceeds are
actually paid / credited into the advocate‘s client account.
Under R.6 thereof, where an advocate has reached a settlement involving the payment of money as damages
on behalf of a minor, for whom he acts, he is required to apply to the court for approval of the settlement of
the money within 15 days.
THE ADVOCATES (DEPOSIT INTEREST) RULES

R.2 thereof provides that an advocate is not liable by virtue of the relation between an advocate and a client
for interest received by the advocate on moneys deposited in a client for interest received by the advocate
on moneys deposited in a client account being moneys received or held on account of his clients generally.
However under R.3, an advocate is required to take instructions from a client with respect to the
investment of any client money held or received by him and likely to be held by him for a length of time
with regard to which the money ought to earn interest.

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Under r.4, where the money is deposited in a separate designated account in the name of the advocate or
his firm in the title of which the word ―client‖ appears, the advocate would be liable to account to the client
for interest.
THE ADVOCATES (ACCOUNTANTS CERTIFICATE) RULES

Under R.3, thereof, an advocate is required to deliver once every year to the L.S.K. Council a certificate
signed by the accountant who is duly qualified.
In giving and / or signing the said certificate the accountant is required to satisfy himself that the Advocates
(Accounts) rules have been complied with. In doing this, the accountant is not required to do more than:
a) Make a general examination of the Bank Pass Books and statements.
b) Make a general examination of the books of Accounts kept by the advocate.
c) Ascertain that the client account is kept.
d) Examine the liabilities of the advocate to his clients and the balance standing to the credit of the client
account.
Pursuant to R.7 certain advocates may be exempted from delivering an accountants certificate i.e.
a) Those who hold their first practicing certificate.
b) Those who hold after having ceased to hold a current practicing certificate for 12 months, hold their
next practicing certificate.
c) Those who have not practiced law on their own account either alone or in a partnership.
d) Those who have not at any time received or held clients money.
Under R.12, if any advocate fails to comply with the Advocates (Accountants Certificate) Rules, a
complaint in respect of such failure may be made by or on behalf of the council to the disciplinary
committee.
OFFICE ACCOUNT
It is advisable that an advocate maintain a distinct office account from which the day to day office running
expenses may be met i.e. wages, rent, etc.
When it comes to money, (client money), the rules have been overtaken by events. It is not only cash
money, client money must be taken to be inclusive of cheques endorsed.
PROFIT COSTS
To an advocate, profit costs arise from the surplus over all disbursements and charges.
PARTY AND PARTY COSTS

These are created by the Remuneration Order and arise as follows; when plaintiff A sues B and succeeds B is
required to reimburse the plaintiff his legal costs. In this regard, A is entitled to recover from B all
disbursements and a certain amount of legal fees paid. In the high court, one is allowed to recover 1/3 of
the fees paid and in the subordinate court ½ of the fees paid.

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TAXATION
This is a procedure by which Registrar of the High Court or a magistrate in the lower courts (The Taxing
Master) assesses the costs of an advocate in any matter once the plaintiff‘s advocate has been successful.
The advocate prepares a bill of costs in date sequence and files it in court supported by the relevant
documents i.e. decree, judgement, receipts etc.
Once taxed, the bill of costs cannot be appealed against on facts i.e. if one is questioning the figures, unless
one is appealing on a matter of law.
The registrar of the high court or the taxing master in the subordinate courts, in making his decision on
taxation, is taken to be exercising judicial discretion.
CHAPTER 6
PROFESSIONAL CONDUCT AND ETIQUETTE
A. Introduction
Professional misconduct refers to the breaking of those rules governing the practice of Advocates under Cap
16 Laws of Kenya and for which Advocates can be penalized. From Stroud‘s Judicial Dictionary,
misconduct amounts to any conduct for which punishment may be prescribed. In Re A Solicitor1 and Re
Lydell2, the House of Lords held that the solicitor who carried on the practice of undisclosed profit sharing
with another who presented conflicting interest was guilty of professional misconduct.
Other jurisdictions have defined professional misconduct not merely as an act of commission but of
omission too. In the Scotland‘s Law Agent Act of 1873, a Law Agent who stood aside while a conspiracy to
defeat the end of justice was being carried out in his own office was guilty of misconduct. Professional
misconduct raises an inference of legal turpitude as opposed to unprofessional conduct, which raises an
inference of moral turpitude or fraud or dishonesty.
InAllison v. Gen Med. Council3, it was held that if a man in the pursuit of his profession has done
something with regard to it, which will be regarded as disgraceful or dishonorable to his professional
brethren and to his good repute and competence then, it is open to say that he has been guilty of
While professional misconduct consists of express breach of rules contained in the Advocates Act as well as
the Law Society digest of professional conduct and etiquette, unprofessional conduct may be defined to
include the breach of good manners in practice. Such examples of unprofessional conduct will include:-
a. Chewing gum in Court.
b. Attending Court while drunk.
c. Running a brothel or living from the earnings of prostitution.
d. It may also include bad language where an Advocate cannot express himself properly in English.
1 93 LT 838
2 [1901] 1KB 187
3 (1894) 1 QB 750

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e. Insults to the public.

f. Incompetent representation by an Advocate.
PROFESSIONAL MISCONDUCT
Professional misconduct refers to the breach of rules set up in the Advocates Act and for which punishment
is provided. The profession ought to be manned by persons of integrity and high sense of responsibility,
free from financial problems and anxiety. This is because the legal profession has a sense of public service
and the sense of service overrides financial consideration. It thus follows that where an advocate conducts
themselves in a manner contrary to the accepted code of conduct, that advocate will be guilty of
professional misconduct. Again, an advocate is prohibited, whether in public or private, from engaging in
activities that are not befitting to the legal profession such as corruption, rudeness, and disorderliness
among others, what may otherwise be referred to as unprofessional conducts. Unprofessional conduct on
the part of an advocate may not lead to disciplinary action against the advocate.
The penalty for professional misconduct is found in Section 60(4) of the Advocates Act, which provides that
an Advocate is guilty of professional misconduct, may be:-
a) Admonished
b) Suspended from practice for a period not exceeding 5 years.
c) His name struck off the roll.
d) May pay a fine not exceeding Kshs. 100,000/=
e) Ordered to pay to the aggrieved person compensation or reimbursement not exceeding five million
(5,000,000/=) shillings.
f) Be subjected to such of the above combination as the disciplinary committee deems fit.
Note: the fine was initially Kshs. 50,000/= but was enhanced vide Act No. 2 of 2002, which also
introduced paragraph (e).
Where an advocate engages in professional misconduct or unprofessional conduct, the public or any
aggrieved party or institution, may complain against acts or omissions of an advocate which may be seen as
offensive to the legal profession.
Part VIII of the Advocates Act [ss.36 - 43] and has various provisions on professional misconduct. The Act
outlines the various conducts which are not befitting to a member of the legal profession. Parts X and XI
then prescribe the procedure for raising and dealing with complaints against advocates. This chapter,
however, is devoted to discussing matters which constitute professional misconduct and unprofessional
conduct. Matters of complaints procedures and disciplinary processes will be discussed in later chapters.
B. Failure to Endorse the Name of an Advocate on an Instrument [s. 35]

It is an offence for the advocate not to endorse his/her name on a document. All the documents mentioned
in section 34 of the Advocates Act must be endorsed with the name and address of the advocate or the firm
in which it was prepared. The Act penalizes failure to endorse the name and address of the person who
drew or caused to be drawn on the document. Accordingly, any person omitting so to do shall be guilty of
an offence and liable to a fine not exceeding five thousand shillings in the case of an unqualified person or a

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fine not exceeding five hundred shillings in the case of an advocate.140 However, in the case of any
document or instrument drawn, prepared or engrossed by a person employed, and whilst acting within the
scope of his employment, by an advocate or by a firm of advocates, the name and address to be endorsed
thereon shall be the name and address of such advocate or firm.141
The mischief for punishing the omission of an advocate‘s name on an instrument seems to emanate from the
principles of due diligence as well as protection of the legal profession from quacks who masquerade as
advocates when they are not. As regards due diligence, an advocate as a member of the legal profession
must at all times conduct themselves with due diligence since their acts or omissions have a direct effect on
the rights and liberties of the public.
C. Prohibition against Undercutting [s. 36]

Undercutting refers to charging for legal services at a scale lower than the scale prescribed under the
Advocates remuneration order.142 Undercutting is considered as a violation of the rules of professional
ethics and it is therefore punishable under the Advocates Act. Accordingly, any advocate who holds himself
out or allows himself/ herself to be held out, directly or indirectly and whether or not by name, as being
prepared to do professional business at less than the remuneration prescribed, by the Advocates
remuneration order shall be guilty of an offence.143 The rationale for this provision is that advocates are
supposed to attract work not because of their low charges but because of the quality of legal services that
they provide. Accordingly, the prohibition against undercutting is intended to ensure that the standards of
legal services do not deteriorate.
An advocate should not hold himself/herself out or allow himself/herself to be held out directly or
indirectly and whether or not by name as being prepared to do professional business at less than the scales
laid down by the Advocates (Remuneration) Order for the time being in force. 144 The rationale for
undercutting was discussed in the case of AhmednasirAbdikadir& Co Advocates vs National Bank of
Kenya Ltd, in the following words:
“If advocates comply with the provisions of the Advocates Act, which prohibit […] undercutting on legal fees […] the
dignity of the profession would be upheld. I say so not because the advocates would be compelled to charge fees in
compliance with the prescribed remuneration, and thus earn more, but more so because any client who had to pay such
fees would be entitled to demand appropriate services from the advocates. The standards of practice would then become the
sole measure of the fees which any particular advocate could charge, over and above the prescribed minimum rates.
Nobody would then be able to attract work on the basis of undercutting, for a client who opts for such fees would also be
aware that he too cannot seek to enforce an agreement founded on, or otherwise tainted, with illegality or immorality.”
Accordingly, an agreement between a client and an advocate where the advocate agrees to undercut is
illegal ab initio. Again, the law holds an advocate to such agreements as guiltier than the client since the

141See the proviso to section 35(1) of the Act.
142 Section 36(2) of the Advocates Act provides that (2) No advocate shall charge or accept, otherwise than in part payment, any fee or other
consideration in respect of professional business which is less than the remuneration prescribed, by order, under this Act.
144See rule 3 of the advocates Practice rules and39(d) the of the Law Society of Kenya Digest of Professional Conduct and Etiquette

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advocate is deemed to be more knowledgeable on the law than the client. To sum up, section 36(1) of the
Advocates Act appears to outlaw undercutting. The provision then pegs the definition of what may be
deemed to be undercutting, to that which is prescribed in the Advocates (Remuneration) Order. That
order, then, expressly, authorizes advocates to negotiate with clients, any fee which is in excess of what is
prescribed in the Order.
D. Prohibition against Sharing Profits [s. 37]
It is an offence for anadvocate to share his profits for any professional business, whether contentious or non
contentious, with any person who is not a dully qualified legal practitioner.145 The proceeds of the legal
work of an advocate should only benefit the advocate in question, save as provided in the Act.
The circumstances where an advocate may share his /her profits are outlined under the proviso to section
37 of the advocates Act as well as rule 4 of the Advocates Practice Rules. The proviso to section 37 of the
Act allows sharing of profits when an advocate is paying any bonus to any of his employees, being a bonus
based or calculated on the advocate‘s total earnings or profits in respect of any period. 146 The proviso to
rule 4 of Advocates Practice Rules allow an advocate to share profits under two circumstances. First, when
the advocate is paying an annuity or other sum out of profits to a retired partner. Second, an advocate who
has agreed in consideration of a salary to do the legal work of an employer who is not an advocate may agree
with such employer to set off his profit costs received in respect of contentious business from the opponents
of such employer or the costs paid to him as the advocate for employer by third parties in respect of non-
contentious business against the salary so paid or payable to him, and the reasonable office expenses
incurred by such employer in connexion with such advocate (and to the extent of such salary and expenses).
E. Prohibition against Advertising and Touting [s. 38]

Advocates are not allowed to directly or indirectly advertise their services and or fees. But look at Article
46 of the Constitution (1) Consumers have the right (a) to goods and services of reasonable quality; (b)
to the information necessary for them to gain full benefit from goods and services; (c) to the protection of
their health, safety, and economic interests; and (d) to compensation for loss or injury arising from defects
in goods or services. (2) Parliament shall enact legislation to provide for consumer protection and for fair,
honest and decent advertising. (3) This Article applies to goods and services offered by public entities or
private persons.
As regards touting for clients, the Advocates Act prohibits such conduct. Accordingly, pursuant to section
38 of the Act, an unqualified person who procures or attempts to procure the employment of an advocate
in consideration of a benefit to himself/herself, in any suit or matter or solicit from an advocate any
payment or advantage in consideration of such employment shall be deemed to be a tout. 147 It should be
noted that this provision does not aim at individual advocates but it aims at individuals who are employed by
advocates to tout and solicit for clients.
145Section 37 of the Advocates Act. Also see rule 4 of Advocates Practice Rules
146The proviso to section 37 of the Advocates Act

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Rule 2 of the Advocates Practise Rule deals with touting and advertising – advocates should not advertise
their services but look at the Constitution Article 46(3).148 This rule is inconsistent with the Constitution
hence not applicable look at the case of George Okenyo and Marcus Ndegwa vs. AG and others.
F. Acting as an Agent for Unqualified Person [ss. 39 - 40]

As an advocate the law prohibits you from acting as an agent in any suit or otherwise. Section 39 of the
Advocates Act provides in this regard that any advocate who acts as agent in any suit, or in any matter in
bankruptcy, for any unqualified person, or permits his name, or that of any firm of which he is a partner, to
be made use of in any such suit or matter, upon the account or for the profit of any unqualified person or
who does any other act enabling an unqualified person to appear, act or practise in any respect as an
advocate in such suit or matter, or who in any way assists any unqualified person in any cause or matter in
which he knows that such person is contravening or intends to contravene this Act, shall be guilty of an
offence. Accordingly, arrangements where an advocate appears on record but the profits go to an
unqualified person are illegal and an advocate found to be a party to such arrangements is guilty for an
offence.
G. Employment of Persons Struck off the Roll or Suspended [ss. 41 - 42]

The general rule is that an advocate is prohibited from employing a person whose name has been struck out
of the Roll of Advocates. However, an advocate may employ persons who have been so struck off the Roll
only with the written permission of the Council of the society. Again, such persons may only be employed
where they were struck off the Roll by their own application. Again, it is a defence for an advocate to plead
that he/she did not know that the person he/she employed had been struck off the Roll of Advocates.149
Prove is a matter of fact and may differ from case to case.
The Council may grant the permission to an advocate to employ a person that is so struck off the Roll but
subject to certain conditions as the council may deem fit. Sometimes the advocate may be aggrieved by the
conditions granted by the council or by the refusal of the council to grant such permission. Where this
occurs, section 41(2) of the Advocates Act allows the aggrieved advocate to appeal to the chief Justice who
may confirm the refusal, or may, in lieu of the Council, grant such permission for such period and subject
to such conditions as he thinks fit. If any advocate acts in contravention of this section or of the conditions
subject to which any permission has been given there under he shall be liable for professional misconduct
proceedings under section 60 of the Act.
Any person who has been struck off the Roll other than by his own application is not recognized as an
advocate and must not accept any employment by an advocate without informing the advocate that he is so
disqualified. Section 42(1) of the Act provides in this connection that‖
148Article 46 of the Constitution (1) Consumers have the right (a) to goods and services of reasonable quality; (b) to the information necessary for
them to gain full benefit from goods and services; (c) to the protection of their health, safety, and economic interests; and (d) to compensation for loss
or injury arising from defects in goods or services. (2) Parliament shall enact legislation to provide for consumer protection and for fair, honest and
decent advertising. (3) This Article applies to goods and services offered by public entities or private persons.
149See section 41(1) of the Advocates Act.

