Atp 104 - B

ETHICAL DUTIES OF A TRIAL ADVOCATE: A QUINTESSENCE FOR EFFECTIVE
ADMINISTRATION OF JUSTICE IN KENYA

1. INTRODUCTION:
In any civilised nation, advocates, apart from being regarded as intellectuals amongst the elites of the
country and social activists amongst the downtrodden, they are professionals considered as Court officials
playing a significant role in the administration of justice. As such, most jurisdictions, including Kenya, have
clearly laid down rules and regulations that govern the advocates’ professional conduct. This generally arises
out of the duty that they owe not only to the Court and client, but also to their fellow opponents (advocates) and
witnesses. A thorough analysis of the said duties is as hereunder.
2. CONCEPT AND MEANING OF THE TERMS ‘ETHICAL, DUTY AND TRIAL ADVOCATE’:
The adjective term ‘ethical’ is derived from the word ‘ethics’ which refers to the quality of good moral.
‘Duty’ according to Black’s Law Dictionary, refers a legal obligation that is owed or due to another and that
needs to be satisfied.”1 When the two words are combined, in Court opinion, they refer to a moral obligation a
party has towards another.
‘Trial advocacy’ another important term riddled with paths of past exploration, is a term that generally
has no precise meaning. To better understand it, it is significant to first define the term ‘advocate.’ The Black's
Law Dictionary defines the term ‘advocate’ to mean one who assists, defends or pleads for another; or
otherwise, one who renders legal advice and aid and pleads the cause of another before a Court or Tribunal.2
The term ‘trial’ according to Merriam Webster Dictionary is the formal examination before a
competent Tribunal of the matter in issue in a civil or criminal cause in order to determine such issue.3
Various persons have tried defining the term ‘trial advocacy’ from different angles. According to
formalists like Terence F. McCarthy,4 he believes that trial advocacy which is limited to formal teaching of
courtroom forensics generally entails the mechanism by which advocates become effective in trial proceedings.5
Jeffrey S. Wolfe, on his part, believes that ‘trial advocacy’ covers not only the skills demanded of a
lawyer in a courtroom but also the means of acquiring those skills, since ultimately those means contribute to
the effectiveness of the advocate in the Court.6
In the past two decades, there have been several criticisms raised especially on the role of trial
advocates not only in Kenya but also in other jurisdictions. For instance, it has been observed that it is ethically
wrong for a trial advocate to defend a client’s wrongful or immoral conduct. 7 Besides, nascent trial advocates
are not only unethical but also incompetent and ineffective in trial advocacy. This can generally be attributed to,
as Tauro observes, “hodge-podge of learning experiences lacking overall logic, form, or direction.” 8 Thus, to
mitigate the issues raised, law school curriculums now provide practical skills through clinical education,
1
The Black’s Law Dictionary 543, 8th edn., 2004. Patterson L. R., A Preliminary Rationalization of the Law of Legal Ethics 57, N. C. L.,
Rev. 519 (1979), available at http://scholarship.law.unc.edu/nclr/vol57/iss4/4. In this article, Patterson analyses the issue of whether the
ethics that guide the legal principles are laws and/or mandatory or, merely a little bit more than commentary. In his opinion, there is no
definite answer to the question since the Courts have been willing to enforce such rules even though some of them are not enshrined in a
Statute.
2
The Black's Law Dictionary 51, 5th edn., 1979.
3
“Definition of Trial,” https://www.merriam-webster.com/dictionary/trial, [accessed on 22nd February 2017].
4
Terry F. McCarthy, commonly referred to as ‘America’s most popular and respected teacher of lawyers,’ was an Executive Director of the
Federal Defender Program in the United States District Court for the Northern District of Illinois for over forty years.
5
Terence F. McCarthy, The History of the Teaching of Trial Advocacy, Keynote Speech, Stetson University College of Law’s Dinner, 16 th
November, 2007.
6
Jeffrey Wolfe, Exploring Trial Advocacy: Tradition, Education, and Litigation, Tulsa Law Review, Vol.16, Issue 2, 1980, available at
http://digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=1556&context=tlr.
7
David Hoffman, Fifty Resolutions in Regard to Professional Deportment, (1836);
http://lonang.com/commentaries/curriculum/professional-deportment/> [accessed 10 February 2015].
8
Tauro, ‘Graduate Law School Training in Trial Advocacy: A New Solution to an Old Problem’ (1976) 56 BULR 635, 636.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
1
judicial attachments, Court simulations, moot courts, etc. Besides, law firms are now conducting trial advocacy
trainings not only to their young attorneys but also as refresher to the seniors. Moreover, the Law Society of
Kenya demands that all advocates undertake continuous legal education in order to acquaint themselves with the
new trends.
3. TRIAL ADVOCATE’S ETHICAL DUTIES TO THE COURT:
An advocate's duty to the Court is a fundamental obligation that defines his/her role within the
adversarial system. It should be noted that the trial advocate’s duty to Court takes priority over all other duties
that a trial advocate has including the duty to the client, opponents, State and to the witness. 9 This therefore
means that in the event any duty to the aforementioned persons or authorities tries to supersede the duty to
Court, it will be appropriate for the trial advocate to act for the good of the Court as s/he is an officer of the
Court.10
An advocate's duty to the Court also relates to the profession's independence, or what has been
described as the high degree of autonomy that advocates experience from external controls other than those
imposed by self-regulation.
The following are therefore the duties of an advocate to the Court:
3.1 DUTY TO ADOPT TACTICS THAT ARE LEGAL, HONEST AND RESPECTFUL:
An advocate must adopt tactics that are considered legal, honest and respectful. This duty is often
referred to as the duty of candour. An advocate should not offer before the Court false evidence, regardless of
the client's wishes. S/he should withdraw from representing a client who insists on tendering such evidence. It is
important for an advocate to try to persuade a client to rectify the situation and/or promptly disclose the
deception to the Court if no action is taken by the client.
3.2 DUTY NOT TO MISLEAD THE COURT:
It is the duty of an advocate to assist the Court in carrying out the administration of justice. In other
words, advocates are primarily responsible for ensuring that they do not employ strategies that will mislead the
Court. Misleading the Court encompasses misleading the Court on legal points and evidentiary issues as well as
making tactical strategies that are likely to affect the case.
a) Misleading the Court on evidentiary issues: This simply means that an advocate cannot knowingly:
 rely on or provide false evidence to the Court; or
 mis-represent or mis-state facts in an argument; or
 compel a witness to give false evidence; or
 maintain false pretence. For instance, where counsel knows that the Court is operating under a
mistaken assumption and actively maintains the false pretence, the lawyer is guilty of misleading the
Court i.e., where a judge is referring to a witness by an improper title i.e., referring to a defendant as a
Chief Inspector when s/he had been demoted to the rank of station sergeant without being corrected by
an advocate.11
There have been instances where advocates have been sued for misleading the Court. For instance, an advocate
was sued for:
 preparing and delivering a letter containing information he not only knew to be false but also would
likely to be relied upon by others in civil proceedings.
9
S.55, the Advocate‘s Act, Cap 16.
10
S.55, the Advocate‘s Act, Cap 16.
11
See Meek v. Fleming, [1961] 2 Q.B. 366.
Dr. Ratemo Tom
2
 attempting to induce a witness to sign a statement containing a different version of events related to the
facts at issue rather than what actually transpired.
In both cases, the Law Society of Kenya was forced to impose sanctions for misleading the Court.
In Law Society of Upper Canada v. Punnett,12 an advocate was sued for misleading Halton region on
what an order in council had said. His defense was that there was a clerical error which was made by an
employee at the Halton region. It was found to be in fact false as the error was based on his misinterpretations. 13
Similarly, in De Ian Bwosiemo Magara & Another v. Future Estates Limited, 14 an advocate’s case was
struck out because he did not have a valid practicing certificate at the time of filing a case in the Court of law.
The Solicitors’ Codes of Conduct, 2011 categorically provides that an advocate cannot attempt to
deceive or knowingly or recklessly mislead the Court.15
b) Misleading the Court on Legal Issues: Corresponding to duty not to knowingly mislead the Court on
evidentiary issues, an advocate cannot misstate the law. Advocates are under a positive duty to make
full disclosure of all the binding authorities relevant to a case. This means that all such authorities on
point must be brought before the Court, whether they support or undermine the position being argued
by that party, even if opposing counsel has not cited such authority.
3.3 DUTY TO AVOID TRIAL PUBLICITY (SUB JUDICE):
The goal of the legal system is that each party shall have his or her case, criminal or civil, adjudicated
before an impartial Court/Tribunal. The rules regarding trial publicity are designed to enhance the likelihood of
that occurrence and ensure that a Court/Tribunal and its proceedings are as impartial and without prejudice as
possible. An advocate should therefore not make an extrajudicial statement through public communication,
which will have a substantial likelihood of materially prejudicing an adjudicative proceeding. 16
3.4 DUTY TO UPHOLD THE LAW:
Advocates are an integral part of the administration of justice in a legal system. They must at all times
act within the law and more importantly, uphold the law when engaged in their profession. Though an advocate
has the duty to represent his client zealously to the best of his ability, s/he should not forget the fact that his/her
loyalty is foremost to the Court and to the law.
3.5 DUTY TO DISCLOSE ALL RELEVANT INFORMATION:
Trial advocates must ensure that the Court is well informed of all existing relevant informations,
decisions and legislative provisions in his/her possession. S/he should not allow a Court to be misled by
remaining silent about a matter within his or her knowledge which a reasonable person would realize and if
made known to the Court would affect its proceedings, decision or judgment.
Moreover, where one of the parties makes an incorrect reference to a case or omits a case or Statute, or
in case of existence of any procedural irregularities, the other party should inform the Court of the same whether
it is in his or her favor or not. An advocate should not preserve such matters only to reveal them during appeals.
12
(1997).
13
Chapter 5 of the Solicitors Codes of Conduct, 2011, provides that one cannot attempt to deceive or knowingly or recklessly mislead the
Court.
14
(2008).
15
Chapter 5, the Solicitors’ Codes of Conduct, 2011.
16
Mississippi Bar Association, Duty to Court: Obligation of Good Faith 7, (2003), available at
http://www.msbar.org/admin/spotimages/134.pdf. An extrajudicial statement is substantially likely to materially prejudice adjudication if it
relates to either: a) the identity, expected testimony, character or credibility of a party or witness; b) the likelihood of an accused's guilty plea
or the existence or contents of his confession or admission against interest; c) a description of potential physical evidence, or a statement as
to any examinations or tests which may or may not have been performed; d)information which an advocate knows will be inadmissible and,
if disclosed, substantially likely to prejudice an impartial trial; or, e) any opinion as to an accused’s guilt or innocence.
Dr. Ratemo Tom
3
3.6 DUTY TO ACT WITH INTEGRITY AND PROFESSIONALISM:
Section 55 of the Advocates Act, Cap 16 provides that an advocate is an officer of the Court and as
such, must act with integrity and professionalism while maintaining his/her overarching responsibility to ensure
civil conduct. Thus, an advocate is expected to conduct himself in a manner befitting the status of an officer of
the Court. Under this duty, a number of areas are covered i.e.,
a) Duty to avoid sharp practice: Trial Advocates should avoid sharp practices, which includes taking
advantage or acting without fair warning upon slips, irregularities, or mistakes on the part of other
advocates. They should also refrain from influencing the decisions or actions of Courts or Tribunals by
anything other than open persuasion. This rule applies both inside and outside the courtroom.
Advocates may not make allegations of dishonesty unless they have evidence to support such
allegations and should not interfere with the administration of justice.
b) Duty to respect the Court: Trial advocates must respect the Court. Respect comes in all forms –
preparedness and timeliness are one aspect of consideration. Being familiar with the facts and law
applicable to a case, and knowing a client's position is the most fundamental display of respect for the
Court process. S/he should not abuse the Court process nor unreasonably raise or defend an action for
which there is no legal justification. In particular, when an advocate knows there is no merit to the
client's claim but pursues the claim for some other reason, this is an abuse of the Court process.
3.7 SUBMISSION OF EVIDENCE TO THE COURT:
A trial advocate should ensure that the evidence presented to the Court is “necessary, relevant,
admissible and probative.” In other words, the evidence should facilitate the decision-maker in achieving the
outcome. The role of counsel is thus to sift and distil the evidence to make focussed decision-making by the
judge easier and efficient. The temptation, for e.g., in commercial cases to file Court books containing many
volumes is unlikely to help speedy decision-making. It is not part of the role of counsel to create evidence which
does not exist.
3.8 DUTY NOT TO GIVE PERSONAL OPINIONS:
As a general rule/grand norm, an advocate cannot assert a personal opinion on facts of the law. This is
only allowed if invited by the Court to do so, or when appearing before a Tribunal, or if it is an advocate’s duty
to do so. Thus, s/he should always speak in his/her role as an advocate and not in his/her personal capacity.
3.9 PERSONAL RESPONSIBILITY FOR CONDUCT:
Trial advocates are personally responsible for the conduct and presentation of their cases within and
without the Court. They are required to exercise personal judgment on the substance and purpose of statements
made and questions asked.
As officers of the Court, trial advocates must act competently, honestly, diligently and with complete
candour when dealing with the Court. Their conduct therefore needs to be exemplary.
Sometimes waiting for a Court appearance may be frustrating for especially junior counsels. It is
important to remain patient and courteous when waiting for a matter to be called.
It is considered inappropriate for practitioners to talk loudly inside and/or outside the courtroom or,
move around the courtroom in a disruptive manner.
Mobile telephones must at all times be switched off and solicitors should not play games or read
newspapers while the proceedings are going on in the Court.
The Court must be silent and still when:
Dr. Ratemo Tom

