Ms.

Konuche©

PROFESSIONAL ETHICS AND PROFESSIONAL

RESPONSIBILITY
FLB 113
TOPIC 1 - INTRODUCTION

What is a profession?

One author has defined a profession as an especially desirable and

dignified occupation. It implies intellectual training and an expertise
which is largely mental in character.1

The 1980 Report of the British Royal Commission on Legal Services

described a profession as follows:-

“When a profession is fully developed, it may be described as a body of

men and women;

i. Identifiable by reference with some register or record.

ii. Recognized as having a special skill and learning in some
field of activity in which the public needs protection against
incompetence, the standards of skill and learning being
prescribed by the profession itself.

iii. Holding themselves out as being willing to serve the public.

iv. Voluntarily submitting themselves to standards of ethical

conduct beyond those required of the ordinary citizen by law.

v. undertaking to accept personal responsibility to those whom

they serve for their actions and to the profession by
maintaining public competence”

Ojienda et al while quoting Boone describes a profession as being based

on:-

“…scientific and philosophical facts acquired through scholarly

endevour. Individuals who enter a profession do so for reasons that
distinguish them from other work or vocations. They understand
that their work renders a unique public service with a scientific or
philosophical basis and\or body of knowledge that requires an
extended period of academic and hands-on preparation. Professions
are also based on specialized skills necessary for the professional
to perform in the public service.”2

From this excerpt, the following characteristics of a profession are

identifiable:

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Ms. Konuche©

a. Professions are based on philosophy acquired through advanced

training
b. Professionals render unique public service which requires
extensive training
c. Professional work needs thorough preparation of its unique
nature
d. Professions are based on specialized skill
e. Professional services should be rendered for the benefit of the
public3

Ojienda also goes ahead to quote the Australian Council of Professions

which defined a profession as follows:

“A profession is a disciplined group of individuals who adhere to

ethical standards and uphold themselves to, and are accepted by,
the public as possessing special knowledge and skills in a widely
recognized body of learning derived from research, education and
training at a high level, and who are prepared to exercise this
knowledge and these skills in the interest of others. It is inherent in
the definition of a profession that a code of ethics governs the
activities of each profession. Such codes require behavior and
practice beyond the personal moral obligations of an individual.
They define and demand high standards of behavior in respect to
the services provided to the public and in dealing with professional
colleagues. Further, these codes are enforced by the profession and
are acknowledged and accepted by the community.”4

According to Ojienda, this definition identifies a number of important

characteristics of professions and these are:-

a. A profession must be disciplined

b. It must adhere to certain ethical standards which are accepted
as binding on all the members of that profession- a code of
ethics
c. Members of a profession have a special knowledge and skills
due to their wide and special training in a particular field
d. Professions must offer their services for the benefit of the entire
public and not for their own personal gain
e. Professional are expected to have a high standard of behaviour
always because of the sensitive nature of the services they
provide to the public
f. The code of conduct which regulate the professionals are
enforced against them and are acknowledged even by the
society5

Ojienda also identifies four characteristic of a profession as follows:-

(read the explanations given for each on pp 5-9 of his book)

4
Ibid
5
Ibid at pp 4

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Ms. Konuche©

a. Restrictions in terms of
i. Entry requirements
ii. Professional operations
b. Regulation performance
c. Professional advancement
d. Fiduciary relationship – utmost good faith in dealing with clients

To be accepted as a virtuous professional body by the public, a profession

must be above the average in terms of its conduct and ethics. It is not
enough merely to profess integrity and uprightness.6 Law has enjoyed the
status of professionalism for centuries from the time of its establishment
in England. And it is an admirable profession which has all along held
itself out as a noble one at that. The legal profession has devised a set of
rules to govern advocates’ relations inter se, as between them and the
clients, and the rest of the society at large. 7 These set of rules are what
might collectively be referred to as professional ethics.

What is Professional Ethics/etiquette and Responsibility?

Professional ethics is a branch of the area called ethics which is itself one
of the traditional areas of philosophy. Philosophy is the area of inquiry
that attempts to discover truths involving fundamental concepts such as
the concept of God, knowledge, truth, reality, the mind and
consciousness, free will, right and wrong.

According to Henry J.A Lugulu, professional ethics are the broad

standards of behavior expected of persons who have been given the
licence to exclusively practice law or any other profession. 8 He goes on to
state that “It is the bare minimum of behavior society expects in return
for entrusting its fate into the hands of those who profess a calling. An
adherence to these ethics gives mutual benefit to the society and the
profession in that society is assured that those whom the professions
admit to their rolls will meet the expectations demanded of them.”9

Ojienda defines professional ethics as a “way of behavior considered as

correct in a particular fashion. It is an accepted mode of behavior of a
particular profession.”10

Ojienda further argues that rules of ethics/etiquette give rise to

professional responsibility and that professional responsibility refers to
the 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.11

6
TZ book
7
TZ book
8
Henry JA Lugulu, The Role of Legal Ethics in Achieving a Just Society....
9
Ibid
10
See Ojienda note ... supra at pp 11. He also argues that professional ethics is almost similar to professional
etiquette, which is also the acceptable code of conduct in a particular profession, the morals of the profession
11
Ibid

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Ms. Konuche©

The case of Bolton vs Law Society12 highlights the importance of ethics

and etiquette to a profession. In this case the court stated that:-

“A profession’s most valuable asset is its collective reputation and the

confidence which that inspires… The reputation of the profession is more
important than the fortunes of any individual member. Membership of a
profession brings many benefits, but that is part of the price”

Why study the course?

Rules of profession bind both the members of the profession and

prospective members of the same.13 The rationale for this position is that
even those who are not members of the profession but would like to join
the profession are not expected to conduct themselves in a manner that
is likely to bring the name of the profession into disrepute. 14 Unqualified
members may however, not deal with clients. 15You are bound by the
standards of conduct in the profession in so far as you wish to join the
profession. The Advocates Act makes no exceptions as to the application
of the Act to members of the legal profession.16

Sources of Ethical Obligations in the Legal Profession 17

There are no standard rules of professional ethics and there is no limit to

the rules of professional ethics either. The reasoning is that there are so
many rules of professional ethics, some of which are based on common
sense, with others based on practice, regard being had to the
surrounding circumstances.

The rules of legal ethics in Kenya may however, be found in the

following:-

a. The Constitution of Kenya, 2010.18

b. Acts of Parliament such as the Advocates Act, 19 the Evidence Act,20
the Law Society Act,21 the Legal Education Act 2012, the Anti
Corruption and Economic Crimes Act, the Civil Procedure Act, the
Criminal Procedure Code, the law of tort, the Public Officer Ethics
Act
c. The Law Society Digest of Professional Conduct and Etiquette,
2000
d. The Law Society Advocates Dress Code22
12
(1994) 2 ALL ER 486
13
Tom Ojienda and Katarina Juma
14
Ibid

15
ibid
16
Section ?????
17
See Ojienda at pp 27
18
Article 10 mandates citizens including lawyers to maintain certain national values values, art 33, article 46 –
consumer rights, art 48 access to justice
19
Cap 16 Laws of Kenya
20
Cap 80 Laws of Kenya
21
Cap 18 Laws of Kenya
22
Issued by the LSK Council on 21st January, 2013

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Ms. Konuche©

e. Common law23
f. Generally accepted standards of conduct/culture24

The legal profession is therefore self regulation with little or no

interference from the government. But in regulating themselves, lawyers
must ensure that they are accountable and that their roles are consistent
with national codes and laws. They must ensure protection of consumers
of legal services through comprehensive legal education.

History of the Legal Profession in Kenya

Read Harvey Burnett, Introduction to Legal System in East Africa, EALB

(1975) at pp 85

a. Pre colonial era

b. Colonial period
c. Post colonial period

TOPIC 2 - THE LEGAL PROFESSION IN KENYA

The legal profession in Kenya is a fused one 25 and it derives its

membership from three sectors:

a. Public service eg judges, magistrates, state counsels, lawyers in

various public commissions, parastatals, ministries, county
governments, foreign missions abroad, defence forces and police
force, National Assembly and Senate, law lecturers in public
universities and the Kenya School of Law and other public offices
b. Private sector eg civil society and Non Governmental
Organisations, and private corporations and businesses
c. Private practice of law. Unlike the other two groups, lawyers in the
private practice of law also known as advocates, must hold a
practising certificate from the law society of Kenya and renew the
same annually.

All the members of the legal profession must have a law degree (LL.B)
from a recognized university.26

Who is an Advocate?

See Ojienda pp 31-44

23
The requirement that advocates should bow before a court.
24
The Advocates Act does not define professional misconduct, it has developed through practice
25
As opposed to England and Wales which categorize lawyers into barristers and solicitors
26
There may be other requirements in addition to the law degree depending on where the lawyer works for
instance law lecturers must hold at least a masters degree, those working in corporations may be required to
have a CPS OR CPA or Arbitration qualifications

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Ms. Konuche©

Distinction between advocate and lawyer as generally understood is that

an advocate is a lawyer who has been admitted as an advocate of the
High Court of Kenya and therefore eligible to practice the law while a
lawyer is anyone who holds a law degree.

Some jobs need more than just law degree or licence to practice for
instance some corporations and big companies employ advocates with
additional training in CPS or CPA or MBA while lecturing requires one to
hold a masters degree and PhD in addition to the LL.B.

Section 2 of the Advocates Act defines an advocate to mean any person

whose name is duly entered upon the Roll of Advocates or upon the Roll
of Advocates having the rank of Senior Counsel and, for the purposes of
Part IX, includes any person mentioned in the section 10.

While section 10 provides Each of the following persons shall, if he holds

one of the qualifications specified in paragraphs (a), (b) and (c) of section
13(1) at the time of his appointment to his office, be entitled in
connection with the duties of his office to act as an advocate, and shall
not to that extent be deemed to be an unqualified person, that is to say-

(a) An officer in the office of the Attorney-General or the office of the

Director of Public Prosecutions;

(b)The Principal Registrar of Titles and any Registrar of Titles; or

(c) Any person holding office in a local authority established under the
Local Government Act.

The above provisions have been interpreted to mean that the persons
employed by government in the offices listed under section 10 may be
allowed to act as advocates ie have audience before court, sign
documents or any other duty that an advocate may perform
notwithstanding that they do not take out an annual licence as required
by the Act.

Section 2 the Roll of Advocates means as the case may require, the Roll
of Advocates kept under section 16 or the Roll of Advocates having the
rank of Senior Counsel under this Act;

Section 9 of the Advocates Act lists down the

requirements/qualifications that one must meet before they can
practice the law and these are:

1. Must be admitted as an advocate

The qualifications that one must meet before they can be admitted
are set out in sections 12 to 15 of the Act and summarised as
herein below;
 Degree in law from a recognised university or eligibility for
the conferment of degree in law,
 A diploma from the Kenya School of Law after passing the
required examinations in the Advocates Training Program

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Ms. Konuche©

and undergoing a six-month pupillage with an advocate of

over five years standing/experience27
 Advocates from other commonwealth jurisdiction Uganda,
Rwanda, Burundi and Tanzania28
 Section 15 outlines the process of petitioning to be advocate,
certification of moral fitness etc
2. Signed the roll
Section 16 provides that the custody of the roll shall be with the
Registrar of the High Court and shall be signed upon admission.
The Registrar shall be a witness as one signs. Seniority at the bar
depends upon the order of signing the roll or the entry of the
respective names in the roll. Seniority at the bar is important for
two reasons, first seniors introduce juniors in court except with
express permission of senior may a junior do the introductions. And
this is irrespective of whether the junior counsel has the right to
begin in that particular matter. Secondly, it has been a long
standing practice among advocates that during tea breaks or lunch
after court, the senior takes care of the bill of the junior. 29
3. Has a current practicing certificate
Section 21 to 30 addresses all matters relating to the practising
certificate. The import of holding a practising certificate is that one
has audience before a court, may handle client’s money, sign
pleadings and attest to other documents and legal instruments. The
certificate/licence confers membership of the Law Society of Kenya
and Advocate Benevolent Association (ABA).

It is issued by the Registrar of the High Court annually upon

application by counsel and payment of the requisite fee. The
procedure for application is outlined in the Act and a certificate is
valid for one year from the 1st of January each year to the 31st of
December the same year. It also ceases to be valid when one is
struck off the roll of advocates or suspended pursuant to
disciplinary proceedings.