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“42. (1) Any person who, whilst he is disqualified from practising as an advocate by reason of the fact that he has been
struck off the Roll, otherwise than at his own request, or is suspended from practising as an advocate, seeks or accepts
employment by an advocate in connection with the advocate‟s practice without previously informing him that he is so
disqualified as aforesaid shall be guilty of an offence and liable to a fine not exceeding fifty thousand shillings, or to
imprisonment for a term not exceeding two years, or to both.”
H. Advocates employed by Non Legal Employers

It is not wrong for an advocate to work for a non- legal employer for a fixed salary150 and for a legal
purpose, provided the following conditions are satisfied. First, the employer should allow the advocate to
take instructions from other clients as well. Second, such an advocate must ensure that his employer does
not, directly nor indirectly advertise his/her services, and in particular does not recommend him/her to
fellow-employees.151 In case of any recommendation, the advocate must satisfy himself that the
recommendation was made only at the express request of the intending client, and that he must explain that
the employee is free to instruct any advocate of his choice or such advocate whom he may wish to instruct.
Accordingly, an advocate has an obligation to satisfy that there was no advertisement before accepting
clients to whom he/she has been recommended.152 Third, an employed advocate should not allow his/her
employer to receive any part of any profit costs he/she may earn acting for clients other than the
employer.153 However, pursuant to proviso (ii) of rule 4 of the
Advocates (Practice) Rules, an advocate may use any part of the payment received from other clients to set
off reasonable expenses.154 Fourth, pursuant to rule 5 of the Advocates Practice Rules, no advocate
employed by an unqualified person is supposed to draw documents or render other legal service to his
employer for which fees are charged directly or indirectly by his employer to any other person and retained
by that employer. Fifth, an employed advocate who is also a Commissioner for Oaths cannot administer an
oath when he/she has drawn the document for the employer.155 It is also improper for such an advocate to
administer an oath to any official of his employer in respect of that official‘s duties.156
I. STANDARDS OF CONDUCT
Professional Ethics is concerned with balancing the official ideology and goals of the legal profession and the
personal ambitions and aspirations of the individual members of the legal profession. Very often the
interests of the individual members conflict with the ideology of the profession. Most people get into the
profession to make money so how do they balance this with the ideology of the profession which may be an
obstacle to these aspirations. It is a need to strike a proper balance that makes it necessary to establish a
code of ethics and standards of conduct and the disciplinary procedures to supervise the conduct of
members in order to avoid a departure from the declared ideology.
150 See rule 4 of the Law Society of Kenya Digest of Professional Conduct And Etiquette.
151Rule 4(c).
152Rule 4(d).
153Rule 4(e) and (f).
154See rule 4(e).
155Rule 4(h).
156Rule 4(i)

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Professional conduct refers to the conduct, character and behaviour befitting members of the profession i.e.
conduct which reflects the very dignity and integrity of the profession. Most of the rules of conduct are
based on common sense and elementary principles of honesty and decency. Conduct which goes against
these rules is either professional misconduct or unprofessional conduct.
Professional misconduct amounts to a disciplinary offence and is the more serious of the two and amounts
into drastic action being taken against the offending advocate. Conduct such as embezzling client‘s money
or failing to file court papers after being instructed. Offences which are likely to lead to the advocate being
struck from the roll, suspended from the role or fined. Professional misconduct includes professional
incompetence which is detrimental to the administration of justice and which tends to bring the profession
into disrepute.
Unprofessional conduct is of a lesser effect and does not amount to a disciplinary offence yet it is conduct
which is not approved and which is considered reprehensible. Punishment for this if at all is generally mild
and in some cases there is no punishment at all. It covers among other things breach of etiquette is basically
the breach of good manners like failing to inform a client the progress of this matter falls into this category,
being rude to fellow counsel is a breach of etiquette and is unprofessional conduct. It also covers conduct
outside the profession for example it is reprehensible for advocates to keep the company of prostitutes for
example or to engage in business which are not considered to be morally acceptable. The argument or
rationale is that the profession must be manned by people whose integrity is beyond reproach.
For the purpose of discussing these rules of professional conduct, they are split into a number of categories:
Advocates obligations to clients
Obligations to other advocates
Obligations to court
J. OBLIGATIONS TO THE CLIENT

COMPETENCE
The objective of requiring this qualification is so as to ensure the persons admitted to the bar are
academically qualified to deal with the rigours of law practice, but it does not only cover academic
qualifications but goes beyond this. One may be academically qualified but be incompetent in other respect
like lack of time to devote to a client‘s case resulting in substandard service to the client. There are certain
rules which are intended to avoid such an eventuality. An advocate who is duly qualified academically and
professionally and who holds himself as ready to practice is entitled to practice so long as he is not employed
in another full-time occupation other than practice. Engagement in other full-time occupations is
destructive and it compromises on the advocate‘s competence.
As a general rule a practising advocate should not carry on any other profession or business or be an active
partner in or as a salaried official or servant in connection with any other profession or business. One may
not work in a financial business earning a salary or other payments. It is permissible to be an ordinary
director of a company of good standing carrying on business which is free from anything derogatory. He
should however be a Managing or Executive director of any such business as this is a full time job that robs

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him of time to handle clients‘ affairs. He may be chairman of a public or private company provided his
duties are not of an executive nature.
An advocate should not act directly or indirectly as any of the following;
Professional accountant; an actuary, an engineer, a surgeon, insurance broker, architect , estate agent,
auctioneer, scientific consultant, land agent and an employee of any person acting in those capacities.
He should not be
1) Practising Doctor
2) Officer of Regular Army
3) Full-time civil servant
4) Legal Adviser to a company at a salary; or
5) Secretary to an incorporated society of professional persons at a salary.
The client expects that the advocate is going to handle his matter with diligence, what rules exist to guide
the advocates on this issue?
In litigious matters or contentious matters the advocates should always know from the client‘s instructions
the court or tribunal to which the claim or action should be filed. Whether High Court, Magistrates Court
or tribunal. They should therefore know the jurisdiction of the relevant courts whether the jurisdiction is
pecuniary territorial or substantive. Where a matter is filed before the wrong court of tribunal it is liable to
be thrown out and it is a risk that the advocate faces. This has got its own consequences. The court may
hold the advocate personally liable to pay the cost of the suit. There is also the possibility that the case
could be time barred by the time it is filed in the proper court, an advocate is likely to waste a lot of time if
they file in the wrong court and expose themselves to a suit in professional negligence.
Please note that it is the duty of the advocate to advice clients on the cause of action i.e. does the client have
a cause of action and the course that the case should take thereafter. If there is a cause of action, then what
steps ought to be taken in the matter, an advocate should advice the client.
K. OBLIGATIONS IN CRIMINAL MATTERS (clients)

In criminal cases the first thing that an advocate should do upon being instructed is to secure a copy of the
charge sheet immediately whether from the prosecution or from the court. The charge sheet is the basis of
the charge against an accused person and one can only get details of the offence ones client is said to have
committed only after reading the charge sheet. Very often the client does not know what the charge is.
Where possible the advocate should obtain copies of statements from the witnesses. These are ordinarily
supplied where an accused is charged with murder but in other cases one has to apply for copies of the
statements. Where the case is founded on documentary proof it is wise to ask the prosecution to provide
copies which should assist one in determining the sort of defence to adopt and should also assist in preparing
for cross-examination of the witnesses.
The advocate has a duty to study the charge sheet and ensure that it meets the requirements of the law in
particular the Criminal Procedure Code. If there are technicalities that render the charge a nullity, an
advocate has a duty to raise the issue with the court. Where the offence is bailable the advocate has

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responsibility of asking for bail on behalf of his client. Normally the court would admit the accused to bail
as a matter of course but where there is opposition to the release of the client on bail, there is a duty to
prepare adequately to oppose an objection to bail by the opposition, particularly one needs to prepare
objection to bail where the prosecution are opposing on the grounds that investigations are incomplete or
where the objection is that the accused is likely to interfere with witnesses. The prosecution should swear
an affidavit detailing how the accused is likely to interfere with witnesses.
When it comes to taking hearing dates there is an obligation that the dates be taken carefully so as to avoid a
clash with the hearings of other matters. The advocate has an obligation to take a clear hearing date when
there are no other matters that may cause him to adjourn the matter especially where the accused is in
custody or is unable to raise bail. The court may in certain cases decline to grant an adjournment.
It is important for the advocates to receive in advance full instructions from his client, get the client story
from the client, if he is in custody, go to the remand hole and sit with him and record his story or ask him if
he is literate to tell his story in writing. Seek any clarification you need before the matter comes up for
hearing. It is important for the advocate to take statements from the accused persons witnesses if the
accused intends to call witnesses.
This would assist the advocate to adequately prepare for the cross examination of the prosecution
witnesses otherwise if one does not meet the client in advance one will have no material to use during
cross-examination. It also helps the advocate to determine the accused‘s defence that one should put up and
also the course of examination or conduct to be adopted. Generally it will also assist the advocate to
properly advise ones client.
An advocate should try as much as possible to ensure that the court records his submissions and the
evidence given by the witnesses. Some Magistrates can be very arrogant and one has to be very clever on
how to approach them to make them record, a polite way of putting it to ensure they record.
In respect to mitigation, an advocate should prepare adequately and in advance, prepare for the mitigation
as well as prepare the client. Mitigation is after conviction but one must prepare the client before the
verdict is out even where one feels the client will be acquitted. An advocate must prepare the accused for
any eventuality. One must remember that mitigation will always assist the court in deciding on the proper
sentence.
L. OBLIGATIONS IN CIVIL MATTERS

Same principles will apply in civil matters, the requirement to take adequate instructions to draft proper
and exhaustive pleadings that cover all aspects of the client‘s case and helps one to strategise when one is
fully in the picture. It is important to take instructions in writing and write down everything that the client
says. In addition an advocate must study the client‘s file and master the facts. It should also help the
advocate in putting questions to any witness if one knows their story well.
The advocate should also be familiar with all the relevant statutory provisions. If it is land dispute and it is
registered under LRA 27, 28, 30, 143 that one is sure they are on safe ground. A lot of preliminary

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provisions that are raised are from the provisions and an advocate has to be familiar with them to be able to
deal with them.
One must know all the relevant case law which has been decided on the issue one is arguing in court. One
must be familiar with legal principles, read widely, do appropriate research and be familiar with case law.
Identify the central issues in every case; the issues raised determined evidence to be adduced and the
witnesses to be called. If the advocate is relying on case law, he should serve copies of a list of the
authorities on the other party at least a day before the hearing. This is a statutory requirement for matters
before the High Court and the Court of Appeal and it is not required in lower court although one is
requested to make the list available although there is no requirement. Where the authority is not reported,
the practice is that one should make a copy and avail it to the other side, if it is reported the assumption is
that the other side will take the trouble to go to the library and make their own copies.
Advocates are advised to try and reconcile the parties before going to court, to try and reach a settlement
before going to court. The work of an advocate is not to foment quarrels but to prevent them. The court
should ideally be a last resort. Generally the advocate should advice the client adequately on the cause of
action, whether the matter can be settled out of court encourage it, a good settlement is better than a bad
judgment.
There should be thorough preparation when the matter has to go for hearing both on the law and the facts.
Sit with the client‘s witnesses early enough to guide them but one should not coach them. It is up to the
advocate to decide the techniques of examining the witnesses based on the facts that are disclosed to one.
M. OBLIGATIONS IN APPEALS
With respect to Appeals, Counsel should ensure that appeals are launched in time. For criminal cases it is
14 days and for civil cases it is 28 days and this should be properly done in accordance with the rules.
An advocate should not unduly identify with a client‘s thoughts i.e. don‘t get personally involved with a
client, one should always be professional. The client should always treat you as an advocate, never as a
friend or comrade. In negotiating, it is useful for counsel to know his opponent, what sort of persons they
are if they are obstinate and difficult it helps one prepare. One should also know the parameters of the
client‘s case and one must master their brief so that they can address any issue arising from the client‘s case.
Generally the advocate should adopt an agreeable personality. This is very useful in negotiations; emphasis
is on honesty and reliability.
N. SUMMARY OF OBLIGATIONS
The advocate should do the following in summary:
(i) Take instructions after giving client an appointment, set aside sufficient time to see the
client an advocate should not be too restrictive with time, give clients sufficient time;
(ii) Take instructions in writing – this is important for verification purposes and if need be ask the
client to endorse or to sign the notes;

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(iii) Any attendance to or with client whether in court, office on phone, in the streets
should be noted on the file, this is important for case history and for costing and billing
purposes. Some clients never give full instructions but piecemeal and it is important to note down
everything whenever they call;
(iv) Get the names of the client’s witnesses, their addresses, take down their testimony and get
them to endorse it;
(v) Where one is required to give a legal opinion, one should do so in writing being as
clear as possible in the opinion one gives, it is always advisable to give your opinion to your
client before any step is taken and make sure that the opinion is endorsed by the client before one
takes action. This ensures that one is on the safe side;
(vi) Keep the relationship purely professional;
(vii) Carry out instructions to the letter and where in doubt consult the client;
(viii) Keep the client informed of the progress. This helps in cultivating confidence;
(ix) In drafting documents and pleadings be meticulous and scrupulous and ensure that the documents
correspond with client‘s instructions and are in conformity with the requirements of the relevant
law. Where amendments are necessary, consult the client;
(x) Be familiar with the relevant law, persons involved i.e. judicial officers, advocates on the other
side. If the advocate on the other side likes to adjourn matters, then you have to be careful with
that advocate. In addition to the people be familiar with the judicial infrastructure i.e. when the file
is listed and it is not in court one should know where to go to sort this out, know the culture of a
particular court i.e. when they begin their hearings, it is important so that one does not waste time;
(xi) Use modern technology in your office, clients are most probably using technology so it does not
make sense it you are not and they wont know how to instruct you and use of modern technology
saves time and leaves you time to apply yourself to the law and attend to your clients needs;
(xii) Attend Court as required or as expected of an officer of the court. Do not be late and do not
absent yourself. Convention requires that if one is going to be later they should inform the court,
call the magistrate and say you will be late; if you cannot attend to the matter at all and you know
this in advance, take it out of the cause list and talk to the advocate in the opposition; where the
matter is dismissed because you are not there, you may expose your client to hardship and the
client can sue you for professional negligence;
(xiii) Do not deceive your client, it is professional misconduct to lie to ones client and the reasons why
advocates lie is because of failure to act diligently and due to indolence;
(xiv) The advocate‘s members of staff should act as per the rule, cover your staff, the employees should
not act in breach of these rules otherwise the advocate will be vicariously liable.
O. THE ADVOCATES PRACTICE RULES

These rules (subsidiary Legislation under the Advocates Act) govern the advocate‘s practice in general and
breach of these rules constitutes professional misconduct.
Rule 2

