MOI UNIVERSITY

FACULTY OF LAW

PROFESSIONAL ETHICS AND PROFESSIONAL RESPONSIBILITY

CHAPTER ONE

INTRODUCTION

Professional Ethics govern the conduct of advocates.

A: WHO IS AN ADVOCATE

An advocate is defined in Section 2 of the Advocates Act pursuant to Act

No.18 of 1989 as, any person whose name is duly entered upon the Roll
of Advocates or upon the Roll of Advocates and having the rank of
Senior Counsel and for purposes of part IX of the Act, includes a person
mentioned in section 10.

Part IX of the Advocates Act deals with the issue of remuneration of

Advocates. Section 10 of the Advocates Act provides that as long as a
person holds qualifications specified in Section 13 of the Act (Cap 16),
then such a person may be entitled in connection with his duties to act
as an advocate and shall not be deemed to be an unqualified person.

This provision covers: -

a) An officer in the Attorney General’s office.

b) The Principal Registrar of Titles and any other Registrar of Titles.
c) Any person holding office in a local authority established under the
Local Government Act1

The definition of an Advocate includes a Senior Counsel merely because

of the introduction of Section 17 of Act No. 18 of 1989 of an
appointment by the President of any person of irreproachable
professional conduct, who has rendered exemplary services in Kenya
conferring upon him the rank and dignity of Senior Counsel.

Such conferment cannot however be made unless a person is an

advocate of not less than 15 years standing or if he is a person to whom
Section 10 applies he holds or has held a practicing certificate for a
continuous period of not less than 15 years or one of the other
qualifications in Section 13(1).

1
Cap 265

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The ranking of Senior Counsel has its roots in the English Practice
where Barristers who have exhibited outstanding professional conduct
conferred with the honour of the title of Queen’s Counsel. A Queen’s
Counsel is referred to as a QC.

B. QUALIFICATIONS

Prior to the coming into force of the Act 18 of 1989, the Advocates Act
provided a different mode of qualification for advocates. Act 18 of 1989
clearly defines an advocate as a person holding qualifications under
section 13 of the Advocates Act.

Section 13 provides that a person shall be qualified to be an advocate if

he has passed examinations of any recognized University in Kenya and
holds a Bachelor Of Law degree (LL.B.), or having passed the relevant
examinations of such University as the Council of Legal Education may
from time to time approve, he holds or has become eligible for
conferment of a Degree in Law in the grant of that University or
University College which the Council may approve.

Thereafter, the person must have attended as a pupil and received from
an advocate of more than five years standing, instructions in the proper
business, practice and employment of an advocate and has attended and
passed such examinations as prescribed by the Council Of Legal
Education, at the Kenya School of Law.

Section 13 1(c) further provides that a person shall be duly qualified if

he has any other qualifications acceptable to and recognized by the
Council of Legal Education. An amendment was introduced vide Act 2 of
2002 adding paragraph (d) to section 13 (1). This provides that a person
would be duly qualified if for the time being he is an Advocate of the
High Court of Uganda or the High Court of Tanzania.

Section 13(2) empowers the Council of Legal Education to exempt any

person from the requirements prescribed for admission upon such
conditions as the Council may impose. The Council of Legal Education
is a body established under section 3 of the Council of Legal Education
Act (Act No.12 of 1995).

The Council of Legal Education

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In accordance with section 3(1) of the Council of Legal Education Act,
the Council of Legal Education (CLE) is composed of the following
persons:-

(a) the Chief Justice who is also the Chairman

(b)one judge of the Court of Appeal to be appointed by the Chief Justice
(c) One judge of the High Court to be appointed by the Chief Justice
(d)The Attorney – General or his representative
(e) Five Advocates nominated by the Council of the Law Society of Kenya
(f) The head (dean) of the faculty of law of any recognised university in
Kenya whose law degree is approved by the Council
(g)The head of any training institution established by the Council under
section 6 of the Act
(h)A senior counsel appointed by the Attorney general.
(i) One person associated with the teaching of law in Kenya appointed
by the Attorney General
(j) The Permanent Secretary of the Ministry for the time being
responsible for higher education or his representative.

Subsection (2) of the same section provides that the Council shall be a
body corporate with perpetual succession and a common seal and shall
in its corporate name be capable of suing and being sued; taking,
purchasing or otherwise acquiring, holding, charging or disposing of
movable and immovable property; borrowing or lending money; and
doing or performing all other things or acts for the furtherance of the
provisions of the Act as may be lawfully done or performed by a body
corporate.

The procedure for conducting and regulating the business and affairs of
the Council is laid down in the First Schedule to the Act. The
headquarters of the council is in Nairobi.

Objects and Purpose of the Council

These are enumerated in section 6 of the Act. The general object and
purpose of the Council however is stated to be the exercise of general
supervision and control over legal education in Kenya and to advise the
Government in relation to all aspects thereof. Subsection (2) of the
section lays down the specific objects of the Council one of which
includes to:-

(a) establish, manage and control such training institutions as may be

necessary for:-

(i) organising and conducting courses of instruction for the

acquisition of legal knowledge, professional skills and experience

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 by person seeking admission to the Roll of Advocates in Kenya, in
such subjects as the Council may prescribe;
(ii) Organising and conducting courses in legislative drafting
(iii) Organising and conducting courses for magistrates and for
persons provisionally selected for appointment as such;
(iv) Organising and conducting courses for officers of the Government
with a view to promoting a better understanding of the law;
(v) Organising and conducting such courses for paralegals as the
council may prescribe.
(vi) Organising and conducting continuing legal education courses
(vii) Holding seminars and conferences on legal matters and problems
(viii) Organising and conducting such other courses as the council may
time to time prescribe.

Other specific functions of the Council are to conduct examinations for

the grant of such academic awards as may be prescribed and to award
certificates, fellowships, scholarships, bursaries and such other awards
as may be prescribed.

In order to achieve the objects and purposes outlined above, the Council
has the power under section 7 of the Act to:-

(a) Control supervise and administer its purposes as best promote the
purposes for which it is established.
(b)Control and administer the legal education Fund established under
section 16 of the Act.
(c) Receive any grants, gifts, donations or endowments and make
legitimate disbursements therefrom.
(d)Enter into association with other bodies or organisations within or
outside Kenya as the Council may consider desirable or appropriate
and in furtherance of the purpose for which the Council is
established.
(e) Open a banking account or banking accounts for the funds of the
Council.
(f) Invest the funds of the council not currently required for its purposes
in the manner provided under section 17 of the Article in securities in
which for the time being trustees may by law invest trust funds or in
any other securities approved by the Treasury or to deposit any such
funds in a bank-account.

The Council has also the power to delegate some of its functions to
committees ot to any member, officer, employee or agent of the Council
under section 9.

The Council has wide powers to control the level of education of legal
professionals in the country. Consequently section 14 of the Act

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empowers, the Council to make regulations for the purposes of giving
effect to the provisions of the Act and in particular, the regulations may:-

(a) Make provision regarding the engagement and training of pupils by

advocates and their respective, conduct duties and responsibilities.
(b)Make different provisions for different circumstances.
(c) Authorize the charging by the Council of fees
(d)Make provision for the establishment of training institutions by the
Council
(e) Prescribe the requirements for the award of diplomas, certificates
and other academic awards of the Council.
(f) Provide for the description of diplomas, certificates and other
academic awards of the Council.
(g)Provide for the settlement of the terms and conditions of service
including the appointment dismissal, remuneration and retiring
benefits of the numbers of staff of the Council and;
(h)Prescribe anything which may be prescribed under the Act.

Clearly the powers of the Council are fairly wide as is indeed attested by
the vague wording of the provisions of the Act. The Council can even
make rules imposing obligations on members of the legal profession
with a view to improving standards e.g. the provisions of section 14 are
fairly wide as to empower the council to require compulsory continued
legal education of practising advocates and other legal professionals.
The Council may recommend the imposition of a legal education levy on
any or all services rendered by advocates.

So far as accountability is concerned, the Act makes provision for the

preparation of annual estimates of revenue and expenditure as well as
for keeping of proper books and records of account of the income, assets
and expenditure of the Council.

After satisfying the qualifications as to the admission as an Advocate,

Section 9 of the Advocates Act provides that an Advocate shall qualified
if:-

a) He has been admitted as an Advocate.

b) He has his name entered into the roll.
c) He has in force a Practicing Certificate and an Annual License. Such
certificate shall be deemed not to be in force if the Advocate is
suspended by the disciplinary committee or the court where the
Advocate is adjudicated bankrupt.

It is therefore only after an Advocate has a Certificate, that he can be

allowed to practice as an Advocate.

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Prior to Act 18 of 1989, articled clerks were admitted as Advocates.
These were people who after passing their Form Four Examinations
went straight to the School of Law for 5 to 7 years after which they
qualified as Advocates. After that, their names were entered into the roll
and they practiced. This mode of qualification is now defunct and every
prospective advocate must now undergo university training.

An Advocate whose name has not been entered into the roll and has not
taken out a Practicing Certificate is not an Advocate and can be
disciplined for practicing without a Certificate.

In Republic v. Theuri, the accused was charged with the offence of

practicing law while not an Advocate. The case against the accused was
established on the basis that he got powers of attorney from litigants
and purported to act as an Advocate. He was found guilty of an offence
under Section 33 of the Advocates Act and sentenced to serve 2 years in
jail.

C. ORIGIN OF ETIQUETTE

The source of the rules of Professional Etiquette and Conduct, were self
imposed by the bar in England way back in the 6 th century and were
developed as good manners among gentlemen. This was to correct the
imbalance in relation to the profession and the client. They were meant
to stop abuse hence the establishment of code of conduct.

The legal profession in Kenya was developed by settler community in

Kenya as a reward for services in their 2nd world war.

The initial entrants to the profession in Kenya were not properly

qualified and not properly trained in law. The influence of the Arabic
world was also felt at the coast where we had the ‘Vakils’ which was a
term used to refer to Advocates amongst Arabs.