27
See Section 23 of the Legal Education Act No 27 of 2012 as read together with the Second Schedule. The
Legal Education Act also prescribes the courses that one must undertake both at the undergraduate level and
at the Kenya School of Law before they are eligible for admission as an advocate. The CORE COURSES AT
DEGREE LEVEL are Legal Research, Law of Torts, Law of Contract, Legal Systems and Methods, Criminal Law,
Family Law and Succession, Law of Evidence, Commercial Law (including Sale of Goods, Hire Purchase and
Agency), Law of Business Associations (to include Insolvency), Administrative Law, Constitutional Law,
Jurisprudence, Equity and the Law of Trusts, Property Law, Public International Law, Labour Law
CORE COURSES AT POST GRADUATE (PROFESSIONAL) DIPLOMA LEVEL under the Kenya School of Law are
Civil Litigation, Criminal Litigation, Probate and Administration, Legal Writing and Drafting, Trial Advocacy
(including clinical programme), Professional Ethics, Legal Practice Management, Conveyancing, Commercial
Transactions and Pupilage (six months attachment)

28
Section 12 provides that Subject to this Act, no person shall be admitted as an advocate unless- (a) he is a
citizen of Kenya, Rwanda, Burundi, Uganda or Tanzania
29
Though there are no attendant repercussions for not doing so. It is just out of the need to mentor the
younger ones in the profession.

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Ms. Konuche©

A list of all active members of the LSK is available on the LSK

website an one may confirm whether an advocate is paid up by
using the advocates search engine.

SENIOR COUNSEL

See Ojienda pp 39-41

This is a concept that has its roots in English jurisprudence where

barristers who had exhibited outstanding professional conduct are
conferred upon Queen’s Counsel or are knighted.

Covered under section 17, 18, 19 and 20. Those eligible must be
advocates of over 15 years standing and have offered exemplary service.
Once conferred, they sign the Roll of senior counsel and their names are
published in the Kenya Gazette.

 Introduce juniors in court

 Application procedure and selection committee
 All former LSK chairpersons are now SC in addition to others

COUNCIL OF LEGAL EDUCATION

The Council of Legal Education is important in so far as it is the organ in

charge of regulating legal education in Kenya. Initially it was established
under section 3 of the Advocates Act but this section was repealed by the
Legal Education Act of 1995. 30 This Act sought to govern the Council of
Legal Education and the Kenya School of Law which were considered
part and parcel of each other and most of the members of the Council
were also staff at the Kenya School of Law. However, this position
changed in 2012 when the Legal Education Act and the Kenya School of
Law Acts were passed.

The Council of Legal Education is now established under the Legal

Education Act no 27 of 2012 as a successor of the Council of Legal
Education established under Cap 16A. The functions of the Council are
now delinked from those of the Kenya School of Law.

The objectives of the Act are listed under section 3 as first to promote
legal education and the maintenance of the highest possible standards in
legal education; and secondly to provide a system to guarantee the
quality of legal education and legal education providers.31

Section 4 provides for membership of the Council as to include;

(a) the chairperson, who shall be a person with at least fifteen years
experience in the legal profession or in matters relating to legal
education, upon whom the rank of senior Counsel has been conferred by
the President under section 17 of the Advocates Act and who shall be
appointed by the Attorney-General;
30
Cap 16A
31
See section 3 of the Legal Education Act no 27 of 2012

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Ms. Konuche©

(b) the Principal Secretary of the Ministry for the time being responsible
for legal education;

(c) the Principal Secretary of the Ministry for the time being responsible
for finance;

(d) the Attorney-General;

(e) the Chief Justice;

(f) four advocates, nominated by the Council of the Law Society of Kenya;

(g) one person who teaches law in a university, nominated by the

Universities; and

(h) the Secretary to the Council.

(6) The Council members referred to in subsection (5) (b),(c),(d), (e) and
(f), may attend the Council meetings in person or through their
representatives appointed, in writing.
(7) The Cabinet Secretary shall, in appointing the members of the
Council have regard to gender equity.

(8) The nominating bodies under subsection (5)(g), (h) and (i) shall,
nominate for the purposes of appointment, persons who have knowledge
and expertise in matters relating to legal education and training, finance,
commerce or the management of public institutions.

(9) A member of the Council appointed under subsection (5) (a), (g), (h)
and (i), shall hold office for a term of four years and may be eligible for
re-appointment for one further term.

The functions of the Council are listed in section 8 as to include:

a) regulate legal education and training in Kenya;

(b) licence legal education providers;

(c) supervise legal education providers; and

(d) advise the Government on matters relating to legal education and

training.

(2) Without prejudice to the generality of subsection (1), the Council

shall, with respect to legal education, be responsible for setting and
enforcing standards relating to the—

(a) accreditation of legal education providers for the purposes of

licensing;

(b) curricula and mode of instruction;

(c) mode and quality of examinations;

9
Ms. Konuche©

(d) harmonization of legal education programmes; and

(e) monitoring and evaluation of legal education providers and

programmes.

(3) In carrying out its functions under subsection (2), theCouncil shall—

(a) make Regulations in respect of requirements for the admission of

persons seeking to enroll in legal education programmes;

(b) establish criteria for the recognition and equation of academic

qualifications in legal education;

(c) formulate a system for recognizing prior learning and experience in

law to facilitate progression in legal education from lower levels of
learning to higher levels;

(d) establish a system of equivalencies of legal educational qualifications

and credit transfers;
(e) advise and make recommendations to the Government and any other
relevant authority on matters relating to legal education and training
that require the consideration of the Government;

(f) collect, analyse and publish information relating to legal education

and training;

(g) advise the Government on the standardization, recognition and

equation of legal education qualifications awarded by foreign institutions;

(h) carry out regular visits and inspections of legal education providers;
and

(i) perform and exercise any other functions conferred on it by this Act

 While Section 29 establishes an Appeals Tribunal.

 Section 47 repeals Cap 16 A
 Section 50 makes amendments to CAP 16 by repealing section 32
of Cap 16 and amending section 15.

Summary of the legal profession

 Enrolment as an advocate carries with it the privilege of monopoly

just like all other professions.
 Only people entitle to practice law generally in all regular courts
and tribunals
 They are the only ones who may be referred to as Advocate of the
High Court of Kenya
 They maybe Commissioners for Oaths and Notaries Public
 Section 55, advocates are officers of the court and is subject to the
jurisdiction of the court and subject to the Advocates Act and also
subject to the jurisdiction of the Disciplinary Tribunal. Proviso

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Ms. Konuche©

exempts those mentioned in section 10 from the jurisdiction of the

Disciplinary Tribunal

THE ROLE AND FUNCTION OF THE LEGAL PROFESSION

a. The Scope of Work for the Legal Practitioner

 Legal profession in Kenya is a fused one, meaning that
advocates perform the work of both barrister and solicitor
 As long as he/she is qualified, an advocate may practice in all
courts and tribunals all over the country
 They may also commission (administer oaths) or notarise
documents or attest (3 years and 5 years), certify the
authenticity of documents.
 They may draft pleadings and sign them
 Draft documents and legal instruments
 Conduct conveyancing matters

Besides the court room, an advocate also has a role to play outside the
court and this includes advising her client, taking instructions, prepare
and give legal opinions, collect evidence where necessary and interview
witnesses.

b. The Independence of the Legal Profession

Discussion

 Independence is an important element in the fair administration of

justice
 The bench is required by law to be independent and indeed we
have legal and constitutional provisions that ensure that members
of the bench are not only seen as independent but are actually
independent from all the other arms of gvt
 JSC vs parliament vs Executive?? What is your take and how can
the power struggles be resolved?
 The presidential election petition and the denial of LSK to
participate as an amicus curiae?

RULING of Petition No. 2 and 4 of 2013

[1] Two applications were made before this Court earlier in the day, both seeking admission
to the status of amicus curiae. The first was by the Attorney-General, while the second was
by the Law Society of Kenya (LSK).

[2] The learned Attorney-General submitted that the importance of Presidential election,
based on the terms of the Constitution of Kenya, 2010 justified the participation of his office
as protector of the public interest, in the capacity of amicus curiae. The Attorney-General
submitted that his office had no partisan interest in the matter, and would in any case limit
itself to such role as the Court zx do no more than highlight legal questions, and in this way
provide guidance to the Court.

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Ms. Konuche©

[3] Most of the several counsel in the Petitions – Mr. Regeru, Mr. Abdullahi, Mr. Ngatia, Mr.
Rebello, Mr. Kigen – supported the Attorney-General’s application. However, learned
counsel for the petitioners, Mr. Oraro and Ms. Kilonzo opposed the application.

[3] While not doubting that the Attorney-General would remain non-partisan as amicus, Ms.
Kilonzo submitted that as the case was essentially evidentiary and not concerned with the
interpretation of the Constitution, there was no special contribution which the Attorney-
General could make, in the capacity sought. Counsel urged that the Government needed not
participate in the Petition proceedings as amicus, since its role was like that of a respondent,
via the agency of the Independent Electoral and Boundaries Commission (IEBC).

[4] Learned counsel, Mr. Oraro submitted that if the Attorney-General was seeking admission
to amicus curiae status by virtue of Article 166 of the Constitution, then the application is
inappropriate, since the proceedings are of a sui generis kind and are not civil proceedings.

[5] Counsel urged further that by current statute law, the Attorney-General has an advisory
role in the transfer of power from one State Officer to another – and it is precisely this
function which is contested in the Petitions.

[6] After considering the several lines of submission by counsel, we have taken note of
certain governing scenarios which lead us to a final decision. Firstly, the State Law Office,
the chief officer of which is the Attorney-General, is the custodian of the legal instruments of
the Executive Branch, and the recognised advisor of the State in matters of public interest.
Secondly, and interlinked with the foregoing point, the said office is the main player in the
performance of the Executive’s role vis-a-vis the operationalization of the Constitution.
Thirdly, the Constitution expressly provides that, in certain instances, the Attorney-General
may obtain the Court’s permission to appear as amicus. Fourthly, the Court, which is the
custodian of rules of validity, propriety and fair play under the Constitution and the law,
remains in charge, in regulating such precise role as the Attorney-General may play if
admitted as amicus curiae.

[7] These considerations have led this Court to the conclusion that it would be improper to
exclude the Attorney-General from the role of amicus in these proceedings; and that
admitting the Attorney-General to such a role will not present a condition prejudicial to either
the scope of the Court’s authority, or the best interests of the parties to the several petitions.

[8] We find the position of the Law Society of Kenya (LSK) to be entirely different.

The submissions of learned counsel A.B. Shah, in favour of admitting LSK to the status of
amicus were by no means the most powerful. But our position has been conditioned more by
the common direction and focus of the submissions made by learned counsel.

[9] The effect of Mr. Shah’s submission is that since, by s.4 of the Law Society of Kenya Act
LSK is mandated to assist the Government in matters related to law-making, this is a typical
case in which LSK deserves to be admitted to the status of amicus curiae.

[10] But the argument to the contrary is more powerful. Learned counsel, Mr. Regeru
submitted that an affidavit in aid of one of the Petitions, sworn by the Vice-Chairperson of
LSK, left little doubt that LSK had taken a partisan position; and this same point has featured
in the submissions by other counsel as well. LSK’s application is opposed by learned counsel,

12
Ms. Konuche©

Ms. Kilonzo, who perceives the applicant’s role as partisan; Mr. Oraro, for the same reason;
Mr. Kamau Karori, for the same reason; Mr. Rebello, for the same reason; Mr. Ngatia, for the
same reason; Mr. Kigen, for the same reason.

[11] The Court’s position is now expressed in the following Orders:

(a) The Attorney-General is admitted to the status of amicus curiae in the Petitions
before the Court.

(b) The application by the Law Society of Kenya for admission to the status of
amicus curiae is disallowed.

 the case of Aaron Ringera and 3 others vs P.K Muite and 10

others
 The legal profession needs to be free from the pressures of any arm
of gvt and the prejudices of society as a whole in order to play its
role as a defender of those who find themselves in trouble with the
law. One writer has argued that independence of the bar is
important if the advocate is to be able to ;

‘resist all pressures in an unpopular cause and to present the

case without fear or favour. Without this independence, ether
would be no effective rule of law and the basic duty of the
advocate to protect the rights and liberties of the citizen
could not be fulfilled.’32
 How do we ensure independence? Governance structures?
Society divided along tribal and political lines?
 However, independence does not mean that the society should be
free from controls. There is need for a system that regulates the
workings of the profession just as in any other profession. There
must be a mode of qualification, a body of professional ethics, an
effective procedure for the enforcement of discipline etc. But
within such framework, it is important that the profession and the
individual professional should be independent. And in the words of
Lord Alexander
‘One of the essential reasons for our existence is to uphold
the human rights of people and often these have to be
upheld against the State. To do this effectively, the profession
must be as independent as possible against the state. This
principle does not exist for the convenience of lawyers. It
exists for the benefit of society as a whole, and needs to be
widely emphasized by the profession and by the government
if the freedoms important to a democratic society are to be
sustained’

TOPIC 3 - ADVOCACY, LEGAL REPRESENTATION AND THE

ADVOCATE IN THE TRIAL PROCESS

32
Which writer was this???/

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Ms. Konuche©

Read Ojienda’s book pp 42-64

Advocacy has been defined as an attempt to make a case for the truth of
some proposition(s). The obligation of an advocate is to seek out evidence
favouring the proposition(s) in question, to present is as persuasively as
possible and to play down or explain away unfavourable evidence or to
look for legal grounds for its exclusion.