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This rule deals with touting and advertising – advocates should not advertise their services but look at the
Constitution Article 46(3).157 This rule is inconsistent with the Constitution hence not applicable look at the
case of George Okenyo and MarclusNdegwaNjiru vs. AG and 2 others.158
Rule 3
Undercutting section 36
Rule 4
Sharing Profits with unqualified persons; section 37
Rule 5
Being employed by an unqualified person; section 39
Rule 6
Prohibits Partnerships between advocates and persons who are not advocates e.g. a personal injury claims
advocates and a doctor etc
Rule 7
Deals with change of advocates and states that an advocate must not act in a matter in which he knows that
another advocate had been acting previously. If he must he should obtain the other advocate‘s consent.
This is intended to protect the previous advocate in cases where his fees are not fully settled.
Rule 8
Deals with situations whereby, an advocate seeks advice from a colleague in respect of a certain matter.
The advocate seeking advice is personally liable to the other advocate and the cost should not be passed to
the client. If the client directly seeks the advice of another advocate without informing his lawyer, the
advocate has the option of withdrawing from the matter. Where an advocate engages a senior without the
client‘s consent, he should be responsible for settling the senior‘s fees. Where the senior is appointed with
the consent of the client the client pays a consolidated fee where the senior or leader is entitled to two
thirds of the consolidated fee.
Rule 9
An advocate should not appear in a matter where he is likely to be called as a witness.
Rule 10
Advocate must not coach or call coached witnesses.
Rule 11
An advocate should not allow himself to be described in any other manner other than advocate. He may
described as a Commissioner of Oaths if he is one or a Notary Public if he is one.
157 Article 46 of the Constitution (1) Consumers have the right (a) to goods and services of reasonable quality; (b) to the information necessary for
them to gain full benefit from goods and services; (c) to the protection of their health, safety, and economic interests; and (d) to compensation for loss
or injury arising from defects in goods or services. (2) Parliament shall enact legislation to provide for consumer protection and for fair, honest and
decent advertising. (3) This Article applies to goods and services offered by public entities or private persons.
158Petition no. 126 of 2011

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Rule 12
An advocate should not practice in a name which is either not his own or that of a past or present member
of the firm.
Rule 13
It is not permissible in a demand note or letter to demand in addition your legal fees for sending out the
demand.
Rule 14
The Law Society of Kenya has the power to waive these rules in any particular manner.
P. DISPUTE RESOLUTION
The L.S.K. has always played a fundamental role in policing the discipline and professional conduct of its
members. Ever since their emergence; they (law societies) in most commonwealth countries have always
been self – managing. Principally, this means that the profession itself has always been responsible for
disciplining its members.
THE CURRENT MECHANISM UNDER THE ADVOCATES ACT

 Provided for under parts X and XI of the Advocates Act
 Part X makes provisions for the establishment of the Complaints Commission.
 Part XI makes provisions pertaining to discipline and consequences of breach. Principally, it
outlines the substantive provisions.
COMPLAINTS COMMISSION
The Complaints Commission is established pursuant to S.53 of the Advocates Act
 It is comprised of such commissioners (or commissioner) as shall be appointed by the president.
 Its principal purpose is to enquire into complaints against any advocate or firm of advocates or any
member or employees thereof.
 If a single commissioner is appointed, it must be a person who is qualified to be appointed as a
High Court judge.
 If more than one commissioner is appointed, it has to have one such, person as a member (the
commission).
 Pursuant to S.53 (3), the commission is empowered to require any person whom it considers
necessary for the performance of its duties to assist it. Section 53(3A) makes it an offence for any
person to, without a lawful excuse fail or refuse to assist the commission when required to do so.
Powers of the Commission when Dispensing Its Duties159
i. If in its view there is no substance in the complaint, it can reject it forthwith.
ii. If in its view there is substance in the complaint, it can refer the matter to the Disciplinary
Committee, but only if the complaint reveals a Disciplinary offence.
159 Section 53(4) of cap 16

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iii. If in its view there is substance but it does not amount to a Disciplinary Offence, it can notify
the advocate concerned and call upon him to respond within a reasonable period specified.
iv. If the reasonable period specified in Para. (iii) Above expires, the commission is entitled to
investigate the matter. In this regard, the commission may:-
a) Call witnesses.
b) Require production of documents.
c) Examine witnesses on oath.
d) Take any step generally it may consider proper.
e) After Hearing of any submissions from either party may make an order or award
in accordance with S.53 as it deems fit, just and proper.
v. If it appears to the commission that though there is substance in the complaint but it discloses no
Disciplinary Offence, which can be addressed by the Disciplinary Committee, and the Commission is
further of the view that it cannot competently deal with the matter, and that the proper remedy is only
available in the courts it shall so advise the complainant.
The Commission is also empowered to:
a) In all cases which do not appear to the Commission to be of serious or aggravated nature, the
commission shall endeavour to promote reconciliation and to facilitate an amicable settlement
between the parties to the complaint.
b) Award the complainant reimbursement of expenses not exceeding Kshs.100, 000/= if the
commissioner considers that the complainant has suffered loss/damage by reason of the
advocate‘s conduct. However the conduct in question should not amount to a Disciplinary
Offence.
c) To issue a warrant for the levy of the amount of any sum ordered to be paid by virtue of S.53 on
the immovable property and movable property of the person/firm by whom the compensation is
ordered to be paid by distress and sale under warrant.
By a myriad of amendments, further changes were introduced to attempt to enhance the efficiency of the
disciplinary process under the Advocates Act. Under the new subsection (6A) where the Commission
makes an order of reimbursement the same shall be registered with the High Court and becomes
enforceable through ordinary legal execution process. Additionally, subsection (6B) empowers the
Commission to order the surrender of client‘s funds and property in the possession of an advocate but
which is not disputed by the advocate. The Commission while empowered to investigate the accounts of an
advocate against whom a complaint is made may also require such advocate to prepare a detailed fee note in
a matter in which a complaint has been made against him.
Pursuant to section 53(6C) an advocate against whom an order is made under this section and who has not
appealed against such order under section 62 may apply to the Disciplinary Committee for a review of the
Order. Pursuant to section 53(6E) The Commission may investigate the accounts of an advocate against
whom a complaint has been made and for that purpose may order such advocate to produce all relevant
books and documents to the Commission or to an accountant engaged before the Commission in that
behalf.

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Pursuant to Section 53(8) any party who is aggrieved by a decision or order of the Commission is at liberty
to appeal to the High Court. The decision of the High Court in such appeal shall be final.
Pursuant to S.53A, the President is empowered to determine the remuneration of the commissioners by
whichever way, which shall be paid out of moneys provided by parliament.
Under S.54, the Attorney General is empowered to appoint /provide any other officers the commission
may require.
The rules and procedure to be adopted by the Commission in the discharge of its rules shall be made by the
Attorney General pursuant to S.54 (3).
DISCIPLINARY COMMITTEE
Established pursuant to the provisions of S.57 of the Advocates Act2
It is comprised of;
(a) The Attorney-General;
(b) The Solicitor-General or a person deputed by the Attorney-General; and
(c) six advocates (other than the chairman, vice-chairman or secretary of the Society), of not less than ten
years standing, one of whom shall be an advocate who does not ordinarily practise in Nairobi, all of whom
shall be elected and shall hold office for three years and be eligible for re-election.
Pursuant to S.55, all advocates and every other person entitled to act as an advocate shall be an officer of the
court and shall be subject to the jurisdiction of the Disciplinary Committee.
Under S.56, the powers of the Chief Justice and of any of the Judges of the court to deal with
misconduct/and/ or offences by an advocate cannot be superseded, lessened or interfered with, even by the
activities of the Complaints Commission or of the Disciplinary Committee.
Pursuant to S.58, the committee may act as a tribunal of either 3 or 5 members and may require the
chairman or vice chairman of the society or both to sit as an additional member(s) for the purpose of any
complaint where on grounds of availability/ convenience, a tribunal would not otherwise be available.
The Attorney General/Solicitor General chairs the committee and presides over all meetings. Alternatively
in the absence of either of them, a person deputed by the A.G. under S.57 (1) (b) shall be the chairman of
that meeting.
In the alternative, the tribunal is entitled to appoint a chairman from the members present if the A.G., the
S.G. or the deputed person is absent.
Pursuant to S.58 (5), all proceedings before the committee shall be deemed for the purposes of chapter XI
of the Penal Code, Cap 63, to be judicial proceedings and for purposes of the Evidence Act Cap 80, to be
2 Supra

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legal proceedings. (Chapter XI Cap 63 deals with offences relating to the administration of justice which
essentially means acts or omissions tending to sabotage the process of judicial tribunals, courts and offices.
Under such circumstances, the disciplinary Committee is elevated to a level of a court and the rules of
evidence under Cap 80 apply in it as well.
Under S.58 (6) the committee is empowered to make its own rules of procedure for determining and
hearing of any applications and complaints.
S.60 thereof makes provisions pertaining to complaints against advocates.

 Such a complaint must be for professional misconduct, which expression is said to include
disgraceful or dishonourable conduct incompatible with the status of an advocate.
 Any person is allowed to make a complaint against an advocate to the committee.
 Such a complaint must be made by way of an affidavit by the complainant setting out the
allegations of professional misconduct.
 The complaint must be accompanied by such fee as may be prescribed by rules made pursuant to
S.58 (6).
Where a complaint is referred to the committee by the commission, the committee must:
a. Give the advocate an opportunity to appear before it.
b. Furnish the advocate with a copy of the complaint and any supporting evidence.
c. Give him an opportunity to inspect any relevant documents at least 7 days before the
hearing date.
If the complaint does not disclose any prima facie case of professional misconduct, the committee is
empowered to discuss the complaint at any stage of the proceedings. Further, after hearing the complaint,
the committee may also hear the concerned advocate and may after considering any adduced evidence; the
committee may dismiss the complaint.
However, if a case of professional misconduct is established, the committee may:

i)Admonish the advocate.
ii) Suspend the advocate for a term not exceeding 5years.
iii) Strike his name off the roll of advocates.
iv) Levy a fine not exceeding Kshs.1, 000,000/= or such a combination of the above orders.
v) Order that such advocate pays to the aggrieved person compensation or reimbursement not
exceeding five million shillings. The fine was enhances from Kshs. 50,000/= vide Act No. 2 of
2002, which also introduced the fifth option.
Pursuant to S.60 (5) the committee may make orders as to the payment of costs, witness expenses and the
committee‘s expenses.

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Seemingly, a person may complain to the Committee on account of costs in which case the Committee may
upon request of the complainant order such advocate to prepare a fee note out of which it may make a
decision on the appropriate fee chargeable and where the advocate has filed a bill of costs, the Committee
may want for it to be taxed.
Eventually, the Committee is empowered to make orders regulating the costs claimed and fees payable to
an advocate in the same way as a taxing officer of the Court is allowed to. Where such an order is made, it
becomes enforceable as a decree of the Court,, provided no appeal has been filed against it under section
62(1).
The amendments additionally seek to clothe the Disciplinary Committee with power to levy enhanced
penalties and carry out its functions with more efficiency.
Section 60A is a new section that sets out the procedure for the hearing of complaints. It has the power to
determine whether or not the services of an advocate to a client are reasonably proper and on that basis
recommended the amount of fees that the advocate would be entitled to. Thus the Committee may ;
a) Determine costs payable,
b) Direct the advocate or firm of advocates to rectify a mistake in favour of a client at their own
expense,
c) Take such other action as may be in the client‘s interest.
Under S.60 (12), the committee may make any orders as to levying of the amount ordered to be paid on
any property of the advocate by distress and sale under warrant.
Pursuant to S.62, any advocate who is aggrieved by an order of the committee may appeal against it to the
High Court within 14 days.
 Both the advocate and the council may make submissions during the hearing of the appeal.
 An appeal cannot operate as a stay or a suspension of any order appealed against.
 Under S.64, the court may:
a) Remit the matter to the committee for reconsideration.
b) Confirm, set aside, or vary any order of the committee or substitute therefore such order
as it deems fit.
c) Make any order as to costs or otherwise in relation to the appeal.
The powers of the High Court must, pursuant to S.65, be exercised by two judges in the least.
Under S.67, any advocate aggrieved by the decision of the High Court may appeal to the Court of Appeal
though the appeal shall not operate as stay or suspension of the court orders.
Saving
S.68 of the Advocates Act describes a final order of the Disciplinary Committee. It is an order which:-
a) Has not been the subject of any appeal
b) Though appealed against to the High Court, no appeal has been preferred thereafter to the Court of
Appeal.

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Under S.69 (1) the L.S.K. must be informed of any ongoing disciplinary proceedings against an advocate.
Further, the final order of the committee must be published in the Kenya Gazette (69(2)). However,
publication in the Kenya Gazette may not reach a wider audience and as such, At No. 2 of 2002 has added a
provision that allows the LSK to publish a similar notice in at least one daily newspaper of national
circulation. This is done with a view to inform the public of the fact that an advocate has been struck off the
roll; and the consequential effects thereof.
Restoration to the Roll

Prior to the amendments, any advocate who has been struck off the Roll could be restored by the Chief
Justice in his own discretion either on his own motion or upon recommendation of the committee.
However, under the new section 71, this function is exercised by the Chief Justice only upon the
recommendation of the Disciplinary Committee.
Usually, the council has a right of audience in these proceedings, and it usually consults the Disciplinary
Committee i.e. to ensure that it has no objections.
The struck off advocate‘s behaviour (during the time his name is not on the roll ) will usually play a crucial
role on the determination of the question as to whether the advocate should be restored i.e. in case of theft,
has there been any form of Restitution?
All the same, once one has been struck off the roll, the chances of one being restored to the roll even after 5
years are virtually nil. However, the Chief Justice is empowered pursuant to S.71 to restore or reinstate the
struck off advocate but only upon the recommendation of the committee. Now while provision is made for
advertisement of the advocate whose name has been struck off, no corresponding publicity is envisioned for
one who has restored to the Roll.
Q. LIMITATIONS
1. The members of both the Complaints Commission and the Disciplinary Committee are appointed by
the President.
Naturally, they are likely to owe allegiance to the one who has appointed them (their benefactor).
Accordingly, they may also be biased towards the will and whims of the government. This state of
affairs renders the autonomy and independence of these two bodies questionable.
It is also beyond doubt that they may be used as a tool against anti – establishment lawyers.
2. Delay: the proceedings of both the commission and the committee take far too long.
There is an obvious need for the establishment of other such like bodies in the provinces.
3. Complexity: the process is quite complicated, thus for the complainants who do not understand the
law, those who cannot afford to hire an advocate to represent them (assuming there are any who are
willing) may find themselves unable to comprehend / nor follow the proceedings.
There‘s need to make the procedure less onerous.
4. Others: the commission and the committee are clearly not well structured and staffed. Further, the
committee does not sit on a permanent basis, accordingly causing a backlog of undetermined
complaints.