The first recorded reference of a legal profession in England was in

1729, when the society of gentlemen practices rules was established. In
1825, the Law Society of England was established. In 1949, the Law
Society of Kenya was established.

D. CHARACTERISTICS OF AN ADVOCATE

1. Signing the roll: This basically signifies the entry into the legal
profession under
Section 9 (a) and (b).

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2. Having special skills that the public needs and against which
incompetence is tested. An Advocate must be able to present the
client’s case in court and must have the sense of public service as
opposed to private service. In England, Advocates never received
remuneration.

3. Must be willing to serve the public at large. The need for legal
representation is seen in the Provision of Advocates to persons
facing the death sentence in cases of murder, robbery with violence
and treason. The state provides representation and a person is likely
to be or has been sentenced to hang.

The black robe of Advocates has a pouch at the back for receiving a
token when Advocates perform their duty.

4. An Advocate must voluntarily submit himself to the Code of Conduct

governing Advocates.

5. An Advocate must comply with the rules of etiquette and must have
personal responsibility to all he serves and liability to all his clients.

E. OBJECTS OF THE LEGAL PROFESSION

1. To maintain a form of conduct in which the client’s interest is

paramount.
2. To always honestly serve clients and courts.
3. Honesty to professional colleagues, especially in undertakings as this
may even bring financial loss.
4. To present yourself in a particular manner and always be properly
dressed.
5. To control conduct and behaviour of Advocates.

F. THE ADVOCATE AND THE CLIENT

The Advocate must deal with his client with utmost honesty and
frankness. No untrue representation should be made to the client nor
should any fact be kept away from the client.

In dealing with trust and legacies, an Advocate is required to be

extremely careful, he must apply monies for specific purposes and must
be prudent when dealing with his client.

A client is defined under the Advocates Act, to include as any person

who as a principal or on behalf of another, or a trustee or personal
representative or in any other capacity has power express or implied to

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retain or employs and retains or employ or is about to retain or employ
an Advocate, under any person who is or may be liable to pay an
Advocate any costs.

Contentious business refers to business done by an Advocate in court

relating to proceedings or any tribunal or a panel.

Non – contentious business refers to any business which is not

contentious.

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CHAPTER TWO:

THE ESSENTIALS OF ADVOCACY

ADVOCACY

This is the science of pleading the cause of another. Advocacy is hence

acting for a person, hence one need not assume:-

a) That the person’s cause is that of the represented. One needs to be

broad minded and emotional sentiments held by the other.
b) The pleading was supposed to take place before a legal or a
legitimate body.
c) The advocate is exclusively dependent in so holding himself out as an
advocate. When you are pleading the cause of another, you need not
plead in the client’s favour. One school of thought sustains that you
should plead your client’s case in his or her own interest to the best
of your ability.

QUALITY

a) Persuasiveness – you have to be able to move by argument a body of

persons to be able to accept whatever cause you are pleading, so
that you should have the ability to persuade and develop a
technique. There is law and fact rule of a technique of persuasion.
You must learn to think on your feet.
b) It’s essential to command human psychology. This is necessary to
understand people and their way of thinking.
c) Sometimes the ability to be patient pays. If you are patient, you will
learn what makes the person tick. Your instinct also to be loved and
admired for what you do is important. There’s also the human
desire for domination.

In order to be persuasive it’s necessary to keep in check all these,

since if you are not, then it’s not very right. Always ask yourself
whether the fact that you disliked a member of the bench means
you didn’t like his opinion.
d) Humility – you must be humble. When dealing with members of the
bench, one ought to know, these people are just like yourself hence
one ought to be in the look out.
e) Confrontation – avoid confronting a judge. This might be very
devastating and might turn him against you.


David Napley: the Art of Persuasion

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 f) Reliability – you should be able to venture an air of reliability. It’s
by showing that you know what you are talking about and its
reliance.
g) Aggression – one ought to have a certain amount of aggression but
alongside this, there must be politeness. Remain firm but very
frank in what you are pleading.
h) Punctuality – these have been known to be a major factor in
advocacy.
i) Anger – this ought not to be displayed by advocates in advocacy.
Anger is a way of detracting you. Avoid angering other people.
j) Objectivity – one should always be objective. The advocate, should
not be quick to pass judgement or condemn in most of the heated
exchanges, an advocate should keep his mouth shut. One should be
very careful to join an argumentative discussion.
k) Identification – avoid identifying with your client. Identify with his
case as you plead it in the tribunal but ensure that you don’t make
the client’s case.
l) Negotiation – know your case very well when you go to court. It
helps a great deal if you know your opponent’s position.
m) You should not be dogmatic – be flexible to come out with the best
deal.
n) Settlement – its apt to develop an inclination to ask the clients to
settle out of court. Litigation for the purpose thereof is an
expensive exercise in terms of money and time. Bad settlement is
often better than a good judgement.
o) Relationship – relationship with a client must be carefully
cultivated. A client as defined in S.2 of the Advocates Act is very
fine. A professional must be alert when dealing with clients
because it’s so definite that he’ll depend on you for a number of
consultations. See Groom v. Crocker1
p) Instructions – unless an advocate is obliged to instructions from any
client, you need not refuse on account of colour, ethnic origin,
creed, sex, race. However, decline instruction if:-
1. You don’t want to take that kind of work.
2. You don’t have enough time.
3. There is personal interest.
4. You have previously acted.
5. You are a Tribunal or a Commissioner and the case is triable
by these tribunals.
6. You are practicing in partnership and your partner is likely
to be called as a witness in that case.
7. Your client wants you to take a certain action purely to
injure somebody else.
8. The instructions given are not clear.
9. A client does not want to pay fees.
1
(1938) 2 ALL E.R. 394.

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Instructions should be preferably taken down in writing. It
should be done very clearly and exhaustively and a client should
sign at the end of instructions.

q) Interposing – this should not be done between client and the judge.
When giving opinions to client, do so reasonably, in time and in
writing.
r) Do not degrade yourself as a professional just to benefit a client.
s) Reply to correspondence promptly.
t) Pleadings and documents should be drafted meticulously.
u) If in doubt ask Law Society of Kenya Secretariat.
v) Get familiar with court procedure and registries.
w) It’s apt to have an organized office – have a diary, files etc.
x) Take advantage of the technology available e.g. computers,
Dictaphones. Etc.

THE DUTY OF AN ADVOCATE

The duty of an advocate is fivefold since in the discharge of his
office as the advocate, he has a duty to hiss client, a duty to his
opponent, a duty to the Court, a duty to himself and a duty to the
State.

Duty to the profession

An advocate is a professional. He/she therefore must not engage in
trade. He must not advertise or ‘tout’ for work, regardless of how long it
takes him to get his first brief. While he may not advertise himself, his
reputation should however be allowed to preceed him and he is a t
liberty to show his talents within the practice of the law. The principle
underlying this rule is that an advocate’s practice must be built solely on
his own skill and ability. This duty to obtain work by fair means
transcends all the above five duties since it is a duty he owes to the
state, to the client and to his opponents.

Duty to the state

Duty to the court
Duty to the client
Duty to himself

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 CHAPTER THREE

THE ADVOCATE’S BRIEFS

Once an Advocate has been retained in a matter, he shall remain on

record until he withdraws from acting.

In criminal matters once an Advocate has been retained and on record,

he becomes an officer of the Court and cannot simply disagree with his
client and refuse to go to court. A prudent Advocate must thus know the
extent of his instructions and confine it to a specific limb, for example,
when only applying for bail.

When you fall out of favour with a client, you must formally withdraw
from acting for the client and the court must
give an Order to enable you stop acting. The basis of sanctity of
instructions is that, an Advocate owes a duty to the court and his client
and his obligation to his client must be assumed to persist as long as he
is on record.

In civil matters a client can withdraw instructions from an Advocate and

if he withdraws instructions, he must file a Notice of Intention to Act in
Person under Order 3 Rule 9 of the Civil Procedure Rules (CPR). That
notice must specify his address of service and must be served upon the
Advocate for the opponent and his own Advocate.

Under Order 3 Rule 11 of the CPR, an Advocate who has acted for a
party in a matter, may be replaced where he has died, become bankrupt
or cannot be found or has failed to take out a Practicing Certificate or
has been struck off the Roll of Advocates. A party may also apply to
court by summons that such Advocate has ceased to be an Advocate.

Order 3 Rule 12 CPR allows an Advocate to file a formal application to

cease from acting but such application must be served upon the party
under Order 3 Rule 12(1) and before the court grants the Order it must
be satisfied that the Advocate has served the party through his last
known address.

The Order of Withdrawal under Order 3 Rule 12(3) affects the

relationship between the Advocate and his client since he no longer acts
on his behalf.

In matrimonial matters, an Advocate remains on record until he formally

withdraws. Once an Advocate takes a brief, he is the custodian of his
client’s rights and whilst so acting, he must always avail himself in
court.

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An advocate must only give a professional undertaking upon instructions
from his client and when he is certain that the funds forming the basis of
the undertaking have been deposited with him. It is otherwise risky to
give an undertaking without knowing the source of funds.

An Advocate must always keep his client informed of any new legislation
that may affect his client’s case. He must not deceive his client nor
should he deceive third parties. While handling a matter for a client, he
should not disclose any details of the matter to a third party even if he is
related to the client.

An Advocate should never take advantage of his client for financial gain
and if he gets a power of attorney, it should be used for specific the
purpose for which it’s given.

An Advocate while acting must always disclose all financial benefits to

his client. Once acting for the client, an Advocate is responsible for the
conduct and mis–conduct of the subordinate staff in his office, however
inappropriate, and should any mis–conduct occur in the office the
Advocate is responsible.

Any undertaking by a partner in a law firm binds all the partners

irrespective of which partner gives it. In the case of Kingwoolen Mills
Ltd. v. Kaplan & Stratton Advocates 1 the Court of Appeal held that, an
Advocate should not act in a matter where he has previously acted for
his client’s opponent.