Consider the following scenarios:

a. Should a lawyer represent a client whom she knows to be guilty of

an offence he is charged with? If the lawyer refuses, should it be
held against her?
b. Is it proper to cross examine for the purpose of discrediting the
reliability/credibility of an adverse witness whom you know to be
telling the truth?
c. Is it proper to put a witness on the stand whom you know will
commit perjury?
d. Is it proper to give a client legal advice when you have reason to
believe that the knowledge you give him will tempt him to commit
perjury?

WHAT ARE THE ESSENTIALS OF ADVOCACY?

 Persuasiveness- this is the ability to move the court/tribunal by

argument. Remember the Election petition and the submission by
counsel, were they persuasive?
 Ability to think on ones own feet. There are instances when an
advocate may be caught by surprise in the court room so one must
be able to think on their feet and give a response that will not harm
the client’s case.
 A command of human psychology necessary to understand people
and their way of thinking. You must be able to read the mood of the
court, the mood of the witnesses, body languages of the witnesses
so as to avoid antagonising the court or the witnesses.
 Avoid delay tactics, unnecessary adjournments
 Be punctual and reliable. Your business rides on your reputation
 Humility before the court, defer to the court irrespective of your
opinions of the court. Confronting the court may mean losing your
case
 Avoid aggression but be firm, polite and frank. Also avoid
unnecessary arguments.
 Be objective. This means you should use the law to pass judgment
and condemn and avoid getting emotional or taking issues
personally. Do not over identify with your client but identify with
their case and try as much as possible not to get emotionally
entangled with your client’s case as this may mar your objectivity
and extraneous matters could cloud your judgment. (This applies
especially in matrimonial and children cases).

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Ms. Konuche©

 Always negotiate where possible but with the express permission of

the client. Groom vs Cocker,33 an advocate was held personally
liable where he negotiated and settled a matter without the express
instructions of the client. And while negotiating, do not be
dogmatic but as flexible as possible.
 Exercise patience in your dealings, be courteous, do not be rude
even to fellow counsel.
 Do not antagonise the court or make the court feel ignorant
 Avoid confrontations and apologise when you are on the wrong
 Exude confidence
 Ensure that you are familiar with the trial procedures eg Cap 75,
21 80 16
 Be well kempt, well groomed and neat. Adhere to the LSK dress
code

AN ADVOCATE’S BRIEF

The Advocates Act defines a client to include 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 advocate
any costs; An advocate may act for a client in both contentious or non
contentious business/matters. Contentious business is defined by the Act
to mean 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

Once an advocate has received instructions and been retained in a

matter, she remains on record until she withdraws from acting or is fired
by the client. Order 9 of the Civil Procedure Rules provides for the
procedure that an advocate may use to withdraw from acting for a client
in civil matters.

If an advocate wishes to cease acting for a client, she must make a formal
application to the court requesting to withdraw from acting and the court
must give an order permitting the advocate to withdraw before such an
advocate can actually cease acting. In all instances, be it criminal or civil,
the court and all parties to the suit must be informed that an advocate
has ceased to act for a certain client and the information must be in the
court record. Failure to do so has certain consequences in that an
advocate may be held personally liable should anything go wrong in the
matter. And also because of the sanctity of instructions of the client
which creates an obligation on the part of the advocate so that an
advocate owes her client and the court a duty to keep them informed at
all times. An advocate’s obligation to them is deemed to persist as long
as she is on record.

33
(1938) 2 ALL ER 394

15
Ms. Konuche©

In civil cases a client can withdraw instructions from her advocate if she
so wishes and to do so she must file a notice of intention to act in person
which must specify the client’s address for purposes of service and must
be served on her former advocate and all parties to the suit and a copy
must be kept in the court file. A client may also instruct another advocate
to file a notice of change of advocate to replace the ‘fired’ advocate. A
client may also replace an advocate who has died, been struck off the roll
of advocates, been declared bankrupt, cannot be found or has no
practicing certificate.

After taking instructions, a prudent advocate will spell out the extent of
her instructions and must not exceed the instructions of her client. While
acting for her client, an advocate must treat the client with utmost
honesty and frankness, there should be no untrue representation made to
the client. An advocate must disburse client’s money for the purposes for
which it was intended, she should not overcharge the client and
undercutting amounts to a professional misconduct. She should
correspond with the client regularly and keep the client updated always.
Give the client proper legal advice etc etc

Instances when an advocate may refuse to take instructions from

a client

a. Where there is likely to be conflict of interest. An advocate is

obligated by rules of professional conduct to disclose to the client
all the circumstances that might bring about a conflict of interest.
(Also see page 60-62) of ojienda’s book
Situations that can create conflict include;
 Where the advocate may be required to appear as a witness, 34
or his partner or associate may be required to appear as a
witness
 Where the advocate is acting or has previously acted for the
opponent35 in another case be it contentious or non
contentious because of the possible lack of objectivity on the
part of the advocate and also the advocate may have gotten
some information from the opposing side while acting for
them and which information may touch on the current case
 Where the advocate has a personal interest in the matter
 Where the advocate sits in the tribunal that is deciding the
matter36
b. Where the advocate has no time to handle the matter or adequately
attend to the matter
c. Where the advocate does not engage or specialise in that kind of
work
d. Where the client refuses to pay the advocate’s fees

34
Mwendwa v M’mwendwa (2004) 2 KLR 621
35
King Woolen Mills v Kaplan and Stratton Advocates
36
This goes against the cardinal rules of natural justice

16
Ms. Konuche©

e. Where it is clear that the case is one with bad intents or is brought
in bad faith/mala fides for instance a case brought to injure others
or to litigate for the sake of litigating

THE BURDEN OF ADVOCACY

Advocacy carries heavy responsibilities. An advocate’s duty is not only to

uphold justice but also to represent her client. However the client’s duty
to represent her client to the exclusion of all others is not absolute, it is
tempered with her duty to the court, to the profession and to the public.
In the performance of this duty, an advocate must be impartial.

The following topics are adequately covered by Prof. Ojienda on page 43-
59 of his book. Kindly read

a. The advocate’s duty to the client

 How is the advocate-client relationship created? Pp 43-44
expressly/directly, through agent or representative or
impliedly/common law, retainer agreements or by
employment
 Nature of advocate-client relationship pp 44-45 –contractual,
fiduciary, agency
 Duties of an advocate to a client
 Confidentiality
 Honesty and good faith
 Effective representation/zealous advocacy
 Follow client’s instructions
b. The Advocate’s duty to the public pp 52-53
The nature of a lawyer’s training and the tasks they perform places
them in a unique position in society. The ordinary person looks
upon the lawyer not only for guidance on the law, but also for many
other social problems.
 Prevent unnecessary harm to third parties
 Promote just and effective legal system
 Develop a good dispute resolution system
 Ensure affordable and convenient access to justice. No
discrimination and take up pauper briefs
 Initiate law reform where necessary
 Should not abet crime and strive to uphold the rule of law

c. The Advocate’s duty to the profession/opposing side pp 53-54

 Uphold the code of ethics of the profession without exception
 Treat opposing side with courtesy eg serve authorities and
other documents on time, notify when there is change of
advocate, not to hide any authority that may assist the other
side
 Avoid sharp practice
d. The Advocate’s duty to the court pp 55-58

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Ms. Konuche©

An advocate’s duty to the court is an overriding one which in

appropriate cases must be observed even at the expense of the client’s
interest. The duty obligates the advocate:

 Never to mislead the court, be truthful to the court

 Assist the court in arriving at a just finding by presenting all
the facts whether they are favourable to her client or not
 Observe the proper procedures of the court

THE RIGHTS, PRIVILEGES AND RESPONSIBILITIES OF AN

ADVOCATE

By virtue of being an advocate, the law bestows upon an advocate such

responsibilities, rights and privileges. The responsibilities will be
discussed under professional conduct and etiquette.

a. Privilege relating to communication and immunity from

arrest
 Privileged communication
Generally, advocates’ communication between themselves and their
clients are privileged. This privilege is bestowed by the Evidence Act.
The reason attached to the client/advocate privilege relationship is to
give clients confidence to disclose every material fact to the advocate
without fear of betrayal. It enables client to communicate frankly and
enables the advocate to advise the client frankly. This privilege exist
whether litigation is in existence or not and it extends to both oral and
documentary evidence.

Relevant sections of the Evidence Act

134. (1) No advocate shall at any time be permitted, unless with his client's express consent,
to disclose any communication made to him in the course and for the purpose of his
employment as such advocate, by or on behalf of his client, or to state the contents or
condition of any document with which he has become acquainted in the course 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:

Provided that nothing in this section shall protect from disclosure -

(a) any communication made in furtherance of any illegal purpose;

(b) 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 commencement of his employment, whether
the attention of such advocate was or was not directed to the fact by or on behalf of his client.

(2) The protection given by subsection (1) shall continue after the employment of the
advocate has ceased.

135. The provisions of section 134 shall apply to interpreters, and the clerks or servants of
advocates.

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Ms. Konuche©

136. (1) If any party to a suit or proceeding gives evidence therein at his own instance or
otherwise, he shall not be deemed to have consented thereby to such disclosure as is
mentioned in section 134 (1).

(2) 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.

137. No one shall be compelled to disclose to the court any confidential communication
which has taken place between him and his advocate unless he offers himself as a witness, in
which case he may be compelled to disclose any such communications as may appear to the
court necessary to be known in order to explain any evidence which he has given, but no
others.

 Immunity from arrest and suit

An advocate cannot be sued for anything he may say in the course of

judicial proceeding however malicious or irrelevant the statement may
be. And this is not limited to defamation alone but covers all actions. 37
The privilege of speech is absolute 38 and it accrues to the advocate
because it is in the interest of the public as well as that of the client that
the administration of justice should be entirely unfettered by worries of
subsequent legal action based on what the advocate may say in court.

b. Rights and privileges by virtue of office

Advocates have the right of audience before all courts and tribunals
before which they are appearing. They thus enjoy the right to enter court
rooms during sittings even in instances when the public has been locked
out. They can also sit through cases held in camera if they represent one
of the parties. They also have the privilege of wearing the legal regalia or
robbing when appearing before the Superior Courts.

c. Obligations of an advocate

Once an advocate is retained, she enters into a fiduciary relationship

with her client meaning that an advocate must always observe utmost
good faith.

THE RIGHT TO LEGAL REPRESENTATION

a. Legal Aid

Article 50 of the Constitution provides that every person has a right to

fair trial and this includes the right to be represented by an advocate of
his or her own choice. Article 50(2) (h) specifically provides that every
accused person has the right to a fair trial, which includes the right to
have an advocate assigned to the accused person by the State and at the
State’s expense, if substantial injustice would otherwise result…This has
37
Marrinan v Vibart (1963) 1 QB 528
38
Co-Partnership Farm v Harvey Smith (1918) 2 KB 405

19
Ms. Konuche©

raised the question of what amounts to substantial injustice 39 and

whether the right to legal representation should be an absolute right for
all accused persons. Some jurisdictions like the USA have the Public
Defender’s offices which do the work of representing accused persons
who cannot afford the services of a lawyer.

In Kenya, we have the pauper brief system 40 in which the courts provide
murder suspects with defence counsel free of charge. 41 Under this
system, the court has the power to assign a murder suspect an advocate
from within the locality of the place the trial is taking place at the
expense of the State. It is noteworthy however, that this is lacking for
offenders facing the death sentence under section 296(2) of the Penal
Code. The obligation of an advocate in the pauper brief scheme is not
lessened by the fact that she is acting for free or minimum pay.

We also have other organizations eg NGO’s and civil societies who

undertake pro bono cases on behalf of citizens. These include Kituo cha
Sheria, FIDA-Kenya, CRADLE, CLARION, Public Law Institute among
others. The government is also working on a Legal Aid Bill under the
umbrella of NALEAP that will provide for mechanisms of how legal aid
can be provided for indigent citizens.

