ROLE OF AN ADVOCATE IN A CRIMINAL TRIAL PROCESS

Throughout the course of a criminal trial process, a trial advocate plays different roles to different parties
in a criminal trial process. The primary role being with his/her client. An advocate has a duty to safeguard
the rights and interests of his client by acting as the client’s mouthpiece. An advocate should zealously
and fearlessly protect the interests of his or her clients as much as feasible within the parameters of the
law. The advocate shouldn't act in a way that could endanger the interests of the client. In the case of J.P.
Machira v. Abok James Odera 1, it was decided that an advocate's duty is to represent his client up until
the completion of the legal proceeding, regardless of whether or not legal costs must be paid.

An advocate has a duty to advise their client about developments in the criminal trial process, as well as
the possibility of success or failure of the activities they would take and any potential alternatives. The
advocate may be placing their own interests ahead of those of their client if they are not forthcoming with
them about the client's actual odds of victory. According to Section 80 of the Advocates Act, an advocate
cannot violate a client's confidence by misappropriating their assets or money 2.

In accordance with section 34(1) of the Evidence Act, the advocate has a responsibility to preserve the
client's trust throughout the course of a criminal trial 3. The appellant in Omari v Hassan case4 was found
guilty of murder. During the trial, the accused's attorney informed the court that the defendant had
disobeyed his counsel's instructions by refusing to testify under oath. On appeal, it was determined that
the advocate's revelation violated professional privilege, and the trial court should not have permitted it to
influence its decision-making.

If the client's instructions during the trial process are illegal or unethical, the advocate's obligation as the
client's legal counsel is to advise them accordingly. The advocate has a responsibility to refuse to follow
out the client's instructions if they continue despite the advice. The advocate must act with the highest
degree of good faith and due diligence.

The advocate serves the court in a number of capacities as an officer of the court during the criminal trial
process. The first is the responsibility to preserve the administration of justice by advancing and
defending his clients' interests using legal means. To that end, a lawyer cannot intentionally mislead the
court, manufacture evidence, and encourage witnesses to lie, or tolerate any type of perjury. Throughout
the entire criminal trial process, the advocate should always try to act fairly.

1
J.P. Machira V Abok James Odera [2006] eKLR
2
Section 80, Advocates Act
3
section 34(1), Evidence Act
4
Jackson Nyausi Nyamwea & 2 others v Republic [2019] eKLR
Regardless of whether the decision was favorable or unfavorable, the advocate has a fundamental
obligation to preserve the highest respect for and comply with court orders. Even when there is cause to
suspect that the judicial officer's perspective conflicts with the law, he or she should always maintain the
dignity of the court by respectful behavior and courteous speech and should never take a confrontational
stance with the court. The advocate has a responsibility to the court to expedite the processes by making
sure that no time is wasted on formalities and superfluous actions.

As an advocate acting for the state, the prosecutor plays a crucial role in the criminal trial process. In
order to provide fair justice to its citizens, the State delegates certain tasks, responsibilities, and roles to
the prosecution. Prosecutors are bound by unique professional responsibility requirements in addition to
those governing other advocates in a court of law since they are appointed by and operating on behalf of
the state. The prosecutor is on a different level than the defense lawyer, who must use all legal means at
his disposal to secure acquittal for his client. Although he must work hard and apply himself with all the
persuasion and permissible enthusiasm, securing a conviction should never be his/her main objective 5.

The Court of Appeal in Thomas Patrick Cholmondley v. Republic6 unequivocally upheld the notion that
the prosecutor's job is to present all relevant information to the court in order to ensure a just verdict, as
was stated by Kuloba and Msagha JJ in the case of Juma & others v. AG7. Because of this, the prosecution
is subject to a duty of pre-trial disclosure, which states that all statements and exhibits intended to be
utilized during the trial must be made available to the defense in advance. Any deliberate withholding of
this information renders the trial that follows into an ambush and represents an improper attempt on the
part of the prosecution to obtain an unfair advantage over the accused or to subject the accused to an
unfair disadvantage or prejudice8.

