KSL ATP 105 PE TOPIC 6

The Advocate Client Relationship

(Part 1 )
CHARLES B G OUMA & EUNICE
ARUWA

TOPIC STRUCTURE
PART 1 : Legal nature of the relationship
PART 2 : Duties of the Advocate /Rights
of the client/Remedies for breach
Part 3: Rights of the Advocate/Duties of
the client/ Remedies of breach

Part 1 : Legal nature of the relationship

1.
2.
3.
4.
5.
6.
7.
8.
9.

Who is an advocate?
Who is a client?
How is the relationship formed?
What is the legal nature of the relationship?
What are the consequences of the legal nature of the
relationship?
Implications of the unqualified person acting
Vicarious liability for the acts of clerks
The advocate as an officer of the court.
Implications of the legal status of an advocate as an
officer of the court.

Objectives of Part 1
At the end of this part, the participant should be able
to
1. Determine the existence of an advocate client
relationship
2. Explain the legal nature of the relationship
3. Explain the implications of the legal nature of the
relationship
4. Explain the implications of an unqualified person
being a party to the relationship
5. Evaluate the correctness of the court findings on the
unqualified advocate

Part 1: Readings

Section 2 advocates act

S 15(4) and 55 Advocates Act
Sections 32 Legal Education Act 2013
Part III and IV V VI VII & VIII Advocates Act
Article 47 48 50 50(2)(g) CoK 2010
S 81 Advocates Act
Senior Counsel Conferment and Privileges
Rules, 2011

Part 1: Readings
Prof Tom Ojienda and Katarina Juma Professional
Ethics Law Africa Nairobi 2011pp 31-45 65-73
M Slabbert , The requirement of being a "fit and
proper" person for the legal profession PER / PELJ
2011(14)4 http://dx.doi.org/10.4314/pelj.v14i4.7
Josephine Mutugu, Exposition of the law and the
process of admission to the bar in Kenya,
Membership in LSK
(http://www.lsk.or.ke/index.php/membership)

Part 1: Section 1
Who is an advocate?

Who is an advocate?
1.
2.
3.
4.
5.

Definition
Qualifications
Senior counsel
Precedence
The advocate as an officer of the court

Who is an Advocate?
This is a threshold question
For their to be a relationship of advocate and client,
the parties to the relationship must be an advocate
and a client
If either party does not answer to the foregoing
descriptions, serious complications can arise
Blacks Law Dictionary (8th Edition)- a person who
assists, defends, pleads or prosecutes for another.
S 2 of the Advocates Act Cap 16

Who is an Advocate?
Qualifications
Section 9 Advocates Act
Waki J. held in Keami Helpers v Yehuda (HCCC
no. 90 of 1996)- the 3 conditions must exist at
the same time.
Cf common law position on the unqualified
advocate.

Who is an Advocate?
Section 10 persons entitled to act as advocates.

Do these persons have similar rights and

obligations?
What, if any are the differences?

Who is an advocate?
Conditions for admission- SS 12-15
Nationality
Education
Moral fitness

Experience? ( the former section 32, repealed by

section 50 LEA 2012) What informed the enactment
of section 32 and its eventual repeal?
Mohammed Ashraf Sadique & another V Matthew
Oseko T/A Oseko And Company Advocates [2009]
EKLR

Who is an advocate?

S11 Foreign advocates

Admission
Qualifications
Limitations
Conditions
Discipline
Are the rights and duties of foreign advocates
analogous to those of local advocates?

Who is an advocate?

Acquiring the practicing certificate

Procedure for application
Supporting documentation
Timelines
Gazzetment
Retroactivity s 24 Advocates Act
Fees
Consequences of not applying on time or at all see
rule 35 of the digest

Who is an advocate?

Senior Counsel
Section 81(1)(e) Advocates Act
S17 Advocates Act
Senior Counsel Conferment and Privileges
Rules, 2011
Rules provide qualification criteria in detail
Rules provide for the appointment process
Role of senior counsel

Who is an advocate?
Precedence
S 20 Advocates Act, section 6(1)
Office of the Attorney General Act

AG
SG
SC/QC
LSK Chair and Vice Chair if not an SC
Advocates in accordance with date of signing the Roll.

Importance of precedence
Implications of precedence
Privileged position/ benefits/ experience
Introductions in Court

Part 1: Section 2:

Who is a client?

Who is a client?
Section 2 Advocates Act
Togstad v. Vesely, Otto, Miller & Keefe, 291
NW 2d 686 - Minn: Supreme
Notice how broadly section 2 defines the word
client
What is the object of this broad definition?
What mischief is section 2 intended to
prevent?

Who is a client?

See section 2 advocates act

The prospective client
The instructing client
The actual client
A fellow advocate as the Client
Where do your loyalties lie?

Part 1 section 3
How does the relationship
arise?

How does the relationship arise?