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While the new amendments set out to increase efficiency in the advocates disciplinary process, criticisms
have been leveled against them on the ground that they have given too much power to the complaints
commission at the expense of the disciplinary committee and even the courts. They have been said to
infringe the independence of the bar in various ways. It is said that the new role and powers of the
commission are contradictory to its role of investigation, conciliation and amicable resolution of disputes. It
usurps certain of the functions of the disciplinary committee such as making decisions on past incidences of
professional misconduct. As regards the disciplinary committee, the introduction of non-lawyers into the
body negates the principal that professionals should be self-regulating. The power of both these bodies to
assess fees payable to an advocate has the effect of interfering with the advocate/client relationship.
Caution:
Being struck off is the ultimate penalty, and is quite a harsh penalty for the advocate concerned. Thus it is
imperative that the committee should tread with care when contemplating striking off advocates.
Further, where an advocate has misapplied and/or converted client money or property, striking off of the
concerned advocate is clearly not a remedy for the unfortunate client. The committee should be
empowered to order Restitution.
R. ASSESSING THE NEED FOR THE COMMISSION AND THE COMMITTEE

Why is it necessary to have rules of discipline and bodies to enforce them?
i. In order to uphold the standards of professional conduct.
ii. To ensure uniformity both in standards as well as performance.
iii. In order to maintain public confidence in the profession and public goodwill.
iv. In order to correct and control cases of misconduct and bad performance.
v. To act as a deterrent.
vi. To foster and enhance the pursuit of high quality standards of performance by advocates.
vii. To comply with statutory requirements.
viii. To assist the court in maintaining order and discipline amongst its officers.
ix. In order to focus the profession to pursue perfection, or something close to it.
Observation:
Currently, the profession is reeling from an endemic onslaught of public outcry and vicious accusations.
Principally, the dissatisfaction of the public with the profession is due to the emergence of a breed of young
lawyers who deserve to be labeled as ―sharks‖.
They have no remorse, no qualms and they discarded professional ethics and responsibility rules a long time
ago. Their trail is littered with devastated clients, a trail evidenced by the recent A.K.I – L.S.K.
controversy.
Unless something is done urgently to curb this malaise, the future of the Kenyan legal profession is quite
bleak.
The sentiments of Kuloba J. in Apollo Insurance Co. v. Muthanwa& Co. Advocates succinctly outline
just how far the legal profession has degenerated in terms of discipline and conduct.
“to – day, the hungry and unscrupulous advocates are not “few”; they are not merely “hungry and unscrupulous”, they
triple satanic depravity [sic] with wicked greed and ever increasing ethical decadence. Their number grows by the day,

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the few occasions of “serious abuse” now comes with cruel ravishment. The wrongs done are in a litany which stretches
like Banquo‟s line of Kings, to the crack of doom”.
Clearly, a beautiful summary of the sorry state of affairs with regard to the discipline of advocates in Kenya.
S. PROPOSALS FOR REFORM

In the year 2000 the Attorney General published statute law (Miscellaneous amendments) bill in which a
wide variety of changes were proposed on the arena of discipline of advocates. More stringent measures to
curls indiscipline were proposed. However on 25th June, 2001, the Statute Law (Miscellaneous
Amendments) Bill 2001 was published but ideally with similar proposals. Generally the proposed
amendment seeks to give more powers to the complaints commission and the disciplinary committee in a
way in which some have criticised as being intrusive in the independence of the legal profession. See for
example Ojienda T. O. in his paper ―Exploring New Horizons in Managing Complaints against Advocates,
Towards a Review of the Existing Regime of Law‖. Presented at a workshop on Honesty and Excellence in
the Provision of Legal Services, 14 – 15th May, 2001, Whitesands Hotel Mombasa.
CHAPTER 7
THE ADVOCATES BRIEFS
An advocate is bound to accept any brief in the court in which he professes to practice law at a proper time.
However, there are exceptions to this general rule.
EXCEPTIONS
a) When there is a conflict of interest, you cannot accept the brief. Even where there are chances that
a conflict of interest is likely to arise, you cannot accept the brief.
b) If the client cannot afford to pay your professional fees.
c) If the brief requires you to take part in the furtherance of an illegal act.
d) If you do not do such work.
e) If you are likely to be called as a witness.
Unless in the clearest of cases, an advocate should not decline to take a brief. Such refusal amounts to
undermining the rule of law. For instance, you can not decline a brief on grounds of sex, tribe, race, etc.
for you will be perpetrating discrimination, which is prohibited.
A. WATCHING BRIEF
Principally, watching brief entails being present during any judicial proceedings with a view to ensure or
satisfy yourself (on behalf of your client) that the said proceedings are in accordance with the laid down law
and procedure.
When watching brief an advocate:

 Has no right of audience

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 Is limited to checking what the prosecution adduces as evidence inclusive of which parties are called as
witnesses.
 Can request to consult with the magistrate and the prosecution in chambers in case of any apparent
anomalies.
RATIONALE
 A client may instruct you to watch brief with a view to prepare for subsequent civil action.
 A client may also instruct you to watch brief mainly for psychological satisfaction that the law is being
followed.
B. HOLDING BRIEF
 Where a fellow advocate instructs you to take his place during proceedings due to his inability to be
present in court.
 It is of a temporary nature, not continuous.
 You must, when instructed to hold brief, peruse the file with a view to familiarizing yourself with its
contents.
 This is quite important just in case the court orders you to proceed when not satisfied with the reasons
advanced for the advocate‘s absence.
C. DEVILING
 An advocate must not pass a brief to another advocate without express instructions from the client.
 The consent of the client must be sought and given first before passing the brief.
 An advocate must not delegate the settling of pleadings similarly without the client‘s consent. This is
important because the other advocate settling the pleadings may not understand what one had in mind.
It may thus cause prejudice to the client.
D. TAKING INSTRUCTIONS
It is advisable to take the following records when taking instructions:
a) Date on which the instructions are being taken (and of course time).
b) Name of case.
c) Name and address of client.
d) Place and date of hearing
e) Fees agreed to be paid or mode of charging fees.
CHAPTER 8
ADVOCATES AND OFFICE MANAGEMENT
It is important that an advocate be conversant with the provisions of:
 The Law Society Digest
 The Advocates (Practice) Rules.

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 The Advocates (Accounts) Rules.

 The Advocates (Deposit Interest) Rules.
The Digest, unlike the rules made under the Advocates Act, is more flexible. In case of a conflict between
the Digest and the said rules, one should consult the L.S.K.
Advocates offices are covered by the digest which has no specific restrictions. However, it is worth noting
the following provisions: -
a) R.6 allows advocates to establish offices and branch offices which must be under effective control by
the advocate and should not be the source of touting.
b) Where an advocate shares an office it is improper to share an office with an unqualified person.
Under R.9 thereof, every advocate or firm of advocate is required to paint or affix his name or its name
outside of every office or place of business.
Under R.10 thereof, a written notice shall be delivered to the registrar and to the secretary of the society
within one month of;
a) An advocate changing his name or the firm‘s name.
b) An advocate or firm changing its postal address.
c) An advocate setting up his own practice.
d) An advocate or firm ceasing to practice or to exist whether by operation of law or by act of its
partners.
A. FIRM NAME
This is covered by R.31 of the Digest as well as Advocates (Practice) Rules (rules 11 and 12).
 It is prohibited to practice in a name other than your own or that of a past or present partner.
 If a partner is appointed a judge, the other partners are allowed to go on retaining his name as a firm
name.
 It is advisable to register the firm name pursuant to the provisions of the Registration of Business Names
Act.
Pursuant to R.12 of the 1998 Advocates (Practice) Rules, it is prohibited for a firm of advocates or any
advocates to allow the firm name to be used on any document or letter not drawn by the firm or by the
advocate.
B. COMMISSIONER FOR OATHS

Pursuant to the Oaths and Statutory Declarations Act, Cap 15, S.2 thereof, the Chief Justice may by
commission appoint any practicing advocate to be a commissioner for oaths.
For one to be eligible for appointment, one is required to have practiced for at least three years as an
advocate (rule 2).

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Upon appointment, an advocate may by virtue of his commission administer any oath or take any affidavit
for the purpose of any matter.
The commission may be revoked by the Chief Justice for misconduct of the advocate.
C. NOTARIES PUBLIC
Under the Notaries Public Act6 S.2 thereof, the Chief Justice may appoint any advocate to perform within
Kenya the functions and duties commonly performed in the U.K. by a notary public.
Under S.3 thereof, one is only eligible for appointment if they have practiced law for more than 5 years.
Under S.5, the Chief Justice may revoke the appointment.
D. CONSULTANCY
For one to be a consultant, he or she must have in possession a practicing certificate and; Must have worked
for the firm. A consultant can only offer his advice to the firm only.
The Law Society Digest also covers other important aspects of office management by advocates.
Principally, these provisions have been extracted from actual cases coming before the society.
E. CORRESPONDENCE
 It is imperative that an advocate responds to correspondence by the L.S.K. and the client without
undue delay.
 The following is a list of priorities pursuant to which response to correspondence must be
undertaken;
1. Correspondence from the L.S.K. especially the Complaints Commission.
2. Fellow Advocates.
3. Clients.
4. Rest.
 Failure to respond to communication from the Complaints Commission amounts to professional

misconduct.

Common sense dictates that correspondence from clients should be responded to without any
delay.
F. LETTER HEADS
 R.27 of the L.S.K. Digest makes provisions pertaining to letterheads.
 It should be designed well for the purposes of impressing the public (clients).
 The Digest does not allow advocates to include an emblem on the letterhead. However your
name and those of any partners and associates may be included, together with any professional
qualifications relevant to practice.
 It is prohibited for an advocate to allow clients to put his name on their letterheads.
6 Cap 17

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 If you are a director of a company, it is prohibited for you to be identified as an advocate on the
director‘s list.
G. UNQUALIFIED PERSONNEL / STAFF

All secretaries, clerks etc working in an advocate‘s office are pursuant to the provisions of S.2 of the
Advocates Act, unqualified persons. Under S.37 of the Act, you cannot share profits with them or even pay
them commissions. However, unqualified staff may be paid a bonus at the end of each year.
The advocate or the firm of advocates is strictly liable for their actions.
H. PRACTICING CERTIFICATE / LICENSE

Under S.21 and 22 of the Advocates Act7, one is required to have a practicing certificate before he / she is
allowed to practice as an advocate. Under S.30 A, one is also required to take out an annual license before
he can be allowed to practice.
 An annual license and a practicing certificate are only issued after one has paid the prescribed
fees.
 One should apply for a practicing certificate before the end of January.
 The L.S.K. will usually issue a notice in December for advocates to submit their applications.
 If by the end of January one does not have a practicing license / certificate one would not be
eligible for practice as it would be illegal. The Registrar of High Court will usually publish a list
of advocates who hold a practicing license / certificate.
I. INSURANCE FOR PROFESSIONAL NEGLIGENCE

R.25 of the L.S.K. Digest requires that advocates take out insurance against liability for professional
negligence suits / actions.
It is clear that advocates can now be sued for professional negligence. Ref. see the decision of the court in
Midland Bank Trust Co. v. Hett, Stubbs and Kemp8 where the court observed that solicitors could be sued in
court for professional negligence.
J. ABSENCE
When out of town or out of the country, inform your clients and arrange for someone to hold your briefs
and attend to your clients.
It is professional misconduct to be absent from court during proceedings pertaining to your clients.
K. DEBT COLLECTION AND EXECUTION

 R.13 of the Advocates (Practice) Rules prohibits advocates from charging collection fees in the first
demand letter. If the debtor pays immediately, the client should be charged.
7 Cap 16
8 [1978] 3 W.L.R. 167

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 R.19 requires clients to pay collection charges.

 Where execution has issued, and the judgment debtor offers the decretal sum, the advocate is required
to inform the court and to withdraw the execution.
L. CONSULTANCY FEES
Where an advocate has consulted other professionals, including other advocates, he‘s required to pay their
professional fees.
Usually these are charged to the client who pays unless the advocate has given an undertaking, in which case
he is liable.
M. BUSINESSES
 Not prohibited.
 But must not breed a conflict of interest and must not be biased towards conduct unbecoming or
towards unfairly attracting clients.
 If in doubt, one should consult the L.S.K.
 Same principles apply to employment of advocates, an advocate is prohibited from sharing profits with
his employer.
N. SAVING
 Client money should be handled in the manner prescribed by the Advocates (Accounts) Rules and
Advocates (Deposit and Interest) Rules.
 Advertising, undercutting, sharing of profits, touting etc by an advocate are all strictly forbidden by
both the Act, the Advocate (Practice) Rules and also by the L.S.K. Digest.
O. ADVOCATES PRACTICE AND ACCOUNTS RULES

SALIENT REMARKS
Pursuant to S.81 of the Advocates Act the council of the society is empowered to make rules subject to the
approval of the Chief Justice. These rules are with respect to;
a) The professional practice, conduct and discipline of advocates.
b) The keeping of accounts by advocates.
c) Annual submission to the council of a certificate by an accountant (certified)
Advocates are required to comply with the said rules. Failure to do so renders them open to disciplinary
action by the Disciplinary Committee set up under part XI of the Act.
Advocates Accounts Rules
R.2 thereof defines an ―advocate‖ to include a firm of advocates. It also defines a ―client‖ as any person on
whose account an advocate holds or receives client‘s money. Further, ―client money‖ is defined as money
held or received by an advocate on account of a person for whom he is acting as an advocate or as an agent.

ATP 105
Such money also includes any money held or received by an advocate by way of deposit against fees to be
earned or disbursements to be incurred. Client Account is defined as a current or deposit account at a bank
in the name of the advocate but in a title of which the word ―client‖ or ―trust‖ appears.
R.3 thereof requires an advocate to keep one or more client accounts and R.4 requires advocates to pay
into the account any client money received without delay.
R.5 allows an advocate to pay into the client account any trust money or any money belonging to the
advocate for the purpose of maintaining the account. Under R.6, any money paid into the client account,
which is not client money, must be paid out as soon as possible.
R.7 prohibits payment of any other money not being client money into the client account while R.9 allows
withdrawals from the said account of any money authorized for payment by the client or any money being
transferred to another client account.
N/B These rules should be read together with Advocates (Deposit Interest) Rules
CHAPTER 9
THE COUNCIL OF LEGAL EDUCATION
In accordance with section 3(1) of the Council of Legal Education Act, the Council of Legal Education
(CLE) is composed of the following persons:-
(a) the Chief Justice who is also the Chairman

(b) one judge of the Court of Appeal to be appointed by the Chief Justice
(c) One judge of the High Court to be appointed by the Chief Justice
(d) The Attorney – General or his representative
(e) Five Advocates nominated by the Council of the Law Society of Kenya
(f) The head (dean) of the faculty of law of any recognized university in Kenya whose law degree is
approved by the Council
(g) The head of any training institution established by the Council under section 6 of the Act
(h) A senior counsel appointed by the Attorney general.
(i) One person associated with the teaching of law in Kenya appointed by the Attorney General
(j) The Permanent Secretary of the Ministry for the time being responsible for higher education or his
representative.
Subsection (2) of the same section provides that the Council shall be a body corporate with perpetual
succession and a common seal and shall in its corporate name be capable of suing and being sued; taking,
purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property;
borrowing or lending money; and doing or performing all other things or acts for the furtherance of the
provisions of the Act as may be lawfully done or performed by a body corporate.
The procedure for conducting and regulating the business and affairs of the Council is laid down in the First
Schedule to the Act. The headquarters of the council is in Nairobi.