The Civil Procedure Act also provides for instances when a person may
sue as a pauper.42

b. Cab-rank rule

The Cab –rank Rule attempts to answer the question of whether and why
one should defend a person she knows to be guilty. Simply stated, the
cab-rank rule is a rule against client discrimination. It means that a
practitioner is obliged to act for any person who seeks her assistance,
provided the case falls under her normal area of practice, and she is paid
her ordinary fee. The importance of this rule lies in the reason why a
practitioner may not refuse to act, namely her opinion of the client. Thus
the rule seeks to prevent or forbid an advocate from refusing to act for a
client merely because of what she thinks or opines of the client.

This rule has long historical roots having been laid down in 1792 by
Thomas Erskine who was one of England’s greatest advocates. Erskine
was defending the human rights campaigner Tom Paine, when he stated;

‘I will forever at al hazards assert the dignity, independence and

integrity of the English Bar without which impartial justice, the
most valuable part of the English Constitution can have no
existence. From the moment that any advocate can be permitted to
39
Any decisions by the Courts on this????
40
This concept has history in England in the Statute of Edward III Chapter 3 which stated ‘No man of what
estate or condition that he be, shall be put out of land or tenement, nor taken nor imprisoned, nor disinherited
nor put to death without being brought in answer by due process of the law’
41
The scheme allows the court to pass briefs to advocates to represent murder suspects for a minimum fee to
be paid by the court
42
See Order 33 of the Civil Procedure Rules, 2010

20
Ms. Konuche©

say that he will or will not stand between the Crown and the
subject arraigned in the Court where he daily sits to practice, from
that moment the liberties of England are at an end.’

This rule represents what is generally considered to be the correct role

and place of the legal profession in the justice system. The very existence
of the function of the advocate as that of presenting one side of a case for
the court’s evaluation means that the function must be discharged.
Someone must take up the task. Modern society has placed it on the
shoulders of the advocate, notwithstanding her opinion of the client or
the case.

The role of the advocate is not to make judgment, that role must be left
to the jury/judge/magistrate. But to be able to make a fair judgment, the
court must also be given full insight into both sides of the story. This
latter role lies squarely on the shoulders of the advocate. To discharge it,
the advocate needs to be free from emotional feelings of other members
of the society. She must be able to take up the most unpopular cases
without fear and proceed to fearlessly fight for her client’s right to be
adjudged in accordance with the cherished principles of justice and due
process.

This rule however, is not without critics who argue that it is but a method
to mask the fact that most practitioners are already financially compelled
to accept every client who approaches them. Hence, the critics argue
that the principles of ideology such as independence, status, etc, may
simply be a safety valve, a way of mystifying the reality.

THE ADVOCATE IN THE TRIAL PROCESS

The common law, upon whose Kenya’s legal system is based, operates
upon the adversarial system of procedure. It functions on the basic
assumption that both sides are given opportunities to present their cases
before a decision can be given. So while the judge seeks out the truth as
best as they can, the advocates use their skill to test the evidence and to
control the way the evidence emerges. The adversarial system is
governed by rules and the advocates in presenting their cases must do so
within the laid down procedures of trial. These rules and procedures of
trial apply to all advocates equally and the only difference in the trial
process is the skill.

The rules that govern the trial process are contained in Cap 80, Cap 21,
and Cap 75 while other rules emanate from codes of conduct and rules of
advocacy.

The duty of an advocate during trial is summed up by Lord Reid in the

case of Rondel v Worsely43 as follows:

43
(1967) ALL ER 993

21
Ms. Konuche©

‘Every counsel has a duty to his client fearlessly to raise every

issue, advance every argument, and ask every question, however
distasteful, which he thinks will help his client’s case. As an officer
of the court concerned in the administration of justice, he has
overwhelming 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 his client thinks are his personal
interests. Counsel must not mislead the court… he must not
withhold authorities or documents which may tell against his client
but which the law or the standards of his profession require him to
produce.’

It is upon the above principles that the advocate’s role in the trial
process is derived. Before a trial begins, it is important that an advocate
prepares adequately. Every trial process begins with the taking of
instructions from a client.

Taking Instructions and Preparing for Trial

 While taking instructions, ensure to note down the client’s

details such as name, address, telephone number, parties to
the suit, the date the instructions were received and the fees
charged and agreed to be paid. If the matter is already in
court, ensure to take down the date and place of hearing.
 After taking instructions, collect and collate all relevant facts
and research on the law applicable before drafting and
preparing pleadings
 All the relevant documents to be relied on at the trial must
be available and organised in the proper manner and
witnesses must be contacted and be informed of the hearing
date.
 It is prudent for an advocate to have a trial brief which
contains a short statement of the facts of the case, the
prayers of the client and a memorandum of the law
applicable to the case. The trial brief is useful in organising
the file and enhances the speed in recalling facts and law
 An advocate should also have a trial manual which
contains;
 synopsis of the opening statement,
 a list of witnesses and a corresponding list of the
subject matter of their testimonies,
 questions for each witness,
 a list of documents to be introduced and the persons to
introduce the documents
 Subject areas to be covered in exam in chief and cross
examination
 Hypothetical questions to be asked if any
 A list of authorities and copies of documents and
authorities

22
Ms. Konuche©

Opening Statement

The right to begin a case is often an important asset as it provides an

advocate the opportunity to display the merits of his client’s case and the
demerits of his opponent’s case. The right to begin is based on the
burden of proof so that the burden of proof rests on the party who
begins. In criminal cases it is the prosecution while in civil cases it is
often the plaintiff though it can shift depending on what is coming up for
hearing before the court.

Procedure for opening a case:

 Introduce yourself (subject to the rules of seniority in the bar and

the practice adopted by the court)
 Give a brief outline of your case
 Give the court a brief, concise and accurate summary of the facts
without argument or comments
 Avoid irrelevant comments at the introduction as this may give your
opponent a chance to attack your case
 Secure the court’s attention at the initial stages

Examination in Chief

This is the interrogation of a witness in the first instance by the counsel

of the party calling him. The general rule during exam in chief is that
leading questions are not allowed.44 However, an advocate may lead a
witness only in undisputed facts such as name of the witness, residence
of the witness, place of work etc. The reason why leading questions are
prohibited is because they destroy the reality of the evidence and
prevents the character of the witness from emerging. In essence, by
leading a witness, the advocate is suggesting answers to the witness
thereby destroying the reliability of the evidence and giving a chance to
the opposing side to object.

The advocate should control his witness during exam in chief and try as
much as possible to make the examination a spontaneous conversation
between himself and the witness.

Cross Examination

This is the examination of a witness by the opposing counsel and unlike

the exam in chief, in x-exam, leading questions are allowed. The aim of x-
exam is to establish facts favouring your case and weaken the opposition
case. This is done by discrediting the reliability of the witness, often
known as punching holes in the witness evidence.

The advocate should conduct x-exam with courtesy, restraint and

concentration. The witness should be given an opportunity to answer
questions asked. Questions to be asked should be prepared in advance or
derived from answers obtained during exam in chief. The rule of the

44
Leading questions are those that elicit a ‘yes’ or ‘no’ response

23
Ms. Konuche©

thump is that a good advocate does not ask questions whose answers he
does not know.

Re- examination

This is further examination of a witness by the advocate calling him.

Questions asked in re-exam are based on points that arise out of cross
examination and should not be a replay of examination in chief. The
opportunity of re-examination is used to clarify and highlight the strong
points of your case. Leading questions may be asked.

Closing statement/Summation/submissions

The order of making the closing statement again depends on who started
the case. Closing submissions may be made orally in court or in writing
depending on the practice of the court or instructions of the court or the
preference of the parties. A closing submission should contain a summary
of the facts proved, the law applicable and any relevant authorities that a
party wishes to rely on. Try as much as possible to highlight your strong
points and the weak points of your opponent while downplaying or
explaining away the weak areas of your case. All relevant case law should
be cited.

It is during the submission stage that the art of persuasion should be

employed.

Mitigation and Plea Bargaining

Mitigation is the plea/speech made by the accused/convicted person after

having been convicted and awaiting sentencing. The role of defence
counsel in mitigation is to get his convicted client the least or lowest
sentence possible. In doing so, an advocate must not plead the innocence
of his client as the client is already convicted but instead tell the court
how remorseful/sorry the client is and the suffering that the accused and
his family are likely to suffer should his client be given a long sentence or
the maximum sentence. An advocate should also be aware that some
offences carry mandatory sentence and the court’s hands are tied under
such circumstances. In such instances, it may be important only to state
the remorsefulness of the convicted person. For offences that do not
carry the maximum penalty or mandatory penalty, the defence counsel
may suggest to the court the sentence that the accused should get. And
in doing so, the advocate should be realistic and not seek ridiculous
sentences for serious offences.

Normally, the prosecution may make a speech in aggravation seeking

either a stern sentence or a maximum sentence for the accused and why
the accused ought to get such a sentence.

Plea bargaining also in the province of criminal law means a negotiation

between the prosecution and the accused or his counsel with a view to

24
Ms. Konuche©

reduction of a charge to a lesser one or withdrawal of the charges in

exchange for evidence or stay of other charges or reduction of sentence.
An advocate’s role in plea bargaining is to ensure that her client gets the
best possible plea agreement. She must consult her client at all stages of
the bargaining and not enter into any agreement without the client’s
consent. Should you plea bargain when you know your client to be
innocent? Or where there is exculpatory evidence?

The rule against Deviling

This rule states that an advocate must not pass a brief to another
advocate without the client’s permission and must not delegate
settlement of a case to another advocate without the client’s consent.
This is because the instructions from a client are specific to an advocate.

Differentiate between watching brief and holding brief

Watching brief entails being present during a criminal trial representing

the complainant to ensure that trial is conducted in accordance to the
law and in the best interests of the complainant. An advocate watching
brief has no right of audience before that court as the prosecution is the
one in charge of prosecuting the case but counsel can always consult the
prosecution in the course of proceedings. Reason for watching brief is
that counsel may be instructed in a subsequent matter emanating from
the criminal case. Clients also instruct counsel to watch brief for
psychological satisfaction.

Holding brief is where an advocate instructs another advocate to take his

place during proceedings because she is unavailable. The replacement is
temporary and lasts only for the duration of the proceedings although
instructions may be extended.

TOPIC 4- THE ADVOCATE IN THE OFFICE/OFFICE MANAGEMENT

See generally the LSK Digest of Professional Conduct and Etiquette

(2000) (hereinafter LSK Digest) found on page 102 of Ojienda’s book.

The LSK Digest was passed by the Council of the LSK in the year 2000
pursuant to the provisions of section 81 45 of the Advocates Act which
45
81. (1) The Council of the Society, with the approval of the Chief Justice, may make rules with regard to -

(a) the professional practice, conduct and discipline of advocates;

(b) the keeping of accounts by advocates;

(c) the annual submission to the Council of a certificate by an accountant registered under the Accountants Act
or by some other person or class of persons specified by such Council that he has examine the books, accounts
and documents of the advocate to such extent as may be prescribed and stating -

(i) whether or not he is satisfied that, during the period covered by his certificate, the advocate has complied
with the rules for the time being in force regulating the keeping of accounts by advocates; and

25
Ms. Konuche©

mandates the LSK council with the approval of the Chief Justice to make
rules with respect to inter alia professional practice, conduct and
discipline of advocates.

After admission to the bar, an advocate is at liberty to set up a law

practice either as a sole practitioner or in partnership with another or
others. Prior to the repeal of section 32 46 of the Advocates Act, an
advocate was required to be under the employment of an advocate of
over five years or the AG for at least two years before he was eligible to
open up a law practice. But this changed in the 2012 47 and now any
advocate who has been admitted to the bar can open up a law practice as
soon as he/she is admitted.

Setting up a Law Firm/Practice

The process is relatively easy and straight forward. The requirements are
as follows:

 Register a business name under the Registration of Business

Names Act or under the Limited Partnerships Act. Rule 31 of the
LSK Digest of Professional Conduct and Etiquette (2000) provides
that it is undesirable for firms to practice under any name other
than their past or present members. This was challenged in South

(ii) if he is not so satisfied, the matters in respect of which he is not satisfied;

(d) the retention or otherwise by advocates of interest earned on moneys deposited, received or held for or on
account of clients;

(e) the issue of practising certificates, the fee payable thereon and the duties of the Registrar with respect to
the issuing of such certificates;

(ee) the procedure for the conferment of, and the privileges attached to, the rank of Senior Counsel.

(f) the establishment of a compensation fund for the benefit of clients;

(g) indemnity for clients against loss or damage arising from claims in respect of any civil liability incurred by an
advocate or his employee, or from breach of trust by the advocate or his employee;

(h) continuing professional education for all advocates practising in Kenya.

(i) generally for the better carrying out of the provisions of this Act, other than Parts III, IV. IX, X and XI

(2) If an advocate fails to imply with any rules made under this section, any person may make a complaint in
respect of that failure to the Disciplinary Tribunal.