Section 2
Togstad v. Vesely, Otto, Miller & Keefe, 291 NW 2d
686 - Minn: Supreme
Formally (eg retainer)
Informally( typical)
Way vs Latilla 1937 3ALL ER 759

Beware , you may, in the eyes of the law have

clients you do not even know!
Remember to add disclaimers to gratuitous legal
opinions

How does the relationship arise?

Expressly or by implication
By agreement between a client and an advocate.
By formal retainer. (directly)
Between a clients authorized agent and an
advocate(indirectly)
By payement of fees or liability to pay fees

How does the relationship arise?

Illegal retainers: Ahmednasir, Abdikadir & Co.
Advocates V National Bank of Kenya Limited
(2006)KLR
Retainer challenged: Njougoro & Co.
Advocates V Dubai bank Misc. App. 286 of
2007
Section 46 advocates Act on illegal
agreements and the jurisdiction of the court
to set aside or vary retainer agreements

Part 1 section 4
Legal Nature Of The
Relationship

The legal nature of the relationship

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964]
AC 465
Myers vs El Mann 1940 AC 282 1939 4 ALL ER 484
Lewis v His Honor Judge Ogden (1984) 153 CLR 682
Nocton v Lord Ashburton [1914] AC 932
In Re A solicitor

The legal nature of the relationship

The relationship can be charecterised as

Principal and agent

Contractual
Fiduciary
Because the relationship is only partially contractual there
may be unintended rights and obligations.
Usually the fiduciary has more obligations
The fiduciary relationship overrides contractual provisions
Some rights and duties are implied by statute

Legal Nature Of The Relationship

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465
I consider that it follows and that it should now be regarded as
settled that if someone possessing special skill undertakes, quite
irrespective of contract, to apply that skill for the assistance of
another person who relies upon such skill, a duty of care will arise.
The fact that the service is to be given by means of or by the
instrumentality of words can make no difference. Furthermore, if in
a sphere in which a person is so placed that others could
reasonably rely upon his judgment or his skill or upon his ability to
make careful inquiry, a person takes it upon himself to give
information or advice to, or allows his information or advice to be
passed on to, another person who, as he knows or should know,
will place reliance upon it, then a duty of care will arise.

Legal Nature Of The Relationship

An action for a breach of a fiduciary duty should be a
more frightening proposition to an advocate than a
typical malpractice action which require proof of
harm ( Hendry vs Pelland US Court of Appeal for the
DC 1996)
Recognizing this barrier to legal malpractice claims,
more and more plaintiffs are pursuing claims for
breach of a lawyers fiduciary duties along with, or
instead of, legal malpractice claims. A breach of
fiduciary duty claim carries a distinct advantage for a
plaintiff: Often, the plaintiff need not show that the
breach of duty harmed him in any way

Part 1:Section 5:
Consequences of the legal
nature of the relationship

Consequences of the legal nature of

the relationship
There are contractual and fiduciary rights and
obligations
The relationship is lopsided in favour of the
client
Statute and common law seek to protect the
client, not the advocate

Batchelor v Pattison & Mackersy

(1876) 3 R, 914.
An advocate in undertaking the conduct of a cause
in this court enters into no contract with his client,
but takes on himself an office in the performance of
which he owes a duty, not to his client only, but
also to the court, to the members of his profession,
and to the public.

Part 1:Section 6

Unqualified persons acting

Unqualified persons acting

What is the implications of unqualified persons acting
in an advocate-client relationship?
Ss 31 to 43 Advocates Act
Prohibited acts
Consequences of unqualified persons acting
Sanctions
Criminal
Professional
Civil
Contempt of court
Invalidity of documents

Unqualified persons acting

1.
2.
3.
4.
5.
6.
7.
8.
9.

Kajwang vs. LSK 2002 1 KLR 846

Khanji v Khanji [1992] LLR 597 (HCK)
Kilimani Leasing v Morris Catering [1994] LLR 190 (HCK)
Malindi Air v Prestige Air [1997] LLR 842 (HCK)
Professor Huq v Islamic University [1995] LLR 44 (SCU)
Khalid Butt v Kanjabi [1992] LLR 975 (HCK)
Kazungu v K.P.A. [1998] LLR 993 (HCK)
Mwalia v KEBS [2000] LLR 993 (CCK)
Geoffrey Obura v Martha Koome [2000] LLR 3251 (CAK)

Unqualified persons acting

Njagi v Kihara [2000] LLR 1698 (HCK)

Samaki v Samaki [1996] LLR 429 (CAK)
Kingsway Tyres v Alson [1998] LLR 1074 (CCK)
Geoffrey Obura v Martha Koome [2000] LLR 3251 (CAK)
Air Alfaraj Ltd VS Raytheon Aircraft Credit Corporation & anor 2000
KLR 315
Mohammed Ashraf Sadique & another V Matthew Oseko T/A Oseko
And Company Advocates [2009] EKLR
KPLC v Chris Mahinda t/a Nyeri Trade Centre HCCA 148/2004
(unreported)
Okenyo Omwansa George vs AG of Kenya
Wilson Ndolo Ayah vs National Bank of Kenya CACA no 119 of 2002
2009 EKLR

Unqualified persons acting:

The case of the unqualified prosecutor
1. Roy Richard Elirema & Another versus Republic,
Criminal Appeal No. 67 of 2002
2. Mulima v Republic [2004] eKLR
3. Pharis Mutembei Mutegi v Republic[2004] EKLR

Suppose the unqualified prosecutor is an advocate?