Where a partner or an Advocate practicing alone dies, there no doubt

arises a complication in terms of administration of estate, since the
Advocate’s practice, forms part of his estate. An Advocate’s estate will
thus be governed in accordance with his will upon death. The Law
Society of Kenya has recently sent out forms to all Advocates practicing
in sole proprietorship to nominate Administrators of their estate in the
event of their death. Disputes have indeed arisen regarding the
administration of the practice of a deceased advocate.

An example is the case of the Administrators of the Estate of Maxwell

Omondi Ombogo v. Standard Chartered Bank and LSK Civil Appeal No.
162 of 1999 (unreported). The deceased at the time of his demise was a
member of the LSK. On account of such membership and pursuant to
the Advocates (Accounts) Rules, he had maintained two bank accounts
with the bank respectively assigned as “clients” and “office” accounts.
Acting pursuant to the Law Society of Kenya (General) Amendment
Regulations, 1995, the LSK advised the bank in writing to stop all
1
C.A. No.55 of 1993,

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transactions in the two bank accounts until advised otherwise by it.
However, the advocates of the deceased’s estate’s administrators
argued to the effect that the administrators and not LSK had the
legitimate right to operate the two accounts. It was argued on behalf of
the LSK that since the deceased was a member of the LSK at the time of
his death, the Amended Regulations applied to him and consequently
the Chairman of the LSK was empowered to appoint one or two
administrators to manage his legal firm for purposes of winding it up,
that the Regulations operated retroactively and that the deceased’s law
firm being a specialised operation needed a qualified and practising
advocate to manage and wind up.

The administrators of the deceased’s estate however contended that the

law applicable to the deceased’s estate including his law firm was the
Law of Succession Act. Therefore to the extent that the Regulations
made provision for the administration of part of the deceased’s estate by
people other than those appointed under the Law of Succession Act the
former were inconsistent with the latter and hence void to that extent.
It was also contended that since the Regulations had not expressly
provided for retrospective application then they did not apply to the
deceased’s estate as they were promulgated after the deceased’s death.

The trial judge had indeed agreed with the LSK’s arguments and
proceeded to make orders appointing nominees to manage the said bank
accounts and render an account to the administrators. The
administrators appealed and succeeded in their arguments. The Court
of Appeal discounted the argument that the provisions regarding the
practice of advocates applied even to their estates after their death.
The court was of the view that upon the death of an advocate then
practice regulations ceased to apply to him and his practice.

So what happens to client’s funds? Do they become part of the

advocate’s estate so that there can be managed by his administrators?
Or if the advocate had died testate would it be rational to argue that
such funds were free estate capable of being willed away to any
intended beneficiary. The court was of the view that office and client
funds were part of the estate of a deceased advocate and hence capable
of being willed away – in other words, that the fact that clients funds are
trust funds did not preclude them from being deemed as the free
property of the advocate which would be legally competent to freely
dispose of in his capacity as an advocate. The court went further and
declared that the objects of the LSK do not include the management and
winding up of law firms of deceased advocates. The court even
intimated that either the Public Trustee or even Chiefs or Sub Chiefs or
administrative officers could manage clients’ funds.

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What the learned judges suggest is that an advocate in the course of his
practice is not amenable to the controlling mandate of the LSK so far as
the clients account is concerned. But that would destroy the spirit and
intendment of the rules and regulations that govern the practice of
advocacy. The overall mandate of the LSK is to regulate the conduct of
its members and this includes their conduct as regards client’s money.
So that the protection of client’s funds naturally extends as a duty of the
LSK even after the death of the advocate. The LSK’s mandate is
overriding and covers even the protection of client’s. That is why
advocates will be subjected to the disciplinary process in case of any
acts that may be construed as being inconsistent with the interests of
the client. Surely that protection cannot be said to cease as soon as the
advocate dies. However, the law after the Maxwell Ombogo case seems
to be that an advocate can will away client’s funds since they are part of
his free estate. There does not seem to be any protection to a client
whose money may fall in the hands of fraudulent administrators.

Where an executor is nominated and where he is an Advocate, then the

firm may run even after the death of the Advocate if he takes over the
practice. He may also be liable to pay off liabilities and give clients time
to engage other Advocates.
Upon death of an Advocate, a client ought to have a choice of
representation.

THE PAUPER BRIEF SCHEME

An Advocate will always act upon proper instructions and no doubt
instructions include payment. This requirement is qualified by the
nature of public service of the Advocate that requires him to handle
briefs for persons facing death sentence.

Section 77(2a) embodies the presumption of innocence of every person

and allows such a person representation before he can be found guilty.
The pauper brief scheme recognizes the rights of legal
representation at the state’s expense for everyone facing a capital
sentence. This provision is however lacking for people charged with
robbery with violence, under Section 296(2) Cap 63.

The scheme allows the court to pass briefs to Advocates to appear for
such accused person for a minimal fee without seeking payment from
the accused person. Normally only junior Advocates take up pauper
briefs since the seniors do not have much time to spend on such briefs.

There are institutions that do pauper litigation like Kituo Cha Sheria and
the Public Law Institute, if the matter involved is of public concern.

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In civil matters, a person may sue as a pauper under Order 32
and such suits must be instituted in forma pauperis.

Every application to sue as a pauper shall contain all particulars

required in a plaint together with a statement that a pauper cannot pay
the prescribed fee. The person must present to court himself, unless he
is exempted from appearing under Section 82 of Cap 21 and may be
examined by the court before his application is allowed.

Once the application is allowed, the suit may proceed as a normal suit.
A party may be depauperised if he is guilty of vexatious or improper
conduct, he has means or where someone has obtained interest in the
suit. Where he is depauperised, he may be ordered to pay court fees
under Order 32 Rule 10 and 11.

THE DOCK BRIEF

In certain jurisdictions, Advocates are instructed by the accused persons
upon arrest and arraignment in court. The accused is at the time of
instruction at the dock but there are duty solicitors who take details of
such accused persons and seek representation while the accused is in
the dock, this is referred to as a Dock Brief. Though it happens in
Kenya, there is no established form of legal aid scheme that handles the
accused while in dock.

THE DUTY ADVOCATES SCHEME

This scheme was evolved in Nairobi in 1982 and it involved the
stationing of an Advocate in court to give advise to accused persons on
the nature of their cases and right. It was a form of legal aid scheme
but collapsed because Advocates are not enthusiastic to provide free
legal advice.

A proper duty Advocate Scheme would involve Advocates working on a

rotational basis in giving free legal advice to clients.

PRIVILEGE AND CONFIDENTIALITY

Privilege and Confidentiality refers to the fact that the transaction
between Advocates and their client should not be disclosed to any party
and to the fact even in court. Such matters should not be disclosed if
they have come to the knowledge of the Advocate and client. The
reason why this principle is attached to the Advocate/client relationship
is to give the client confidence to disclose everything to the Advocate
without fear that there would be betrayal. It enables the client to
communicate frankly and it enables the Advocate to advice the client
frankly.

Page 16 of 114
This privilege exists whether litigation is in existence or not, but does
not extend to third parties. If there is a dispute whether the privilege
exist a judicial officer would make a ruling on the document.

Privilege extends to oral communication from client, documentary,

information received from a client in the course of acting for a client.
Any knowledge or fact derived from such communication is also
privileged. For privilege to exist, it is not necessary that a client must
have paid fees. It does not apply to any communication between the
Advocate and Client before he becomes a client. It lasts forever and
survives the death of a client, so long as there is an issue in which
interests are in question.

Any communication in a letter is not privileged unless it is marked

‘Without Prejudice’. This means, the receiving person cannot use the
letter to the detriment of the client unless with his permission. This rule
was devised to be applied to correspondence or oral communications
and is intended to be able to facilitate negotiations or settlement of a
dispute. So that to be fully protected, ‘Without Prejudice’ will apply to
all communications being used during negotiations.

Once an agreement is reached, there is a contract and the privilege

ceases. The client can waive this privilege expressly or by implication or
by conduct.

Under Section 134, Cap 80, no Advocate shall be permitted to disclose

any communication between himself and his client, which is privileged.
As long as the communication does not reveal the furtherance of any
illegal purpose or show any crime or fraud, such protection shall
continue even after the employment of the Advocate has ceased. This
provision is extended to clerks, interpreters or servants of Advocates.

Under Section 136, Cap 80, any evidence in respect of any matter
privileged shall be inadmissible unless the Advocate cross – examines
the witness under Section 136(2).

Section 137 extends privilege to other parties communicating with

Advocates. The exceptions to privilege are:-

a) If there is any fraud or illegality

b) Where there is a joint retainer
c) The names of your client, his address or the fact he has sworn an
affidavit.
d) If there is an independent source of information.
e) Letter before action or communication between co-plaintiffs.

Page 17 of 114
f) If any advocate’s clerk joins another firm that is acting for an
adversary, it is prudent that you stop acting.

PUBLIC LAW INSTITUTE

This institution was established as a result of consultation between

N.C.C.K. and L.S.K.

It is a body limited by guarantee and it is a consumer protection body. It

was originally founded by L.S.K., N.C.C.K. and other donors. It engages
in public interest litigation. It employs advocates though their
instructions are on a pro bono basis.

Page 18 of 114
 CHAPTER FOUR

PROFESSIONAL CONDUCT AND ETIQUETTE

Professional misconduct refers to the breaking of those rules governing

the practice of Advocates under Cap 16 Laws of Kenya and for which
Advocates can be penalized.

From Strouds Judicial Dictionary, misconduct amounts to any conduct

for which punishment may be prescribed. In Re A Solicitor 1 and Re
Lydell2, the House of Lords held that the solicitor who carried on the
practice of undisclosed profit sharing with another who presented
conflicting interest was guilty of professional misconduct.

Other jurisdictions have defined professional misconduct not merely as

an act of commission but of omission too. In the Scotland’s Law Agent
Act of 1873, a Law Agent who stood aside while a conspiracy to defeat
the end of justice was being carried out in his own office was guilty of
misconduct. Professional misconduct raises an inference of legal
turpitude as opposed to unprofessional conduct, which raises an
inference of moral turpitude or fraud or dishonesty.