46
The move to repeal the said section seems to have been precipitated by the suit filed in court challenging the
said provision to be unconstitutional although the judge did not find the said provision unconstitutional. See
Okeyo Omwansa George and another vs The AG and two others (2012) eKLR
47
See Legal Education Act section 50 thereof

26
Ms. Konuche©

Africa and the court there ruled that legal practitioners need not
use their own names to register their law firms.
 Rule 6 of the LSK Digest allows advocates to establish
branches in any part of the country but rule 6 (b) prohibits
sharing of office space with someone who is not an advocate
as this leads to unfair attraction of business.
 An advocate is also required to paint or affix his/her name of
the law practice on the outside of every door or place of
business
 Capital to take care of such expense as rent, office furniture,
computers, hiring staff such as secretary and clerk
 Insurance/indemnity cover against professional negligence
 Obtain a postal address/box in the name of the law firm

Solo Practice and Partnerships

The Registration of Business Names Act Cap 499 defines a firm to mean
an unincorporated body of two or more individuals and one or more
corporations, or of two or more corporations, who or which have entered
into partnership with one another with a view to carrying on business for
profit. A business registered under Cap 499 is in nature not limited in
liability meaning that should it be wound down or should it go into
liquidation, the partners or the sole practitioner would be personally
liable for the debts of the business. An option has now been provided
under the Limited Liability Partnership Act 48 that allows partnerships to
be registered as limited so that the partners are liable to the extent of
their shareholding in the partnership.

Most practitioners in Kenya are sole practitioners and the preference for
sole practice is mainly caused by a desire to maintain one’s
independence. Generally, lawyers do have a strong inclination to being
their own bosses. There are likely to be disagreements and conflicts in
partnerships, suspicions, inability to share out burdens and proceeds of
the firm and this is what drives most practitioners to solo practice. Most
sole practitioners however, do employ associates to work for them.

A partnership entails some loss of freedom by each partner but more

benefits are likely to be derived from a partnership than a sole practice
because clients are likely to be feel safer with a larger business than a
one man show. Indeed most corporate clients prefer to deal with
partnerships. It is advisable to have a partnership agreement signed by
all partners to ensure that there are no disagreements and that every
detail is covered by a mutual agreement.

Advocates’ Chambers

This is basically the offices of the advocate.

 They should be located in an accessible and safe place

48
Limited Liability Partnerships Act No 42 of 2011 came into operation in 2012. Prior to the passing of this Act,
a law firm could only be registered as unlimited in liability

27
Ms. Konuche©

 Spacious and modern and digital

 Organised registry for files
 Well stocked library
 Tidy
 Etc etc

Running a Law Firm/Practice

 Correspondence- correspond with clients on a regular basis.

Reply to all correspondences from clients, colleagues, LSK, Court
with minimum delay. Failure to do so amounts to professional
misconduct
 Letter Heads- see Rule 27 of the LSK Digest.
 They should be well designed, clear and easy to understand
 Names of partners, associates and professional qualifications
should be indicated
 Those not admitted may not appear on letter heads
 Filing system
 Maintain a proper filing system
 LSK Digest rule 12
 Disposal of old/closed files

Specialisation

Specialisation is a term used to denote expertise in a special field of

knowledge. In Kenya we have some law firms that specialize in some
fields like criminal law, civil litigation, corporate work/commercial law,
tax law, defence work and running down.

Advantages of specialization:

 Improves the quality of legal services offered

 Minimisation of costs eg investment in certain types of books
 Acquisition of skills and expertise by advocate as advocacy is
perfected over time
 Job satisfaction and improved performance

Professional Undertakings

See Ojienda pp 62-64

A professional undertaking refers to any unequivocal declaration by a

professional, either an advocate or a member of his firm/staff in the
course of practice made to someone who reasonably places reliance on
it.49 It need not be in writing provided it is unequivocal and unambiguous.

49
See Ojienda at pp 62

28
Ms. Konuche©

 They are enforceable by court and they are binding upon the
advocate personally and creates an obligation that must be upheld
by the advocate and will move with the advocate even if they move
to another law firm.

 See the case R.O. A Otieno v A.G.N. Kamau Advocates and Kenya
Reinsurance Corporation v Muriu both discussed by Ojienda

 Failure by an Advocate to honour the terms of a professional

undertaking is prima facie evidence of professional misconduct.
Consequently, the Society will require its implementation as a
matter of conduct.

The LSK has issued proposed guidelines to advocates on professional

undertakings as follows.

PROPOSED LSK GUIDANCE ON PROFESSIONAL UNDERTAKINGS

Introduction

Undertakings are a very important aspect of the practice of law in our

jurisdiction. In conveyancing, they are used to expedite matters which, in
the absence of undertakings, would cause considerable delay and
inconvenience to the client and the practitioner. The use of undertakings
in litigation, particularly personal injury litigation, while perhaps ill-
advised, has become widespread. The undertaking invades practically
every area of practice and it is seen as unlikely that its use will be
reduced.

From the point of view of the profession and our members, undertakings
are to be viewed under two headings. Primarily, the undertakings may
create a legal obligation upon the Advocate which is enforceable by, for
example, mandatory injunction. The ability to enforce compliance is
vested in the courts and the Society has no role. Secondly, the giving of
an undertaking places on the Advocate an ethical obligation to comply
with same. It is this area which concerns the Society, which has to date,
and it is hoped for the foreseeable future, treated failure to comply as
misconduct. To do otherwise would considerably devalue undertakings.

Over the years, the Law Society of Kenya has been obliged to deal with
complaints against Advocates in respect of alleged failure to comply with
undertakings. The profession at large are entitled to receive some
guidance in relation to the topic of undertakings and are also entitled to
receive some definite indications from the Society of its views. The long-
standing rule "undertakings are sacrosanct" can hardly be felt to be the
definitive work on the subject. Over the years, the Society has reminded
members on the subject of undertakings. It is felt that it is reasonable
that the profession receive from the Society general guidelines which can
be applied to any undertaking rather than specific commentary on
particularly unwise practices. The primary concern of the Council is to

29
Ms. Konuche©

alert the profession to the requirement of having the client’s prior

authority before the issue of the undertakings. Of equal importance, the
giver of the undertaking must be satisfied of his ability to comply with
the undertaking given and be alert to the outside agencies or events
which may affect this ability. It is also felt necessary to alert the
profession to the Society's role in relation to undertakings.

The proposed guidelines are merely a codification of the practice in

relation to undertakings and do not constitute a departure from present
practice or imposition of new standards.

Thirteen principles, which are applicable to all undertakings, are set out
as follows:

PRINCIPLES RELATING TO PROFESSIONAL UNDERTAKINGS

1. An undertaking is an unequivocal declaration of intention

addressed to someone who reasonably places reliance on it and
made by an Advocate in the course of his practice, either
personally or by a member of the Advocate's staff whereby the
Advocate (or in the case of a member of his staff, his employer)
becomes personally bound

Commentary
1.01 There is no obligation on an Advocate either to give or accept an
undertaking, nor can an Advocate be required to stand guarantor for a
client by way of an undertaking.

1.02 The Society does not recommend the giving or accepting of oral
undertakings. Oral undertakings can lead to uncertainty as to the nature
and extent of the undertaking. Evidential problems may arise. When oral
undertakings are given, the lack of formality detracts from the gravity
which should be attendant on the giving of any undertaking.

The Society recognises that an oral undertaking given by one person to

another may be enforceable at law, but the Society will not render
assistance to a party seeking to enforce that undertaking as a matter of
conduct. (This commentary does not apply to oral undertakings given to a
Court).

2. Failure by an Advocate to honour the terms of a professional

undertaking is prima facie evidence of professional misconduct.
Consequently, the Society will require its implementation as a
matter of conduct.

Commentary
2.01 The Society has no power to order payment of compensation or to
procure the specific performance of an undertaking if a Advocate

30
Ms. Konuche©

declines to implement it. The Society will proceed by way of disciplinary

action for failure to honour the undertaking.

2.02 The Society will require an undertaking to be honoured by

Advocates for so long as their names remain on the roll and regardless of
whether they hold current practising certificates or not.

2.03 The Society has no power to order the release of a Advocate from
the terms of an undertaking. This is a matter for the court, or the person
entitled to the benefit of the undertaking.

3. An undertaking will normally be required to be honoured only

as between the giver and the recipient.

Commentary
3.01 The Society will normally require compliance with an undertaking
only at the instance of a recipient.

3.02 An Advocate cannot assign the burden of an undertaking (and thus

claim to be released from its terms) without the express approval of the
recipient.

4. An ambiguous undertaking is generally construed in favour of

the recipient.

5. An undertaking does not have to constitute a legal contract to

be enforceable in conduct.

Commentary
5.01 No consideration is necessary for an undertaking to be enforceable
in conduct.

6. An undertaking is still binding even if it is to do something

outside the Advocate's control.

Commentary
6.01 Before giving any undertaking a Advocate must carefully consider
whether it will be possible to implement it. It is no defence to a complaint
of professional misconduct that the undertaking was to do something
outside the Advocate's control.

7. An Advocate is responsible for honouring an undertaking given

by a member of the Advocate's staff, whether admitted to the Roll
of Advocates or not.

Commentary
7.01 Where a partner or associate Advocate gives an undertaking, the
conduct of the assistant may also be called into question by the Society.

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Ms. Konuche©

8. Where an Advocate in partnership gives an undertaking as a

Advocate in the course of practice, all partners are responsible for
its performance.

Commentary
8.01 A partner remains responsible for the firm's undertakings even after
that Advocate leaves the firm or the partnership is dissolved.

9. A Advocate cannot avoid liability on an undertaking by pleading

that to honour it would be a breach of duty owed to the client.

Commentary
9.01 Since a Advocate will be personally bound to honour his
undertakings, it is essential for the Advocate's protection that the client's
authority to do so is given before the undertaking is furnished.

10. An Advocate who gives an undertaking which is expressed to

be dependent upon the happening of a future event must notify
the recipient immediately if it becomes clear that the event will
not occur.

11. In addition to the Society's power to enforce undertakings as a

matter of conduct, the court, by virtue of its inherent jurisdiction
over its own officers, has power of enforcement in respect of
undertakings.

Commentary
11.01 Where undertakings are given by Advocates to the court, the
Society takes the view that enforcement is a matter for the court; for this
reason the Society will not normally intervene.

12. An undertaking should not be given by an Advocate as an

inducement to a client to secure that client's business.

13. The seeking by an Advocate of an undertaking from another

Advocate which the first Advocate knows, or ought to know, should
not be given, may be deemed to be professional misconduct

TOPIC 5 – CLIENTS’ PROPERTY, MONEY AND REMUNERATION

OF ADVOCATES

The handling of clients’ money and property is governed by the

Advocates (Accounts) Rules which is subsidiary legislation made under
the Advocates Act and they guide an advocate on how to manage his
finances and those of his client. Rule 2 defines a client as person on
whose account an advocate holds or receives client's money.

32
Ms. Konuche©

Client’s money is defined in rule 2 again as money held or received by an

advocate on account of a person for whom he is acting in relation to the
holding or receipt of such money either as an advocate or, in connexion
with his practice as an advocate as agent, bailee, trustee, stakeholder or
in any other capacity, and includes -

(a) money held or received by an advocate by way of deposit against fees

to be earned or disbursements to be incurred; and

(b) money held or received as or on account of a trustee, whether or not

the advocate is sole trustee or trustee with others, but does not include
–

(i) money to which the only person entitled is the advocate himself, or in
the case of a firm of advocates, one or more of the partners in the firm;
nor

(ii) money held or received by an advocate in payment of or on account of

an agreed fee in any matter;

 By reason of the above definition, an advocate is required to open

at least two bank accounts, a client account and an office account. 50

Rule 4 requires that all clients monies should be paid into the client
account and rule 5 lists these monies as including;

a. Trust money

b. Advocate’s money as may be necessary for maintaining the client

account

c. Money to replace any sum drawn from the account in contravention

of the rules

d. A cheque or draft received by the advocate which he is entitled to

split but which he does not51

 Rule 9 gives instances when an advocate may withdraw money

from a client account and it provides thus;

50
See rule 3 thereof
51
This is reinforced by rule 6 which provides that;-
‘6. (1) Where an advocate holds or receives a cheque or draft which includes client's money -

(a) he may where practicable split such cheque or draft and, if he does so, he shall deal with each part thereof
as if he had received a separate cheque or draft in respect of that part; or

(b) if he does not split the cheque or draft, he shall pay the cheque or draft into a client account.