What happens if an unqualified advocate conducts a
criminal defence leading to an acquittal?

Part 1 Section 7
Vicarious liability of the advocate for
the acts of the clerk

Vicarious liability

Similar to the normal agency rules

Actual
Apparent
Necessity

Vicarious liability

See the case of Myers vs Elman

See definition of professional undertakings
and the requirement of Solicitorial capacity
H P G Waweru J in NP Radier vs DK Njogu& Co
Advocates 2006 EKLR

See section 135 evidence Act on privillege

Part 1 Section 8
The Advocate as an Officer of the
Court

The Advocate as an Officer of the

Court
Section 15(4) Advocates Act
Section 55 Advocates Act
Section 56 Advocates Act

The Advocate as an Officer of the

Court
KCB vs Adala 1983 KLR 467
NP Radier vs D K Njogu & Co Advocates NRB HCC 582 of 2003
2006 eKLR
Lord Brougham in Trial of Queen Caroline 8 (1821),
Lord Cockburns response to Lord Brougham
Rondel V Worsley (1967) 1QB 443
Polk County v. Dodson, 454 U.S. 312 (1981)
454 U.S. 312

Part 1 section 9
Implications of the status of the
advocate as an officer of the court

The Role of the lawyer

The clarion call for zealous advocacy
Lord Brougham in Trial of Queen Caroline 8 (1821),
'An advocate, in the discharge of his duty, knows but one
person in all the world, and that person is his client. To save
that client by all means and expedients, and at all hazards and
costs to other persons, and, amongst them, to himself, is his
first and only duty; and in performing this duty he must not
regard the alarm, the torments, the destruction which he may
bring upon others. Separating the duty of a patriot from that
of an advocate, he must go on reckless of consequences,
though it should be his unhappy fate to involve his country in
confusion

The Role of the lawyer

Lord Cockburns response to Lord Brougham
My noble and learned friend, Lord Brougham, whose words
are the words of wisdom, said that an advocate should be
fearless in carrying out the interests of his client; but I couple
that with this qualification and this restriction-that the arms
which he wields are to be the arms of the warrior and not of
the assassin. It is his duty to strive to accomplish the interest
of his clients per fas, but not per nefas; it is his duty, to the
utmost of his power, to seek to reconcile the interests he is
bound to maintain, and the duty it is incumbent upon him to
discharge, with the eternal and immutable interests of truth
and justice

Implications of the status of the advocate as an

officer of the court
Mason CJ in Giannarelli v Wraith (1988) 165
CLR 543.
A barristers duty to the court epitomizes the
fact that the course of litigation depends on
the exercise by counsel of an independent
discretion or judgment in the conduct and
management of a case in which he has an eye,
not only to his clients success, but also to the
speedy and efficient administration of justice.

Mason CJ in Giannarelli v Wraith

(1988) 165 CLR 543. Contd
In selecting and limiting the number of witnesses to be
called, in deciding what questions will be asked in crossexamination, what topics will be covered in address and
what points of law will be raised, counsel exercises an
independent judgment so that the time of the court is
not taken up unnecessarily, notwithstanding that the
client may wish to chase every rabbit down its burrow.
The administration of justice in our adversarial system
depends in very large measure on the faithful exercise by
barristers of this independent judgment in the conduct
and management of the case.

Batchelor v Pattison & Mackersy

(1876) 3 R, 914.
The nature of the Advocate's office makes it clear
that in the performance of his duty he must be
entirely independent, and act according to his own
discretion and judgment in the conduct of the cause
for his client.
His legal right is to conduct the cause without any
regard to the wishes of his client... and what he does
bona fide according to his own judgment will bind his
client, and will not expose him to any action for what
he has done even if the client's interests are thereby
prejudiced

Implications of the status of the advocate

as an officer of the court
An advocate owes duties to multiple stakeholders,
the court included
These duties will sometimes clash
Generally speaking, if there be a hierarchy of duties,
the primary duty of the advocate is to court
Advocates have certain rights and duties that accrue
to them by virtue of being officers of the court

The court has the primary jurisdiction in

resolving issues arising out of the relationship

5/11/2015

CBG OUMA & E ARUWA 2014

50

KSL ATP PE 2015

THANK YOU FOR YOUR
PARTICIPATION
From Your Course Facilitators

Charles B G Ouma & Eunice Arwa

5/11/2015

CBG OUMA & E ARUWA 2014

51