4
 the Court is being opened or closed,
 a person is taking an oath or affirmation,
 a person is being sentenced or a judgment is being delivered, or a prisoner is being arraigned.
When entering and leaving the courtroom, it is essential that all legal practitioners acknowledge the presence of
a Judge or Magistrate with a bow, and then to sit in a manner that minimizes disruption.
3.10 DUTY OF COURTESY:
The English Bar Rules states in part that lawyers must at all times be courteous to the Court and to all
those whom they have professional dealings with. Lawyers are officers of the Court and as such, must act with
integrity and professionalism while maintaining their overarching responsibility to ensure justice. Trial
advocates are therefore personally responsible for their conduct and presentation of their cases not only in the
Court but also out of the Court.
An advocate should at all times therefore uphold the dignity/reputation of the Court through respectful
conduct and courteous speech. S/he should never adopt a confrontational view with the Court even when there is
reason to believe that the judicial officer’s position is at odds with the law. In this regard, in the case of Ajay
Kumar Pandey, Advocate, In Re.,17 an advocate was charged of criminal contempt of Court for the use of
intemperate language and casting unwarranted aspersions on various judicial officers and attributing motives to
them while discharging their judicial functions. Upon considering the facts of the case, the Court held that:
The subordinate judiciary forms the very backbone of administration of justice. This Court would come
down a heavy hand for preventing the judges of the subordinate judiciary or the High Court from being
subjected to scurrilous and indecent attacks, which scandalise … or lower … the authority of any Court
as also all such actions which interfere … with the due course of any judicial proceedings or obstruct
… the administration of justice in any other manner. No affront to the majesty of law can be permitted.
The fountain of justice cannot be allowed to be polluted by disgruntled litigants. The protection is
necessary for the Courts to enable them to discharge their judicial functions without fear.
Similarly, in Radha Mohan Lal v. Rajasthan High Court18 and Chetak Construction Ltd. v. Om Prakash &
Ors.,19 the Supreme Court of India deprecated the practice of making allegations against the Judges and
observed that:
Indeed, no lawyer or litigant can be permitted to browbeat the Court or malign the Presiding Officer
with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if
such activities were permitted and in the result administration of justice would become a casualty and
rule of law would receive a setback. The Judges are obliged to decide cases impartially and without any
fear or favour. Lawyers and litigants cannot be allowed to terrorize or intimidate Judges with a view to
secure orders which they want. This is basic and fundamental and no civilised system of administration
of justice can permit it.
Thus, even though an advocate is entitled to freedom of expression, s/he equally owes countervailing duty to
maintain dignity, decorum and order in the Court proceedings or judicial processes. 20 Any adverse opinion about
the judiciary should only be expressed in a detached manner and respectful language. The liberty of free
17
(1998) 7 SCC 248.
18
(2003) 3 SCC 427.
19
(1998) 4 SCC 577.
20
See, Lalit Mohan Das v. Advocate General, Orissa & Another, AIR 1957 SC 250.
Dr. Ratemo Tom
5
expression cannot therefore be confounded or confused with licence to make unfounded allegations against any
institution, much less the judiciary.21
An advocate should also be courteous, civil and act in good faith with all persons with whom s/he deals
with during the course of practice. The civil conduct also extends to those in the legal profession and those
individuals who are integral to the legal process.
An advocate should always stand when addressing a Judge or Magistrate, or when a Judge or
Magistrate is addressing them. Moreover, it is good to always speak from the bar table and not from anywhere
else in the body of the Court. The bar table must never be left unoccupied during the hearing of a Court list. An
advocate must therefore remain at the bar table until s/he is given leave of the Court to vacate the bar table, or
when the next matter on the list is called, or where the Court adjourns.
It is equally important for a junior counsel to always show respect to a senior counsel. Where there are
several counsels at the bar table appearing for a matter, a senior counsel should be left to occupy the bar table
with the most senior occupying the chair at the centre.
It is also significant that an advocate should refrain from speaking when a Judge, or Magistrate, or
prosecution, or someone else is speaking.
It is also important for a trial advocate to be courteous to the Court, Court staff and the prosecution.
This will go a long way in making working life easier for an advocate especially when s/he inevitably delays in
making an appearance in the Court.
The Solicitors Code of Conduct, 2011 provides that solicitors and authorised bodies should not take
unfair advantage of those they deal with. 22 The outcomes include conduct in relation to undertakings and that all
undertakings are performed within an agreed timescale or within a reasonable amount of time. 23 Some of the
conduct requirements in this area apply in all circumstances in which professional titles are used to advance
personal interests.
3.11 DUTY NOT TO WASTE COURT’S TIME:
Trial advocate must take all reasonable and practical steps to avoid wasting the Court’s time. It is
important that advocates should:
 report to the Court before the commencement of the list. In other words, advocates must be present in
Court at the appointed time. Being late is generally considered egregious and neglectful of a lawyer's
obligation as it causes delay and disruption to the Court process. It can also be considered as rude to
keep the Court waiting;
 not keep a Court waiting whilst engaged in other matters. Where it is unavoidable, it is important for
the trial advocate to inform the Court clerk in advance. In case the Court is meant to wait for an
appearance, it is vital for an advocate to first apologize to the Court for the delay and provide reasons
for the delay before proceeding with the suit before the Court;
 not seek to arrange a postponement of a matter to suit his or her convenience unless the client has
agreed and an advocate on the other side has also been informed as to the reason of such postponement.
Adjournments of cases can cause disruption to Court sittings, inconvenience to witnesses and also, as a
result of the passage of time, cause problems for a witness's memory. It is important to note that
unnecessary adjournments drain Court resources;
21
See, D. C. Saxena v. The Hon'ble Chief Justice of India, (1996) 5 SCC 216.
22
Chapter 11, the Solicitors Code of Conduct, 2011.
23
Ibid.
Dr. Ratemo Tom
6
 appear before the Court when required. It’s a common phenomenon for an advocate failing to appear
before the Court simply because the client has instructed him/her not to do so. It is a lawyer’s duty to
appear before the Court irrespective of such instructions if s/he is counsel on record;
 not file unnecessary proceedings and raise unnecessary technicalities even if prompted to do so by a
client;
 thoroughly prepare for a case. The level of preparation should not be based on the amount of legal fees
being paid by a client. Every case should be treated with the seriousness it deserves regardless of the
type of case or the fees being paid.
 not make frivolous and vexatious objections;
3.12 DUTY TO EXPEDITE PROCEEDINGS:
Advocates should aid the Court in speedy decision-making by not subjecting a Judge to excessive
material or more documents than strictly necessary which do not facilitate decision-making or such resolution.
In Ashmore v. Corporation of Lloyd’s,24 Lord Templeman observed that:
the parties and particularly their legal advisers in any litigation are under a duty to cooperate with the
Court by chronological, brief and consistent pleadings which define the issues and leave the judge to
draw his own conclusions about the merits when he hears the case. It is the duty of the counsel to assist
the judge by simplification and concentration and not to advance a multitude of ingenious arguments in
the hope that out of ten bad points the Judge will be capable of fashioning a winner. In nearly all cases
the correct procedure works perfectly well. But there has been a tendency in some cases for legal
advisers, pressed by their clients, to make every point conceivable and inconceivable without judgment
or discrimination.
The opinion of the Court in Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd., is quite important.25 The Court in
this case held that:
It is the solemn duty of every Court to proceed with judicial function during Court hours and no Court
should yield to pressure tactics or boycott calls or any kind of browbeating. The Bench as well as the
Bar has to avoid unwarranted situations or trivial issues that hamper the cause of justice and are in the
interest of none.
The Mahabir Prasad Singh case therefore raises an important element that advocates should refrain from
making frivolous and vexatious objections, or seeking unnecessary adjournments intended to delay Court
proceedings that eventually lead to unfair administration of justice.
3.13 KNOWLEDGE OF FACTS ASSISTING OPPONENT:
This duty provides an exception while prosecuting. Trial advocates who know of facts or witnesses
likely to assist their opponents are generally not obliged to inform the latter or the Court about them to the
detriment of their client. However, if they know that, for instance, a relevant affidavit has been filed in the
proceedings and is therefore notionally within the knowledge of the Court, there is a duty to inform the judicial
officer of its existence. This duty is also consistent with the trial advocate’s duty as an officer of the Court.
3.14 DUTY WHEN PROSECUTING TO ACT WITH SCRUPULOUS FAIRNESS:
Only an advocate who is fair can be aptly described as an officer of the Court. The duty of fairness is
inherent in the nature of the work performed by an advocate. S/he should always conduct him/herself with
24
(1992) 1 WLR 446, at p.453.
25
(1999) 1 SCC 37.
Dr. Ratemo Tom
7
fairness while dealing with fellow advocates, members of the public, clients or witnesses that s/he meets in
Court. Fairness is a legal requirement provided for in Article 50 of the Constitution of Kenya, 2010.
An advocate should also be fair when the other side is not represented by an advocate to ensure that no
advantage is taken of the party’s lack of knowledge of the law and procedure. 26 The duty of fairness also
requires that an advocate brings to the attention of the Court all the authorities relevant to the point at issue
whether the cases or the authorities support or undermine the advocate’s viewpoint.
Lord Reid summed up this duty in Rondel v. Worseley,27 as:
An officer of the Court concerned in the administration of justice, the advocate has an overriding duty
to the Court, to the standards of his profession and to the public, which may and often does lead to a
conflict with his client’s wishes ... . Accordingly, an advocate has a duty to be fair, fair to the Court and
fair to the public. So important is fairness to the Court and the public that the public duty prevails over
the duty to the client if there is a conflict. It is by fairness that the public judges the profession.
Advocates prosecuting a criminal case on behalf of the State must ensure that every material point is made
which supports the prosecution. When presenting the evidence, prosecutors should:
 do so dispassionately and with scrupulous fairness;
 not regard themselves as appearing for a party;
 lay before a Court fairly and impartially the whole of the facts which comprise the case for the
prosecution;
 assist the Court on all matters of the law applicable to that case and any mitigating circumstances.
Generally the duty of trial advocates towards the Court can be summarised as an obligation of honesty and
directness, as the Courts depends entirely upon advocates who appear before it as the need for integrity is
absolute.
3.15 DUTY TO OBEY COURT ORDERS:
An advocate must uphold utmost respect for Court orders in order to maintain the dignity of the Court.
S/he must therefore avoid issues such as:
 obtaining and executing decrees without sending the draft to the other side for approval; 28
 showing a client how to circumvent Court orders and disobey injunctions.29
 obtaining ex parte injunctions without full disclosure. 30
3.16 DUTY TO RESPECT THE COURT:
Advocates must respect the Court. Respect comes in all forms - preparedness and timeliness are some
aspects for consideration.
Being familiar with the facts and law applicable to a case, and knowing a client's position, are some of
the most fundamental display of respect for the Court process.
In the matter of In re: Vinay Chandra Mishra,31 the contemner who was a Senior Advocate, President
of the Bar and Chairman of the Bar Council of India, on being questioned by a Judge started to shout and said
that no question could have been put to him and that he will get the High Court Judge transferred or see that
impeachment motion is brought against him in Parliament. The Supreme Court of India while sentencing him to
26
It may be argued that fairness may require that one overlooks certain procedures just to accommodate the un-represented party.
27
(1969) 1 A.C 191.
28
See, Mwangi Mbothu v. Gachira Waitimu, CA Civil Application No. 23 of 1993.
29
See, Shuck v Gemer (1846) 2 Ph 113.
30
See, Tiwi Beach Hotel v. Staum, (1940) 2 KAR 189.
31
(1995) 2 SCC 534.
Dr. Ratemo Tom
8
simple imprisonment for six weeks suspended him from practising as an advocate for a period of three years and
observed as follows:
The contemner has obviously misunderstood his function both as a lawyer representing the interests of
his client and as an officer of the Court. Indeed, he has not tried to defend the said acts in either of his
capacities. On the other hand, he has tried to deny them. Hence, much need not be said on this subject
to remind him of his duties in both the capacities. It is, however, necessary to observe that by indulging
in the said acts, he has positively abused his position both as a lawyer and as an officer of the Court,
and has done distinct disservice to the litigants in general and to the profession of law and the
administration of justice in particular.
However, a Constitution Bench in the same Court in the case of Supreme Court Bar Association v. Union of
India & Anr.,32 overruled In re: Vinay Chandra Mishra,33 and held that:
The power of the Supreme Court to punish for contempt of Court, though quite wide, is yet limited and
cannot be expanded to include the power to determine whether an advocate is also guilty of
"professional misconduct" in a summary manner which can only be done under the procedure
prescribed in the Advocates Act, 1961. The power to do complete justice under Article 142 is in a way,
corrective power, which gives preference to ‘equity’ over ‘law’ but it cannot be used to deprive a
professional lawyer of the due process contained in the Advocates Act by suspending his licence to
practice … while dealing with a case of contempt of Court… . An Advocate who is found guilty of
contempt of Court may also … be guilty of professional misconduct in a given case but it is for the Bar
Council of the State or Bar Council of India to punish that Advocate [in accordance with law and with
a view to maintain the dignity of the Court] by either debarring him from practice or suspending his
licence, as may be warranted, in the facts and circumstances of each case.
3.17 DUTY NOT TO MALIGN THE REPUTATION OF A JUDICIAL OFFICER:
Of late, there is growing tendency amongst some of the advocates of not only maligning the reputation
of judicial officers but also adopting defiant attitude and casting aspersions for having failed to persuade the
Court to grant an order in the terms they expect. Some advocates have as well taken a step further of using their
clients in maligning the reputation of judicial officers in instances where they fail to secure the desired order
from the said officers.34
In M. B. & Sanghi, Advocate v. High Court of Punjab & Haryana,35 the Supreme Court of India
observed that:
The tendency of maligning the reputation of Judicial Officers by disgruntled elements who fail to
secure the desired order is ever on the increase and it is high time it is nipped fat the bud. And, when a
member of the profession resorts to such cheap gimmicks with a view to browbeating the Judge into
submission, it is all the more painful. When there is a deliberate attempt to scandalise which would
shake the confidence of the litigating public in the system the damage caused is not only to the
reputation of the concerned Judge but also to the fair name of the judiciary, veiled threats, abrasive
behavior, use of disrespectful language and at times blatant condemnatory attacks … are often
designedly employed with a view to taming a Judge into submission to secure a desired order. Such
32
(1998) 4 SCC 409.
33
(1995) 2 SCC 534.
34
See, M. Y. Shareef & Anr. v. Hon'ble Judges of Nagpur High Court & Ors., (1955) 1 SCR 757; Shamsher Singh Bedi v. High Court of
Punjab & Haryana, (1996) 7 SCC 99 and M. B. Sanghi, Advocate v. High Court of Punjab & Haryana & Ors., (1991) 3 SCC 600.
35
(1991) 3 SCC 600.
Dr. Ratemo Tom
9
cases raise larger issues touching the independence of not only the concerned Judge but the entire
institution … . It is high time that we realise that the much cherished judicial independence has to be
protected not only from the Executive or the Legislature but also from those who are an integral part of
the system.
The question as to whether an advocate (a contemnor) who has tendered an apology for maligning the reputation
of judicial officer can escape punishment was discussed in the case of L. D. Jaikwal v. State of Uttar Pradesh.36
The Court held that:
… merely because the appellant has tendered his apology we should set aside the sentence and allow
him to go unpunished. Otherwise, all that a person wanting to intimidate a Judge by making the
grossest imputations against him to do, is to go ahead and scandalize him, and later on tender a formal
empty apology which costs him practically nothing. If such an apology were to be accepted, as a rule
and not as an exception, we would in fact be virtually issuing a 'licence' to scandalize Courts and
commit contempt of Court with impunity. It will be rather difficult to persuade members of the Bar,
who care for their self-respect, to join the judiciary if they are expected to pay such a price for it. And
no sitting Judge will feel free to decide any matter as per … his conscience on account of the fear of
being scandalized and prosecuted by an advocate who does not mind making reckless allegations if the
Judge goes against his wishes. If this situation were to be countenanced, advocates who can cow down
the Judges, and make them fall in line with their wishes, by threats of character assassination and
persecution will be preferred by the litigants to the advocates who are mindful of professional ethics
and believe in maintaining the decorum of Courts.
3.18 A LAWYER'S DUTY TO EDUCATE CLIENTS ABOUT THE COURT PROCESSES IN THE
INTEREST OF PROMOTING THE PUBLIC'S CONFIDENCE IN THE ADMINISTRATION
OF JUSTICE:
It is the duty of an advocate to educate a client about the Court processes in the interests of promoting
public confidence in the administration of justice. Education can be based on the limits of the law as well as
professional obligations. Thus, advocates are mandated to ensure that the society:
 has a knowledge and understanding of the law;
 appreciates the values advanced by the rule of law;
 has a knowledge and understanding on judicial system in Kenya, and
 has a knowledge and understanding on the value of Judges, advocates and other judicial officers.
In view of the above, it may be noted that an advocate's duty to the Court touches upon nearly every aspect of
one’s practice. The moot question relates to determining when duties to the client are secondary to those owed
to the Court. This is yet to be made crystal clear and as such, advocates may face difficulties when duties
conflict as they cannot be able to provide proper guidance to their clients. The only hope is that advocates
should be prepared to address such issues whenever they arise with a fuller understanding of their duty to the
Court.
4. TRIAL ADVOCATE’S DUTY TO THE OPPONENTS:
Trial advocates owe duties to the opposing counsel extending from the pre-trial stage up to the point of
sentencing and/or acquittal. This is governed by rules of professional conduct, breach of which leads to
consequences and so as the conventions of etiquette to be observed by an advocate towards the opposing
36
(1984) 3 SCC 405.
Dr. Ratemo Tom
10
counsel that goes beyond courtroom to everyday dealing in legal matters. A true advocate practices his art at all
times, both in and out of the Courts. These duties extend from pre-trial to point of sentencing or acquittal. These
duties are explained below:
4.1 DUTY TO MAINTAIN CIVILITY IN DEALING WITH OTHERS:

When dealing with others, a trial advocate should be courteous, civil and act in good faith with all
persons including opponents with whom s/he deals with during the course of practice. An advocate's duty to be
civil to opposing counsel, includes the duty:
a) not to engage in acrimonious exchanges with opposing counsel or otherwise engage in undignified or
discourteous conduct;37
b) to be honest and truthful with opposing counsel; and
c) to be accommodating and flexible regarding scheduling and routine matters.
4.2 DUTY TO MAINTAIN AN HONEST RELATIONSHIP WITH OPPOSING COUNSEL:
A trial advocate has a duty to maintain an honest relationship with an opposing counsel. The failure to
fulfil this obligation was demonstrated in Jeffery case38 where during the course of the litigation, a Court official
instructed an advocate that the trial, which was scheduled to begin in three days, had been taken off the trial list.
The advocate undertook to inform opposing counsel. However, in the hopes of reaching a settlement with the
defendant, the advocate did not tell the opposing counsel immediately but instead sent a revised offer to settle.
Opposing counsel subsequently discovered from a different source that the trial had been adjourned. The
discipline panel held that the lawyer was under an obligation to the Court to promptly pass on the information. It
rejected the argument that this was a situation analogous to that of an advocate possessed of information
developed during the adversarial process for the use of his client.
4.3 COURTESY AND RESPECT TOWARDS COLLEAGUES:
Professional courtesy may properly be considered professional fairness, but may be used as a tool to
persuade others, including the Court and clients, that lawyers act with professional integrity. Advocates acting
with professional integrity will likely be more successful when asking for what they want whether from
opposing counsel or the Court.
Opponents are entitled to respect and display courtesy in and out of the Court. It helps to gain the other
parties’ respect and advances the cause of their client and their own career. Advocates who treat their opponents
rudely are unlikely to gain respect and cannot expect to be treated politely.
Courtesy can be demonstrated in several ways i.e., salutation-‘senior, wakili, making space for seating,
order of addressing the Court by allowing a colleague looking at the document at your possession,
accommodating genuine reasons for adjournment of an application, conserving time allowed, keeping emotions
and high tone in check, and focusing on issues and not the person.
Respect, in the other hand, is accorded to senior counsels regardless of whether they are opposing
counsel or not. Seniority is not in terms of age, but it rather alludes to when one signed the roll of advocates.
Seniority of an advocate can as well be determined by the office an advocate holds (i.e., the Attorney General
and the Solicitor General) regardless of the day the advocate signed the Roll of Advocates. 39
37
Acrimonious exchanges with opposing counsel come in all forms – sarcasm, intimidation, rudeness and unfounded personal attacks.
38
Law Society of British Columbia v. Jeffery, (1996) L.S.D.D. No. 250.
39
See, S.20, the Advocates Act, Cap 16.
Dr. Ratemo Tom
11
4.4 DUTY TO DISCLOSE
An advocate must always disclose to the opposing counsel any information pertinent to the case in due
time. Thus, there is need to inform an opponent the authorities an advocate plans to rely on to avoid chances of
misleading the Court. Advocates should as well bring into fore procedural irregularities before the Court during
the hearing and not to reserve matters to be raised on appeal.
The Law Society of Kenya Digest on Professional Conduct and Etiquette gives proper directions as to
how full disclosure should be undertaken. 40 An advocate must always ensure that a copy of the list of authorities
s/he intends to use in their matter is submitted to the opposing counsel at least a day prior to the hearing of their
matter.41
The rules of full disclosure are such that the advocate should not:
 obstruct the opposing counsel’s access to evidence;
 alter, destroy or conceal any evidence if s/he knows fully well that the evidence is or shall be subject to
discovery in Court;
 assist any other person to alter, destroy or conceal any evidence, and
 falsify evidence in favor of their case or assist any other party to do the same.
4.5 DUTY NOT TO UNNECESSARILY EMBARRASS THE OPPONENT:
This may happen when the trial advocate fails to notify the opposing counsel of legal opinion not
evident from papers. This has effect of undermining reputation of the colleagues and the reputation of the
profession. Thus, trial advocates should at all times strive to maintain honour and dignity of the legal profession.
The Law Society of Kenya Digest on Professional Conduct and Etiquette provides that an advocate
should always inform his opponent if he proposes to brief counsel or leader from senior bar. Moreover, an
advocate, who has briefed counsel or leader from junior bar, should maintain close liaison with their leader. In
particular cases should not be taken out off the list nor should hear dates be altered without first obtaining
agreement with the leader.42
4.6 DRAW ATTENTION TO CASE/PROVISION OPPONENTS OVERLOOKED:
In case a trial advocate knows a case or legislative provision that has been omitted, or if an opponent
makes incoherent reference to a case or provision, it is the duty of a trial advocate to draw the Court’s attention
to it even if it assists an opponent’s case.
4.7 DUTY NOT TO INCONVENIENCE OR HARASS OPPONENTS:
A trial advocate should not wait till the last minute to reply to the opposing counsel, or insist that a
matter proceeds even before the counsel has studied the file, or insist on attendance of witness who cannot
attend on time. For instance, if a matter is urgent, it should be indicated as URGENT, some advocates have
specified stamps for urgent matters, or use stickers.
The Law Society of Kenya Digest on Professional Conduct and Etiquette provides that attention is
drawn to the absolute necessity of advocates replying to correspondence with minimum delay, particularly in
case of correspondence with other advocates and the law society. Failure to reply to correspondence has been
held to amount to professional misconduct. 43
40
Rule 28, The Law Society of Kenya Digest on Professional Conduct and Etiquette.
41
Ibid.
42
Rule 16, The Law Society of Kenya Digest on Professional Conduct and Etiquette.
43
Rule 15, ibid.
Dr. Ratemo Tom
12
4.8 DUTY WHEN PROSECUTING TO PROVIDE EVIDENCE ASSISTING THE DEFENCE
It is essential for prosecuting advocates to ensure that all relevant evidence is either presented or made
available to the defence before prosecution process begins. The duty applies only to the prosecution. The
defense is exempted since the burden of proving a case lies on the prosecution.
4.9 DUTY TO AVOID PERSONALITY CONFLICTS WITH OPPONENTS:
Trial advocates should at all times remember that clients are litigants and they should therefore be
impartial and keep their personal feelings aside. Clients come and go but the profession remains, any bad blood
that may exist between the clients during litigation should never be allowed to influence the advocates in their
conduct or demeanour towards each other or the parties they are representing. Presence of animosity between
them in a matter may cause clouded judgement triggered by emotional factors thereby hindering the proper
resolution of matter in the best interest of their client. Personal remarks and references between them should be
avoided.
4.10 DUTY TO OBTAIN CONSENT BEFORE PLACING MATERIALS BEFORE COURT:
Trial advocates are required to obtain consent from the Court’s presiding officer before presenting any
new and relevant evidence to the Court. The principle here is that advocates are agents of the Court and helps it
to come to the truth. Equally, a trial advocate has a duty to seek consent from an opposing counsel when
introducing new evidence after substantial hearing of the case has been completed.
4.11 DUTY TO AVOID SHARP PRACTICE:
It has been observed that ‘law suits are not tea parties and lawyers are not potted plants, living things
that stand mute.’ While a client is important, an advocate has an obligation to others as well. It is for this reason
that the use of trial tactics that go beyond the vigorous representation of a client’s case and enter into sharp
practice are not permitted. The rules dictate that when advocating on behalf of a client, a lawyer remains bound
by his duty to the Court, the administration of justice and opposing counsel. These duties cannot be abandoned
for the sake of trial tactics.
The Law Society of Kenya Digest on Professional Conduct and Etiquette categorically states that it is
wrong for an advocate to tape record by any means a telephone conversation with another advocates client
except, with that advocates consent.44
4.12 DUTY OF FAIRNESS:
The duty to act in fairness is inherent in the nature of the profession or work done by advocates. In
Rondel v. Worseley,45 Lord Reid J. summed it up as follows:
“… as an officer of the Court concerned in the administration of justice, the advocate has an overriding
duty to the Court to the standards of his profession and to the public, which may and often does lead to
a conflict with his client’s wishes.”
The duty therefore also extends to the opposing counsel i.e., an advocate must not seek to obtain and execute
decrees without sending out the draft for the other side’s approval as was illustrated in Mwangi Mbothu v.
Gachira Wairimu.46
4.13 CORRESPONDENCE:
An advocate is duty bound to deal promptly with any communication from other professional
colleagues (opposing counsel).
44
Rule 44, ibid.
45
(1969) 1 A.C 191.
46
C.A.C.A No. 233 of 1993.
Dr. Ratemo Tom
13
The Law Society of Kenya Digest on Professional Conduct and Etiquette provides that it is of absolute
necessity for advocates to reply to any form of correspondence from the opposing counsel with minimum delay
and reasonable promptness. 47 Thus, professional letters and communication from opposing counsel that require
a reply should be dealt with urgently in fulfilling all commitments as stipulated.
An advocate should also correspond in a civil and respectful manner in all their interactions with other
advocates. Failure to do so is tantamount to professional misconduct.
Advocates are not permitted to communicate or to negotiate a matter directly with any person who is
represented by another lawyer except with the express consent of the opposing counsel.
4.14 DUTY TO BRIEF OPPONENTS:
It is essential for advocates to brief the opposing counsel on reasonable requests concerning trial dates,
adjournments, any waiver of procedural formalities and other matters that do not prejudice the right of the client.
The Law Society of Kenya Digest on Professional Conduct and Etiquette clearly stipulates that an
advocate should always inform his/her opponent if they so wish to have cases taken off the list or hearing dates
altered.48 Thus, an advocate should not act arbitrarily without consulting opposing counsel. S/he must give
notice to the opposing counsel where s/he intends to apply to have the pleadings of the opposing counsel struck
out for being an abuse of the Court process for some default.
4.15 PROFESSIONAL COURTESY:
Professional courtesy is defined as extending to the other side an assistance to which the other side is in
law entitled to as long as the cause of justice is not affected nor any substantial prejudice occurs to the lawyer’s
own client.
Advocates must be courteous to each other at all times. Clients do come and go but the profession
remains as it is. Any bad blood or acrimony that may be exhibited by a client, particularly during litigation,
should never be allowed to influence the advocates in their conduct and demeanor toward each other or the
parties they are each representing.
The presence of personal animosity between advocates in a matter may generally cause clouded
judgment triggered by emotional factors thereby hindering the proper resolution of a matter before the Court in
the best interest of their clients.
Courtesy demands that personal remarks or references between them within or without the premises of
the Court must be avoided.
Courtesy is in relation to the order of seniority. Proper respect must be accorded to seniors irrespective
as to whether they are opposing counsel or not. According to the Advocates Act, Cap 16, seniority in this respect
is not in terms of age but it alludes to when one signed the Roll of Advocates. 49 Seniority of an advocate can as
well be determined by the office an advocate holds (i.e., the Attorney General, and Solicitor General) regardless
of the day the advocate signed the Roll of Advocates.50
Courtesy can be considered in many ways: it may be common courtesy to honour professional
undertakings of the opposing counsel by for e.g., paying damages on time. It can also be deemed to be a
professional courtesy where an advocate does not undertake something that cannot be fulfilled whatsoever. It is
therefore essential that undertakings must be in writing and absolutely unambiguous.
47
Rule 15, the Law Society of Kenya Digest on Professional Conduct and Etiquette, 2000.
48
Rule 16, ibid.
49
Infra.
50
S.20, the Advocates Act, Cap 16.
Dr. Ratemo Tom
14
Moreover, if an advocate giving an undertaking does not intend to accept any personal responsibility,
that should be expressly stated in an undertaking made. In the absence of such a statement, the person to whom
the undertaking is given may expect that the advocate giving it will personally honour it.
4.16 CONFIDENTIALITY:
Ethics demands that a counsel should not disclose any confidential information disclosed to him/her by
an opposing counsel.
4.17 DUTY TO AVOID SHARP PRACTICE:
An advocate should always act in good faith and more importantly avoid sharp practice. This means
that an advocate should not:
 take advantage of or act without fair warning to the opposing counsel upon slips, irregularities or
mistakes on the part of the other party;
 impose on opponents impossible, impractical or manifestly unfair conditions during and after the