(2) Money which is not client's money but which is paid into a client account, other than under rule 5 (b), shall
be paid out as soon as reasonably possible.’

33
Ms. Konuche©

9. (1) Subject to rules 10 and 12, an advocate may withdraw from a client
account -

(a) money properly required for payment to the client;

(b) money properly required for or towards a payment authorized by the

client;

(c) money properly required for or towards a payment on behalf of the

client within the mandate of the advocate in the matter or any of the
matters in which he is acting for or on behalf of the client;

(d) money which he is transferring to a separate account opened or to be

opened in the name of the client;

(e) money properly required for or towards payment of a debt due to the
advocate from the client or in reimbursement of money properly
expended by the advocate for or on behalf of the client;

(f) money properly required for or towards payment of the advocate's

costs where a bill of costs or other written intimation of the amount of
the costs incurred has been delivered to the client;

(g) money paid into the account in contravention of these Rules;

(h) money paid into the account under rule 5 (b); and (account
maintenance)

(i) money not being client's money paid into the account under rule 6 (b).
(an unsplit cheque or draft)

(2) Every cheque drawn upon a client account shall bear on its face the
words "client account" or "trust account".

An advocate may not overdraw the client account according to Rule 10

which provides that ‘In no circumstances may an advocate withdraw
from a client account any sum in excess of the amount held for the time
being in such account for the credit of the client in respect of whom the
drawing is proposed to be made.

12. No money may be withdrawn from a client account except as

authorized by rule 9 or as specifically authorized in writing by the
Council in pursuance of an application by the advocate. (amounts to
professional misconduct)

 Under rule 13 is required to keep books of account and these

include cash books and ledger books and a record of particulars of

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Ms. Konuche©

all bills of costs delivered by advocate to his clients, distinguishing

between profit costs and disbursements.52

REMUNERATION OF ADVOCATES

See Ojienda pp 74-91 (Chapter 5)

52
Rule 13 provides; 13. (1) Every advocate shall at all times keep, properly written up such books of account as
may be necessary to show –

(a) every receipt by him of client's money, for each separate client; and

(b) every payment or application by him of or from client's money, for each separate client; and

(c) the amount held by him for the time being in a client account, for each separate client; and

(d) the moneys expended by him for, and the costs charged by him to, each separate client.

(2) The books of account referred to in paragraph (1) shall include -

(a) either –

(i) a cash book in which to record every transaction involving client's money or other money dealt with by the
advocate through a client account, and a separate cash book in which to record every transaction involving the
advocate's own money and relating to the affairs of his clients; or

(ii) a cash book ruled with two separate principal money columns on each side, one such column for recording
every transaction involving client's money or other money dealt with by the advocate through a client account
and the other for recording every transaction involving the advocate's own money and relating to the affairs of
his clients; and

either –

(i) a ledger in which to record every transaction involving clients money or other money dealt with by the
advocate through a client account, and a separate ledger in which to record every transaction involving the
advocate's own money and relating to the affairs of his clients; or,

(ii) a ledger ruled with two separate principal money columns on each side, one such column for recording
every transaction involving client's money or other money dealt with by the advocate through a client account
and the other recording every transaction involving the advocate's own money and relating to the affairs of his
clients; and

(c) a record showing particulars of all bills of costs delivered by the advocate to his clients, distinguishing
between profit costs and disbursements.

(3) A cash book or ledger required to be kept under this rule may be a loose-leaf book.

(4) In this rule, "cash book" and "ledger" include such cards or other permanent records as are necessary for
the operation of a mechanical system of book-keeping.

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Ms. Konuche©

 Governed by the sections Part IX of the Advocates Act and the

Advocates Remuneration Order 2009

 Section 44- the Council of the LSK makes recommendations to the

CJ on the remuneration of advocates, if CJ approves, he gazettes
the same. The remuneration order covers both contentious and no
contentious business and it is used by advocates to charge fees
based on scale provided. See remuneration order under subsidiary
legislation.

 Section 45- agreements with respect to remuneration. An advocate

and his client may enter into agreement with respect to payment of
fees and the same must be signed by the client and it is binding on
both parties. The client may make an application before court to set
aside or vary such an agreement on the grounds that it is
unconscionable, exorbitant or unreasonable. Such an application is
made before a judge sitting with two assessors who shall be
advocates of the High Court of not less than five years standing.

 Section 46 – Invalid agreements

 Section 48 – action for recovery of costs. An advocate may bring an

action in court for the recovery of his costs from a client but before
he can file such an action, known and the advocate-client bill of
costs, he must have sent the said bill at least one month before the
filing. The act of hearing of such a bill before court is known as
taxation of the bill of costs and the court or registrar sits as a
taxing master. After taxation, the taxing master issues a certificate
of costs.

The Advocates Remuneration Order

 Has been reviewed several times over the years and the latest one
in use is the 2009 one although there is a current version awaiting
gazettement by the Chief Justice

 Divided into two, the rules and the schedules

 Objectives of the ARO include:

 Seeks to protect the public from exploitation by advocates by

controlling the fees the advocates charge

 Prevents advocates from engaging in professional

malpractices such as undercutting and unfair competition

 Seeks to make legal services affordable to the public

 Seeks to remunerate advocates in order to enable them lead

a good life as expected of the profession53

53
See Ojienda pp 80

36
Ms. Konuche©

 Differentiate between party and party costs and advocate client

costs – see Ojienda pp 84-85

 Retainer agreements – see Ojienda pp 86-88

TOPIC 6 – THE LAW SOCIETY OF KENYA

Governed by the Law Society Act, Cap 18 Laws of Kenya

Section 2 of the Act defines society to mean Society means the society
established and incorporated by section 3 of the Law Society of Kenya
Ordinance, 1949 (now repealed), and continued in existence by section 3
of this Act. Refer to the history of the legal profession in Kenya to as it is
inextricably linked with that of the LSK.

Section 3 establishes the Society

Section 4 lists the objects for which the Society is established as:

(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 the law in Kenya;

(d) to represent, protect and assist members of the legal profession in

Kenya in respect of conditions of practice and 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 movable or

immovable, and to derive capital or income therefrom, for all or any of
the foregoing objects;

(g) to raise or borrow 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 such manner as may from time to time be determined by the
Society; and

(i) to do all such other things as are incidental or conducive to the

attainment of all or any of the foregoing objects.

Interpretations of the Objectives of the Society

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Ms. Konuche©

 Public interest litigation eg the case seeking to remove the traffic

commandant

 Seeking to participate in other cases as amicus curiae

 Appearing in TV, Radio or other forums to give opinions on various

issues of national importance and dissecting and interpreting
various bills pending before parliament

 Giving opinions to parliamentary committees on various proposed

bills or pending bills

 Giving legal aid to members of the public

 Civic education

 Representation in various commissions, tribunals, boards eg LSK

rep in the JSC, LSK rep in the Aviation Tribunal among others.

Membership:

 By virtue of section 28 of Cap 16 being paid up/ holding current

practicing certificate

 Special member by virtue of section 6 of Cap 18 for instance those

mentioned in section 10 of Cap 16

 A resident in Kenya who is duly qualified

 Honorary members

Cessation of membership

 Expulsion – sec 11

 Resignation – sec 10

 Ceasation to be a qualified member eg failure to renew practicing

certificate or being struck off the roll or being suspended

Governance of the Society

Governed by a council consisting of 12 members of the Society and these

are the Chair, Vice Chair, two up country representatives, one coast
representative and 7 other members of Council. They are all elected by
members of the Society and hold office for two years and are eligible for
re election. Only members of outgoing Council are eligible to run for the
post of Chair and Vice Chair.

Powers of the Council, section 14 provides; Except as otherwise

expressly provided by this Act or by any regulations made under this Act,
the Council may exercise all the powers of the Society; and no
regulations made under this Act shall invalidate any prior act of the

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Ms. Konuche©

Council which would have been valid if the regulations had not been
made.

The Council may also delegate some duties to committees established for
specific purposes such as the Editorial committee, the CLE Committee,
Bar- Bench Committee among others. Section 15

There is an Annual General Meeting of members every year in March

where the accounts of the Society are presented and other decisions
taken by the general membership. Members can also call for Special
General Meeting if need arises.

There is a secretariat of the Society which is run by the Secretary of the

Society and other members of staff. Secretary is appointed by the
Council.

TOPIC 7 – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL

CONDUCT

The legal framework that governs the professional conduct, ethics and
etiquette of an advocate is found in a myriad of statutes, rules, guidelines
and case law. Some of these have been mentioned in topic one as sources
of professional ethics and responsibility.54

The origin of rules and etiquette and conduct was the 16 th Century
England where they were self imposed by the Bar in England. They were
meant to develop good manners among gentlemen and to stop abuse of
the profession. The first formal rules of profession conduct were in 1729
known as Society of Gentlemen Practice Rules.

In Kenya, the rules of professional ethics were introduced by the settler

community. The Advocates Act which contained most of these rules came
into force in 1962 but was later repealed by Act No. 18 of 1989 which is
the current Act but with many amendments that have so far been done.

Definitions

Also see Ojienda at pp 93

There is no statutory definition for the terms ‘professional misconduct’ or

‘unprofessional conduct’. Blacks Law Dictionary defines misconduct as
transgression of some established and definite rule of action, a forbidden
act, a dereliction from duty, unlawful behavior, delinquency, impropriety,
mismanagement of office but not negligence or carelessness. Professional
misconduct therefore can be defined as a breach of those rules governing
the practice of an advocate for which an advocate can be subjected to the
disciplinary process for breach thereof. Examples of professional
misconduct include undercutting, sharing profits with an unqualified
person, touting, failure to account for client’s money etc.
54
For example the Advocates Act, the LSK Digest, the Constitution etc

39
Ms. Konuche©

Unprofessional conduct on the other hand, raises questions of moral

turpitude as opposed to legal turpitude. More like the breach of good
manners in practice that do not attract the disciplinary process or
penalties thereof.

Some authors have argued that professional misconduct or malpractice

can be classified into two groups depending on which persons they
regulate; those which seek to control the character of an advocate and
thereby compel the advocate to do or not to do certain things under
certain circumstances and those that prohibit non advocates from doing
certain things connected with legal practice.

Rules against professional misconduct can also be divided into the effects
they have; those that are aimed at ensuring that the public is protected
from bad behavior of advocates; and those that have the effect of
maintaining the profession’s monopoly over its market and its members’
financial and economic health.

Part VIII of the Advocates Act has various provisions on professional

misconduct

Provisions with respect to unqualified persons acting as advocates

(Sections 31-34)

See Ojienda pp 65-73

The purpose of these provisions is to ensure monopoly in the profession

so that only those who are qualified may earn a living from the practice
of law. These provisions restrict the actions of person s referred to in law
as unqualified persons to act as advocates. An unqualified person is any
person who is not enrolled as an advocate or being enrolled does not
have in force a practicing certificate. It therefore includes unadmitted
persons, those subject to suspension or expulsion and body corporate.

 Section 31 prohibits an unqualified person from acting as an

advocate. Such a person may not draft legal documents and sign,
he may not appear in court, may not institute or defend any legal
proceedings etc A person who contravenes this section shall be
deemed to be in contempt of the court in which he is so appearing,
he will not be able to maintain the proceedings before court and he
shall also be guilty of an offence.55

 Section 33 provides for the penalty for pretending to be an

advocate and it provides; Any unqualified person who wilfully
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.56

55
See section 31(2) of the Act
56
The general penalty for offences under the Act where the penalty is not specifically stated in found in section
85 which provides that ‘Any person who is guilty of an offence under this Act for which no penalty is otherwise
provided shall be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term

40
Ms. Konuche©

 Section 34 prohibits unqualified persons from preparing certain

documents or instruments but makes exception for public officers
doing so in the course of their employment and public duty. Any
money received by the unqualified person to prepare such
documents shall be recoverable as a civil debt.