In Allison v. Gen Med. Council 3, it was held that if a l man in the pursuit
of his profession has done something with regard to it, which will be
regarded as disgraceful or dishonorable to his professional brethren and
to his good repute and competence then, it is open to say that he has
been guilty of misconduct in a professional respect.

While professional misconduct consists of express breach of rules

contained in the Advocates Act as well as the Law Society digest of
professional conduct and etiquette, unprofessional conduct may be
defined to include the breach of good manners in practice. Such
examples of unprofessional conduct will include:-

a) Chewing gum in Court.

b) Attending Court while drunk.
c) Running a brothel or living from the earnings of prostitution.
d) It may also include bad language where an Advocate cannot express
himself properly in English.
e) Insults to the public.
f) Incompetent representation by an Advocate.

1
93 LT 838
2
[1901] 1KB 187
3
(1894) 1 QB 750

Page 19 of 114
PROFESSIONAL MISCONDUCT

Professional misconduct refers to the breach of rules set up in the

Advocates Act and for which punishment is provided. The profession
ought to be manned by persons of integrity and high sense of
responsibility, free from financial problems and anxiety. This is because
the legal profession has a sense of public service and the sense of
service overrides financial consideration.

The penalty for professional misconduct is found in Section 60(4) of the

Advocates Act, which provides that an Advocate is guilty of professional
misconduct, may be:-

a) Admonished
b) Suspended from practice for a period not exceeding 5 years.
c) His name struck off the roll.
d) May pay a fine not exceeding Kshs. 100,000/=
e) Ordered to pay to the aggrieved person compensation or
reimbursement not exceeding five million (5,000,000/=) shillings.
f) Be subjected to such of the above combination as the disciplinary
committee deems fit.
Note: the fine was initially Kshs. 50,000/= but was enhanced vide Act
No. 2 of 2002, which also introduced paragraph (e).

Hearing of Complaints
Act 2 of 2002 introduced a new section, 60A, which makes provisions on
the hearing of complaints by Disciplinary Committee. Subsection 1
thereof states that, the powers conferred on the Committee may be
exercised on the hearing of any application made to the Committee:
(a) Under the Act or on behalf of the Council,
(b)By the complaints Commission under the Act,
(c) Under the Act, by or on behalf of any person.

Once an Advocate is struck off the roll, he may appeal under Section
62(1) of Cap 16 but such appeal shall not operate as a stay under
Section 62(3).

An Advocate whose name has been struck out, may be restored to the
roll after applying to the Chief Justice.

The rules regarding professional misconduct are carried on Section 31

to Section 43 of Cap 16, which forms part of the Advocates Act.

Section 31 deals with unqualified persons who have not been licensed
and purports to act as an Advocate under Section 31(2)(c), they are
guilty of an offence. Such a person also commits contempt of court.

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Section 32 provides that an Advocate shall not practice alone unless he
has been employed for 2 years by the Attorney General or another
Advocate with not less than 5 years in practice. This came into operation
in January 2000.

Section 33 makes it an offence for any person to willfully pretend to be

an advocate or implying that he is so qualified although it does not set
out the penalty thereof.

Section 34 deals with unqualified persons preparing documents like

conveyancing, forming a company, Agreements, Letters of
Administration or any document for which a fee is prescribed under s.
44. Exemptions are however seeated in the case of public officers having
such documents in the course of their duty, advocates employees acting
as such and persons empoyed merelt to engross any document or
instrument. Subsection 2 thereof makes it an offence to do anything
contrary to subsection 1.

Section 35 deals with drawing, preparing documents or instruments and

creates an offence where the person drawing the same does not endorse
his name thereto.

Section 36 deals with undercutting.

Section 37 deals with sharing of profits.

Section 38 deals with touting and provides that the Chief Justice may by
order exclude a person acting as a tout from employment by an
advocate.

Section 39 deals with agency in matters of bankruptcy or for unqualified

persons.

Section 40, provides that costs cannot be recovered in a matter where

unqualified person has acted.

Section 41(1) provides that it is an offence to employ a person who has

been struck off from the roll.

Section 42, provides for disclosure by people who are disqualified to act
as Advocates.

Section 43 deals with offences by corporate bodies.

Page 21 of 114
 CHAPTER FIVE

THE ADVOCATE AND THE TRIAL PROCESS

During this stage / process, the Advocate is more than ever bound by the
duties and obligations of an Advocate as enunciated by Lord Denning in
Rondel v. Worseley 1 and subsequently restated in Groom v. Crocker2.
Accordingly, it is true to assert that the said duties remain as an
undercurrent during the entire process.

ADVOCACY
Principally, this is the art / science of pleading for another’s cause. In
particular, it is applied while the advocate is pleading for the client
before a legal forum i.e. Courts / Tribunal e.t.c.

ESSENTIAL QUALITIES (DURING THE PROCESS)

The science of Advocacy demands the following ingredients:

i) Persuasiveness

 This is the ability to move by argument a body of persons to such an

extent as to be able to accept the cause for which an advocate is
pleading.
 As a technique, it is not inherent. It is a product or function of
experience and is only acquired by those who are keen to develop it.
 It demands that one be able to understand those before whom he /
she is pleading the client’s cause. Accordingly, one must endeavour
to command a deep perception and appreciation of Human
Psychology and the way of thinking of those before whom one is
pleading his cause.

ii) Patience
This a quality which pays. Principally, it is essential because it enables
an advocate to have a chance of learning what makes the opposing side
or opponents and the court tick. One must not only develop the virtue of
patience, but must also develop his / her instincts.

iii) Decency
An advocate must be a decent person. One must downplay the human
desire to dominate. Being domineering or dominating will always work
towards one’s detriment. If one does not like a member of the bench,
one must ensure that it is not his /her opinions that he / she dislikes. It
must not be evident. Whatever their cadre or qualifications, an

1
Supra
2
[1938] 2. ALL E.R. 394

Page 22 of 114
advocate must be careful not to make the bench members feel like a
bunch of ignorants.

iv) Humility
An advocate must be humble and courteous while in court especially
when dealing with members of the bench and fellow counsel.

v) No confrontation
Confrontation with members of the bench, even when they are clearly
on the wrong never pays. It must be avoided. Confrontation can
actually do a lot of harm not only to the cause of the client, but also to
the Advocate.

vi) Competence / Reliability

An advocate must be professionally competent during the trial. He must
know or be familiar with the trial process. He must be confident and
must convey an air of reliability.

vii) Appearance
This matters quite much. Not only must an Advocate be competent, he
must also appear to be so. An Advocate must be kempt, well groomed
and must appear in court in a decent dress. Customary practice dictates
that an Advocate be dressed in dark conservative colours. Where court
etiquette demands, he must appear in court dressed in the correct robes
otherwise he will not get the audience he seeks.

viii) Aggression and tenacity

An advocate must be aggressive and tenacious in fighting for his client’s
cause while in court. He / she must not be ready to give up at any sign
of intimidation. However, these two must be tempered by common
sense and politeness. One must know the frontiers i.e. when to shut up
and sit down.

ix) Punctuality
Advocacy demands that one be the epitome of punctuality.
Whichever panel before which an advocate is prosecuting his
cause, he must ensure that he does not alienate its members by
being late.

x) Others
Other qualities that may increasingly assist an advocate during the trial
process are:

 Objectivity
 Invention
 Keenness

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  Ability to think on your feet.
 Observation i.e. being observant
 A good command of English language and Kiswahili.
 Honesty.
 Sagacity and discernment.
 Courage and industry.
 Adaptability and flexibility etc.

All this qualities amount to truisms without an honest sincere desire to

do the utmost best for one’s client. However, for purposes of objectivity,
you must ensure that your client’s cause does not become yours. This
will ensure that you do not identify with the cause of your client. This
will ensure that emotions and other extraneous sentiments do not cloud
your judgement.

It should be noted that these qualities are not inherent. They are a
product of experience in advocacy.

TRIAL PREPARATION

 The most important part of the case. Often tedious. However, if it is

not done adequately, a good, winning case can easily be lost.
 Trial preparation should begin immediately one gets the brief i.e.
upon receiving instructions to represent a particular client.
 Principally it entails:

i. Collecting and collating all the relevant facts pertaining to a case.

ii. Researching with respect to all the applicable law.
iii. Drafting and preparation of all relevant legal documentation.
iv. Organization of all relevant evidence i.e. documents, exhibits,
witnesses etc.

In regard of the facts, an advocate should utilize the provisions of Order

X, of the Civil Procedure Rules, Civil Procedure Act 3 and the
provisions of the Evidence Act4, in so far as production of documents is
concerned.

In a nutshell, these provisions pertain to:

 Production of documents
 Interrogatories.
 Admission of facts.
 Request for further and better particulars.
 Discovery.
3
Cap 10
4
Cap 80

Page 24 of 114
 Utilized properly, the above procedures can suffice to ensure that an
Advocate is well versed with the relevant facts of a case.

Other factors

 All the relevant evidence must be organized in the order in which the
advocate expects to introduce it.
 All witnesses must be aware that they will be expected to testify in
court. The Advocate must ensure that they are well prepared But he
/ she must not coach them.
 It may be a good idea to prepare the following documents:

a) Trial Brief.
b) Trial Manual

a) Trial Brief

This would contain:

i. A short statement of the facts.
ii. Any contentions of the client i.e. pertaining to innocence or liability.
iii. A memorandum of the applicable law.

Merits

A trial brief would:

i. Help in organizing the file.
ii. Enhance one’s speed in recalling the relevant facts and applicable
law.
iii. Impress the judge or court with one’s preparation.
iv. Enhance an advocate’s chances of adequately dealing with
preliminary objections on points of law.

b) Trial Manual

This could, for instance, contain:

i. A synopsis of the opening statement.

ii. A list of witnesses and a corresponding list of the subject matter of
their testimony.
iii. A list of questions for each witness.
iv. A list of documents to be introduced then and when to introduce
them.
v. The subject areas to be covered during direct and cross examination
of witnesses.
vi. Hypothetical questions to be asked or proposed to expert witnesses.