clients’ matter for instance, unfavourable conditions in respect to time and payment of penalty interest;
 attempt to directly communicate with the opposing counsel’s client in a bid to jeopardize the case or to
engage in negotiations with such client without the knowledge or consent of the opposing counsel,
 resort to trickery in engaging with opposing counsel or a client of an opposing such as using a tape
recorder or any other devices to record a conversation51;
 represent a client who persists in such improper conduct. S/he should not consider him/herself a mere
mouth-piece of the client;
 use restrained language in correspondence, scurrilous attacks in pleadings, and use intemperate
language during arguments in Court.
5. TRAIL ADVOCATE’S ETHICAL DUTY TO A CLIENT:
The Constitution of Kenya, 2010 lays the basis for the right to legal counsel.52 However, the right
cannot be properly exercised if an advocate does not adhere to the Code of Conduct for Advocates at the time of
instruction, institution, trial and conclusion of a client’s matter. Generally, failure to adhere to such Code leads
to injustice on the part of a client. Consequently, the law has imposed certain obligations 53 on an advocate to
ensure that the interests of clients (who are major source of income for an advocate) are properly protected. 54
Such obligations, inter alia, include:
5.1 DUTY TO EDUCATE CLIENTS:
Trial advocate's duty to the Court requires that an advocate educate clients about the Court processes in
the interests of promoting the public's confidence in the administration of justice. This requires an advocate to
educate clients about:
a) the limits of the law;
b) professional obligations;
c) values advanced by the rule of law;
d) judicial system and the value of lawyers, judges, juries and many other participants in the system.
51
Rule 44.
52
Art.50(2)(g), the Constitution of Kenya, 2010.
53
The imposition of the obligation is mainly because there exists a special relationship of trust and confidence between an advocate and
client.
54
S.2, the Advocates Act, Cap 16 Laws of Kenya provides that the term ‘client’ includes any person who, as a principal or on behalf of
another, or as a trustee or personal representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or
employs, or is about to retain or employ an advocate and any person who is or may be liable to pay to an advocate any costs.
Dr. Ratemo Tom
15
5.2 DUTY OF DUE CARE AND DILIGENCE:
An advocate has the duty to act with due diligence and reasonable care to the client as a result of the
professional relationship between them in which an advocate is always expected to act professionally and not
negligently. In National Bank of Kenya v. E. Muriu Kamau and Another,55 the Court reiterated that an advocate
is required to have a reasonable duty of care and skill in the execution of his/her duties. In Kinluck Holdings v.
Mint Holdings,56 the Court went ahead to explain that if the advocate breaches the duty s/he owes to the client,
s/he may be liable professionally.
In Abraham v. Justsun,57 Lord Denning MR also held that:
[It is an] advocate’s duty to take any point which he believes to be fairly arguable on behalf of his
client…He is not guilty of misconduct simply because he takes a point which the tribunal holds to be
bad. He only becomes guilty of misconduct if he is dishonest. That is, if he knowingly takes a bad point
and thereby deceives the Court.
Moreover, in Gran Gelato Ltd. v. Richcliff (Group) Ltd.,58 that involved a solicitor’s replies to preliminary
enquiries in a conveyancing transaction, the Court stated that a solicitor owes a professional duty of care to the
client and no-one else. He is subject to professional rules and standards, and owes duties to the Court as one of
its officers.
Exceptionally, an advocate may owe a duty to a non-client. The decision in Hedley Byrne v. Heller &
Partners59 suggests that an advocate who provides professional advice aware that the person to whom the advice
is given would be relying thereon could not argue that there was no contract for the service, and could be held
liable. In the said case, the Court found that there was a special relationship between an advocate and a client
that gave rise to a duty of care.60
5.3 DUTY TO COMPETENTLY DEFEND/REPRESENT A CLIENT:
A trial advocate is believed to possess sufficient qualifications and skill to undertake a brief. S/he
should thus provide competent legal representation to a client. Competent representation requires adequate legal
knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. 61 The advocate
must do so, without abandoning the case, to the conclusion of the suit even if that client fails to pay his fee.
Once a suit is concluded, an advocate is entitled to sue for his fees.62
5.4 DUTY TO FEARLESSLY UPHOLD THE INTERESTS OF A CLIENT:
Various Courts have upheld duty to fearlessly uphold the interests of the client as one of the major
ethical duties of a lawyer to his client. For instance, in Kinluck Holdings v. Mint Holdings,63 the Court held that
an advocate owes his duty to the client, the breach of which makes him/her liable to the client.
The English House of Lord’s case of Medcalf v. Weatherill and Another64 has attempted to explain the
duty of an advocate to fearlessly uphold the interests of the client in even better terms. According to the Court:
 the duty of an advocate to the client is a constitutional guarantee;
55
[2009] eKLR.
56
(2009) eKLR.
57
[1963] 2 All ER 401 at p.404.
58
[1992] Ch 560.
59
[1963] 2 All ER 575.
60
For further information see, Carley v. Freehills, [2013] FCA 954: paras 310ff.
61
Rotunda Ronald D. and Dzienkowski John S., Professional Responsibility: A Student’s Guide 73, (The Center For Professional
Responsibility: The American Bar Association, Thomson/West, Thomson West, St. Paul, MN, USA, 2006).
62
J. P. Machira v Abok James Odera [2006] eKLR, as per Angawa J.
63
(1998) eKLR.
64
(2002) UKHL 27.
Dr. Ratemo Tom
16
 there should be no pressure from the Executive, Judiciary or any other body requiring an advocate not
to represent certain clients, or employ pressure that can deter an advocate from representing a client
effectively;
 unpopular and unmeritorious clients ought to be represented without the advocate being penalized or
harassed by any institution or person, and
 an advocate must avoid situations where his/her conduct of a case is not driven by the needs of a client
but by the advocate’s own interests.
Lord Brougham has also held (in his famous defence of Queen Caroline):
An advocate, by the sacred duty which he owes his client, knows in the discharge of that office but one
person in the world – the client and none other. To save the client by all expedient means, to protect the
client at all hazards and costs to all others and among others to himself, is the highest and most
unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction
which he may bring on any other. Nay, separating even the duties of a patriot from those of an advocate
and casting them if need be to the wind, he must go on reckless of the consequences, if his fate it
should unhappily be to involve his country in confusion for his client’s protection. 65
In the Kenyan situation, there are several instances where advocates have been under pressure not to represent
certain clients. For instance, the pressure on Counsel Cliff Ombeta when he chose to represent the police
officers who were allegedly involved in the murder of Advocate Willie Kimani, and in a more recent case of the
extradition of the Akasha brothers was unethical. However, it may be noted that the duty to the client is
subservient to an advocate’s duty as an officer of the Court i.e., to uphold justice. This is apparent in the UK
case of Rondel v. Worsley66 where the Court held that the advocate is simply not the mouthpiece of the client,
s/he has a calling higher than that of truth and justice.
5.5 DUTY NOT TO BREACH THE CONFIDENTIALITY OF THE CLIENT:
In the course of interactions with a client, an advocate comes across a lot of client’s information often
given in confidence which if not used in an ethical manner, it can be antithesis to a client’s case and future legal
prospects. Such information should be safeguarded, and except in exceptional circumstances as provided for
under Section 134 of the Evidence Act, Cap 80 it should not be divulged. This was reiterated in Omari S/O
Hassan v. R.67 Thus, disclosure of information made in the course of employment as an advocate is permissible
only:
a) when there is a client’s express consent;
b) on any communication made in furtherance of any illegal purpose, or
c) on any fact observed by any advocate in the course of his employment showing that any crime or fraud
has been committed since the commencement of employment. 68
The objective of the duty to confidentiality is to ensure that the client can confide completely and without
reservation to the advocate.69 It is important to note that the privilege:
65
Limumba P. L. O., The Legal Profession and Crisis of Ethics 82, quoted in Ghai Yash Pal & Ghai Jill Cottrell, The Legal Profession and
the New Constitutional Order in Kenya, (Nairobi: Strathmore University Press, 2014). For further analysis see, Monroe H. Freedman, Henry
Lord Brougham and Zeal (2006) 34 Hofstra Law Review 1319, available at
http://law.hofstra.edu/pdf/academics/journals/lawreview/lrv_issues_v34n04_bb1_freedman_
final.pdf.
66
(1969) 1 A.C 191: (1967) 3 WLR 1666,
67
(1956) 23 EACA 550. In this case, the appellant was convicted of murder. During trial, counsel for the accused informed the Court that
the accused person had refused to testify under oath, against his counsel’s advice. The disclosure by the advocate was held, on appeal, to be
a breach of professional privilege, and the trial court should not have allowed it to affect its mind in the deliberations.
68
S.134(1), the Evidence Act, Cap 80.
Dr. Ratemo Tom
17
a) extends to oral communication and documentary information received from a client in the course of
acting for a client;
b) survives the death of a client, so long as there is an issue in which the client’s interests are in question.
In other words, it continues even after the employment of an advocate has ceased;70
c) extends to communication made to the advocate’s interpreters, clerks and/or servants of an advocate.71
However, this privilege is not absolute and it may be overlooked in certain cases. 72
In King Woolen Mills and Another v. Kaplan and Stratton Advocates,73 the Court held that:
the fiduciary relationship created by the retainer between the client and his/her advocate(s) demands
that the knowledge acquired by the advocate while acting for the client be treated as confidential and
should not be disclosed to anyone else without that client’s consent. This principle exists even where an
advocate acts for more than one party as a common advocate and continues long after the matter for
which the retainer was created has been concluded hence a special type of agency relationship is
created.
The duty not to breach the confidentiality of the client has also been cited in the case of Lizzie Borden. In the
late 1800s, Ms. Borden apparently killed her father and the only witness to the murder, her mother. She was
tried and acquitted of the murder in 1892. Since then, the law firm that represented Ms. Borden refused to open
up her file in spite of pressure from scholars. The case raised two important issues as to:
 whether confidentiality should live past the death of the client? and
 how many years after death the file can be made public?
In Swidler & Berlin v. United States,74 the United States of America Court was able to answer the first question
when it held that privilege and confidentiality outlives the life of the client. However, the issue as to how long
after death the file can be made public is yet to be decided.75
Following the Swidler & Berlin case,76 it is one thing to state unequivocally that the privilege does or
does not survive death. There are however practical questions yet to be answered, for instance:
 Who will enforce the privilege 50, 75, or 100 years when the relevant actors, immediate executors and
heirs are all dead and the law firm is defunct?
 If the privilege is breached, who will complain and who can be held liable or responsible for any
wrongful actions?
 Whether such a situation can be considered as an inadvertent waiver of confidentiality interests? and
 Who can be held responsible for any arguable damage to the reputation of the client? 77
Taking into account the above questions, Klinefelter and Laredo have held that, whereas during the life of the
client, the issue is not controversial, after the client’s death and the elapsing of a significant time, the question of
confidentiality will continue posing an ethical dilemma until the Courts decides it in a definitive manner.
69
It is important to note that the privilege is that of the client and not the advocate and for that reason, only the client can waive the
privilege.
70
S.134(2), the Evidence Act, Cap 80.
71
S.135, the Evidence Act, Cap 80.
72
Limumba P. L. O., The Legal Profession and Crisis of Ethics 83, quoted in Ghai Yash Pal & Ghai Jill Cottrell, The Legal Profession and
the New Constitutional Order in Kenya, (Nairobi: Strathmore University Press, 2014).
73
Nairobi Civil Appeal No.55 of 1993.
74
(1998) 524 U.S. 399
75
Klinefelter & Laredo, Is confidentiality Really Forever?, Spring 2014 40 (3), p.47.
76
(1998) 524 U.S. 399
77
Ibid.
Dr. Ratemo Tom
18
5.6 LOYALTY:
An advocate generally has the duty to ensure that s/he has complete, undivided loyalty to the client’s
interests. S/he should not be compromised. In other words, the interests of other parties should not influence
his/her duty to the client. Such loyalty should thus be total and sincere. This is apparent in the case of Amina and
Others v. R. where the Court barred an advocate from representing a client in a matter in which he had acted for
the opposite party in the interests of justice.
The duty also includes the duty to:
 avoid any conflict of interest, existing or contemplated, and
 provide good, independent and honest advice as pronounced in the Code of Conduct for Advocates.
5.7 DUTY TO LISTEN AND ACT ON CLIENT’S INSTRUCTIONS:

The advocate also has the duty to listen and act on the instructions the client presents and advise
him/her accordingly. An advocate acting other than on the instructions of a client commits professional
misconduct. Besides, any action carried out may not bind a client and can easily constitute a breach of contract.
After the instructions, s/he should advise the client on the next course of action. However, if the matter
is unethical or illegal, from which a course of action cannot lie, s/he should:
 advise the client accordingly on the futility, illegality or the unethicality;
 decline to carry out the illegal or unethical instructions.
5.8 DUTY TO ACCOUNT TO THE CLIENT:
An advocate has duty to account to the client. Thus s/he should:
 inform well on time where s/he chooses to opt out of advising or representing a client;
 disclose the likely success or otherwise of the case to the client;
 present any alternatives to the course of action a client might have other than the Court process.
 account to all the money that s/he receives on behalf of the client including the interests that may be
earned. An advocate should also pay back any money that a client might pay in excess of the requisite
legal fees;
 avoid self-dealing. In other words, an advocate cannot misuse to his benefit the assets of his client.
In some cases, such as conveyancing, an advocate may act for both parties in the buying and selling of property.
In this case, the Court has explained that it is unethical for the advocate to act for one party against another in
King Woollen v. Kaplan and Stratton.
5.9 DUTY TO EXPEDITE PROCEEDINGS:
An advocate also has a duty to expedite proceedings. Litigation can be an expansible exercise for the
clients. Consequent, as far as possible, the client should refrain from asking for adjournments whose only
purpose is to delay the trial. This not only wastes the Court’s time, but it also delays justice for the client.
5.10 DUTY TO COMMUNICATE WITH THE CLIENT:
Establishing and maintaining an efficacious and professional relationship with clients is a hallmark of a
successful advocate.78 This will be determined by the level of communication which an advocate has with
his/her client. An advocate is thus duty bound to adequately communicate with a client (in a language s/he
78
Hayden Paul T., Ethical Lawyering: Legal and Professional Responsibilities in the Practice of Law 187, American Casebook Series,
(Thomson West, St. Paul, MN, USA, 2003).
Dr. Ratemo Tom
19
understands) regarding his/her conduct in order for a client to make an informed decision regarding
representation.
Moreover, after taking instructions, an advocate should also (in order for a client make an informed
decision concerning representation) advise a client concerning the advantages and disadvantages of embracing
alternative dispute resolution mechanisms to settle the dispute.
In the course of representation, an advocate should as well keep a client reasonably informed about the
status/developments of a matter and promptly comply with requests for information by a client.79
Communication is thus facilitative of competent representation and supportive of continued client trust,
confidence and professional relationship.
5.11 DUTY TO DISCLOSE:
This duty includes the following:
a) The duty to disclose the likely success or otherwise of actions that would be taken by an advocate and
alternatives that may be available should be given greater emphasis. This is so especially in the context
that litigation should be a remedy of last resort. An advocate who fails to honestly disclose the true
chances of success puts his/her interests before those of his/her client as s/he is presumed to seek
earning higher fees through litigation rather than advising a client on cheaper and expeditious available
alternatives measures to settle a dispute.
b) Duty to disclose financial benefits to the client: The duty to disclose financial benefits arises from the
agency relationship between an advocate and a client that demands, inter alia, good faith and
transparency. In United Insurance Co. Ltd. v. Dorcas Amunga,80 Justice Alnashir Visram stated that the
relationship between an advocate and a client is governed by the retainer which is the contract that
determines their rights and liabilities subject to terms which the law will infer in the particular
circumstances. The authority of an advocate to act for his client will therefore arise from the retainer.
The conduct of the advocate under the retainer will also be governed by the Advocates Act.
c) Duty to disclose conflict of interest: An advocate should not act in a matter where s/he is likely to be
called as a witness. S/he must therefore ensure that there’s neither conflict of interest nor likelihood of
such a conflict arising subsequently during the trial process. In King Woolen Mills and Another v.
Kaplan and Stratton Advocates,81 the respondent firm had acted for both a lender and a borrower in a
previous transaction. The borrower defaulted and sought to question the security of the transaction. The
Court of Appeal held that since the firm was aware that there was likely to arise a conflict between the
lender and the borrower, and since having acted for both parties they were in a position to be privy to
information pertaining to the appellant’s case, they would not purport to enforce the said securities to
the prejudice of the appellants.
5.12 COURTESY:
An advocate is enjoined to treat clients with utmost respect, fairness, candour and courtesy. S/he should
uphold the dignity of a client at all times within and without the Court premises and his/her office.
79
Failure to inform a client of any significant developments of a matter is a serious component of professional misconduct and is punishable
as a disciplinary offence.
80
Nairobi HCCC No. 462 of 2000.
81
Nairobi Civil Appeal No.55 of 1993.
Dr. Ratemo Tom
20
5.13 DUTY OF AN ADVOCATE ACTING FOR BOTH PARTIES IN A TRANSACTION NOT TO
ACT AGAINST ONE FOR THE OTHER:
If an advocate acts for both parties in the same transaction, s/he should not act for one against the other.
This was stated by the Court of Appeal in King Woollen v. Kaplan & Stratton82 where it held that:
The fiduciary relationship83 created by the retainer between client and advocate demands that the
knowledge acquired by the Advocate while acting for the client be treated as confidential and should
not be disclosed to anyone else without the client’s consent. That fiduciary relationship exists even
after conclusion of the matter for which the retainer was created.
The decision was upheld by the same Court in Uhuru Highway Development Ltd and 3 others v. Central Bank
of Kenya and 4 Others,84 where an advocate who had acted for both parties in the preparation of a charge was
barred by the Court of Appeal from appearing as a witness for one party against the other in an ensuing dispute
before the High Court.
5.14 DUTY TO CHARGE REASONABLE FEES:
An advocate should charge a client reasonable fees which is consistent with Advocates Act, Cap 16 and
the Advocates (Remuneration) Order, 2009. Section 45 of the Advocates Act provides that an advocate and his
client may fix the amount of an advocate’s remuneration by agreement. Besides, an advocate should not
stipulate a fee contingent on the results of litigation, or agree to share the proceeds of litigation. 85 Giving an
advocate an interest in the subject matter of a suit is against professional ethics and violates public policy.
Moreover, an advocate should not charge less than the set limit provided under the Advocates
(Remuneration) Order, 2009 Order.86 Doing so will constitute an undercutting and is an offence under Section
36 of the Advocates Act, Cap 16.
Further, an ideal advocate is obligated to disclose, discuss and conclude the issue of legal fees and
other payments to the client from the onset.
5.15 DUTY TO PROVIDE SOUND LEGAL ADVISE:
An advocate should strife to give true, accurate and sound advise to the client, in a language s/he
understands, on the merits of a case and more importantly do what is considered right and in the client’s best
interest. Such advise should be based on sound legal principles and professional judgement.
5.16 DUTY TO SAFEGUARD CLIENT’S PROPERTY:
Quite often, advocates possess client’s property and may receive money and other things in trust for a
client. An advocate is enjoined to safeguard such property and not to mix with his or her own. Besides, s/he
should not to use it for his/her benefit. Thus, it is important to have a Client/Trust Account.
Equally, an advocate should safeguard a client’s files and other documents. It is prudent to take an
insurance policy for the purpose.
5.17 OTHERS:
a) Duty to act with utmost good faith.
b) Duty to advice the client of any requisite payments over and above their legal fees.
6. TRIAL ADVOCATE’S DUTY TO THE ADMINISTRATION OF JUSTICE:
The following are the duties:
82
Civil Appeal No. 55 of 1999 (Unreported).
83
A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons).
84
(2003) eKLR.
85
S.46, the Advocates Act, Cap 16.
86
R.3, the Advocates (Remuneration) Order, 2009.
Dr. Ratemo Tom
21
6.1 DUTY TO ASSIST THE STATE AS PROSECUTORS WHEN CALLED UPON:
A trial advocate has the duty to assist the State as prosecutors when called upon as part of his or her
functions as officer of the Court. The same rules apply for refusing a ‘cab rank’ rule brief where a prosecutor
wishes to decline brief as a prosecutor. Assisting a prosecutor generally aids in the administration of justice.
Sections 5 and 6 of the Office of the Attorney-General Act, 2012 lay down the powers and functions of
the Attorney-General. The Attorney-General is empowered to issue directions to any officer performing legal
services functions in any Government Ministry. Accordingly, it is the duty of an advocate performing
Government legal services to comply with the directive of the Attorney General in the interest of administration
of justice in Kenya.
Similarly, the Director of Public Prosecutions exercises State powers of prosecution as enshrined under
Article 157 of the Constitution of Kenya, 2010 and Section 5 of the Office of the Director of Public Prosecutions
Act, 2013. S/he is required to ensure due regard to the public interest, the interest of the administration of justice
and the prevention and avoidance of abuse of legal process. Moreover, s/he is required to set the qualification
for the appointment of prosecutors, monitor their training and ensure gazettement of Public Prosecutors in
Statutory Corporations. Further s/he can engage the services of a qualified private legal practitioner to assist in
the discharge of his mandate. Therefore, it is the duty of an advocate engaged by the Director of Public
Prosecutions to ensure that s/he undertakes prosecution in a manner that will uphold, protect and promote
human and Constitutional rights of every Kenyan citizen. Thus, when engaged as a prosecutor, an advocate's
prime duty is:
 not to seek to convict but to see that justice is done through a fair trial on the merits;
 to make timely disclosure to defence counsel or directly to an unrepresented accused of all relevant and
known facts and witnesses, whether tending to show guilt or innocence;
 not to do anything that might prevent the accused from being represented by counsel or communicating
with counsel.
6.2 DUTY NOT TO CORRUPT THE ADMINISTRATION OF JUSTICE:
A legal practitioner may be heavily constrained in representing a client who insists on pleading 'not
guilty', even though the client has made a frank admission of guilt to the practitioner prior to the trial.87 The
advocate should reject such aspersions. It is therefore important for an advocate not to participate in any
dishonourable or improper conduct of a client, either in or out of Court despite the request from the client in the
interest of administration of justice.88
The duty encompasses the obligation not to participate in, introduce into evidence or rely upon an
untrue affidavit sworn by a client. That is an obligation particularly applicable in relation to an affidavit of
discovery in civil litigation.
6.3 DUTY TO ASSIST THE STATE BY APPEARING IN LEGAL AID MATTERS WHEN
CALLED UPON:
A trial advocate has the duty to assist the State in legal aid matters. This is in matters where the
defendant cannot afford a lawyer. This ensures that defendants have a legal representation.89
Chapter 4, Part 2 of the Constitution of Kenya, 2010 categorically provides that every accused person
has a right to a fair trial, which includes the right to:
87
Tuckiar v. The King (1934) 52 CLR 335.
88
See, Legal Services Commission v. Winning, (2008) QLPT 13 (25) – (26).
89
The aim is to honour and celebrate pro bono lawyers who have excelled in litigating economic, social and cultural rights.
Dr. Ratemo Tom
22
 choose, and be represented by, an advocate and to be informed of such right promptly90;
 have an advocate assigned to the accused person by the State and at State expense, if substantial
injustice would otherwise result, and to be informed of such right promptly. 91
There are many other provisions of the Constitution that are relevant to the concept of free legal aid. These
include:
 the value of social justice under Article 10;
 provisions on equality before the law under Article 27;
 provisions on protection of marginalised and vulnerable persons and the requirement under Article 159
that justice shall be done to all irrespective of status.
The overarching notion to be derived from these provisions is that it is difficult to achieve justice where one
party has to compete with the elaborate machinery and resources available to the opposite party. The
Constitution thus expressly provides for the legal representation of an accused person unable to afford legal
fees.92 This is mandatory and cannot be taken away by an ordinary law as was held in Shobharam case.93
However, in Legal Aid South Africa v. Van Der Merwe and Others, 94 the Court held that a Court cannot be
required to provide legal representation at State expense where this is not necessary, because the person
concerned is able to afford such representation him/herself.
Apart from the Constitutional provisions, the Government of Kenya has also established a legal and
institutional framework for the provision of legal aid. The Legal Aid Act, 2016, was enacted in order to:
 give effect to Articles 19(2) (general provision on the Bill of Rights); 48 (right of access to justice) and
50(2)(g) and (h) (right of fair hearing) of the Constitution;
 facilitate access to justice and social justice;
 establish the National Legal Aid Service;
 provide for legal aid and for the funding of legal aid and for connected purposes. 95
The National Legal Aid Service established under the Act as the successor to National Legal Aid and Awareness
Programme96 is required, inter alia, to:
 establish and administer a national legal aid scheme that is affordable, accessible, sustainable, credible
and accountable;97
 facilitate the representation of persons granted legal aid under the Act;98
 assign legal aid providers to persons granted legal aid under the Act; 99 and
 administer and manage the Legal Aid Fund.100
The Legal Aid Act, 2016 further provides the general principles of legal aid. Free legal aid can be provided:
90
Art.50(2)(g), the Constitution of Kenya, 2010.
91
Art.50(2)(h), ibid.
92
See, Gideon v. Wainwright, (1963) 327 U.S. 335.
93
State of Madhya Pradesh v. Shobharam, AIR 1966 SC 1910, 1917: 1966 Supp SCR 239.
94
(A409/2010) [2010] ZAWCHC 525.
95
In addition to the Constitutional and statutory provisions for the Government to provide legal aid, there is an international framework in
place committing the Government of Kenya to provide legal aid. The Government has made commitments under various regional and
international human rights instruments to enhance access to justice and provide a state funded legal aid scheme. Some of the international
human rights instruments include: the International Covenant on Civil and Political Rights, 1996; the United Nations Convention on the