Professional misconduct and offences by advocates

See OJIENDA pp 93-101

a. Advertising and the Ethics of self promotion

Prior to the decision of Justice Majanja in the case of Okeyo Omwansa

and another v AG and 2 others, Rule 2 of the Advocate (Practice)
Rules prohibited any form of advertising by advocates. The court held
that the rule against advertising was unconstitutional and part of the
court’s ruling is stated here below;

Whether rule 2 of the Advocates Practice Rules is

unconstitutional
73. Rule 2 is made pursuant to the provisions of section 81 of the
Advocates Act which enables the Council of the Law Society of Kenya
with the approval of the Chief Justice to make rules with regard to, “the
professional practice, conduct and discipline of advocates.”
74. Rule 2 may be fairly interpreted to impose a complete ban on
advertising or may encompass a prohibition on a wide range of activities
which would be construed as falling within the realm of advertising or
attracting business in whatever manner.
75. The legal profession has historically looked down upon any
activity that is seen as representing solicitation of business. The legal
profession has seen itself as the noble and learned profession where
anything, like advertising, that implies that law is merely a business
cheapens the image of lawyers. This fear of advertising was expressed
by Warren Burger, the former Chief Justice of the United States in a
speech where he chastised members of the legal profession in the United
States for taking the freedoms to advertise as a release from all
professional restraint as they used the same modes of advertising as
other commodities, “from mustard, cosmetics and laxatives to used
cars.” (see Burger, The State of Justice, 70 A.B.A J. 52 (March
1984))
76. Whatever the reasons for the prohibition of advertising, one thing
is becoming clear the prohibition of advertising has come under
considerable challenge both locally and internationally.
77. In the United States of America, the challenge was mounted on
the basis of the First Amendment of the United States Constitution which
protects the freedom of speech. The Supreme Court in the case of
Bates v State Bar of Arizona (1977) 433 US 350 held that a state
not exceeding two years or both’

41
Ms. Konuche©

may not prohibit advertisement. Advertising has become a fact of life for
the legal profession in that country. It is not uncommon to find lawyers
advertising on television, newspapers and the billboards.
78. Jurisdictions that have lifted the ban on advertising by lawyers
have adopted a regulatory approach that attempts to maintain public
confidence in the legal profession by allowing lawyers to freedom to
inform the public of their nature of their services subject to rules that
prevent false, misleading or deceptive representation practises and
conduct that undermines the administration justice.
79. The question before the court is whether the rule 2 breaches the
fundamental rights of the petitioner or any member of the public. This
question must be determined in accordance with the provisions of the
Constitution. Unfortunately, I did not have any argument by the Society
on this issue. The submissions filed on behalf of the CLE were in
support of the ban on advertising for advocates.
80. The petitioners have alleged that rule 2 contravenes the rights
protected under Article 35 (1)(b), the right of access to information,
Article 46, consumer rights, and Article 48, the right of access to
justice.
Rule 2 and Freedom of information

81. Article 35(1)(b) provides as follows;

35 (1) Every person has the right of access to –

(b) information held by any other person and required for the
exercise or protection of any right or fundamental freedom.

82. I think the argument made for the unconstitutionality of rule 2

on the basis of Article 35(1)(b) is rather strained and tortured. The ban
on advertising includes what may be fairly be said to be dissemination of
information. I do not think it restricts access to information in the
manner contemplated by Article 35(1)(b). Irrespective of the ban on
advertising, any citizen can assert the right to seek information and rule
2 cannot be used as a shield to avoid the obligations of Article 35(1)(b).
Rule 2 and Consumer rights

83. Article 46 of the Constitution protects consumer rights. It

provides;

46(1) Consumers have the right -

(a) to goods and services of reasonable quality;

(b) to the information necessary for them to gain the full

benefit from goods and services;

(c) to the protection of their health, safety, and economic

interests; and

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Ms. Konuche©

(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.

84. This provision of the Constitution entitles every consumer,

including consumers of legal services to certain rights. Legal services are
not excluded from the purview of Article 46 and neither are lawyers and
law firms which are private entities for purposes of Article 46(3).
85. Consumers require sufficient and accurate information to enable
them assess the nature and quality of services necessary to enable then
gain full benefit of legal services. In order to generate efficient market
outcomes, consumers must know what it available to in order to make
informed choices. This is the right guaranteed under Article 46 of the
Constitution.
86. I agree with the petitioners that the prohibition of advertising
under rule 2 in essence constrains the consumers of legal services to
such information as is necessary for them to make informed choices.
Advertising enables the consumers to have information regarding where,
when, from whom and how to get legal service of an advocate.
Rule 2 and Access to Justice
87. The right of access to justice is protected by Article 48 of the
Constitution which provides as follows;
48. The State shall ensure access to justice for all persons and,
if any fee is required, it shall be reasonable and shall not impede
access to justice.
88. In the case of Dry Associates Limited v Capital Markets
Authority and Another Nairobi Petition No. 358 of 2011
(Unreported) the court stated, ‘[110] Access to justice is a broad
concept that defies easy definition. It includes the enshrinement
of rights in the law; awareness of and understanding of the law;
easy availability of information pertinent to one’s rights; equal
right to the protection of those rights by the law enforcement
agencies; easy access to the justice system particularly the formal
adjudicatory processes; availability of physical legal
infrastructure; affordability of legal services; provision of a
conducive environment within the judicial system; expeditious
disposal of cases and enforcement of judicial decisions without
delay.’
89. Advocates play a key role in the provision of justice. They act as
intermediaries between the citizen and the law. They perform tasks
which enable individuals meet their legal obligations and facilitate not

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only business but also personal relationships. Access to legal services is

an indispensable element of access to justice. It is through the provision
of legal services that Kenyans are able to understand the law, their rights
and legal obligations. Any law or regulations prevents an advocate from
imparting information necessary for increased awareness of law, legal
rights and obligation does, in my view, limit access to justice.
90. For purposes of legal services, I think the consumer rights and
right of access to justice are interwoven. I concur with the petitioners
that a consequence of the ban on advertising of legal service is that the
consumer is left in the dark about the nature and extent of legal services
that can be offered by an advocate thereby undermining the right of
access to justice.
91. In Bates v State Bar of Arizona (Supra), the Supreme Court
of the United States recognised that the though advertising does
not provide a complete foundation on which to select an attorney,
it does enable a consumer make an informed choice. The court
also noted that advertising, which is a traditional mechanism in a
free market economy for a supplier to inform a potential
purchaser of the availability and terms of exchange, may well
benefit the administration of justice.
92. The preamble to the Constitution recognises the aspirations of all
Kenyans for a government based on essential values of human rights,
equality, freedom, democracy, social justice and the rule of law. This
vision is underpinned by the values and principles contained in Article
10 of the Constitution and an extensive Bill of Rights. In order to
achieve a just society that meets the expectations of Kenya, legal
services offered by advocates must be available and the people must
have the necessary information to access these services, a ban on
advertising by advocates is inimical to these broad of objectives of the
Constitution.
93. I therefore find and hold that a complete ban on advertising by
advocates such as that contained in Rule 2 of the Advocates Practice
Rules undermines the right of access to justice and is therefore a
violation of that right.
Disposition
94. In respect of the two issues framed for determination I have
determined as follows;
(a) Whether section 32 of the Advocates Act is unconstitutional
for being inconsistent with and in violation of the rights
guaranteed by Articles 25(b), 27 and 30 of the Constitution.
Section 32 of the Advocates Act is not inconsistent with or in violation
of Articles 25(b), 27 and 30 of the Constitution.
(b) Whether Rule 2 of the Advocates (Practice) Rules made
under the Advocates Act is unconstitutional for being inconsistent

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Ms. Konuche©

with and in violation of the rights guaranteed by Articles 35(b), 46

and 48 of the Constitution.
Rule 2 of the Advocates (Practice) Rules made under the Advocates
Act in so far as to constitutes a complete ban on advertising by
advocates is inconsistent with the provisions of Articles 46(1) and 48 of
the Constitution.
95. In the circumstances I allow the petition to the extent that I
declare rule 2 of the Advocates (Practice) Rules made under the
Advocates Act in so far as it constitutes a complete ban of advertising
by advocates is unconstitutional and inconsistent with Articles 46(1)
and 48 of the Constitution.
Pursuant to the above decision, LSK has come up with a draft guideline
on how advocates may advertise their services. The proposed rules are as
follows:
THE ADVOCATES’ ACT (CAP 16)

THE ADVOCATES’ (MARKETING & ADVERTISING) RULES 2014

(PROPOSED)

Citation

1. These rules may be cited as the Advocate’s (Marketing &

Advertising) Rules 2014.

Interpretation

2. In these rules, unless the context otherwise requires

“Associated” means having a formal written agreement setting out
the terms of the association in question.

General Conduct

3. No Advocate shall directly or indirectly apply for or seek

instructions for professional business, or do or permit in the
carrying on of his practice anything which can be reasonably
regarded as calculated to attract business unfairly.

Advertising

4. No Advocate shall advertise himself or his practice nor allow

himself or his practice to be advertised other than in accordance
with these rules.

Manner of Advertising

5. Any advertisements allowed under these rules must be objective

true and dignified. They shall in all cases be respectful of the
ethics of the Profession and shall not attempt to denigrate any
other Advocate or professional.

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Information which may be advertised

6. The following information may be advertised:-

a. the identity of the advocate or his firm;

b. the year of his admission as an advocate;
c. the location of office, postal address, telephone, fax, email
address and website;
d. the hours the office is open and language in which for
conducting business;
e. professional and academic qualifications;
f. the law firms to which the firm is associated with;
g. any publications or cases or any other legal work including
drafting of bills and provision of legal education cases in
which the advocate or other professional members of the
firm may have made contributions to.

Matters which may Not be Included in Advertisements

7. The following matters shall, on no account, be included in any

advertisement:

a. names or identities of clients of the advocates or the firm;

b. pictures;
c. non-legal positions distinctions or occupations held or
formerly held by the advocate:
d. reference to fees to be charged or reductions thereof;
e. promises to achieve results or to complete business in any
particular time or quicker than other advocates, and in the
event of failure to achieve such results, that no fee will be
charged.
f. deceitful or erroneous information or persuasive,
ideological, comparative advertising or phrases of self
aggrandizement.

Panels of Specialties

Manner of Advertising

8. (1) The Council of the Society may keep a record of panels of

advocates, who are to its knowledge specialized in various
branches of the law.

(2) When an advocate is included in any such panel he may

include this fact in the information which he may advertise under
Rule 6 but only for so long as he remains on the panel concerned.

9. (1) In telephone, fax telex and similar non-legal directories, an

advocate shall only advertise the information specified in Rule 6
without any added emphasis and in the normal type of the
directory.

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(2) In legal and/or professional directories (including national and

international) an advocate may advertise all the information set
out in Rule 6 and 7.[a],7[b],and 7[c]

(3) On the Internet an advocate may advertise all the information

set out in Rules 6 and 7.[a],7[b],7[c]

(4) In magazines, newspapers, booklets, publications, periodicals

or any graphic media or internet, an advocate may advertise all of
the information set out in Rules 6 and 7 [a],7[b],7[c]in a type size
and face and manner normally used in the advertising pages of
the graphic media set out above and so that the area used for the
advertisement is no longer than is required for the inclusion of
the information and is no event shall it be large than 5 x 5 inches.

(5) Advertisement referred to in under Rule 9(4) may only be done

once per quarter in each year.

(6) No advocate or firm may advertise in any of the print media

noted in clause 9(4) more than once per quarter each year. Such
advertisements shall not include brochures and profiles developed
by Law firms from time to time.

(7) No advocate shall advertise on television other than to appear

in order to give personal opinions on issues of general interest or
in connection with professional matters in which he is involved
provided that in all such circumstances the Advocate must respect
professional decorum;

(8) On radio an Advocate shall only advertise the information

specified in Rule 6.

(9) No advocate shall place illuminated signs or placards in any

place whatsoever in an attempt to advertise his location and type
of business but plates or plagues advertising an advocate’s
professional activity to be affixed to the walls or access doors or
building in which the advocate’s firm is located are permitted. The
maximum size of such plate shall be 0.5 x 0.35 m.

(10) No advocate shall seek to solicit or to attract business

through any of the following means:

a. through an “intermediary” that would amount to

professional touting.
b. through unsolicited “in person” contact
c. through a retainer by a non-lawyer who has not sought the
advocate’s advise,
d. through false or misleading statements, or where undue
influence is used, or where the potential client is in a
physical or mental condition that would make it unlikely that
such client could have exercised considered judgment in the
selection of an advocate.

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(11) An Advocate shall at all times be permitted to seek further or

additional business from his exiting or former clients.

Seminars and Media

10. (1) An Advocate may take part in conferences and seminars

including those not involving legal issues and may publish papers,
circulars and periodical articles on issues of law, even in media
that do not specialize on such issues whereby the Advocate
concerned may only append his name and designation as a lawyer.

(2) Save as herein above provided an Advocate shall not attempt

to use any appearance in the electronic media or other public
forum as a means of professional advertisement nor should an
advocate engage in his capacity as a lawyer in any public
appearance that might discredit the legal profession.

Savings

11. Nothing in these rules derogates from the power of the

Council of the Society to rule on the desirability or otherwise of
any particular conduct of an advocate or of proposed or actual
advertisements.

Effect of Non- compliance

12. Any advocate failing to comply with these rules is guilty of

professional misconduct.