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OBJECTS AND PURPOSE OF THE COUNCIL

These are enumerated in section 6 of the Act. The general object and purpose of the Council however is
stated to be the exercise of general supervision and control over legal education in Kenya and to advise the
Government in relation to all aspects thereof. Subsection (2) of the section lays down the specific objects of
the Council one of which includes to:-
(a) establish, manage and control such training institutions as may be necessary for:-
(i) organizing and conducting courses of instruction for the acquisition of legal knowledge,
professional skills and experience by person seeking admission to the Roll of Advocates in Kenya,
in such subjects as the Council may prescribe;
(ii) Organizing and conducting courses in legislative drafting
(iii) Organizing and conducting courses for magistrates and for persons provisionally selected for
appointment as such;
(iv) Organizing and conducting courses for officers of the Government with a view to promoting a
better understanding of the law;
(v) Organizing and conducting such courses for paralegals as the council may prescribe.
(vi) Organizing and conducting continuing legal education courses
(vii) Holding seminars and conferences on legal matters and problems
(viii) Organizing and conducting such other courses as the council may time to time prescribe.
Other specific functions of the Council are to conduct examinations for the grant of such academic awards
as may be prescribed and to award certificates, fellowships, scholarships, bursaries and such other awards as
may be prescribed. In order to achieve the objects and purposes outlined above, the Council has the power
under section 7 of the Act to:-
(a) Control supervise and administer its purposes as best promote the purposes for which it is established.
(b) Control and administer the legal education Fund established under section 16 of the Act.
(c) Receive any grants, gifts, donations or endowments and make legitimate disbursements therefrom.
(d) Enter into association with other bodies or organizations within or outside Kenya as the Council may
consider desirable or appropriate and in furtherance of the purpose for which the Council is established.
(e) Open a banking account or banking accounts for the funds of the Council.
(f) Invest the funds of the council not currently required for its purposes in the manner provided under
section 17 of the Article in securities in which for the time being trustees may by law invest trust funds
or in any other securities approved by the Treasury or to deposit any such funds in a bank-account.
The Council has also the power to delegate some of its functions to committees to any member, officer,
employee or agent of the Council under section 9.
The Council has wide powers to control the level of education of legal professionals in the country.
Consequently section 14 of the Act empowers, the Council to make regulations for the purposes of giving
effect to the provisions of the Act and in particular, the regulations may:-

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(a) Make provision regarding the engagement and training of pupils by advocates and their respective,
conduct duties and responsibilities.
(b) Make different provisions for different circumstances.
(c) Authorize the charging by the Council of fees
(d) Make provision for the establishment of training institutions by the Council
(e) Prescribe the requirements for the award of diplomas, certificates and other academic awards of the
Council.
(f) Provide for the description of diplomas, certificates and other academic awards of the Council.
(g) Provide for the settlement of the terms and conditions of service including the appointment dismissal,
remuneration and retiring benefits of the numbers of staff of the Council and;
(h) Prescribe anything which may be prescribed under the Act.
Clearly the powers of the Council are fairly wide as is indeed attested by the vague wording of the
provisions of the Act. The Council can even make rules imposing obligations on members of the legal
profession with a view to improving standards e.g. the provisions of section 14 are fairly wide as to
empower the council to require compulsory continued legal education of practising advocates and other
legal professionals. The Council may recommend the imposition of a legal education levy on any or all
services rendered by advocates.
So far as accountability is concerned, the Act makes provision for the preparation of annual estimates of
revenue and expenditure as well as for keeping of proper books and records of account of the income, assets
and expenditure of the Council.
After satisfying the qualifications as to the admission as an Advocate, Section 9 of the Advocates Act
provides that an Advocate shall qualify if:-
a) He has been admitted as an Advocate.
b) He has his name entered into the roll.
c) He has in force a Practicing Certificate and an Annual License. Such certificate shall be deemed not to
be in force if the Advocate is suspended by the disciplinary committee or the court where the Advocate
is adjudicated bankrupt.
It is therefore only after an Advocate has a Certificate, that he can be allowed to practice as an Advocate.
Prior to Act 18 of 1989, articled clerks were admitted as Advocates. These were people who after passing
their Form Four Examinations went straight to the School of Law for 5 to 7 years after which they qualified
as Advocates. After that, their names were entered into the roll and they practiced. This mode of
qualification is now defunct and every prospective advocate must now undergo university training. An
Advocate whose name has not been entered into the roll and has not taken out a Practicing Certificate is not
an Advocate and can be disciplined for practicing without a Certificate.

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In Republic v. Theuri the accused was charged with the offence of practicing law while not an Advocate.
The case against the accused was established on the basis that he got powers of attorney from litigants and
purported to act as an Advocate. He was found guilty of an offence under Section 33 of the Advocates Act
and sentenced to serve 2 years in jail.
CHAPTER 10
THE LAW SOCIETY OF KENYA
A. ORIGIN
The Law Society of Kenya is established under the Law Society of Kenya Act. Section 3 thereof establishes
the Law Society of Kenya as a body corporate with perpetual succession and capable of suing and being
sued. However as a concept, it is largely borrowed from England where the first society came into
existence in 1729.
In Kenya, the 1897 Order – in – Council was enacted to create a law society. Just like in England, the
creation of the Kenyan Law Society was precipitated by the need for a small group of professionals who had
to come together in order to enhance their practice and image.
The 1897 Order – in – Council had established a fused profession, unlike in the U.K. where Barristers and
Solicitors had distinct roles. Mainly this was due to the fact that very few (if any) Barristers were willing to
come and practice law in Kenya. The Solicitors who came to Kenya were the worst of a bad lot, who could
not hope to make a decent living in England. They came along with the settlers, who needed lawyers to
look after their legal affairs.
After the 2nd World War, the English Government offered a two-year course in legal studies to those who
were willing to study. Upon their admission to the Bar, (in England) they came to the colony. Accordingly,
they were not very well trained and could thus not hope to practice law successfully in England.
As the Kenyan economy developed further, the Asians sent their children to England and India for legal
training. Upon returning back to the colony, they usually worked as clerks. The first African lawyers were
trained in India but had to wait for a long time before they got admitted to the Kenyan Bar. To be allowed
to practice in Kenya, one had to be a member of the Law Society. For one to be chairman, one had to have
practiced law in the colony and to have served in the council for 10years (and above).
Act No.10 of 1949 established the first Law Society of Kenya in the same year. This Act was subsequently
revised in 1962 which has not been the subject of any amendment ever since. The principal object of this
society was to protect the advocates from the independent government. In the initial stages, the Kenyan
Bar was solely made up of Europeans. Africans and Asians became members of the society in the later
stages of its evolution. However, at present, the profession is overwhelmingly African.
Up to the 1970‘s, the Society was managed by whites. Sam Waruhiu was the first L.S.K. chairman in 1970
and served for two years. The takeover by Africans of the legal profession is by now, a trite fact.

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B. NATURE THEREOF
 It is a body corporate with perpetual succession and common seal.
 It can sue and be sued in its name.
 It was first established by S.3 of the 1949 Act, which reproduced in S.3 of Act NO. 30 of 1962.
C. THE L.S.K. ACT2

 It is an act of parliament to consolidate the law relating to the Law Society of Kenya.
 S.3 thereof establishes the L.S.K. as a body corporate.
 S.4 thereof sets out the objects of the L.S.K.
D. OBJECTS
a) To maintain and improve the standards of conduct and learning of the legal profession in Kenya.
b) To facilitate the acquisition of legal knowledge by members of the legal profession and others.
c) To assist the Government and the courts in all matters affecting legislation and the administration and
practice of law in Kenya.
d) To represent, protect, and assist members of the legal profession in Kenya in respect of work
conditions or otherwise.
e) To protect and assist the public in Kenya in all matters touching, ancillary or incidental to the law.
f) To acquire, hold, develop and dispose of property whether immovable and to derive capital or income
there from for all or any of the foregoing objects.
g) To raise money for all or any of the foregoing objects in such manner and upon such security as may
from time to time be determined by the society.
h) To invest and deal with moneys of the society not immediately required in a manner determined by
the society.
i) To do all such other things as are incidental or conclusive to the attainment of the said objects.
The courts have had occasion to rule on disputes between members regarding the objects of the Law Society
of Kenya. In Aaron GitongaRingera and others vs. PaulMuite and others, the applicants in their
capacity as members of the Law Society of Kenya to restrain them from uttering political statements in their
capacity as council members. Subsequently, they alleged that the respondents had breached the said Court
Orders and hence sought to cite them for contempt. The respondents were found to have deliberately
disobeyed court orders and were filed accordingly. In finding that the statements were made, the
respondents were not contemplated by the LSK Act i.e. they were ultra vires the objects of the LSK,
Mwera, J., stated thus:
The applicants in their capacity as members of the Law Society of Kenya had sought for and obtained an
injunction against the respondents who were council members of LSK to restrain them from uttering
2 Supra 1 note 1

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political statements in their capacity as council members. Subsequently, they alleged that the respondents
had breached the said court orders and hence sought to cite them for contempt. The respondents were
found to have deliberately disobeyed court orders and were fined accordingly. In finding that, the
statements made by the respondents were not contemplated by the LSK Act i.e they were ultra vires the
objects of the LSK.
In Kenneth Kiplagat vs. Law Society of Kenya (Misc. Civil Suit av. 542 of 1996) the applicants had
sought a declaration that Section 4 of the Law Society of Kenya Act is inconsistent with Section 70(b), 78(1)
and 80(1) of the Kenyan Constitution. Section 70(b) guarantees the freedom of conscience of expression
and of assembly and association; section 78(1) guarantees the freedom of conscience whereas section 80 has
to do with freedom of association and assembly. It was urged on behalf of the applicant that Section 4 of the
LSK Act made it compulsory that lawyers should be members of the LSK then the same was
unconstitutional. However, the court found as a matter of fact that it was section s 21(5) and 23(1)
Advocates Act which made provisions concerning membership of the LSK and Section 4. As the applicant
had not directed his prayers to Section 2(b) and (1) Advocates Act, the court did not find it necessary to
deal with the question. Nevertheless, the court held that it would not be reasonable to strike out section 4
of the LSK Act as that would leave the LSK with no objects within which to work.
The applicant‘s other prayer was for a declaration that the only constitutionally justifiable activities that the
LSK Act can sanction are activities which are germane to the practice of law to wit:- (a) Collection of dues
(b) discipline of members and (c) regulation of the profession. Any activity not within these three would
then be ultra vires. Though the court held that the LSK was bound to stay within its objects under section
4, the court declined to grant a permanent injunction banning the LSK from engaging in activities not
germane to the practice of law or to expand any monies to fund such activities as are of a political,
ideological and philosophical nature. The court was of the view that a remedy would be too broad and
would amount to what the court in Aaron GitongaRingera and Others and P. K. Muite and Others
characterized as ―gagging the LSK‖ if not more.
Pursuant to S.5 membership of the Society consists of

a) Any advocate who is a member of the society by virtue of S.28 of the Advocates Act3.
b) Any person admitted to membership of the Society pursuant to S.6 of the Act4.
c) Any person elected as an honorary member of the society pursuant to S.7 of the Act.
d) Any person who has at any time been previously a member of the society and who complies with the
regulations.
S.6 thereof makes a provision for special membership, basically limited to persons listed in the Advocates
Act and to persons legally qualified but not being full time Kenyan Residents.
3 Cap 16
4 Supra note 1

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S.7 makes a provision for honorary membership of any person whom the society deems fit to honour.
Pursuant to S.8, all members of the society are required to pay annual subscriptions (Honorary members
are exempted)
Pursuant to S.9, no entrance fee may be paid by any person as a condition for joining the society.
Under S.10, resignations from the Society are prohibited, thus effectively making membership compulsory
for all lawyers holding current practicing certificates.
However, under S.11, any member of the Society, other than a member who holds a current practicing
certificate issued under S.26 of Cap 16, and subject to S.28 of the same Act, or any honorary member, any
member of the society may be expelled on various grounds.
Pursuant to S.12, any member who ceases to be qualified for membership ceases to be a member
automatically.
E. MANAGEMENT OF THE L.S.K.

THE COUNCIL
S.13 establishes the L.S.K. Council made up of a Chairman, Vice Chairman and 9 other members, all of
whom must be the society‘s members.
 The members of the Council are to be elected into office annually by the rest of the members.
 One of the Council members must practice law in Mombasa, and another must practice in any other
town apart from Nairobi and Mombasa.
 The Council is vested with authority to exercise the powers of the L.S.K. pursuant to S.14 and is
under S.15 empowered to delegate powers and to determine its procedure (S.16)
F. CONFLICTS IN INTERPRETATION OF OBJECTS

 Pursuant to S.4(a), the L.S.K. is required to ―maintain‖ and ―improve‖ the ―standards of conduct‖ and
legal education.
―maintain‖ logically presupposes the pre – existing standards before the establishment of the L.S.K. by
the 1949 Act.
―improve‖ logically means enhancing those pre – 1949 legal education standards and those existing
thereafter (upto date). It is clearly in pursuit of this objective that the K.S.L. was established in 1970.
―standards of conduct‖ pertains to the policing of lawyers to ensure that they comply with the rules laid
out in Cap 165 and with other unwritten rules of Professional Responsibility and Ethics.
It subsumes the aspect of continuity and punishment of those members who deviate from the accepted
standards of conduct.
5 Advocates Act

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 S.4 (b) requires the L.S.K. to ―facilitate‖ the acquisition of legal knowledge by the members.
Principally, the L.S.K. is enjoined to educate the public on the law and to encourage and facilitate the
acquisition by its members of further / higher legal education.
S.4(c) requires the society to ―assist‖ the public on matters touching on law. ―Assist‖ principally means
to help But not to advise.
S.4 (d) requires the Society to ―assist‖ ―protect‖ and ―represent‖ its members. ―Represent‖ clearly
pertains to pursuing the best interests of the profession / its members.
N.B. the word ―assist‖ is used frequently in the subsections to S.4. It is confounding and ambiguous.
At whose initiative is the assistance to be given? The chairman‘s?The members?Or the public?
Further, the fact that the objectives of the L.S.K. are listed down in detail, does it mean that the Council
must in its activities confine itself to those objects?
It appears that the list is exhaustive and that the L.S.K. Council must strictly confine itself to the objects
listed in S.4 and no other.
Any deviation from the listed objects will therefore be ultra vires the Act, and accordingly any member of
the Society can seek an injunction to restrain from acting ultra vires the Act.
This position was accorded judicial sanction by the court in the case of Kenneth Kiplagat v. The Law
Society of Kenya Misc. Civil suit No.542 of 1996 in which the applicant sought to restrain certain actions
of the council of the LSK as being ultra vires the LSK Act. The court held that matters of a political nature
were not contemplated by the Act and were hence ultra vires.
This position was accorded judicial sanction by the court in the case of Aaron Ringera and Others v.Paul
Muite and Otherswhere the applicants successfully sought an injunction to restrain the L.S.K. Council
from issuing political statements.
 The court observed that such an injunction did not violate the Council member‘s freedom of
expression, as long as they were L.S.K. members and council members at that, they were restricted
from acting in a manner ultra vires to the provisions of S.4 of the Act.
 The court made this position explicitly clear by finding the Council Members to be guilty of being in
contempt of court (after they had issued political statements despite the injunction) and condemned
each of them to pay a Kshs. 10,000/= fine.
 Followed ardently, this precedent may turn out to be a dangerous highly incapacitative precedent and
must therefore be applied with care. Perhaps the said decision signifies the need for amending the
1962 Act.
Largely, the L.S.K. is also empowered to ensure that unqualified persons do not become members of the
society. Clearly, this power arises out of objective 4(a). It is in pursuit of the said objective that the L.S.K.