Rights of the Child, 1989; the United Nations Convention on the Rights of Persons Living with Disabilities, 2007; the African Commission
on Human and Peoples’ Rights, and the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003.
96
S.5, the Legal Aid Act, 2016. The State established the National Legal Aid and Awareness Programme in 2007 with the goal of creating a
practical, affordable and effective legal awareness and legal aid service.
97
S.7(1)(a), the Legal Aid Act, 2016.
98
S.7(1)(l), ibid.
99
S.7(1)(m), ibid.
100
S.7(1)(p), ibid.
Dr. Ratemo Tom
23
 to persons who qualify for legal aid services i.e., a person who is indigent, resident in Kenya and is a
citizen of Kenya, a child, a refugee under the Refugees Act, 2006, a victim of human trafficking, or an
internally displaced person, or a stateless person. A person must however make an application for the
service in the prescribed manner.
 in civil, criminal, children, constitutional matters and matters of public interest.101
It is the duty of the Court before which an unrepresented accused person is presented to promptly inform:
 the accused person of his right to legal representation;
 the accused person of his right to have an advocate assigned to him if substantial injustice is likely to
result; and
 the National Legal Aid Service to provide legal aid to the accused person. 102
The importance of legal representation was first recognized by the African Commission in Advocats Sans
Frontiers (on behalf of Bwampanye) v. Burundi, African Commission on Human Rights,103 when it observed
that:
Legal assistance is a fundamental element of the right to fair trial more so where the interests of justice
demand it … . The right to equal treatment by a jurisdiction, especially in criminal matters, means …
that both the defence and the public prosecutor shall have equal opportunity to prepare and present
their pleas and indictment during the trial. They must in other words, be able to argue their cases … on
an equal footing.104
In Pett v. Greyhound Racing Association,105 Lord Denning held that:
It is not every man who has ability to defend himself on his own. He cannot bring out the point[s] in his
own favour or the weakness in the other side. He may be tongue tied, nervous, confused or wanting in
intelligence. He cannot examine or cross-examine witnesses … . If justice is to be done, he ought to
have the help of someone to speak for him and who [is] better than a lawyer who has trained for the
task.
For the first time in Kenya, the Court of Appeal in David Macharia Njoroge v. R.,106 considered applicability of
Article 50(2)(h) of the Constitution on the right to free legal counsel at State expense and expounded on the
principle of “substantial injustice.” The Court held:
State funded legal representation is a right in certain instances. Article 50 provides that an accused shall
have an advocate assigned to him by the State and at State expense. Substantial injustice is not defined
under the Constitution, however, provisions of the International Conventions that Kenya is signatory to
are applicable by virtue of Article 2 (6). Therefore provisions of the International Covenant on Civil
and Political Rights, 1996 and the commentaries by the Human Rights Committee may provide
instances where legal aid is mandatory… . We are of the considered view that in addition to situations
where substantial injustice would otherwise result, persons accused of capital offences where the
penalty is loss of life have the right to legal representation at State expense. We would not go so far as
to suggest that every accused person convicted of a capital offence since the coming into effect of the
101
Ss.35 & 36, ibid.
102
S.43(1), ibid.
103
Comm. No. 213/99 (2000).
104
In the United States, the Court also in Gideon v. Wainwright, 371 US 335 (1963) held that the noble ideal of a fair trial before impartial
tribunals in which every defendant stands equal before the law, cannot be realized if the poor man charged with a crime has to face his
accusers without a lawyer.
105
(1968) 2 All E.R 545, at 549.
106
(2011) eKLR.
Dr. Ratemo Tom
24
new Constitution would automatically be entitled to a re-trial where no such legal representation was
provided.
Expounding further on the principle of “substantial injustice,” the Court of Appeal in Karisa Chengo & 2
Others v. R.,107 held:
It is obvious that the right to legal representation is essential to the realization of a fair trial more so in
capital offences. The Constitution is crystal clear that an accused person is entitled to legal
representation at the State’s expense where substantial injustice would otherwise be occasioned in the
absence of such legal representation … . Substantial injustice only arises in situations where a person is
charged with an offence whose penalty is death and such person is unable to afford legal representation
pursuant to which the trial is compromised in one way or another only then would the State obligation
to provide legal representation arise.108
In Thomas Alugha Ndegwa v. Republic,109 the appellant, Thomas was charged and convicted of the offence of
defilement of a girl contrary to Section 8(1) read together with Sub-Section (2) of the Sexual Offences Act, 2006.
He was sentenced to mandatory life imprisonment by the Chief Magistrates’ Court at Thika. The conviction and
sentence was upheld by the High Court at Nairobi. In an appeal to the Court of Appeal, during the hearing, the
appellant, due to financial constraints, applied for legal representation since he was unrepresented in the two
earlier Courts. The issue for determination by the Court was whether the appellant was
entitled to receive legal aid as guaranteed by Articles 48 and 50(2)(h) of the Constitution of Kenya, 2010? The
Court held that the applicant, according to Article 50(2)(h) of the Constitution read with Section 41 of the Legal
Aid Act is eligible to make the application for legal aid to the National Legal Aid Service in person or through
any other person authorized by him in writing.
In Hansraj case,110 some railway porters offered satyagraha111 at a railway station. They were arrested,
tried and convicted under the provisions of the Railways Act. No information was given to them regarding the
date of trial, nor were they told that under Article 22(1) of the Constitution of India, 1950, they had a right to
consult and be defended by a legal practitioner. It was held that in such circumstances, Article 22(1) had been
violated and the trial was vitiated. In Shobharam case,112 the Supreme Court of India went ahead to hold that a
person arrested is entitled to be defended by a counsel at the trial and such right is not lost even if he is released
on bail. Thus the right has to be recognised and scrupulously protected.
In order to effectuate the right to consult an advocate of one’s choice properly and reasonably, it is
necessary that:
 the right be exercised immediately from the day of arrest 113;
 such legal practitioner must be allowed the facility to consult the accused without the hearing of the
police. A Court cannot therefore direct consultation between an accused and the counsel in the
presence of the police.114
 the right be exercised at the time an accused is being examined.115
107
CR Nos. 44, 45 & 76 of 2014.
108
The South Africa Constitutional Court in the case of Fraser v. Absa Bank Limited, (66/05) (2006) ZACC 24; 2007 (3) SA 484 (CC);
2007 (3) BCLR 219 (CC) has also observed that the principle of “substantial injustice,” depends on all relevant prevailing factors, including
the complexity and seriousness of the criminal charges.
109
(2016) eKLR.
110
Hansraj v. State of Uttar Pradesh, AIR 1956 All. 641.
111
It is a policy of nonviolent resistance developed by Mahatma Gandhi as a means of pressing for political reform in South Africa and
India.
112
State of Madhya Pradesh v. Shobharam, AIR 1966 SC 1910, 1917: 1966 Supp SCR 239.
113
Motibai v. State of Rajasthan, AIR 1954 Raj. 241.
114
Jose Poothrikkayil v. Union of India, 2009 (1) KLJ 381.
Dr. Ratemo Tom
25
This apart, an advocate whom an accused has engaged for his/her defence cannot be put under a threat of
prosecution so that he can refrain from discharging his professional duty of defending his client in a fearless
manner.116
The Supreme Court of India has in R. D. Saxena v. Balram Prasad Sharma,117 pointed out that:
A social duty is cast upon the legal profession to show the people [beacon] light by their conduct and
actions. The poor, uneducated and exploited mass of the people need a helping hand from the legal
profession, admittedly, acknowledged as a most respectable profession. No effort should be made or
allowed to be made by which a litigant could be deprived of his rights, statutory as well as
constitutional, by an advocate only on account of the exalted position conferred upon him under the
judicial system prevalent in the country.
The right to legal aid and assistance is thus an integral component of fair trial leading to fair administration of
justice as it ensures that an indigent person is not denied fair hearing due to lack of means to hire a competent
counsel. However, the provision of free legal aid and assistance is a capital-intensive undertaking which many
poor States, including Kenya, have found difficult to implement. 118 Therefore, a serious thought need to be
given to ways and means of availing the right without compromising national resources that can otherwise be
used for other development purposes.
Moreover, to ensure the provision of consistent, competent and timely legal representation, the
National and County Governments need to budget for resources to aid legal clinics and support pro bono
lawyers and institutions that offer free legal counsel.
6.4 DUTY TO TREAT THE COURTS AND TRIBUNAL WITH RESPECT:
A trial advocate is required to treat the Courts and Tribunals with respect. S/he is therefore required to
adhere to the rules of conduct when addressing the Court or a Tribunal.
6.5 DUTY TO THOROUGHLY PREPARE FOR EVERY CASE:
A trial advocate is required to thoroughly prepare for a case to be presented before a Court of law. S/he
must address each and every case with seriousness.
The level of preparation for a case should not be based on the amount of legal fees being paid by the
client or other factors. Each case should be treated with the seriousness it deserves regardless of either the type
of case or the fees being paid.
7. TRIAL ADVOCATE’S DUTY TO WITNESSES:
The general fallacy abounding in the legal fraternity is that an advocate has only a fiduciary duty to his
client alone. It’s no wonder many lawyers are rude to witnesses especially during cross examination. Some have
used this tactic as a way of intimidating witness by ensuring they quiver in their boots and therefore provide
contrary statements that would buttress their client’s case. However, this should not be the case.
Trial advocate owe a number of duties to their witnesses. They, inter alia, include:
7.1 DUTY NOT TO HARASS OR BADGER WITNESSES:
A trial advocate should refrain from harassing, badgering or bullying a witness as such may cause a
witness to be confused, agitated or upset and consequently irritate the Court. Even though the approach is
115
Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025: (1978) 2 SCC 424; Jain M. P., Indian Constitutional Law1252, 6th edn., (Gurgaon:
LexisNexis Butterworths Wadhwa Nagpur, 2010).
116
Sri Jayendra Saraswathy Swamigal (II) v. State of Tamil Nadu, AIR 2006 SC 6: (2005) 8 SCC 771.
117
(2000) 7 SCC 264.
118
See, an argument in Udombana N., The African Commission of Human and Peoples’ Rights and The Development of Fair Trial Norms
in Africa, 6 African Human Rights Law Journal, 2006, 312.
Dr. Ratemo Tom
26
adopted by some advocates to intimidate witnesses, it does not necessarily produce the desired results. The
evidence obtained might be considered to be given under duress which may be detrimental to a trial advocate’s
case. Thus, an advocate should be tactful, gentle and firm but polite at all times. Sallazar v Republic is a good
example where the Court deplored an advocate‘s disrespectfulness towards witnesses and the Court at large.
7.2 DUTY TO CONSULT WITH ONE’S OWN WITNESS BEFORE TRIAL:
Trial advocates ought to have a pretrial conference with their witnesses. This is not for the purposes of
coaching the witness but to prepare the witness not to be apprehensive in the Court.119 In this context, Daniels
Morris observes:
[l]t is permissible to prepare the witness in the general sense for cross examination. Somewhat in the
following terms: listen to the question before you answer. If you don’t understand it, say so. If you
don’t know any answer, don’t guess. Just say that you don’t know. Don’t worry about what the man
has in mind when he asks his question. Just give direct answer. Answer as shortly as possible and don’t
make speeches.120
7.3 COURTESY:
Witnesses should be treated with courtesy and respect as they are important to the Court process.
Treating them in a manner seeking to antagonize them will not aid a trial advocate in his cross examination.
7.4 DUTY NOT TO MAKE UNSUBSTANTIATED ATTACKS ON THE CHARACTER OF A
WITNESS:
An advocate ought to be civil to the witness and not cast aspersions on the character of a witness
especially during cross-examination and to ensure that defamatory statements are kept within the qualified
privilege. The Evidence Act, Cap 80 however provides an exception i.e., there must be sufficient reason for
attacking a witness character before launching such an attack. 121
The Any questions intended to annoy or insult a witness should be avoided. In other words, an
advocate should refrain from asking indecent, scandalous, insulting or annoying questions to the witnesses. The
Court has discretion to restrain such questions, despite the fact that they may reveal relevant information to the
case.122 An advocate should therefore act with integrity and professionalism maintaining his or her overarching
responsibility to the Court.123
7.5 DUTY NOT TO WANTONLY OR RECKLESSLY ACCUSE WITNESS OF A CRIME:
An advocate should appreciate that the witness is not on trial. Therefore, when undertaking cross
examination, s/he should exhibit professionalism.124 The witness should thus be allowed to undertake their civic
duty without perceiving to be on trial.
7.6 DUTY TO HANDLE CHILDREN WITNESSES WITH GREAT CARE AND ENHANCED
SENSITIVITY:
The law under Oaths and Statutory Act has provided ways in which a child can be allowed to
appreciate the nature of the oath. A trial advocate should be friendly and sensitive to the tender age of the
children. The procedure on how to handle such witnesses was laid down in Peter Kiriga Kiune v. Republic125
119
Rule 8, Law Society of Kenya Code of Conduct and Ethics for Advocates.
120
Daniels Morris (ed), Technique in litigation 135, 4th edn., (1993).
121
S.158, the Evidence Act, Cap 80.
122
Ss. 159-160, ibid.
123
Law Society of Upper Canada’s Rules of Professional Conduct.
124
Rule 12, Law Society of Kenya Code of Conduct and Ethics for Advocates.
125
Cr Appeal 77 of 1982 (unreported).
Dr. Ratemo Tom
27
and in James Wanjohi Kinyua v. Republic.126 In both cases, the importance of voire dire examination by the
Court was emphasized.
A trial advocate should avoid any suggestion calculated to induce any child witness to suppress
evidence or deviate from the truth. However, an advocate may inform a witness that s/he is not duty bound to
submit to an interview, or to answer questions propounded by an opposing counsel unless required to do so by
judicial or legal process.
7.7 PAYMENT OF COMPENSATION TO A WITNESS:
An advocates should not pay, offer to pay, or acquiesce in the payment of compensation to a witness
contingent upon the content of the witnesses’ testimony or the outcome of the case. In addition, an advocate
may advertise for witnesses to a particular event or transaction but not for the witness to testify to a particular
version that advances his/her case.
7.8 DUTY TO INFORM WITNESSES:

An advocate has a duty to inform a witness about the date a case is going to be heard promptly. S/he
must also furnish the witnesses with the full details of the case so that their testimony can be correct.
7.9 DUTY TO PREPARE WITNESSES:
A trial advocate has a duty to:
a) advise witnesses how to address the Court:
b) educate witnesses about the procedures that will be followed in eliciting their evidence;
c) assist in refreshing witnesses’ memories by referring to known facts or other evidence and prepare
them to stand up to a hostile cross-examination.
7.10 DUTY NOT TO BE UNFAIR OR ABUSIVE TO ADVERSE WITNESSES:
An advocate should never be unfair or abusive or inconsiderate to adverse witnesses or opposing
litigants. S/he should ask questions intended legitimately to discredit the assertions of the witness, but not to
insult or degrade them.
7.11 DUTY NOT TO COACH WITNESSES:
Rule 8 of the Law Society of Kenya Code of Conduct and Ethics for Advocates requires an advocate not
to:
 coach or permit the coaching of any witness in the evidence s/he will give before any Court, Tribunal
or arbitrator;
 call to give evidence before any Court, Tribunal or arbitrator any witness whom s/he knows to have
been coached in evidence without first informing the Court, Tribunal or arbitrator of the full
circumstances.
8. COMPETING/CONFLICTING DUTIES OF AN ADVOCATE:
An advocate not only has a duty to his/her client, but s/he still has duties to the Court, public, opponent,
witnesses and his personal interests. The exercise of such duty as an advocate has not only led to clashing of
roles creating a dilemma as to which way to follow when there is a conflict in the exercise of duties, but also
whether all duties should be given equal prominence.
Gavin MacKenzie in The Ethics of Advocacy127 states that a lawyer's duty to the client and duty to the
Court are given equal prominence. He goes on to say that in the United States the duty to the client is generally
126
[2002] eKLR.
Dr. Ratemo Tom
28
seen as the lawyer's primary duty, while in Britain, Australia and Newzealand, the duty to the Court is pre-
eminent. However, in Canada, the two duties are given equal prominence which may make ethical choices in
advocacy more difficult.128
8.1 TYPES OF CONFLICTS:
In the exercise of an advocate’s duty, there are four main types of conflicts that may arise. They are:
a) Conflicts between duties to the Court and a client: This may arise in the following situations, where a
client:
 confesses to having committed a crime;
 intends to give a false testimony;
 wants to issue proceedings to extort or blackmail someone;
 action is vexatious or hopeless;
 refuses to produce a discoverable document; and
 wants evidence to be called from witnesses who would not assist the client's case or damage the
opponent's case.
In case the above situations arise, then it is important to note that the jurisprudence with regard to this
matter, in most commonwealth jurisdictions, appears to incline to the fact that the duty an advocate
owes to the Court always overrides the duty s/he owes to the client.
This is apparent in Giannarelli v. The Queen129 where an Australian Federal Court noted that an
advocate has prior duty to the Court over and above other duties. The Court categorically held that, “a
barrister's duty to the Court epitomizes the fact that the course of litigation depends on the exercise by
counsel of an independent discretion or judgment in the conduct and management of a case in which he
has an eye, not only to his client's success, but also to the speedy and efficient administration of
justice.”
Similarly, in Arthur Hall v. Simons,130 Lord Hoffmann stated that “lawyers conducting litigation owe a
divided loyalty. They have a duty to their clients. They also owe a duty to the Court and the
administration of justice ... The substantial morality of the English system of trial and appellate
procedure means that the Judges rely heavily upon the advocates appearing before them for a fair
presentation of the facts and adequate instruction in the law. They trust the lawyers who appear before
them. The lawyers trust each other to behave according to the rules, and that trust is seldom
misplaced.”
Batrouney Q. C., an Australian Attorney has also noted that, “an advocate being termed an officer of
the Court is not a mere formality since the obligations of an advocate to the Court are fundamental and
pervade every aspect of practice as a lawyer. 131 This thus, implies that the duty to the Court and to
justice trumps the other duties.
Moreover, in Rondel v. Worsley132 the UK Court held that “an advocate’s duty to the court is
paramount. An advocate is simply not the mouthpiece of the client, s/he owes allegiance to a higher
cause. It is the cause of truth and justice. He must not consciously mis-state facts. He must not
127
MacKenzie Gavin, The Ethics of Advocacy, The Advocates' Society Journal, September, 2008, p. 26.
128
MacKenzie Gavin, The Ethics of Advocacy, The Advocates' Society Journal, September, 2008, p. 26.
129
(1983) HCA 41.
130
(2000) 3 All ER 673.
131
Batrouney Q. C., An Advocate’s Duty to the Court. Federal Court of Australia, Tax Bar Association Ethics Seminar Series, (2016),
available at http://www.fedcourt.gov.au/digital-law-library/seminars/tax-bar-association/20160315-jennifer-batrouney.
132
(1969) 1 A.C 191: (1967) 3 WLR 1666.
Dr. Ratemo Tom
29
knowingly conceal the truth … He must produce all the relevant authorities, even those that are against
him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal
to his case. He must disregard the most specific instructions of his client, if they conflict with his duty
to the Court. The Code which requires a barrister to do all this is not a Code of Law. It is a Code of
Honour. If he breaks it, he is offending against the rules of the profession and is subject to its
discipline.” This implies that an advocate may not be able to act in a way that serves the client's best
interests if doing so would put the administration of justice and the community's confidence in the
profession at risk.133
In Re Integration of Nebraska State Bar Association134 it was held that “a lawyer's primary duty is to
assist Judges and all Court staff in the operation of the Court system and administration of justice. An
attorney owes his or her first duty to the Court. S/he assumed his or her obligations toward it before
s/he ever had a client. His or her oath requires him or her to be absolutely honest even though his or her
clients‘interests may seem to require a contrary course. [An advocate] cannot serve two masters and the
one undertaken to serve primarily is the Court. An advocate is not a servant of the client … [but a]
servant of justice itself. This implies that when there is a conflict between an advocate‘s duty to the
client and to the Court, the duty to the Court, which is the agent of justice, reigns supreme.
The Court in the UK in the case of Medcalf v. Weatherill and Another135 however noted that a trial
advocate has a duty which is enshrined as a constitutional guarantee to represent his/her client to the
best of his/her ability.
In Kenya, the position is similar as of the UK. In a number of cases i.e., Charles Koigi Wamwere and 2
others v. R.,136 the Kenyan Courts have affirmed that while an advocate has a duty to his client, such a
duty falls beneath the duty to justice and the Court in the order of importance. For instance, an
advocate cannot ethically invoke false evidence in a Court in a bid to win a case.
In Shalimar and Others v. Sadrudin and Another,137 the Court affirmed that in the course of duty, an
advocate has an ethical obligation not just to the client, but first and foremost to the Court.
The issue of the obligations to the Court raking higher than that of the client is predicated on public
policy that:
 lawyers are officers of the Court first and purveyors of legal opinions to their clients are second;
 counsels should retain the implicit trust of the Court and vice versa for the effective administration
of justice. Courts should thus trust the counsels to do the right thing even at the expense of their
clients as justice, as a social tool, precedents the individual;
 lawyer is remunerated for his honest and zealous attempt to bring justice to his client and not for
winning a case. This removes the temptation to go overboard in a bid to ensure that s/he wins, and
 the entire judicial process is based on the notion that the public has trust in the Courts and its
officers, including the lawyers. Doing what is clearly unethical in order to advance one’s client’s
case at the expense of the justice undermines that.
133
Perell P., Elements of Professionalism, Chief Justice of Ontario Advisory Committee on Professionalism, (2002) P.5, available at
http://www.lsuc.on.ca/media/definingprofessoct2001revjune2002.pdf.
134
133 Neb. 283, 289, 275 N.W. 265, 268 (1937).
135
(2002) UKHL 27.
136
This is the case where the Court extensively quoted the decision in Rondel v Worseley thus affirming this principle in Kenya.
137
(2015) eKLR
Dr. Ratemo Tom
30
The existing law in Kenya equally supports the argument. As per Section 55 of the Advocate‘s Act, Cap
16 an advocate is an officer of the Court. Therefore, an advocate is duty bound not to mislead the Court
regardless of a client‘s interests. All his/her actions must be within the law.
The compromise: The Courts have attempted at striking a balance between these conflicting duties in
a way that will prevent the Court from being misled or the client from being placed unnecessarily in
jeopardy.
In R v. Davis,138 the appellants appealed against their convictions, on the grounds that certain
prosecution witnesses had been kept anonymous from them. The witnesses had attended a trial, cross-
examined and observed by a Judge and Jury. Their evidence was given from behind a screen and their
voices were disguised to prevent the appellants from identifying them. This had raised an issue as to
whether the counsel for the appellants could (instead of the clients) be permitted to see the witnesses to
help in cross-examination. The counsel were concerned about their conflicting duties, namely, a) duty
to the Court to keep the witnesses anonymous (breach of which duty would be a contempt of Court),
and b) duty to their client to describe the witnesses to them (on the basis that relevant information
could be obtained). The Court held that the barrister could perform his duty to both by cross-examining
from behind the screen. However, if the client wished to obtain possible benefits of his barrister being
able to see the witness’ demeanor when cross-examining, then it could only take place if the client
consented to a limitation on the barrister‘s usual duty to disclose all relevant information to the client.
In Waugh v. British Roads Board139 the plaintiff‘s husband was an employee to Board, and was killed
while in the course of his duties in an accident. An internal investigation was done and a report written,
titled “For the Board’s Solicitor.” The plaintiff asked the Court to order discovery of the report. The