Page 25 of 114
vii. A place to list ideas which occur during trial and which one may wish
to incorporate into his closing statement.
viii. A list of exhibits to be adduced as evidence.
ix. Copies of documents which the court may need i.e. authorities.

As a final consideration, one must ensure that they are conversant with
the court rooms, personnel and court procedure before trial.

Procedure

 Introduce yourself and opponent to the court.

 Tell a plain, short or brief story to the court stating the essentials of
your client’s case. Basically, an advocate is required to give the
court a brief, concise and accurate summary of facts of the case
without argument or comment. Inessential and irrelevant comments
should be avoided. They may give the opponent an opportunity to
score thus occurrencing tremendous harm. An advocate must take
care not to mistake his case.
 Care should be taken to secure the attention of the court at the
initial stages. Again, care must be taken not to loose the interest of
the court. One must be brief and to the point.

Merits

 An opportunity to display the attractiveness of one’s case and to

display the unattractiveness of the opponent’s case.
 An opportunity to knock off the visible props of the opponents case.
 An opportunity to prepare the court for the weakest parts of the
opponent’s case.

Establishing case

 This stage begins at the initial stages of bringing a case to the

attention of the court (Drafting and Filing of Documents).
 Thus an advocate must ensure that the documents filed in court i.e.
plaints etc. are masterfully drafted, in accordance with the
prescribed procedure. They must be accurate, brief and concise.
 In drafting, an advocate besides knowing the prescribed forms of
documents must also employ a hefty dose of common sense. Such
documents must cover any eventuality.
 In introducing his evidence, an advocate must ensure he introduces
the evidence in an orderly manner, preferably, in the order set out in
his opening statement to the court. Disarrayed evidence can do a
lot of harm, including making the court to lose focus.

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DIRECT EXAMINATION

General principles

 Do not lead the witness except on undisputed matters. Leading a

witness alludes to questions framed in a manner that allows the
witness to understand from the questions themselves what answers
he’s required to give.
 Do not put questions to the witness, which contain the evidence you
(advocate) want to establish instead of eliciting it (the evidence)
from the witness.

Why not leading questions?

They do tremendous harm / damage by:

a) Destroying the reality of the evidence.

b) Preventing the character of the witness from emerging.
c) Destroying the reliability of the evidence by suggesting the answer
to be given by the witness.
d) Casting a shadow of suspicion on the impartiality of the examiner.
e) Reducing the value of evidence generally.
f) Giving the opponent a chance to object.

 Instead of leading questions, the witness ought to be guided gently.

An advocate should endeavor to have the witness responsively
respond to the questions he asks (as in a normal conversation)
 An advocate should;

a) Control the witness but not tightly reign him so as to rob his
evidence of any character.
b) Try to have the direct communication in the form of a spontaneous
conversation between the (himself) examiner and the witness.
c) Not assume that the witness will help him in the process.
d) Have memorized the order of evidence he wants to elicit from the
witness to avoid confusing both the court and the witness.
e) Use direct examination to pinpoint the weaknesses in the opponent’s
case to downplay the strengths in the same case and to highlight the
strengths of his / client’s case.
f) Present the witness in a most favourable manner to the court i.e.
well kept and well groomed.
g) Not engage in histrionics during Direct Examination.

Simply tell your story and sit down. It ought to be noted that the
manner of conducting a Direct Examination can win or lose a case.

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CROSS EXAMINATION
General principles; aims, purposes and objectives

Basic Goals of Cross – Examination

1. To fortify or corroborate favorable testimony.
2. To discredit or cast doubt on the veracity of adverse testimony, not
only the testimony of the witness on the stand but other adverse
witnesses as well.
3. To test the credibility of testimony.
4. To impeach the competence of the witness.
5. To demonstrate the motives or partisanship of the witness.
6. To secure favorable admissions and facts.
7. To obtain materials for closing argument.

Aims

 Weaken opponent’s case

 Establish facts favouring your own case.

Purposes

Cross-examination weakens the opponent’s case by;

a) Discrediting the witnesses.
b) Discrediting the evidence or reducing its value.
c) Discrediting and reducing the reliability of both the witness and the
evidence.

Accordingly, cross examination is a powerful tool for the purpose of

testing the veracity of a witness and the accuracy and completeness of
his (witness’s) story / evidence.

There are no hard and fast rules in cross-examination. One rises to the
occasion depending on the surrounding factors or circumstances.
However, cross-examination ought to be done with due courtesy,
decency, restraint and consideration being accorded to the witness. An
advocate must be considerate and must not bully the witness. This may
cause the court to draw wrong conclusions thus occurencing injustice.
A witness must be accorded a fair opportunity to respond to questions.
Further, an advocate should:

 Not ask any questions unless he / she has a good idea what the
answer is likely to be.
 Use clear simple English, easily understood by the court and by the
witness.

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  Not confuse the witness by voicing his opinions on the witness’s
answers.
 Be brief, concise and to the point.
 Know what questions to ask them and how to ask them.
 Prepare in advance for the exercise through anticipation of the
likely consequences of the direct examination.
 During cross examination, an advocate can utilize the following
weapons.

 Confrontation with a view to get the witness to admit a

particular set of unfavourable facts.
 Insinuation
 Probing
 Undermining

 Whatever one does, an advocate must NOT during cross

examination;
a) Allow a witness to expound and clarify on evidence given during
direct examination.
b) Express shock or get visibly moved by answers given by the
witnesses.
c) Allow a witness to get the best of him / her.

Whatever may be said of the techniques of cross examination, an

advocate should always endeavour to tie down the witness to a
particular set of facts then administer a coup de grace at some
later stage. Further, an advocate should be guided, in his cross
examination by a hefty dose of common sense.

Basic techniques of Cross – Examination

1. Be prepared: Know the subject of the testimony, the witness, your

case, and the judge.
2. Use simple language: the witness as well the assessors must
understand your questions (where present).
3. Ask only leading closed questions that require short, simple answers.
4. Listen to the answers.
5. Keep your objective hidden.
6. Cover the important subjects, such as the most devastating material,
early. Do not belabor minor points.
7. Examine improbabilities.
8. Plan some surprises for the witness.
9. Lay the groundwork for your closing argument.
10. Ask for facts, not evaluations.
11. Stay in control of the witness.

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12. End with triumph.

Pitfalls to Avoid in Cross – Examination

1. Never ask a question to which you do not know the answer.

2. Do not repeat what was covered on direct unless you suspect a
memorized story and want to begin by asking the witness to retell
the story.
3. Do not cross – examine on minor matters unless you are reasonably
certain of success.
4. Don’t ask questions about exact times, speed, distances,
measurements, etc.
5. Don’t get baited by your opponent – beware of the obvious
questions omitted by opposing counsel during direct examination.
6. Don’t ask the right question at the wrong time.
7. Don’t over – examine or harass the witness.
8. Don’t open the door to ruinous redirect examination.
9. Don’t be argumentative, lose your temper, or allow the witness to
control your actions.
10. Don’t allow the witness to explain answers.

The Art of Successful Cross – Examination

A. Requirements of a Good Cross - Examiner

1. Technical mastery of the legal fundamentals.

2. Effective use of discovery and adequate preparation to prevent
being surprised by opposing counsel at trial.
a) Know what each of the witnesses will say.
b) Review any statements made by the witnesses.
c) Reread any reports or Answers to Interrogatories
received.
d) Summarise the content of any depositions taken.

3. An organized outline of your proposed cross – examination made

prior to trial, which includes:

a) All subject matter you want to cover with the witness

including specific factual areas in which you are seeking
admissions from your opponent.
b) Your primary purpose during cross – examination.
c) Your secondary purpose during cross – examination.
d) Inconsistencies in the testimony of the witness that you
want to exploit and highlight for the jury.

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 e) Hypothetical questions altering facts set forth in any
hypothetical that may be offered by opposing counsel
during direct examination.

4. A tactful approach with the witness.

5. Respect for the jury’s intelligence.
6. A pleasant demeanor.
7. The ability to make complex matter simple.
8. Logical jury arguments.
9. Confidence.
10. Experience.

B. Effective Types of Demonstrative Evidence to Use on Cross -

Examination

1. Enlarged photographs of:

a) Physical evidence
b) Charts and diagrams
c) Photos and surveys
d) Reports
e) Portions of depositions or trial testimony
f) Portions of learned treatises

2. Transparencies.
3. Three - dimensional models of the instrumentality that caused the
loss.
4. Tapes and movies.
5. X – rays.
6. Blackboard – just remember to preserve the record!
7. Drawing pad and markers.

C. Helpful Materials to Use in the Cross – Examination of an

Expert Witness

1. Background information:

a) Confirm job responsibilities and reasons for leaving

employment with previous employers.
b) Contact educational institution to verify attendance,
degrees awarded, and honors received.
c) Relevance of acquired technical knowledge (i.e. has the
expert attended seminars in recent months so as to enable
him to remain “on top” of his field?

2. The opinions of other attorneys who have faced this expert.

Page 31 of 114
3. The opinion of other experts in the same field.
4. Transcripts of previous testimony by this expert at a deposition or
trial.
5. Technical reference materials.
6. Demonstrative evidence.
7. “Vain questions” (i.e.: “As Chief Engineer, would you say….)

D. Areas to consider Exploring with Each Witness During Cross -

Examination

1. Perceptions.
2. Recollections.
3. Interest.
4. Bias.
5. Prejudice.
6. Character.
7. Motive.
8. Prior Inconsistent Statements.
9. Qualifications and background.
10. Anything which would discredit or impeach the witness and aid your
case.

Special Problems Encountered When Cross – Examining an

Expert Witness

A. Making the Opposing Party’s Expert Yours

1. Try to Diminish Credibility

a) Ask questions that make the witness appear to be a
“professional witness” including whether the witness makes a
practice of testifying for either plaintiffs or defendants.
b) Exploit the community attitude that anything can be bought
which may be the opinion of several jurors.
c) Inquire about the expert’s previous involvement in the
litigation system.
d) The expert’s usual fee, number of court appearances,
contacts with bar organizations, talks before such groups,
and nature of his employment all provide fertile field for
inquiry.
e) Never refresh an expert’s recollection.