5
P. Kiage (2011) Essentials of Criminal Procedure in Kenya. Nairobi, Kenya: LawAfrica Publishers Limited
6
Thomas Patrick Cholmondley v. Republic [2008] eKLR (Criminal Appeal No. 116 of 2007).
7
Juma & others v. AG (High Court Miscellaneous Application No 345 of 2001)
8
Ibid.
FACTORS AN ADVOCATE OUGHT TO CONSIDER WHEN ACCEPTING OR REJECTING A
CRIMINAL BRIEF

1. Conflicting interest - Conflicting interests are those interests that pose a significant danger so much
so, that the advocate's representation of the client may be materially and negatively impacted by their
own interests, their obligations to other current or former clients, or their duties to third parties.
A conflict of interest may manifest in the following forms:
a) Simultaneous representation – an advocate lawyer is not allowed to represent two clients who
are battling each other in court.
b) Issue conflict – this occurs when an advocate is defending two clients in two different cases.
Yet if this question is decided in one of the cases, it will have a detrimental impact on the
other case, as he is arguing for a shared legal stance for both cases. This dispute typically
emerges when two courts that will have an impact on the other's ruling are hearing the cases
concurrently.
c) Successive representation – occurs when a lawyer is representing a client who might
compromise the confidentially of a past client. The attorney-client relationship is always
confidential and does not terminate with the court proceeding. However, the Court of Appeal
in England in the case of Re 9 held that a firm of solicitors would not be allowed to represent
an existing client against a former client if a reasonable man with knowledge of the facts
would reasonably anticipate that there was a danger of information obtained while acting for
the former client being used against him or her. The court noted that there was no general rule
stating that a firm of solicitors who had previously acted for a client could never thereafter
represent another client against the former client.
d) Expected witness – Rule 8 of the Advocates (Practice) Rules provides that An advocate
shouldn't appear in a case where he might be summoned as a witness and be asked to provide
testimony, whether orally, in writing, or by an affidavit. In the case of Uhuru Highway
Development & others v Central Bank of Kenya & 2 others, 10 the plaintiff through a notice of
motion asked that the firm of Oraro and Company Advocates, and in particular Mr. George
Oraro, the firm's managing partner, be prohibited from representing the first and second
defendants in the lawsuit. The plaintiff claimed that the said Advocate had represented both
parties in the preparation of a charge that was a material issue in the lawsuit, and that by
representing the first and second defendants he would be violating the law. The said
Advocate argued further that the fees paid to him were by way of enforcement of a provision

9
(1992) 1 All ER 353
10
Uhuru Highway Development & others v Central Bank of Kenya & 2 others (2002) 2 EA 654
 made in the charge and not because the plaintiffs were his clients. He further argued that
since the plaintiffs were not his clients, he could not be held to have been in breach of a duty
as a solicitor to his client. The trial judge dismissed the application after siding with the
advocate. On appeal, it was decided that it was possible to determine whether the plaintiffs
were counsel's clients by carefully examining the correspondence that is on file, especially a
fee note and a notice of taxation that he served, and that the relationship was one of client and
advocate. The Court additionally ruled that the counsel's role in getting the first and second
plaintiffs to execute the charge could have caused him to use the confidential information
obtained during the charge either intentionally, unknowingly, or even accidentally, which
would have been prejudicial.
2. When determining whether to accept or decline a criminal brief an advocate should be guided by Rule
5(1) of the Advocates (Practice) Rules which states that an advocate should not represent any client
who has been sent to him by a person or group whose primary objective is to create, support, or
pursue claims for wrongful death, personal injury, or claims under the Workmen's Compensation Act.
When a person or organization requests or receives a payment, gift, or benefit in connection with such
allegations.
3. Rule 6 of the Advocates (Practice) Rules provides that unless the other advocate has given his
consent, or, the other advocate has declined to act further, or the client has withdrawn instructions
from that other advocate after giving him proper notice, an advocate may not act for a client in a
matter in which he knows or has reason to believe that another advocate is already acting for that
specific client.
4. An advocate may refuse to take up a criminal brief if the other party for instance the complainant
might have already consulted with the advocate.
5. A criminal brief may be rejected by an advocate if the taking of the case will conflict with the
advocate's duty as an advocate or with any other office he holds.
6. If the advocate lacks the requisite knowledge or experience essential to successfully handle the case
on the client's behalf, then it would be prudent of him/her to come clean with client and decline the
brief for the same.
7. Before taking up a criminal brief, the advocate ought to refer to his schedule first. If due to a hectic
schedule, the advocate anticipates being unable to handle the case efficiently, then he may decline to
take up the brief.
8. If the advocate knows confidential information about the complainant/victim in a criminal case.
9. An advocate may be forced to decline to take up a criminal brief where the client is unable to pay the
fee or the advocate has been given the choice between two or more briefs, one of which has a lower
fee. The attorney has the option to reject the brief with the lower charge.
10. In instances where the client intends to pursue the matter only for the purpose maliciously harming
the opposing party. Could be the complainant, the victim or any other interested party in the case.
11. Where the directions/instructions from the client are unclear, the advocate may be left with no other
choice but to decline the brief.