Other jurisdictions such as the US has always allowed advocates to

advertise and in the UK they can advertise but in a limited form for
instance in the press, on the radio (but not on TV) by direct mail to
present and former clients or in response to inquiries.
b. Failure to endorse the name of an advocate on an instrument
pp 94 of Ojienda’s book
Section 35 of the Advocates Act requires that all legal documents and
instruments prepared by an advocate should be endorsed with the name
and address of the drawer and failure to to do is an offence under the Act
that attracts a penalty.
c. Prohibition against undercutting
See pp 94-96 of the Advocates Act
Section 36 prohibits undercutting which is defined as charging for legal
fees at a scale lower than that prescribed under the Advocates
Remuneration Order.

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Ms. Konuche©

See the case of Ahmednasir Abdikadir & Co. Advocates v National

Bank of Kenya Ltd (as quoted by Ojienda) where the rationale for this
rule against undercutting was discussed by the court as follows;
‘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 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 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’
d. Prohibition against sharing profit
Pp 96-97 of Ojienda’s book
Section 37 of the Act as well as rule 4 of the Advocates (Practice) Rules
prohibits an advocate from sharing his profits for any professional
business, whether contentious or non-contentious, with any person who
is not duly qualified to practice. An advocate may however pay bonus to
his employees.
e. Touting
Pp 99 of Ojienda
Prohibited under section 38 of the Act as well as Rule 2 of the Advocate
(Practice) Rules. Touting is defined as the use of intermediaries to bring
or attract business to oneself. The Chief Justice is empowered to exclude
touts from the employment by an advocate in his practice. The rationale
for prohibiting touting is two-fold; first it protects the public against the
more unscrupulous members of the profession and their hustling
intermediaries and secondly, it strengthens the rules against
undercutting by making it a professional offence to reduce fees and
exercising other types of unfair competition by the less established
lawyers vis a vis their more established colleagues.
Payment for touting need not be in monetary form.

f. Acting as an agent for unqualified person

Pp 99 of Ojienda
Section 39 prohibits an advocate from acting as an agent for an
unqualified person. An advocate cannot therefore have an arrangement
with an unqualified person where the profits go to the unqualified
person.

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Ms. Konuche©

g. Employment of persons struck off the roll or suspended

Under section 41 of the Act, an advocate is prohibited from employing a

person who has been struck off the roll or suspended except with
authority of the Council of the LSK. This rule however, does not apply to
advocates who have been struck off the roll on their own request.
Similarly, under section 42, it is an offence for one not to disclose that he
is unqualified by reason that he has been struck off the roll or suspended
from the roll. Such a person must not accept employment from an
advocate.

TOPIC 8 – DISPUTE RESOLUTION AND THE DISCIPLINARY

PROCESS
In their personal capacity, advocates like everybody else, are liable for
both civil and criminal wrongs. In their professional capacity, their
liability is even wider. They have the obligations to conduct themselves in
accordance with the ethical standards set for the profession. The
Advocates Act has in place mechanisms to deal with advocates who
breach rules of conduct and ethics as laid down in the Act and any other
rules as established by the Council or under any other Statute or
common law. Section 55 of the Act makes it clear that every practicing
advocate or member of the bar is subject to the Act and cannot therefore
opt out of its provisions.
The Act establishes two main bodies charged with the task of overseeing
the disciplinary and dispute resolution among practitioners. All advocates
are subject to the disciplinary authority of the Advocates Complaints
Commission as established under section 53 of the Act and the Advocates
Disciplinary Tribunal as established under section 57 of the Act as
established under section 57 of the Act.

Despite the existence of these two bodies, the court still retains some
disciplinary powers over advocates and the Act provides in section 56
that Nothing in this Act shall supersede, lessen or interfere with the
powers vested in the Chief Justice or any of the judges of the Court to
deal with misconduct or offences by an advocate, or any person entitled
to act as such, committed during, or in the course of, or relating to,
proceedings before the Chief Justice or any judge. The CJ and any judge
may punish any advocate for contempt.

Why is the Disciplinary Process Necessary?

 To ensure that advocates uphold the standards of professional

conduct

 To ensure uniformity in the profession

 To promote public confidence and public good will

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Ms. Konuche©

 Control and correct the performance of advocates

 Act as a deterrence against advocates prone to professional

misconduct

 Forster and enhance pursuit of high quality performance of

advocates in practice

 Give a focus to the profession by establishing common goals of

conduct.

THE ADVOCATES COMPLAINTS COMMISSION

 Established under section 53 of the Act

 Purpose is to inquire into complaints against any advocate, firm of

advocate, any member or employee thereof. Its goal is to inspire
public confidence in the administration of justice and the rule of
law through the efficient and effective handling of complaints. 57 It
is also the key investigative body of the Disciplinary Tribunal.

 Membership shall consist of;

 A commissioner or commissioners appointed by the president

who shall have the qualifications of a Judge of the High
Court..

 There is also a secretariat to the Commission which is based

at the Attorney Generals Chambers. The secretariat has a
secretary appointed by the AG and such number of staff as
maybe necessary to carry out the functions of the
Commission. NB. This secretariat actually forms one of the
departments in the office of the AG

 Powers/Duties of the Commission

 Receive and consider a complaint made by any person

regarding the conduct of an advocate, a firm of advocates,
members or employees.

 If it appears to the Commission after investigations that there

is substance in the complaint but that the matter complained
of constitutes or appears to constitute a disciplinary offence,
it shall refer the matter to the Disciplinary Tribunal under
Section 57

 If it appears to the Commission after investigations that there

is substance in the complaint but does not constitute a
disciplinary offence, it shall notify the advocate or firm of
advocates concerned about the complaint and request them

57
Remarks by Beauttah Siganga, Chairman, Advocates Complaints Commission during the launch of the
Disciplinary Tribunal on 4th October, 2013.

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Ms. Konuche©

to respond to the complaint within a reasonable period as

shall be specified by the Commission.

 At the expiration of the period stated in the notice, the

Commission shall proceed to investigate the matter and make
such order or orders or award which it may consider just and
proper. In investigating the matter, the Commission shall
have the power to summon witnesses and examine witnesses
on oath and hear submissions from both the complainant and
the firm or advocate complained against.

 If it appears to the Commission that there is substance in the

complaint but there is no disciplinary offence disclosed, it
may advise the complainant to seek redress elsewhere such
as the courts.

In performing the above named duties, the Act empowers the

Commission to request the assistance of anyone for the purposes of
carrying out its duties and section 53 (3A) makes it an offence to refuse
without lawful excuse to assist the Commission when requested to do so.

 The Commission is mandated to endevour to promote reconciliation

and facilitate amicable settlement between parties to a complaint
in all cases which do not appear to the Commission to be of serious
or aggravated nature.

 If the Commission considers that the complainant has suffered loss

or damage by reason of the advocate’s conduct, but that the
conduct in question does not amount to a disciplinary offence, it
may award the complainant reimbursement of expenses not
exceeding 100,000 Kshs. Such order for reimbursement shall be
registered with the court and is enforceable in the same manner as
any court order.

 An appeal against the decision of the Commission shall be in the

High Court whose decision shall be final.

 The Complaints Commission is guided by the Advocates

(Complaints Commission) (Structure and Procedure) Rules 2003
which provides for inter alia meetings of the Commission, quorum,
voting, disclosure of interest, and determination of procedure.

THE DISCIPLINARY TRIBUNAL

The Disciplinary Tribunal (hereinafter the DT) as currently established

under section 57 of the Act, was officially launched by the Attorney
General on 4th October, 2013. This was pursuant to an amendment that
was done to the Advocates Act to replace the Disciplinary Committee that
existed prior thereto with the DT.58 The amendment sought to transform
the Disciplinary Committee with a statutory body whose role is to

58
The Amendment was done vide Act No. 12 of 2012

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Ms. Konuche©

adjudicate upon complaints of professional misconduct against

advocates. According to the AG, the establishment of the DT is a process
of both reform and rethinking inspired by the Constitution. 59 The legal
profession must accept that this is the new standard of accountability
that Kenyans require both for the bar itself and for the greater public
service in the country.60

Membership and Proceedings of the Tribunal (Section 57 and 58

of the Act)

 The Attorney General who shall be chair

 The Director of Public Prosecutions (This is the only inclusion to

the membership that made up the DC

 The Solicitor General or a person deputed by the AG

 Six advocates of not less than ten years standing one of whom must
not be ordinarily practicing in Nairobi. They shall be elected by the
members of LSK and shall hold office for three years and shall be
eligible for re-election.

 The secretary of LSK shall be the secretary of the Tribunal and the
LSK shall act as the secretariat of the Tribunal. In the absence of
the secretary, the Tribunal may appoint any other person entitled to
be an advocate to be the secretary for the duration of the absence
of the secretary.

 A full sitting of the Tribunal shall be either three or five members

with the AG or SG being the chair.

 All proceedings before the Tribunal shall be deemed for the

purposes of Chapter XI of the Penal Code (Cap. 63) to be judicial
proceedings and for the purposes of the Evidence Act (Cap. 80) to
be legal proceedings.

How to Lodge a Complaint

Section 60 (1) provides that A complaint against an advocate of
professional misconduct, which expression includes disgraceful or
dishonourable conduct incompatible with the status of an advocate, may
be made to the Tribunal by any person.
There are two ways in which a complaint can be lodged at the Tribunal;
a. It can be filed directly by the complainant under section 60 (1)
filing an affidavit by himself setting out the allegations of
professional misconduct which appear to be raised in the
complaint. Such a complaint shall be accompanied by the requisite
fee payable to LSK.

59
In a message published in the Daily Nation of 4 th October, 2013 marking the launch of the DT.
60
Ibid

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Ms. Konuche©

b. A complaint may be referred to the Tribunal by the Advocates

Complaints Commission under section 53 of the Act. In this case
the Tribunal shall give the advocate against whom the complaint is
made an opportunity to appear before it, and shall furnish him with
a copy of the complaint, and of any evidence in support thereof,
and shall give him an opportunity of inspecting any relevant
document not less than seven days before the date fixed for the
hearing:

Provided that, where in the opinion of the Tribunal the complaint

does not disclose any prima facie case of professional misconduct,
the Tribunal may, at any stage of the proceedings, dismiss such
complaint without requiring the advocate to whom the complaint
relates to answer any allegations made against him and without
hearing the complaint.

Powers of the Tribunal

 Section 60 (4) provides that After hearing the complainant and the
advocate to whom the same relates, if he wishes to be heard, and
considering the evidence adduced, the Tribunal may order that the
complaint be dismissed or, if of the opinion that a case of
professional misconduct on the part of the advocate has been made
out, the Tribunal may order—

a. That such an advocate be admonished; or

b. That such an advocate be suspended from practice for a specified

period not exceeding five years; or

c. That the name of such an advocate be struck off the roll; or

d. That such an advocate do pay a fine not exceeding fifty thousand

shillings; or

Or such a combination of the above orders as the Tribunal thinks fit.

e. That such advocate pays to the aggrieved party compensation or

reimbursement not exceeding five million shillings.

 The Tribunal may also make orders as to costs or fees due to any
party arising from the proceedings of the Tribunal

 Where the Tribunal does not dismiss a complaint, it shall prepare a

report of its findings and order made by it and shall have the same
delivered to the Registrar together with a record of the evidence
adduced. The Registrar shall in turn give a copy of the report to the
advocate concerned, the Advocates Complaints Commission (if the

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Ms. Konuche©

complaint originated from the Commission), the LSK Council and

the AG (if it falls under section 80)

 Appeals against the decision of the Tribunal shall lie in the High
Court and is to be heard by two judges. It shall be instituted by way
of memorandum of appeal setting out the grounds of appeal. The
appeal however, shall not operate as a stay of execution or
suspension of the orders of the Tribunal.

 The powers of the High Court after hearing the appeal include;

a. Refer the report back to the Tribunal with directions for

its findings on any specified point; or

b. Confirm, set aside or vary any order made by the Tribunal

or substitute it with any such order as it may think fit; and

may also make such order as to the payment by any person of costs, or
otherwise in relation to the appeal, as it may think fit.

 Appeals from the decision of the High Court shall lie in the Court of
Appeal and like the High Court, such appeal shall not suspend the
effect or stay the execution of the decision or order appealed
against.
 The Registrar shall cause a note of the effect of the final order to be
entered in the Roll of Advocates against the name of the advocate
concerned and where the order directs, shall remove or strike off
his name from the Roll. The Registrar shall inform the LSK of such
action.

 Under section 71, the CJ has the power to restore to the Roll the
name of an advocate who had been struck off the Roll. He can do
this either on his own initiative or on the recommendation of the
Tribunal with a written approval of the Chair of the Law Society.

 Section 72-74 covers disciplinary proceedings as against clerks.

55