2. Try to Secure Admissions

a) Ask questions that seek to extract concessions or admissions

that support your theory of the case.

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 b) Refocus the attention of the jury to the simple,
understandable, winnable theory of the case.
c) Use leading questions that require brief answers.
d) Retain control.
e) Refer to technical reference materials that are recognized as
authoritative in the witness’ field of expertise.
f) Highlight contradictions in the documents, photographs or
testimony provided by the expert.
g) Review any documents referred to by the expert during his
employment in the case.
h) The use of tests and experiments conducted during cross –
examination.
i) Obtain prior writings and testimony by the expert; use them
to contradict his present testimony.

3. Do not attempt to discredit a credible expert witness.

a) Do not cross – examine a credible witness because the jury

will expect it.
b) Ask non – controversial questions such as who asked the
expert to be a witness, and with whom the witness spoke
about the case.
c) Use the plaintiff’s expert witness to obtain testimony
favorable to your theory of the case.

Cross – Examination as an Impeachment Tool

Most frequent grounds for impeachment:

1. prior inconsistent statements.
2. personal or financial bias.
3. impeachment with medical tests or journal.
4. impeachment based on deficiencies in medical performance.
5. inadequate foundation: opinion based upon incomplete history or
erroneous facts,
6. refuting implication of no injury from negative physical findings.
7. other grounds include:

a) The witness is relating only subjective opinions on which

there can be legitimate differences of medical opinion.
b) The state of medical art is such that medicine’s best
procedures still do not really prove anything; certainly they
can’t disprove something.
c) The witnesses’ medical opinions are not warranted by the
“facts”.
d) The doctor’s medical records have been altered, forged,
deleted, added to or destroyed; or

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 e) The doctor is prejudiced against the cross – examiner’s side
of the case (particularly true in medical malpractice cases).

RE – EXAMINATION

 Should be undertaken principally with a view to mitigate the damage

done during cross – examination.
 Should not be a reproduction / replay of the direct examination.
Should be confined to issues arising out of cross examination only.
 Could be utilized to highlight the strong points of an advocate’s case,
provided they have been touched on during the cross –examination

General Techniques

1. Refocus the judge’s attention to your theory of the case.

2. Permit the witness to explain confusing answers given during cross –
examination or possible discrepancies in previous testimony.
3. Reinforce the positive aspects of the direct testimony of each
witness.
4. Ask quick – paced, short – answer questions, which simplify and
clarify the major points you wish to make with each witness.
5. End with a “clincher” question.

CLOSING SPEECH

 Should be a brief, concise and accurate summary of the facts, the

law (applicable), their interrelationship, i.e. the facts proved
adequately / to the court’s satisfaction.
 Principally, should be a summary of one’s case, yet again
highlighting the strong points of your case and the weak points of
your opponent’s case. Should downplay the weak points of your case
while highlighting the weak points of the opponent’s case.

SAVING
When engaged by a client, an advocate’s duty to the client includes:
i. Acting with all due courtesy to the court and not being belligerent.
ii. Being fearless and courteous and upholding your client’s interests
whatever the cost to yourself.
iii. Making every honest endeavour to succeed on behalf of your client.
iv. Putting every fair argument that has capacity to advance your
client’s cause without misleading the court.

As an officer to the court, an advocate is required to cite all the relevant

law whether in the client’s favour or not.
 In this regard, the advocate’s duty will be limited to distinguishing
the client’s cause / case.

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 An advocate, when pleading to urge the court to adopt the view that
the client’s contentions are correct.

Accordingly, it is clear that an advocate’s role is simply to advocate the

client’s cause and NOT determine the correctness of the client’s case.

CRIMINAL MATTERS
In criminal matters, the advocate should have regard to the following
matters:

 He should not attribute the offence to other persons without

substantiation.
 He should not device for the client a false line of defence.
 He should not device the defence of alibi if it does not exist.
 Where a client has confessed his guilt, and where the
confession is legitimate, he must decline to take the
instructions to defend unless;

a) The client has only instructed him to mitigate.

b) The client has instructed him to plea bargain.

 Where an accused person has made his confession during the course
of proceedings the advocate should remember that the accused is
presumed innocent till proven guilty.
 Further, in defending an accused who has confessed, an advocate
should refrain from conniving to substantiate fraud. He must not
assert untrue statements / facts. However, an advocate may:

i. Challenge the courts jurisdiction

ii. Challenge the charge
iii. Challenge the evidence available
iv. Challenge the court where it is apparent that the judge may
be biased.

 It is important to advice a client when taking instructions whether or

not he should plead guilty and if in doubt, to advice him not to plead
guilty.
 If at the stage of taking pleas an advocate is in doubt whether to
advice the client to plead guilty or not, he should ask to see the
Magistrate in chambers before proceedings commence. This way, it is
possible to discuss the plea with the judge and the prosecutor.
 Once on the record, an advocate should never abandon his client,
even during mentions.

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  If he must be absent, he must get the leave of the court first or get
someone to hold his brief.
 It is generally inadvisable to represent two jointly accused persons
unless the advocate is sure that there can be no conflict of interests.

CRIMINAL MATTERS: CROSS – EXAMINATION

During cross – examination, one must be careful not to destroy the
defence case by putting certain questions to the witnesses.
 You must be careful with whatever questions you put to the
prosecution witnesses.
 Unless you know the answer to the question, avoid it.
 Avoid character attacks during cross – examination of prosecution
witnesses unless they are absolutely necessary.

PROSECUTORS
Though acting as a counsel for the state, one remains to be an officer of
the court. Accordingly, prosecutors are bound by their duty to the court
just as other advocates.
Prosecutors must have the following issues in mind during the trial
process.

a) They must not shut out any evidence favourable to the accused
person.
b) They must not adapt an attitude which requires that they
obtain a conviction at all costs.
c) After conviction the prosecution has no right of audience.

DEFENCE COUNSEL

 There being no pleadings, a defence counsel in criminal matters

cannot know the prosecution’s case in detail.
 Accordingly, it is impossible to prepare for cross – examination of
prosecution witnesses in advance. Such can only be done after the
prosecution has finished its examination – in chief, during which the
defence counsel must develop the form of his cross – examination.
This requires an advocate be very keen. It is also imperative that he
be present.
 Once a client is convicted, the role of the advocate is limited to
addressing the court in mitigation of sentence.
 Care should be taken not to guarantee acquittals to accused clients.
 Unless an advocate can substantiate allegations made against a
prosecution witness, he should not make them. It is advisable that
instead of making allegations the advocate should suggest to the
witness rather than putting it as a fact.

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Privilege S.134 5

An advocate has a duty of confidence to his client.

 Whatever discussions have transpired between an advocate and his
client during the conference, cannot be disclosed without the client’s
consent.
 However, the doctrine of client privilege can be departed from on
certain cases i.e.
i. To reveal an illegal intention on the part of the client.
ii. Where the client has consented.

Conclusion
Upon receiving his instructions, the advocate has total control and
responsibility over the conduct of proceedings.

Accordingly, it is upto the advocate to ensure that he dispenses his roles

or duties as enshrined by Lord Denning in Rondel v. Worseley and
ensure that his client, the accused, gets justice.

2. CIVIL MATTERS
Rule 2 of the Advocates (practice) Rules prohibits advocates from acting
for any clients without instructions.

The role of the advocate during the trial process is quite extensive.
 He must ensure that the matter is duly listed for hearing and must
explain to the client the necessity of attending court.
 He must familiarize himself with court procedure in both superior
and inferior courts. For instance, when, appearing before the High
Court he must be robbed (though not when appearing in chambers)
 He must ascertain the question of jurisdiction, both monetary and
geographical before the proceedings commence.
 He must ensure that there’s no conflict of interest and there is no
likelihood of such a conflict arising subsequently during the trial
process.
For instance, when acting for two parties in a joint venture, an
advocate is strictly required to ensure that there is no conflict of
interest. This view has been restated by the court in the case of King
woolen Mills and another v. Kaplan and Stratton Advocates6
In this case, Kaplan and Stratton had acted for both the borrower
and the lender in a borrowing transaction. The firm had prepared all
the relevant documents, including the security documents.

5
Cap 80
6
Civ. App. No.55/93

Page 37 of 114
 Subsequently, the borrower had defaulted on repayment and had
questioned the validity of the security documents. Subsequently,
Kaplan and Stratton had purpoted to enforce the said security and
the appellant sought a grant of injunction to stop the firm. The Court
of Appeal held that since Kaplan and Stratton Advocates were 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.

It is thus evident that an advocate should not purport to act for a

client during the trial process where a conflict of interest exists or is
likely to arise.

Other duties of an advocate during the trial process include:

 Under R.4 of the 1998 Advocates (practice) Rules where an
advocate acts in a suit on the instructions of a client, the advocate
must furnish the client with filed copies of all pleadings in the suit
bearing the stamp of the registry of the court in which the suit
was filed.
 Under R.13, such advocate shall not enter into any arrangements
to receive a contingency fee in respect of the said proceedings.
 The advocate is also required to file a list of authorities he intends
to rely on before the trial proceedings commence.
 The advocate is also required to apply for the relevant witnesses
to be summoned in time so that the trial is not held up.
 In case of hostile witnesses, the advocate is required to apply to
the court to have the said witness declared a hostile witness.

If the court grants the application, the advocate should proceed to

cross – examine the said witness.

Impeachment of witnesses

 An advocate is duty bound to ensure that the court gets only the truth
during the proceedings. It is only a court that has been truthfully
made aware of the facts surrounding a dispute that can render a just
and fair decision.
 An advocate can impeach a witness who is misleading the court by:
i. Proving that the witness is unreliable.
ii. Proving that the witness is a liar.
iii. Proving that the witness has forgotten the relevant facts is
mistaken or biased.

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Interlocutory Applications
An advocate is bound by his duty to do the best for his client.

Accordingly, he must be conversant with the manner or procedure for

making interlocutory applications where the need arises during the
conduct of proceedings – it must not be gain said, they may shorten the
proceedings.