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Council declined to grant M/S Rita Biwott membership to the Council on the ground that she was not duly
qualified pursuant to the provisions of S.9 of the Advocates Act6. See Rita Biwott v. L.S.K.
G. OBJECT: ACHIEVEMENT THEREOF

1. Seminars: the L.S.K. organizes public seminars albeit infrequently. Seminars have been held on the
Law of Succession, the Law of the Child, International Commission of Jurists Kenyan Chapter, and
recently, various seminars were held during the 50th L.S.K. Anniversary Celebrations. However, much
more needs to be done, the L.S.K. must play a more active role in improving and shaping the Kenyan Legal
System.
2. Conferences: infrequent and occasional failures principally due to lack of commitment.
3. Expressing opinions: the L.S.K‘S capacity to express opinions is severely restricted by the rule in the
Aaron Ringera and Others v. Paul Muite and Others case.
All the same the L.S.K. rarely expresses its opinions on anything, any issues and when it does, they will
frequently be in the form of personalized statements by the chairman. Ideally, the L.S.K. ought to issue
opinions on a wide range of issues pertaining to public interest. Such opinions may for instance be
addressed to;
a) The Public Law Institute(s)
b) The Law Reform Commission
c) Parliament through the speaker of the National Assembly.
d) The Judiciary through the Chief Justice.
e) The Attorney General.
It is worth noting that the A.G. does not send draft bills to the L.S.K. any longer.
4. Publications and pamphlets

 The L.S.K. rarely issues any pamphlets
 The L.S.K. sponsored magazine, The Advocate, was started in 1982, died in 1985 and has been quite
slow in being resurrected.
5. Law Reports
 The last law reports were published in 1980
 Clearly the L.S.K. has absconded its duties / obligations.
 The only effective measure it has taken is to make subsidiary legislation, basically rules of conduct
which are at best, rarely enforced effectively.
 Much, much more needs to be done if the L.S.K. is to meet its mandate as set out in S.4 of Cap 18.
6 See infra

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H. SALIENT OBSERVATIONS
Correctly, the 1997 Council Meeting (held on 8th March.1997) resolved that the L.S.K. Act was outdated
and needed to be urgently, amended. The reasons for the amendments were listed as;
a) The need to bring it in line with the ever changing realities of the legal profession and the country.
The Act was last amended in 1976.
b) The society was/is frequently mired in internal controversy which threatens to sunder it and make it
loose public credibility (if it has not already)
c) The need to provide stricter financial accountability measures on the part of the council members.
*Clearly, these pitfalls and many others not listed have contributed to the dismal performance of the L.S.K.
Further, it is evident that the need to overhaul the L.S.K. Act cannot be gainsaid.
CHAPTER 11
RETAINER
INTRODUCTION
Like any contract a retainer can be in writing or it may be oral. There are however certain implications. A
retainer can be implied – when one does certain things and the law deems that as a retainer. Implied by
conduct
A retainer can also come into being by operation of law – where the law demands that one takes up a
pauper brief- this is retainer by operation of law.
DURATION OF A RETAINER
This means that a retainer can be terminated at any time by the client. It can be terminated by the advocate
at any time. In the case of an advocate who is employed by a company the retainer is dependent on the
salary. It is there so long as the advocate is earning a salary which is consideration for the work done.
Joint and Several Retainer

Joint is where one has more than one client in a matter and each owes him fees individually.
Retainers by Special Persons
Contract with minors – basically they are void – but the court will look at whether it is a contract for
necessaries so the advocate has to be careful. Where a minor sues it is through the next friend and where
defending it is through a guardian ad litem.
Persons of unsound mind – same situation and is through the trustee or guardian.
Poor people – a poor person can enter into a retainer but for purposes of certain court proceedings, he may
have to file a pauper brief in the manner provided for by the relevant procedures.
Companies – a company instructs an advocate in the manner provided for in the articles of association – one
has to be certain that the person instructing them has authority.

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Unincorporated bodies and Trustees – each of those people have to give instructions as each person in those
bodies is liable for fees.
Liquidators and Receivers – under the Companies Act once a company is under liquidation, for the
liquidator to instruct one, one must seek the leave of court.
Partners in a firm – the relationship of partners in respect of retainer is that they are liable for each other. If
you contract one partner the other will also be liable for fees. It is the same with an agent and principal.
TERMINATION OF RETAINER
A retainer can be terminated at any time by either party by infraction of time, by breach where the client
fails to pay, death of the client, insanity of the client or the advocate, bankruptcy of client or advocate and
frustration.
Termination of a retainer has certain consequences and in some instances one has to seek leave of court to
withdraw from acting.
Extent of authority to act – the authority is subject to the terms of the agreement. For example if one is
defending a robbery with violence, the instructions are specific but there are other things one must do to
defend like interview witnesses, contact prosecutor, all the things incidental to conducting the defence are
part of the retainer, they are all implied. This does not mean that the retainer is for all purposes and all
time, it is only for that matter. It is specific and gives authority to do all pertaining to the specific brief.
One has ostensible authority to bind their client on that matter. It is therefore important to avoid conflict
to receive written instructions.
An advocate has authority to receive payment on behalf of the client in your name and not the client‘s
name. The advocate does everything on behalf of the principal and a 3rd party cannot interfere with this
relationship. The advocate can compromise suits on behalf of the client, i.e. they can record consents. An
advocate is an agent who is deemed to have authority to act on behalf of his client. Proceedings will not be
set aside merely because an advocate did not have authority unless it was procured by fraud.
What happens to documents after the retainer concludes?

All documents prepared for the benefit of the client belong to the client. Documents sent by 3rd parties in
respect of client belong to the client. Where fees have not been paid an advocate can hold the documents as
lien in respect of unpaid fees.
Advocates are entitled to fees and must charge their clients. Basically the fees are the consideration for
services rendered by an advocate. Fees are regulated by advocates Act Part 9 which allows CLE to
prescribe and regulate remuneration of advocates. There are 3 ways in which fees can be ascertained in this
country
1. By taxation
2. By an agreement between advocate and client
3. By a court order.

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FEE AGREEMENT
This is very important and regulated by Section 45 and 46 of the Advocates Act and a fee agreement must
be in writing and it must be signed by the client or his authorised agent. Under the Advocates
Remuneration Order this is the only agreement that can be enforced since it is in writing. One can have an
oral agreement but it cannot be enforced by the Advocates Act. The Advocates Act gives an advocate right
to fees but an advocate has a duty to charge reasonable fees and the agreement must not be harsh or
unconscionable. The Advocates Act provides for special procedure for somebody to challenge a harsh or
unconscionable agreement. Where the agreement is harsh or unconscionable the client within 6 months
can apply to the registrar to have it taxed. If it is passed 6 months to attack a fee note one can apply to file a
suit for the court to exercise equitable jurisdiction to set aside the unconscionable agreement.
Section 46 of the Advocates Act provides that certain agreements are invalid; there are several of them
1. An advocate who purchases an interest in the subject of the clients suit;
2. In an agreement between advocate and client, there cannot be an exclusion clause. One cannot
put a clause excluding the client from suing for negligence or professional misconduct.
Advocates are not allowed in perform in form of a limited liability company; in a limited
liability company the liability of shareholders is limited by the shares they hold, so in effect as
an advocate one cannot limit their liability for misconduct.
3. Prohibits contingent fees agreements… - this is fees dependent on the success or failure of the
case being a determinant of fees is a contingent fee agreement and is prohibited.
4. Section 46 (b) prohibits agreement for which remuneration is less than that which is provided
for by the remuneration order. One has the freedom to make a fee agreement. One can charge
over but not less than 10,000/-. One shall not undercut. Where there is agreement to charge
less than prescribed fee, one shall not charge less than 10,000/-
5. Section 46 (e) - under bankruptcy – where a person passes his property to another person to
avoid them being sold under bankruptcy thus evading the consequences of bankruptcy. This
kind of agreement between you and your friend to hold property for you is prohibited.
CLIENT CAN’T PAY WONT PAY

There is a common law right that any advocate who has offered services has a lien over clients documents.
The only problem is that advocates sometimes retain documents and don‘t give a fee note and demand for
fees. Probably the client does not know that Section 47 provides for a court action where one can go to
court and the court can tax the bill and decide what the client should pay. A lien is exercised irrespective of
whether there is an agreement or not. It is the right of an advocate.
The Advocate can also sue for recovery of costs. In the event there is no agreement, on the basis of a taxed
bill, on the bases of an agreement. The Act provides that before one files a suit against a client,
they must send the client an itemised bill to give them an opportunity to see what they are
being charged for.

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30 days must elapse before one files suit except where the client is about to leave the country or absconds
from the local limits of jurisdiction. Limits of jurisdiction could mean leaving a District Magistrates
jurisdiction and one gets judgment.
The court orders the bill to be taxed if the client disputes the amount. Where one files a bill of costs, they
get a certificate of costs and ask for judgment in which case they proceed to execute. There is
controversy since the Act provides for filing a suit but some advocates insist that a
certificate is conclusive and the court can enter judgment and have the decree executed.
This issue has not been determined conclusively whether to execute the decree after getting the certificate
or whether to file a suit as the Act requires. File a suit and obtain judgment or file a bill and obtain the
same.
Section 53 - the Complaints Committee can hear a complaint relating to fees.
The recent amendments of sub section (d) give the commissioner power to order for a fee note and it can
tabulate fees on its own. It can entertain a question as to fees and can assess the fees on its own.
THE RIGHT OF LIEN – IS IT LIMITED?

Can an advocate representing clients in a representative action decline to release documents for non-
payment by some, with the court allow the advocate exercise his right to lien?
In a several retainer each client is entitled to pay the fees on their own. You cannot be allowed to exercise
right of lien in a clients‘ representative action when claiming fees from those who have not paid. If the
majority have paid, you must release the documents. The interest of justice is the requirement that the
cause must continue and because of a lien the majority would be open the prejudice by retention of the
documents by an advocate who has been paid by the majority. A person cannot be allowed to exercise lien
while injuring the interests of the majority.
The minority will not be allowed to withdraw instruction in a representative suit so as not to prejudice the
rights of the majority to access justice. In any case it is the majority who have not paid the court will order
that they pay and the advocate has right to lien over their documents.
Before the amendment Order 9 –

If a client would be allowed to go and make copies of their file held by one advocate and to take it to
another advocate, this game of musical chairs would never end. Advocates will most not instructions from
copies of a file already held by another advocate. For one it is not legal, the bottom line is whether the
client pays their fees. The only reason why clients will want to make copies of a file is because they have
not paid and want to take the matter to another advocate.
A retaining lien is found on general law and springs from possession and is governed by the same rules as
other cases of possessory lien and this is how it has been described ―it is a right at common law depending…
upon implied agreement. It has not the character of an encumbrance or equitable charge. It is merely
passive and possessory i.e. the advocate(s) has no right of actively enforcing his demand. It confers upon

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him merely the right to withhold possession of the documents or other personal property of his client or
former client. It is wholly co-extensive and therefore for extensive with the rights of the clients to the
documents or other property.‖ Barrat v
What is the nature of the right that an advocate exercise lien over
It attaches, deeds, papers or other personal properties which come into the advocates possession in the
cause of professional employment with the sanction of the client and are the clients property, letters of
administration, money, insurance policy etc. it does not matter that the documents themselves have no
value that can be attached to them. So long as the client is in need of those documents the advocate can
exercise lien over them.
The occasion of when an advocate may exercise his lien springs from whatever transaction founded the basis
of which the documents were delivered to him. When the documents are delivered if there are contrary
arguments then one cannot exercise lien because it was never meant to happen. One must be careful when
determining if they are in a possession to exercise lien over client property. The property must be delivered
to the advocate in respect of whose bill is being paid.
What if you are in a partnership and different partners join the firm, is it open for the client to say that
certain of the partners claiming lien over my documents were not entitled to create lien over my
documents. Does introduction of new partners in a partnership does not affect the lien? No the claim does
not cease. It cannot be that under the law of partnership it is the duty of members of public to determine
different aspect of liabilities of different partners, the exposure is different so if that were the case that
public was to determine before suing, the partners would then be capable to frustrate the client‘s claim by
changing the partners every time there is a claim. The documents were delivered for whatever transaction
and the partnership is asking for fees, it cannot be that ones one takes on new partners, whatever
documents you held for clients would have to be released, just because new partners have joined who did
not form part of the team that was instructed.
The property must be delivered to the advocate in respect of the property in whose bill the lien is being
claimed. The bill is what gives the advocate the right to exercise lien.
The advocate must have received the document or property in his professional character. If he receives the
property for example as a trustee, he cannot exercise lien, it has to be in his professional capacity. As
against the trust an advocate can exercise lien over documents in his possession.
What is secured by a lien – costs – lien is limited to costs on work done in respect of a particular matter.
These are taxable costs charges incurred by an advocate for his client.
Can an unqualified person cannot exercise lien as he is not entitled to fees so he cannot exercise lien.
The personal representatives of a deceased advocate have a right to exercise lien. This would be for costs
due to the Estate. Representatives of the Estate of Maxwell Ombogo v Standard Chartered Bank and
LSK.Services were rendered by a qualified person and quite rightly lien can be exercised.

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NATURE OF THE RIGHT CONFERRED BY A LIEN

Advocate is entitled to retain property until,… subject to taxation if the bill is being taxable. The advocate
is not bound to give rights of deeds and as a general the client has no right to the deeds or documents that
are being held.
LIMITATIONS
Delivery of documents will be ordered where payment of an advocate‘s cost are secured. If one has
security for costs they cannot exercise a lien. Delivery will also be ordered where the interest in the
documents may be injured or lost through exercise of the lien.
As a general rule no one can create a lien beyond their interest. This means that under limitations if a client
delivers documents where their interests are limited an advocate can only exercise lien to the limits of the
interests of the client. So if there is a person claiming superior title, that party would be entitled to those
documents and the advocate would be entitled to seek recourse elsewhere.
In a mortgagor/mortgagee where an advocate acts for both parties he cannot exercise lien over the same
documents as against the mortgagee for costs that are due from the mortgagor. This explains the general
rule of where a person is exercising greater title they are entitled to the documents. In this case you have to
give the documents to the mortgagee coz his interests are greater than those of the mortgagor.
Is the second advocate is entitled to exercise lien over documents brought in by the client for costs raised by
the second advocate? There are two advocates a senior and you. Can you exercise lien over those
documents adversely against the client. No because…
What priorities exist between successive advocates?

Assuming one is an advocate in an action, and the client asks you to take over a certain transaction being
conducted with firm x. they say that they have problems raising finances and they need you to extend the
payments to the other advocate to conclude the transaction. Can you exercise lien over the funds you paid
to the other advocate over the file? No an advocate cannot exercise lien over a clients documents if the
costs are not due to him and in this case, the costs were due to the other advocate so he has no lien over the
documents.
You cannot exercise lien over those costs.

The question of propriety would arise since you would now have an interest in the subject matter.
There are ways in which a lien can be discharged

If one takes security on the property that is inconsistent with the lien then the lien will be discharged.
If one takes security on the property subject to a lien, the lien will be discharged, read Barrack case,
If you relinquish possession of documents then the lien is discharged.

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If you do any acts that are inconsistent with the lien then in some circumstances it will be deemed that the
lien was discharged.
ARGUMENTS AGAINST ADVERTISING ARE BASED ON NUMEROUS REASONS

 Advertising is an expensive business – young lawyers would not afford it making the competition
unfair.
 Advertising tends to give the impression that it is the ingenuity of the lawyer that gets you justice
rather than the justice of the case. There is an assumption that justice is blind and it does not
matter where the law firm but the essence should be the same. Advertising tends to give the wrong
impression that what matters is the capacity or character of the lawyer.
 Advertising places unreasonable expectations on an advocate‘s ability to deliver. It will tend to give
the indication that a lawyer will deliver and therefore capacity for a lawyer to cut corners are
compromised as a lawyer tries to deliver on the promises that they have made.
 It is the court that makes the final determination and so the advocate cannot make promises.
 Lawyers encourage litigation through advertising for example ―had a fall, give us a call‖ this
encourages litigation. Increase in litigation in the US which is expensive for commerce and which
has made premiums to go up, the extent to which one has to place warnings on products to avoid
being sued, a lot of negative reaction to lawyers are partly due to advertising.
 Advertising lowers the dignity of profession as it tends to reduce it to sort of a retail trade.
In reality the choice of a lawyer is based on personal knowledge, referrals and most people do feel that good
lawyers don‘t need to advertise. There are people who feel that advertising has no impact.
Advertising makes a bad situation worse by lowering the perception of advocates even lower.
ARGUMENTS FOR ADVERTISING

Advertising is still happening and there are legitimate reasons why advocates should advertise. LSK in 2000
appointed a committee to review the rules of advertising but ultimately it was rejected by members. Most
lawyers felt that it was the big firms who were advocating for advertising and they therefore rejected it.
Advertising can be said to enhance awareness. Sometimes the people who do the best work of letting
people know their rights should benefit from that process. From a consumer rights perspective there is a
place to pass information.
There is an explosion of number of advocates coming into the market and people need to know who is in
the market and where to find them.
Specialization of law – there some lawyers who are specialists in certain areas and people ought to know
which lawyer is good at what field. People should be allowed to publicise their speciality.