Board claimed professional legal privilege over the report. The Board based this on the fact that the
report was for two purposes: a) to establish the cause of the accident; and b) to enable the Board‘s
Solicitor to advise in the litigation to ensue. The trial Court ordered discovery. The Board appealed.
The Appeal Court overturned the decision. The plaintiff appealed. The House of Lords held that there
were two competing principles involved: a) all relevant evidence should be made available; and b)
communication between a client and his lawyer should be allowed to remain confidential. It held that
public interest was best served by confining the privilege within narrow limits. A document was
therefore only privileged from production on the basis of the legal professional privilege if the
dominant purpose for which it was prepared was that of submitting it for advice. Since the purpose for
the report was for advice and legal use was merely subsidiary, the House of Lords held that the Board‘s
claim would fail.
b) Conflicts between duties to the client and the public: Lord Reid in Rondel v. Worseley,140 held, “an
advocate has a duty to be fair, fair to the Court and fair to the public. So important is fairness to the
Court and the public that the public duty prevails over the duty to the client if there is a conflict.
c) Conflicts between an advocate's interests and a duty to a client: An advocate/client conflict may arise
if an advocate's personal interests conflict with his or her duties to the client forcing him or her to
choose between the two. When such happens, in the interest of justice, it is important that an advocate
remains independent in judgment, loyal and objective at all material times during the subsistence of a
138
(2006) EWCA Crim. 1155.
139
(1979) 2 All E.R. 1169.
140
(1969) 1 A.C 191.
Dr. Ratemo Tom
31
client-advocate relationship. Professional ethics rules require an advocate to decline instructions where
there is a possibility of his/her independence being interfered with. The general principle espoused in
Blackwell's case141 in terms of competing loyalties to different clients is readily transferred to situations
where advocates borrow from a client or have business dealings with a client and fail to make adequate
disclosure to the client, or fail to arrange for the client to receive independent advice. A good example
is Law Society of New South Wales v. Harvey142 where the defendant was a solicitor who was also a
director and shareholder in three companies in the business of property investment. Over a period of
years, clients of the defendant lent money to the companies at the suggestion of the defendant. The
investments undertaken by the companies were of very high risk and the clients stood to lose
substantially in the event of failure. In some instances, a client was only informed that his/her money
had been lent to the companies after the dealings had occurred. The investments turned bad and the
clients lost their money. The issue on appeal was whether the professional misconduct of the defendant
was serious enough to warrant him being struck off from the Roll of Solicitors. Street C.J. held that,
“where there is any conflict between the interests of the client and that of the solicitor, the duty of the
solicitor is to act in perfect good faith and to make full disclosure of his interest … which might
influence the conduct of the client or anybody from whom he might seek advice ... . A solicitor who
constantly promotes dealings with various clients clearly misuses his position, and puts it beyond his
capacity to observe his primary duty to his clients. The price of being a member of an honourable
profession, whose duty to his client ought not to be prejudiced in any degree, is that a solicitor is denied
the freedom to take the benefit of any opportunity to deal with persons whom he has accepted as
clients. Therefore, he ought neither to promote, suggest nor encourage a client to deal with him but,
rather should take all reasonable steps positively to avoid dealing directly, or indirectly, with his client
… . The defendant's professional misconduct was serious and sustained involving many clients and
large amounts of money. His conduct was motivated by greed and self interest in deliberate and
flagrant disregard of his duty to his clients, and demonstrates that he is unfitted to be a solicitor, or to
be employed in a solicitor's office in any capacity, and that his name should be removed from the Roll
of Solicitors.”
d) Conflicts between duties owed to two or more clients: In a contentious matter,143 an advocate should
not represent two or more clients whose interests may conflict. There are two types of client conflicts
i.e.., existing client conflicts and former client conflicts. In Commonwealth Bank of Australia v.
Smith,144 that, “various Courts in a number of jurisdictions have decried the practice of the one solicitor
acting for both vendor and purchaser ... . It is an undesirable practice and it ought not to be permitted
… and it does not seem to make any difference if one member of a firm deals with one client and
another member of the same firm deals with the other client.
In 1994 in Blackwell v. Barolle Ptv. Ltd.,145 it was held that, “a firm is in no better position than a sole
practitioner if it purports to act for separate clients whose interest are in contention. If it purports to
continue to act for both clients by imposing a qualification on the duties of partnership it thereby denies
the respective clients the services the clients have sought from the firm, namely, the delivery of such
141
Blackwell v. Barolle Ptv. Ltd., (1994) 51 FCR 347.
142
(1976) 2 NSWLR 15.
143
A contentious matter is one where the parties do not agree on what is the best outcome to the matter.
144
(1991) 42 FCR 390 at 393.
145
(1994) 51 FCR 347.
Dr. Ratemo Tom
32
professional skill and advice as the partnership is able to provide. In such a circumstance the
appearance provided to the public is that the interest of the solicitors as partners is in conflict with and
may be preferred to the interest of one or both clients.”
In regard to former client conflicts, an advocate may receive confidential information from clients
during the course of their representation. The advocate owes those clients a duty of confidentiality in
respect of the information. This duty continues even if the advocate is no longer acting for the clients.
To overcome the possibility of compromising the confidences of the former client, firms have adopted
mechanisms such as the quarantining of the former client's information. This mechanism is sometimes
referred to as ‘Chinese wall.’
The common law position concerning the test for disqualification on the basis of a conflict of interest
involving a former client was whether there was a reasonable probability of real mischief. However, in
the case of Prince Jefri Bolkiah v. KPMG (a firm),146 the House of Lords adopted a stricter test and
held: “the Court should intervene unless it is satisfied that there is no risk of disclosure. … [T]he risk
must be a real one, and not merely fanciful or theoretical. But it need not be substantial. ... [N]o
solicitor should, without the consent of his former client, accept instructions unless, viewed objectively,
his doing so will not increase the risk that information which is confidential to the former client may
come into the possession of a party with an adverse interest.
In King Woolen Mills Ltd. v. Kaplan & Stratton Advocates,147 a dispute arose as to the validity of
security documents prepared by the defendants. The Court of Appeal held that, “the fiduciary
relationship created by the retainer between client and an advocate demands that the knowledge
acquired by an advocate while acting for the client be treated as confidential and should not be
disclosed to anyone else without the client’s consent. That fiduciary relationship exists even after
conclusion of the matter for which the retainer was created.” In the case therefore, the Court restrained
the firm of advocates from continuing to act against its former client.
9. FORMS OF CONFLICT OF INTEREST:
a) Simultaneous representation: An advocate may not represent two clients who are adversaries in a case.
b) Issue conflicts: An advocate representing two clients in different cases and urging a legal position of
one which will have negative consequences for another if the cases are pending in the same Court.
c) Successive representation: This occurs when an advocate represents a client in a matter which may be
adverse to a former client. This is where matters of the former and current clients are related in some
way and an advocate would risk breaching confidentiality to represent the current client. Generally,
advocate-client confidentiality goes beyond completion of a Court case. It is infinite. In Simba Hills
Farm Ltd v. Sultan Hasham Lalji & 5 Others, there was an application for the disqualification or
barring of an advocate and the advocate's firm from conducting a suit on the ground that the advocate
for the plaintiff, Mr. Birech of Birech & Company Advocates had previously acted for the 3 rd and 4th
defendants. It was held that there was indeed conflict of interest and Mr. Birech could not be allowed to
act for the plaintiff as it was possible that as former counsel for the said defendants, he could have
come across some knowledge that would be prejudicial to the defendants.
146
(1999) 2 AC 222.
147
(1990-1994) EA 244.
Dr. Ratemo Tom
33
d) Expected witness: When it is expected that an advocate will be called as a witness in a case before the
Court, then the concerned advocate may be disqualified from acting in the matter. This is to protect the
client’s interest because of the probability that the testimony could harm his client’s case.
10. CONCLUSIONS:
An advocate has a great responsibility towards the preservation of the society and justice system. S/he
is thus expected to act with utmost sincerity and respect and more importantly, uphold the rule of law by
conforming to the requirements of the law.
An advocate's duty to the Court, client, opponent, etc., generally touches upon nearly every aspect of
his or her practice. Yet, beyond the most obvious cases, determining when duties to the client are secondary to
those owed to the Court may not always be crystal clear. These are difficulties that may face advocates when
duties conflict but also to provide guidance to practitioners when similar situations arise. The hope is that
advocates will be better prepared to address them equipped with a fuller understanding of their duty to the
Court, client, opponent, etc.
Dr. Ratemo Tom

34

Atp 104 - B

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Atp 104 - B

Uploaded by

Copyright:

Available Formats

ETHICAL DUTIES OF A TRIAL ADVOCATE: A QUINTESSENCE FOR EFFECTIVE

ADMINISTRATION OF JUSTICE IN KENYA

Dr. Ratemo Tom

4.1 DUTY TO MAINTAIN CIVILITY IN DEALING WITH OTHERS:

5.7 DUTY TO LISTEN AND ACT ON CLIENT’S INSTRUCTIONS:

7.8 DUTY TO INFORM WITNESSES:

Dr. Ratemo Tom

You might also like