Appeals
Where it becomes apparent that an inferior court has rendered a
decision that is contrary to the law, the advocate is bound to advise the
client to appeal against the said decision.

This requirement arises from the duty of the advocate to the

higher cause of truth and justice.

At the conclusion of the trial process an advocate must advise the client
on the decision rendered by the court.
 Where the decision is contrary to the laid down relevant law, he must
advice the client to appeal or to apply for review.
 Where the decision is just and fair he must extract a decree and
initiate execution proceedings on behalf of the client where the
judgement debtor fails to honour the terms of judgment.
 During the trial an advocate is required to obey all court orders. This
is so whether the advocate regards the said orders to be invalid as
was held in Aaron Ringera and others v. Paul Muite and others 7, the
respondents had been found responsible for disobeying court orders.
Their assertions that the orders were illegal, ultra vires, or
unconstitutional were disregarded as the court held that an order of
the court must be obeyed whether the subject of its coercion believes
in its propriety or not. If a party has a grievance against a courts
order, he is at liberty to apply to court to either vary or discharge the
same. Before then, a party has no option but to obey orders issued
by the court of which he is aware.
 Failure to comply with a court order amounts to court contempt.
 An advocate should not, during the trial process, be party to
deception or fraud i.e. he should not condone by any witness
(whether his witness or opponents)

CHAPTER SIX:

BRIEFS, PLEADINGS AND CONFERENCE

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1. CONFERENCE

 Are discussions with clients, witnesses or any other party in the

course of carrying out duties as an advocate.
 This term encompasses both contentious and non-contentious
matters in which one is engaged to act as an advocate.

N.B. Pursuant to S.2 of the Advocates Act1

Contentious matters are defined as “any business done by an
advocate in court or relating to proceedings instituted or
intended to be instituted in any such court or any statutory
tribunal or before any arbitrator.”

Non contentious matters are principally any business done by an

advocate which is not contentious i.e. proceedings not before any
court / tribunal or arbitrator.

2. PLEADINGS

 Are generally documents prepared by an advocate and which are

subsequently filed in court.
 The contents, nature and form of pleadings are governed by the
provisions of the Civil Procedure Act2 in particular, the rules made
thereunder.
Order VI of the Civil Procedure Rules makes provisions pertaining to
pleadings generally.
Pleadings must be carefully drafted.

2.1SETTLING OF PLEADINGS

 Means preparing and approving pleadings that are going to be and

are subsequently filed in court as representing your client’s case.
 Once an advocate has drawn pleadings he / she is bound to settle
them.
 Upon settling and signing pleadings, an advocate is under
responsibility to the court and to the client for them. Accordingly,
you can only sign pleadings when you are not in any doubt
whatsoever.

Salient observations

1
Cap 16
2
Cap 21

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 You cannot plead any allegations not supported by facts laid before
you by the client.
 You cannot plead any fraud unless the client has provided clear
evidence and facts to establish a prima facie case.
 If you must plead a time barred plaint, you must take instructions to
apply for an extension of time.
 Do not plead unenforceable claims i.e. gambling, betting etc.
 In drafting pleadings, you must subscribe to the rules laid out in the
Civil Procedure Act3 pertaining to pleadings generally and to
pleadings in specific cases.

SAVING
With respect to conferences, the following observations are salient.

 Ensure that secretaries, telephone etc do not continuously disturb

you.
 Other parties should not be privy to the discussions between you and
the client.
 Records should be kept of the discussions and time taken by the
conference.
 If you are attending witnesses, do not attend them at the same time.
Further, it is advisable that you keep records or take minutes.

3. BRIEFS
An advocate is bound to accept any brief in the court in which he
professes to practice law at a proper time.
However, there are exceptions to this general rule.

EXCEPTIONS

a) When there is a conflict of interest, you cannot accept the brief.

Even where there are chances that a conflict of interest is likely to
arise, you cannot accept the brief.
b) If the client cannot afford to pay your professional fees.
c) If the brief requires you to take part in the furtherance of an illegal
act.
d) If you do not do such work.
e) If you are likely to be called as a witness.

Unless in the clearest of cases, an advocate should not decline to take a

brief. Such refusal amounts to undermining the rule of law. For
instance, you can not decline a brief on grounds of sex, tribe, race, etc.
for you will be perpetrating discrimination, which is prohibited.

3
Cap 21

Page 41 of 114
WATCHING BRIEF
Principally, watching brief entails being present during any judicial
proceedings with a view to ensure or satisfy yourself (on behalf of your
client) that the said proceedings are in accordance with the laid down
law and procedure.

When watching brief an advocate:

 Has no right of audience

 Is limited to checking what the prosecution adduces as evidence
inclusive of which parties are called as witnesses.
 Can request to consult with the magistrate and the prosecution in
chambers in case of any apparent anomalies.

Rationale

 A client may instruct you to watch brief with a view to prepare for
subsequent civil action.
 A client may also instruct you to watch brief mainly for psychological
satisfaction that the law is being followed.

HOLDING BRIEF

 Where a fellow advocate instructs you to take his place during

proceedings due to his inability to be present in court.
 It is of a temporary nature, not continuous.
 You must, when instructed to hold brief, peruse the file with a view to
familiarizing yourself with its contents.
 This is quite important just in case the court orders you to proceed
when not satisfied with the reasons advanced for the advocate’s
absence.

DEVILING

 An advocate must not pass a brief to another advocate without

express instructions from the client.
 The consent of the client must be sought and given first before
passing the brief.
 An advocate must not delegate the settling of pleadings similarly
without the client’s consent. This is important because the other
advocate settling the pleadings may not understand what one had in
mind. It may thus cause prejudice to the client.

TAKING INSTRUCTIONS

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It is advisable to take the following records when taking instructions:

a) Date on which the instructions are being taken (and of course time).
b) Name of case.
c) Name and address of client.
d) Place and date of hearing
e) Fees agreed to be paid or mode of charging fees.

CONFLICT OF INTERESTS

As already noted, it is mot advisable for an advocate to take a brief

when there’s a conflict of interest or when it is apparent that a conflict
of interest is likely to arise (during the proceedings).

Where during proceedings a conflict of interests arises, the advocate

should withdraw from acting. His fiduciary duty to the client requires
him to withdraw.

It is in fact, mandatory that an advocate must not act in a matter in

which a conflict of interest exists. This view received judicial
endorsement in the case of King Woolen Mills Ltd and Anor v. Kaplan &
Stratton Advocates4 where the court explicitly observed;
“…. once a retainer is established, the general principle is that an
advocate should not accept instructions to act…where there is a
conflict of interest…”

Instances in which a conflict of interest may arise are:

a) In case of an advocate who is a Company Director: such advocate

should not accept instructions to act for the company.
b) In the case of an advocate who are councilors. They should not
accept instructions to act for the urban council.
c) Commissions of Assize:
 These are practicing advocates who also serve as judges.
They are appointed pursuant to the provisions of the
Commissioners of Assize Act.5
 Because they are also practicing advocates, they should
always decline briefs for which they are likely to sit as
judges. They must be very careful to ensure that there is no
conflict between their work as advocates and their role as
judges.

4
Civil. App. No. 55/93
5
Cap 12

Page 43 of 114
 d) Members of parliament who are also practicing advocates must not
accept rewards from their constituents for what they have done for
them in their capacity as advocates.
e) Arbitrators: where an advocate is serving as an arbitrator, he cannot
advise any of the parties.
f) You cannot appear before a court or tribunal which is presided by
your relative and it is inadvisable to act for your relatives unless in
routine matters.

SAVING
Pursuant to Rule II of the Advocates (Practicing) Rules (1998) an
advocate cannot in relation to transactions relating to land, act: -
i. In the case of a sale, for both the vendor and the purchaser.
ii. In the case of a lease, for both the lessor and lessee.
iii. In the case of a mortgage or a charge, for both the mortgagee or for
both chargor and chargee.

Ref. King Woolen Mills Ltd v. Kaplan and Stratton Advocate.

Where the court held that it was inadvisable for an advocate to act for
both borrower and lender due to the possibility of a conflict of interest
arising later.

Test for a conflict of interest

The question to be asked and answered in whether the
instructions received by an advocate create an impression in the
mind of the public that the advocate is acting unfairly or using
his office for undue benefit of the client (or himself).

Relationship with other advocates

Four guiding principles govern the relationship of an advocate with
other advocates.

i. Be courteous to other advocates at all times.

ii. Accord respect to all those who are senior to you. Seniority is
determined on the basis of when one signed the roll of advocates.
Any advocate who has signed the roll before you is senior.
iii. Seniority of an advocate may also be determined by their offices i.e.
the A.G., the Solicitor General, Queen’s Counsel (QC), Chairman of
the Law Society and Vice Chairman (regardless of the day they
signed the roll of advocates)
iv. Advocates are all members of the same profession and are required
to maintain the good image of the profession.

ADVOCATES AND OFFICE MANAGEMENT

It is important that an advocate be conversant with the provisions of:

Page 44 of 114
 The Law Society Digest
 The Advocates (Practice) Rules.
 The Advocates (Accounts) Rules.
 The Advocates (Deposit Interest) Rules.

The Digest, unlike the rules made under the Advocates Act, is more
flexible. In case of a conflict between the Digest and the said rules, one
should consult the L.S.K.

Advocates offices are covered by the digest which has no specific

restrictions. However, it is worth noting the following provisions: -
a) R.6 allows advocates to establish offices and branch offices which
must be under effective control by the advocate and should not be
the source of touting.
b) Where an advocate shares an office it is improper to share an office
with an unqualified person.

Under R.9 thereof, every advocate or firm of advocate is required to

paint or affix his name or its name outside of every office or place of
business.

Under R.10 thereof, a written notice shall be delivered to the registrar

and to the secretary of the society within one month of;
a) An advocate changing his name or the firm’s name.
b) An advocate or firm changing its postal address.
c) An advocate setting up his own practice.
d) An advocate or firm ceasing to practice or to exist whether by
operation of law or by act of its partners.