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Most people think that if lawyers are allowed to advertise, it will force the lawyers to be consistent with the
picture that they have presented in their adverts making them better lawyers. To be competitive lawyers
will be forced to give exemplary service at very competitive prices.
RIGHTS OF AN ADVOCATE
PRIVILEGE OF COMMUNICATION
Communication between client and advocate are privileged. The case of Minter v Priest.,“Confidential
communication passing between an advocate and his client. The privilege is privilege of the client. Once
communication has been admitted into evidence the second communication comes into force, The question
in terms of privilege is one whether
Absolute privilege in communication between advocate and client … this is a public policy consideration,
clients should be able to communicate unreservedly with their advocates. It is to the public interest. Dock
brief, whatever a client reveals is confidential. One must be able to engage their minds and take it to the
logical conclusion.
Read Arthur JS Hall & Co. (a firm) v Simons (2000) 3 ALL ER 673
Can what you communicate to the human resource department as an employee at the firm, can it be used as
evidence.
It is not anticipated that any conversation between an advocate and a client will end up in court. it is
enforced by the court by of injunction and one can be restrained from acting for parties that are in that
client‘s interest or restrained from disclosing information that has come to your notice.
Inadvertence where important documents get delivered to the opponent‘s firm. Certain documents that
were not subject of discovery were sent to the opposing firm of advocates and the advocate acting in the suit
got to see them. Most of the documents shed a lot of light on how the document should be resolved.
Would that advocate have been able to use that information into court.should the opposing counsel be able
to use those documents in court. NO! He should return them to the other counsel.
Second scenario – your cousin works in the other law firm, and you ask them to get you the documents.
Communications between an advocate and a client are absolutely privileged. They cannot
be made subject of discovery.
In law of defamation privilege against acts of defamation from information coming from an advocate and his
client are privileged. The person mentioned in those documents in a manner that would give rise to a cause
in defamation cannot maintain a cause based on that communication. Advocates should be at liberty to
communicate with their clients.
The communications that are protected under Law of Defamation are fairly wide, so long as there is a
relationship of advocate and client then those communications are privileged.
An advocate has been paid by a client, the advocate writes a letter to another advocate or to the court or to
any third party saying nasty things about your client. One of the exceptions under the Evidence

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Rule.Documents are absolutely privilege in that persons must be allowed to get unhindered advice from
their legal counsel. If a defendant or accused person before a tribunal has in their possession documents that
will tend to absolve them of a crime then the court will not allow that those documents have privilege
attached to them. In those circumstances the court can waive privilege on the account if the documents can
change the outcome of the case to the client‘s favour. If the client sues for negligence, the advocate will
release the documents to his lawyers so they can plead his case in a suit for negligence to be able to absolve
himself. They can also release the documents to the insurers to protect themselves.
Article by IPP, D.A. Lawyer’s Duty to the Court (1998)

Is what is contained in certain documents need to be about the case? writing to your client where you
mention certain extraneous matters that have nothing to do with the case in relation to a third party. Can
an action in defamation lie?
Minter & Priest – read the judgment by Lord Atkin – most of the questions will be
answered.
Page 583 – tackles the issue of discovery
Let‘s assume that you have been retained by an accused person and one morning, you find a rifle/gun that
has been left with your secretary by unknown person with a note to keep it in safe custody. What to do?
Assuming the client has been accused of child abduction and you have evidence as to where the child is
being kept, what do you do?
Article by Robert Gordon at page 42

If during the cause of representation of an accused person the prosecution having rested, then your client
comes and confesses to you that for the most part what the prosecution said true, what to do
When you are representing an accused person or engaged to represent the accused and at the very outset
they indicate to you that for the most part they are guilty as charged. What is your cause of action as an
advocate?
Forensic Embarrassment – when it becomes clear to you that you are unlikely to continue representation of
your client without breaching your duties to the court. an advocate is at liberty to withdraw from acting for
a client if they get to the scenario where they think that they will be forensically embarrassed.
Your duty to the court dictate that you do not lie to the court but conversely as an advocate in the
adversarial system you do not have an obligation to tell the truth. You cannot for instance continue in
cross-examination of witnesses for prosecution in a manner that suggests that your client is not guilty. If
you are not able to achieve that you are likely to fall foul as an officer of the court.
An advocate is under a duty of disclosure of law to the court in the sense that whether the law disclosing in
court is in your client‘s favour or not. This is in a criminal trial; you are under an obligation not to mislead

ATP 105
the court as to the facts. If as an advocate you stood up before a magistrate has made a ruling on a case to
answer, during trials it becomes open to read an inference that the advocate is at pains to represent his own
client. The court will not entertain an application for you to withdraw and especially not in open court.
There are situations where one will be open to being forensically embarrassed. An advocate will be
required not to withdraw and to try and represent their client as best as they can without misleading the
court. One may seek not to cross examine the witnesses in a manner that suggests that some of the facts are
not true. The duty to the court is deemed in most circumstances to be paramount but it is possible to
continue representing a client without disclosing and without being in breach in that sense the paramouncy
of the privilege of communication between client and advocate is placed higher mostly in criminal cases as
opposed to when cases are of a civil nature.
Communication between advocate and court is protected –

Anything said in course of proceedings by judges, parties‘ counsels and witnesses in course of trial is
privileged. This privilege is absolute. The privileges that attaches between advocate client extend to
anybody working for the advocate, clerks etc. must maintain that privilege and this privilege lasts for a
lifetime. You cannot disclose the information even after the client dies.
Parliamentary select committee proceedings

Mitei J injunction on discussion of certain matter in Parliament
The upholding of the dignity of the court and administration of justice the 3 systems of government should
not interfere with each other.
Assuming one is an advocate, if your master was to be asked by person as to the pupils conduct, association,
acquaintances and behaviour and they were candid about it, would the communication from the master be
subject of privilege. If the advocate said you were a bit unreliable, could the pupil sue for defamation?
Qualified privilege
Libel and Slander
An advocate is immune from arrests in court in that he has a right to be able to conclude his client‘s cause.
After they finish the client‘s case one may be arrested, as long as they are in court, they cannot be arrested.
Is it a right to wear robes in court? Right of audience is from the Advocates Act, the Constitution
Professor Gordon ―… public stewardship obligations – it is in the self-interest of an advocate that most of
what we do is found to be that we are only feathering our nest. ―there is nothing new in complaints about
lawyer…
DISABILITIES OF AN ADVOCATE:
Utmost good faith must exist between an advocate and his client. It is a fiduciary relationship. If a client is
able to establish at any one point that they were not in a position to exercise free will, the decision resulting
from your advice is capable of being voided. The advocate must seek to give disinterested advice at all
times and that is why an advocate cannot act for more than one client at a time.

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This disability continues even cessation of the relationship and even after the demise of the client. An
advocate generally speaking is allowed to make a purchase from their client but it will be open to one to
show that the bargain entered between one and their client is as good a bargain as would be entered with
any other party. If one is selling to their client, the same role applies.
An advocate should never borrow money from their client as a general rule. One can only borrow from
their client if there is no one else to borrow from and at their costs. If the client wants security one must
give them adequate security. Norton v Ashburton
One may lend money to their client and take security upon the loan, it is not encouraged because one
should be able to advise their client on where to go to obtain the facilities.
GIFTS
An advocate is properly only entitled to his fees. One can only ask their client to make a donation to their
favourite charity. Any gift one is given, it is open to the deputy registrar to include the value of that gift in
the amounts to be taxed off.
BEQUEST & DEVICES

If one is instructed to procure a Will and the client intimates that they want to leave something for you, one
must cease to take instructions and advice the client to get another lawyer. The advocate may be accused
of having undue influence over the client and therefore it would not be proper to act for the testator. The
will must be drawn by an advocate who is independent.
Where advocates are agents for clients in transactions, an advocate cannot purchase from the client and
make a profit from the resale. If one does that the profits are due to the client. An advocate is only entitled
to the commission that has been negotiated as a retainer as an agent.
An advocate is entitled to take security for costs due but this is an area that is quite troublesome in that it
becomes difficult to realise security for costs where it can be shown that the security was way above the fees
due under the retainer. An advocate should not have an interest in the subject matter of the suit.
AFFIDAVITS
It is not open to the advocate to cause an affidavit to be drawn that contains untruths. An affidavit must be
very clear as to what has to be substantiated. An advocate should always shun swearing any affidavit on
behalf of the client, unless they are deponing to matters that are within their knowledge. What the client
seeks to depone in the Affidavit the advocate has to determine on a balance of probabilities as being factual
to the circumstances of that case. an advocate must not file affidavits that they are aware contain untruths.
SURETIES
An advocate should never be a surety for their client at any time.
Can a Magistrate cite one for contempt?

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The High Court has power to enforce advocates duties owed to it. Therefore an advocate as an advocate of
the court is amenable to the enforcement of the duties that are owed to the court. There are cases in this
country where the court is able to enforce the duties owed to the court by the Advocate.
Under Order 62 there is special rule where courts can make orders against Barristers and Solicitors.
An advocate has a duty to disclose the law and not mislead as to the facts. There is a difference between
misleading the court and telling the truth. An advocate has duty not to lie to the court but he is under no
obligation to tell the truth. It‘s a thin line.
Constitutional reference that determined that certain amendments that were proposed under the Banking
Act were unconstitutional for being retrospective.
In ex parte applications, advocates are under a duty to make full disclosure of the law including the facts on
which they are relying on. They must disclose all the circumstances that exist in relation to the case. the
orders of the court must be made with full disclosure. Does one want to abide by the duties before them or
the fact that the client is the one paying them. A client can sue if they lose their case due to none disclosure
of facts. Once the facts are disclosed and the order impeached, a client should be able to sue their advocate
for failure to disclose.
The central theme about ex parte applications is that there must be full disclosure, where advocates used to
determine which evidence to adduce and which not to adduce to get favourable orders, these orders are
impeachable and the advocates cannot be agents of deceit. Where orders have been impeached a client may
want to sue an advocate.
The duty is not in any way lessened even where matters are not ex parte but the other side is represented, it
is the duty of the advocate to disclose to the court. The case of Flavio Rodrigues v Appollo Insurance.
NEGLIGENCE
The principles that govern advocates‘ professional liability are the same principles that govern other
profession, namely: the principle of contract and the tort of negligence. Litigation lawyers must also abide
by the principles of fiduciary obligations towards their clients. The duty of care in negligence of a solicitor
has been interpreted to mean:-
a) To be skillful and careful
b) To protect the interest of the client
c) To carry out his instructions by proper means
d) To consult his clients in all forms of doubt that does not fall within the express or implied
discretion left to him
e) To keep his client informed to such an extent as may be reasonably necessary according to the same
criteria
f) To advise his client on all matters relevant to his retainer, so far as may be reasonably necessary.

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Sir Kenneth O‘ Connor P expressly sets out the advocate‘s duty in the conduct of litigation in Lobo vs.
Saleh S. Dhiyedi160in the following terms:
“An advocate who appears for a client in a contested case is retained to advance or defend his client‟s case and not his
own. This he must do strictly upon instructions and with a scrupulous regard to professional ethics. Remembering that he
is an officer of the court and he owes a duty to the court as well as his client.”
An advocate ought to be able to read the law to know what is required before instituting the suit. Fletcher
& Son v Jubb Booth and Helliwell (1920) 1KB 270 at 280 – it is extremely difficult to determine the
limit of diligence and reasonable care … it is hard to tell what amounts to negligence so if then we have to
determine between whether an advocate exercised reasonable skill then outside that skill anything else is
negligence. It is to be determined by the peculiar factual circumstances of the case. Non-observance of the
rules of practice to the court has been held to amount to negligence. Want of care in preparation for trial,
or attendance with witnesses can amount to negligence.
None attendance – Flavio Rodrigues v Appollo Insurance Co

Attendance before the court or failure therefore can render one to a suit in negligence. Not appearing in
court when the cause is listed can render one negligent. An advocate can mismanage a case so much so that
the court can determine that an advocate properly admitted would not have handled a case the way that
particular advocate handled it.
Management of the case - manner of examination of witnesses, calling of witnesses, manner of cross
examination, certain aspects of determining if certain documents need to be admitted, preferring certain
interrogatories. In contentious business management of the case is important and failure to perform
properly some of the abovementioned things can render one to being cited for negligence.
Interpreting a case in a certain manner – it is doubtful whether interpretation can lead one to a suit in
negligence. Where there exits various possible ways of interpreting a case-then adopting one of those would
not be negligent.
Arthur JS Hall – when the case of Rondel v Wolsley was determined in 1967 as a matter of public policy it
was felt that advocates should not be held for matters in negligence. This is until Arthur JS Hall in 2000
where a re-examination of Rondel was done and by a majority of f to 3 it was determined that the public
policy that existed in 1967 were no longer valid and it was felt that immunity of an advocate in negligence
was no longer maintainable and it is now possible to sue an advocate for negligence.
IMMUNITY OF ADVOCATES FROM PROSECUTION FROM ACTIONS IN NEGLIGENCE

The immunity rule which was a rule created for barristers and for their benefit was as a matter of public
policy. It was deemed that they should not be open to suits in negligence. The first point they advanced was
that barristers unlike solicitors have no contract with their clients and barristers could not sue for their fees.
The question of whether the absence of contract absolved a professional from being held liable in negligence
160 (1961) E.A 223

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was settled in the case of Hedley Byrne Heller & Partners– if somebody was giving out professional
advise aware that the person was relying on them for their expertise, the person could not argue that
because there was not contract for the service they could not be held liable. The fact of non-payment of
fees does not absolve one from responsibility of advising the clients with the care and skill expected of a
professional. Whether the advice is given pro bono, duty of care and skill is expected from a professional.
The immunity generally in relation in the way it was posited in Rondel v Worsley in 1967, it was that the
immunity was in general terms confined to acts in the conduct of litigation. It was felt that Barristers were
entitled to immunity in the manner in which they conducted causes before the courts.
The immunity rule up to 1967 was generally not thought to apply to solicitors but until 1967 it was
extended to solicitors who were acting before tribunals or before courts. The immunity was granted on the
basis of public policy considerations and some of the issues considered in relation to the expounding on the
public policy were questions on divided loyalty (duty to client and to the court) and this
comes out clearly that an advocate owing a duty to the court will not be expected simply
because they have a duty to their client to waste judicial time on matters that have been
proved or are incapable of being proved through certain evidence, they should not use
judicial time askingeach and every question that can be asked to cover themselves from
being sued. An advocate should be allowed to determine at what point they should stop calling witnesses
or asking questions even where the client feels that they should ask more questions or call more witnesses.
If the immunity was done away with in conduct of litigation, it was felt that there would be prejudice in
administration of justice. There was also the Cab rank Rule- this seeks that an advocate in Kenya like a
barrister in the UK then is generally under a duty to take up a client irrespective of whatever the cause of
the client may be.
Collateral challenge – if a client can sue their advocate for negligence in conducting litigation, then if they
are successful it becomes quite clear that they can be able to show that the outcome of the litigation was
affected by the negligence and therefore cannot stand. The court is then called upon to adjudicate whether
but for the negligence the outcome would have been otherwise. It was felt that clients would continue
litigating causes they had lost through suing their lawyers.
In relation to what the court had to consider in JS Hall they said that in 1967 public policy considerations
were maintainable then but it had been observed that public policy is not immutable, they maintained that
by 2001 the public interest that had maintained immunity was no longer there. There were other ways in
which the courts should be able to determine whether an advocate is indeed liable in negligence and
therefore the effect of that in relation to litigation that they were conducting, there was possibility that
certain orders could be made that would not greatly affect the public interest that there was in the
administration of justice.

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It was considered in Rondel not a main argument but the aspect of protection from defamation that
witnesses have for anything that they say in court. They are immune for what they say in court and if public
policy interest in 1967 was that immunity should not exist, then advocates would be hindered in their
representation of clients and causes before the court. Advocates it was felt should be capable of conducting
proceedings without the risking of being open to suits in negligence. There were adequate measures of
protecting the administration of justice without giving immunity to advocates.
In Kenya if there is a vexatious claim in negligence against an advocate and given the fact that every advocate
is supposed to be insured. That suit in negligence will be defended by the advocates of the insurer so an
advocate is able to afford the suit. They first have to determine whether that claim in itself is vexatious.
Clients could continuously file claims against advocates and therefore important to decide whether a claim
was vexatious. So why were barristers feeling that they were entitled to protection when
even doctors were notimmune to negligence? There are avenues under Civil Procedure Rules for
summary dismissal of vexatious suits so advocates should not be afraid of suits of that particular nature, one
can apply at the earliest time to have a suit summarily dismissed.
There was a consideration in the UK about funding of such litigation, there were civil claims that could be
funded by the State and clients who lost causes would seek to be funded to sue solicitors that they were
dissatisfied with under Access to Justice Act which we don‘t have in Kenya. The question of public
funds being used to pursue causes that were not capable of succeeding could not arise.
DIVIDED LOYALTY
The question of divided loyalty, the court was saying that the duty to the court by the advocate is important
and it has not been proved that it is maintained by the presence of immunity.
Inclination to be viewed as a good advocate
Apart from advocates wanting to be protected from their incompetences, they are obliged to ensure their
very best to represent their client. The inclination to be viewed as a good advocate by ones peers and
members of the bench would ensure that advocates did their very best.
The Inherent Jurisdiction of the court

The question of wasted court orders in which the judges were saying that in relation to the conduct of an
advocate in litigation, the court still had power under its inherent jurisdiction to visit certain orders as to
costs by reason of their non-compliance as to their duty to the court. It is not only the client who can
enforce but the court has a duty to ensure that the duty an advocate owes to it is enforced. Administration
of justice was thus still protected since the court could visit costs on an advocate. It may be that in fact
inherent jurisdiction of the court may reduce the possibility that the advocate will be open to be sued for
the manner in which they have conducted themselves in relation to the conduct of litigation. It is not only
the client who would be aware that you have not conducted the litigation satisfactorily but the court will
also determine whether one is in breach of ones duty to the court and visit costs on that advocate.
OTHER IMPORTANT TOPICS
CAB RANK RULE

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The question of the cab rank rule was decided as a factor that did not influence the court to warrant
whether immunity should continue or not. There was no evidence to show that freedom of action had in
any way affected the possibility that an advocate may be exposed to vexatious action. It was felt that a
barrister should take up a cause for a client irrespective of the cause, and that alone it was felt should not be
a ground to grant immunity to barristers for suits in negligence. There is no guarantee to a
professional that whatever client you may take may never sue you in a vexatious manner,
and therefore the immunity accorded for this reason ought not to hold.
Witness Analogy
On the question of witness analogy the court was saying that the rule in terms of witness analogy is that
persons should be free to speak in court in proceedings so that the fact that one is free to make statements in
proceedings and to express themselves whether as an advocate or witness does not itself grant one
immunity from an action for malicious prosecution. If indeed one gave testimony as the complainant, the
court allows one that freedom to say what they want to say but does not give immunity from a suit for
malicious prosecution from the person to whom that testimony was directed. The protection accorded is
one should be free but not to get away with an abuse of the process of the court so that when advocates are
extending this to say they should also be as immune as the witnesses, they were immune for this purposes.
In the case of Munster v Lamb it was held …
THE CHARGING OF ADVOCATE’S FEES

Advocates provide legal advice and services to their clients and as such are paid for their professional
services.The fees that advocates charge on the services offered are regulated by the provisionsof the
Advocates Act161 and the Advocates Remuneration Order. The remuneration order was made by the chief
Justice on the recommendations of the Law Society of Kenya.162 The advocate is separately instructed and
separately rewarded by fees for each piece of work done for the client. As such he or she is required not to
accept a fixed annual salary for all the work done in one year, but should rather raise separate fee notes and
be paid in respect of the work separately.
Section 36(2) of the Advocates Act163 prohibits the charging of fees for any professional business at a
rate less than that prescribed by the Advocates Remuneration Order. Section 36(1) of the same Act
makes it an offence to undercut.164
With regards to the issue of charging fees, the ethical issue that arises is whether it is right to agree with a
client on payment of a contingency fee. Since Jack and Samantha were facing some heavy medical bill a
contingency fee arrangement was made. A contingency fee is a conditional fee based on the outcome of the
case and is only payable if there is a favourable result. In the English legal system, it is generally referred as
no win no fee.
161 Chapter 16 laws of Kenya

162 Section 44 of the Advocates Act
163 Supra note 1
164 This is also envisaged under rule 3 of the Advocates ( Practise) Rules

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Pursuant to section 45 an advocate may exercise three options in charging fees.165 He may either use the
Advocates Remuneration Order in charging or he may enter into an agreement with the client as to cost or
he may charge ex gratia. Where he enters into an agreement with the client as to costs, such agreement
shall be valid and binding on the parties provided it is in writing and signed by the client or his agent duly
authorized in that behalf. Section 45(2) allows a client who is not satisfied with the agreement on the fees
to have the agreement set aside or be varied or challenged within one year166 from the date of its making or
three months after demand is made in writing by the advocate on the grounds that it is harsh and
unconscionable, exorbitant or unreasonable.167 When this agreement is challenged, the court in which this
challenge is brought may order any of the following four:-
(f) that the agreement be upheld; or
(g) that the agreement be varied by substituting for the amount of the remuneration fixed by the
agreement such amount as the Court may deem just; or
(h) that the agreement be set aside; or
(i) that the costs in question be taxed by the Registrar; and
(j) that the costs of the application be paid by such party as it thinks fit.
The advocate is thus required either to charge fee as provided for under the Advocates Remuneration Order
and it is a further requirement under rule 3 of the Advocates (Practise) Rules thathe should not
charge a fee at less than the scales laid down by the Advocates (Remuneration) Order for the time being in
force. The advocate should not charge fees at an hourly rate as alleged in this case but supposed to follow
the provisions and requirements of Sections 44, 45 and 46 of the Advocates Act with regards to charging
of fees.168
Section 45 of the Act allows agreement on fees between the advocate and his or her client. However,
these agreements are only valid as provided by the law. Section 46 of the advocates Act then comes in to
prohibit some agreements between the advocate and the clients by declaring certain agreements between
the advocate and clients as being invalid.
An advocate must not be a party to any agreement that is seen as breaching the rules of professional ethics
and responsibility and it is for this reason that section 46 of the Advocates Act invalidates the following
types of agreements:
f) Any purchase by an advocate of the interest, or any part of the interest, of his client in any suit or
other contentious proceeding.
g) Any agreement relieving any advocate from responsibility for professional negligence or any other
responsibility to which he would otherwise be subject as an advocate.
h) Any agreement by which an advocate retained or employed to prosecute or defend any suit or other
contentious proceeding stipulates for payment only in the event of success in such suit or
165 Section 45(1) of the Advocates Act cap 16 laws of Kenya

166 Section 45(2) of the Act
167 Ibid
168 Section 44 of the Advocates Act empowers the Chief Justice to make orders prescribing remuneration of advocates

ATP 105
proceeding or that the advocate shall be remunerated at different rates according to the success or
failure thereof.
i) Any agreement by which an advocate agrees to accept, in respect of professional business, any fee
or other consideration which shall be less than the remuneration prescribed by any order under
section 44 in respect of that business or more than twenty-five per centum of the general damages
recovered less the party and party costs as taxed or agreed.
j) Any disposition, contract, settlement, conveyance, delivery, dealing or transfer which is, under the
law relating to bankruptcy, invalid against a trustee or creditor in any bankruptcy or composition.
As a concluding remark and from the provisions of section 46 (c), any contingency fees arrangement
between an advocate and a client is invalid per se. Section 46 invalidates such arrangements and this amounts
to professional misconduct which may subject an advocate to the penalties described under section 60 (4) of
the Advocate‘s Act. Under section 60(4), an advocate who is guilty of professional misconduct, may be:-
g) Admonished
h) Suspended from practice for a period not exceeding 5 years.
i) His name struck off the roll.
j) May pay a fine not exceeding Kshs. 100,000/=
k) Ordered to pay to the aggrieved person compensation or reimbursement not exceeding five
million (5,000,000/=) shillings.
l) Be subjected to such of the above combination as the disciplinary committee deems fit.
Etiquette on the other hand refers to rules of good manners as the legal profession is supposed to be
manned by gentlemen. Breach of such rules amount to unprofessional conduct, and examples of such will
include; chewing gum in court, attending court while drunk, running a brothel or living from the earnings
of prostitution, insults to the public or incompetent representation by an Advocate.
THE CAB RANK RULE

1. Historical background of the cab rank rule
Origin of the term ‗cab rank‘ is British. Operators of the black cabs in London would have their lights on to
indicate that they were available for work or off to indicate unavailability.
Naturally, in the taxi business, the longer the distance, the more lucrative the journey, The cab rank rule
served to impose obligations on taxi drivers to ferry customers to their destinations in disregard of the
distance they were travelling.
Cab rank rule and the legal profession

The term ―access to justice by all‖ is the legal equivalent of the cab rank rule and its application to the same.
Should lawyers and other legal practitioners have the option of choosing more lucrative and publicity
generating suits over less glamorous ones?
The rule when applied to the legal profession imposes ethical obligations on lawyers to take up even
undesirable cases.

ATP 105
Application of the cab rank rule in other jurisdictions

United Kingdom
Barristers are similarly expected to represent their clients to the best of their ability. However, there are
exceptions to this rule whereby certain circumstances in which a barrister may withdraw from a case. The
UK position ensures that the interests of both barristers and clients are upheld.
(In Britain, barristers do not get to choose who they act for, solicitors do). Self-employed barristers are
subject to the cab rank rule in paragraph 602 of the code of conduct which states ―A self-employed barrister
must comply with the ‗cab rank rule‘ and accordingly except as only otherwise provided in paragraphs 603,
604, 605 and 606, he must in any field in which he professes to practice in relation to work appropriate to
his experience and seniority and irrespective of whether his client is paying privately or is public funded;-
(i) Accept any brief to appear before a court in which he professes to practise
(ii) Accept any instructions
(iii) Act for any person on whose behalf he is instructed
He /She (barrister) should do so irrespective of;-

(i) The party on whose behalf he is instructed
(ii) The nature of the case
(iii) Any belief or opinion which he may have formed as to the character, reputation cause, conduct,
guilt or innocence of that person.
Paragraph 602 of the UK code of conduct, provides that pursuant to the ‗cab rank‘ rule counsel is obliged to
accept any instructions unless one or more of the specified exceptions to that rule applies;-
a) Counsel is entitled to decline instructions or a brief if the fee offered is not a proper one
b) Counsel can decline a brief where he is offered two of more hearings where one brief/
hearing offers a lesser fee.
(c) Kenyan Position

The cab rank rule is not well developed or entrenched in the Kenyan legal system. Part of the reason for
this is that Kenyan lawyers are jacks of all trades and a master of none. That is to say, they (lawyers) pursue
all types of cases, civil, constitutional, criminal commercial etc without regard to specialization. However
the law society of Kenya has general standards regarding lawyers professional work;-
(i) As soon as practicable after receipt of any brief or instructions a lawyer should satisfy himself that
there is no reason why he ought to decline to accept it
(ii) A lawyer is not considered to have accepted a client‘s instructions, unless he has had opportunity to
consider it and has expressly accepted it.
Similarly, a lawyer must exercise due diligence and avoid engaging in conduct which is;-
a) Dishonest or otherwise illegal
b) Prejudicial to the administration of justice
c) Likely to diminish public confidence in the legal profession or the administration of justice
or otherwise brings the legal profession into disrepute.

ATP 105
Ojienda T.O in his book; professional ethics and professional responsibility; the essentials of advocacy (chapter
two) is of the view that unless an advocate is obliged to instructions from any client you need not refuse on
account of colour, ethic, origin, creed, sex, race etc. however, decline instructions if;-
1. You do not want to take that kind of work
2. You don‘t have enough time
3. There is personal interest
4. You have previously acted
5. You are a tribunal or a commissioner and the case is triable by these tribunals
6. You are practicing in partnership and your partner is likely to be called as a witness in that case
7. Your client wants you to take a certain action purely to injure somebody else
8. The instructions given are not clear
9. A client does not want to pay fees

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ATP 105

COUNCIL OF LEGAL EDUCATION

KENYA SCHOOL OF LAW

THE ADVOCATES TRAINING PROGRAMME

4TH MARCH 2015

Joe Kadendi Wachosi Page 1

1.1.1 THE PROFESSION

1 Bryan A Garner, Black’s Law Dictionary,(8th ed. 2004) at 1246.

Joe Kadendi Wachosi Page 2

Joe Kadendi Wachosi Page 3

1.2 ETHICS AND THE LEGAL PROFESSION

9Dr. Destiny Tom Namwambah, “Ethics; A Philosophical Inquiry”, 2009.

Joe Kadendi Wachosi Page 4

3) Does the conduct in question give rise to legal concerns?

1.3 PROFESSIONAL ETHICS AND PROFESSIONAL RESPONSIBILITY

1.4 THE LEGAL PROFESSION

Joe Kadendi Wachosi Page 5

4. Professionals enjoy a significant amount of autonomy as a group what is known as professional

1.5 THE LAW AS A PROFESSION

Joe Kadendi Wachosi Page 6

1.5.1 THE ROLE OF LAWYERS IN THE SOCIETY

1.5.2 WHY IS THE IMAGE OF LAWYERS SO BAD?

Joe Kadendi Wachosi Page 7

1.5.3 ROLE OF LAWYERS IN THE SOCIETY IN VIEW OF THE ABOVE

Joe Kadendi Wachosi Page 8

Independence of the Bar

Joe Kadendi Wachosi Page 9

Independence from the Executive

Independence from the Judiciary

Independence from the Client

Independence from winning at any cost

Joe Kadendi Wachosi Page 10

Summary of the Role of Advocates in Society

1.6 HISTORY OF THE LEGAL PROFESSION IN KENYA

Joe Kadendi Wachosi Page 11

1.6.1 DEVELOPMENTS IN THE LEGAL PROFESSION AFTER 1949

Joe Kadendi Wachosi Page 12

1.6.2 SUMMARY OF THE HISTORY OF THE LEGAL PROFESSION IN KENYA

2. Post Independence Bar

Joe Kadendi Wachosi Page 13

15Chapter 16 laws of Kenya

Joe Kadendi Wachosi Page 14

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A. Advocates of the Commonwealth [Foreign Advocates]

16Section11 (1) of the Advocates Act

Joe Kadendi Wachosi Page 16

1. Has been admitted as an advocate [Ss. 12 -15]

3. Has in force a practising certificate[Ss. 21- 30 ]

Joe Kadendi Wachosi Page 17

Joe Kadendi Wachosi Page 18

22The Article provides that…

Joe Kadendi Wachosi Page 19

2.1.2 PRECEDENCE AND SENIORITY IN THE BAR [S. 20]

2.1.3 SENIOR COUNSEL [SS. 17 -18]

29Section 30(1) of the Advocates Act.

Joe Kadendi Wachosi Page 20

2.1.4 AN ADVOCATE AS AN OFFICER OF COURT [S. 55]

2.1.5 AN ADVOCATE AS A FRIEND OF COURT

2.1.6 AN ADVOCATE AS A COUNSELOR