FIRM NAME

This is covered by R.31 of the Digest as well as Advocates (Practice)

Rules (rules 11 and 12).
 It is prohibited to practice in a name other than your own or that of a
past or present partner.
 If a partner is appointed a judge, the other partners are allowed to go
on retaining his name as a firm name.
 It is advisable to register the firm name pursuant to the provisions of
the Registration of Business Names Act.

Pursuant to R.12 of the 1998 Advocates (Practice) Rules, it is prohibited

for a firm of advocates or any advocates to allow the firm name to be
used on any document or letter not drawn by the firm or by the
advocate.

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COMMISSIONER FOR OATHS

Pursuant to the Oaths and Statutory Declarations Act, Cap 15, S.2
thereof, the Chief Justice may by commission appoint any practicing
advocate to be a commissioner for oaths.

For one to be eligible for appointment, one is required to have practiced

for at least three years as an advocate (rule 2).

Upon appointment, an advocate may by virtue of his commission

administer any oath or take any affidavit for the purpose of any matter.

The commission may be revoked by the Chief Justice for misconduct of

the advocate.

Notaries public
Under the Notaries Public Act6 S.2 thereof, the Chief Justice may
appoint any advocate to perform within Kenya the functions and duties
commonly performed in the U.K. by a notary public.

Under S.3 thereof, one is only eligible for appointment if they have
practiced law for more than 5 years.

Under S.5, the Chief Justice may revoke the appointment.

Consultancy
For one to be a consultant, he or she must have in possession a
practicing certificate and;
Must have worked for the firm.

A consultant can only offer his advice to the firm only.

The Law Society Digest also covers other important aspects of office
management by advocates.
Principally, these provisions have been extracted from actual cases
coming before the society.

Correspondence

 It is imperative that an advocate responds to correspondence by

the L.S.K. and the client without undue delay.
 The following is a list of priorities pursuant to which response to
correspondence must be undertaken;

6
Cap 17

Page 46 of 114
 1. Correspondence from the L.S.K. especially the
Complaints Commission.
2. Fellow Advocates.
3. Clients.
4. Rest.

 Failure to respond to communication from the Complaints

Commission amounts to professional misconduct.
 Common sense dictates that correspondence from clients should
be responded to without any delay.

2. Letter Heads

 R.27 of the L.S.K. Digest makes provisions pertaining to

letterheads.
 It should be designed well for the purposes of impressing the
public (clients).
 The Digest does not allow advocates to include an emblem on the
letterhead. However your name and those of any partners and
associates may be included, together with any professional
qualifications relevant to practice.
 It is prohibited for an advocate to allow clients to put his name on
their letterheads.
 If you are a director of a company, it is prohibited for you to be
identified as an advocate on the director’s list.

3. Unqualified Personnel / Staff.

All secretaries, clerks etc working in an advocates office are pursuant to
the provisions of S.2 of the Advocates Act, unqualified persons.

Under S.37 of the Act, you cannot share profits with them or even pay
them commissions.
However, unqualified staff may be paid a bonus at the end of each year.

The advocate or the firm of advocates is strictly liable for their actions.

4. Practicing Certificate / License

Under S.21 and 22 of the Advocates Act7, one is required to have a
practicing certificate before he / she is allowed to practice as an
advocate.

Under S.30 A, one is also required to take out an annual license before
he can be allowed to practice.

7
Cap 16

Page 47 of 114
 
An annual license and a practicing certificate are only issued
after one has paid the prescribed fees.
 One should apply for a practicing certificate before the end of
January.
 The L.S.K. will usually issue a notice in December for advocates
to submit their applications.
 If by the end of January one does not have a practicing license /
certificate one would not be eligible for practice as it would be
illegal. The Registrar of High Court will usually publish a list of
advocates who hold a practicing license / certificate.
5. Insurance for Professional Negligence
R.25 of the L.S.K. Digest requires that advocates take out insurance
against liability for professional negligence suits / actions.

It is clear that advocates can now be sued for professional negligence.

Ref. see the decision of the court in Midland Bank Trust Co. v. Hett,
Stubbs and Kemp8 where the court observed that solicitors could be
sued in court for professional negligence.

6. Absence
When out of town or out of the country, inform your clients and arrange
for someone to hold your briefs and attend to your clients.

It is professional misconduct to be absent from court during proceedings

pertaining to your clients.

7. Debt Collection and Execution

 R.13 of the Advocates (Practice) Rules prohibits advocates from

charging collection fees in the first demand letter. If the debtor pays
immediately, the client should be charged.

 R.19 requires clients to pay collection charges.

 Where execution has issued, and the judgment debtor offers the
decretal sum, the advocate is required to inform the court and to
withdraw the execution.

8. Consultancy Fees
Where an advocate has consulted other professionals, including other
advocates, he’s required to pay their professional fees.

Usually these are charged to the client who pays unless the advocate
has given an undertaking, in which case he is liable.
8
[1978] 3 W.L.R. 167

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9. Professional Undertakings (r.46)

 A commitment by an advocate backed by his professional

name.
 Must be clear and unambiguous.
 It creates a binding agreement and can be enforced against the
advocate.
 It amounts to professional misconduct not to honour an undertaking.
In Walker Kontos Advocates v. S. Mwirigi & Co. Advocates Civil
Appeal No.20 of 1997, the respondents had obtained documents of
title in respect of a piece of land which was the subject of a change.
They gave an undertaking to secure the discharge upon completion
of a transaction involving the subject title. Thereafter they
purported to resile from the undertaking on account of a dispute as
to the interest rate applicable. It was held that the fact that there
was a dispute as regards the interest payable on the charge did not
of itself entitle the respondents to resile from the solemn
undertaking. The solemn and binding nature of a professional
undertaking was reiterated in the case of Kenya Reinsurance Corp.
v. V. E. Muguku Muriu t/a Muguku Muriu & Co. Civil Appeal No.48
of 1998 where the advocates in question on facts similar to the ones
in the Walker Kontos case sought to qualify their undertaking on
account of a dispute between their client and the appellant
corporation. It was held that having given a solemn
undertaking to pay a certain sum of money an advocate is
bound by the undertaking and cannot resile therefrom. The
same result was reached in the case of Karsam Lalji Patel v. Peter
Kimani Kairu practicing as Kimani Kairu & Co. Advocates Civil
Appeal No.135 of 1999.

10. Businesses
 Not prohibited.
 But must not breed a conflict of interest and must not be biased
towards conduct unbecoming or towards unfairly attracting clients.
 If in doubt, one should consult the L.S.K.
 Same principles apply to employment of advocates, an advocate is
prohibited from sharing profits with his employer.
SAVING
 Client money should be handled in the manner prescribed by the
Advocates (Accounts) Rules and Advocates (Deposit and
Interest) Rules.

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  Advertising, undercutting, sharing of profits, touting etc by an
advocate are all strictly forbidden by both the Act, the Advocate
(Practice) Rules and also by the L.S.K. Digest.

ADVOCATES PRACTICE AND ACCOUNTS RULES

SALIENT REMARKS
Pursuant to S.81 of the Advocates Act the council of the society is
empowered to make rules subject to the approval of the Chief Justice.
These rules are with respect to;
a) The professional practice, conduct and discipline of advocates.
b) The keeping of accounts by advocates.
c) Annual submission to the council of a certificate by an accountant
(certified)

Advocates are required to comply with the said rules. Failure to do so

renders them open to disciplinary action by the Disciplinary Committee
set up under part XI of the Act.

Advocates (Practice) Rules

Pursuant to R.1, no advocate may directly or indirectly seek instructions
for professional business or do any act in the carrying of his business
which can be reasonably regarded as touting or ambulance chasing.

R.3 thereof prohibits undercutting: this is basically charging fees which

are less than those prescribed by the Advocates Remuneration Order.
Under R.4, sharing of profits derived from professional business with
unqualified persons is forbidden.

R.5 prohibits advocates employed by unqualified persons from drawing

any documents or doing any other legal service to his employer, which
shall be charged directly by his employer to any other person and
retained (by the employer).

R.7 prohibits poaching of clients. No advocate may act for a client in a

matter which he knows or has reason to believe that another advocate is
acting without the consent of that other advocate.

Exceptions

i. If the client has withdrawn instructions.

ii. If the other advocate has declined to act further.

R.8 renders advocates who have briefed or instructed or consulted other

advocates personally liable for the payment of the consequential
professional fees.

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Under R.9, advocates are prohibited from appearing before tribunals or
any court with respect to any matter for which they may be expected to
give evidence.

Under R.10, coaching of witnesses and calling coached witnesses to give

evidence in court is prohibited.

R.12 forbids advocates from practicing under a name other than their
own names or names of past or present partners.

Advocates Accounts Rules

R.2 thereof defines an “advocate” to include a firm of advocates. It also
defines a “client” as any person on whose account an advocate holds or
receives client’s money. Further, “client money” is defined as money
held or received by an advocate on account of a person for whom he is
acting as an advocate or as an agent. Such money also includes any
money held or received by an advocate by way of deposit against fees to
be earned or disbursements to be incurred. Client Account is defined as
a current or deposit account at a bank in the name of the advocate but
in a title of which the word “client” or “trust” appears.

R.3 thereof requires an advocate to keep one or more client accounts

and R.4 requires advocates to pay into the account any client money
received without delay.

R.5 allows an advocate to pay into the client account any trust money or
any money belonging to the advocate for the purpose of maintaining the
account. Under R.6, any money paid into the client account, which is
not client money, must be paid out as soon as possible.

R.7 prohibits payment of any other money not being client money into
the client account while R.9 allows withdrawals from the said account of
any money authorized for payment by the client or any money being
transferred to another client account.

N/B These rules should be read together with Advocates (Deposit

Interest) Rules

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 CHAPTER SEVEN

CLIENT’S PROPERTY AND CLIENT’S MONEY

S.2 of the Advocates Act defines a client as anyone who is about

to employ or retain an advocate or anyone who has retained or
employed an advocate. A client is also defined as anyone who is
liable to pay any advocate costs.

The conduct of advocates with respect to client property and client

money is governed by rules made by the L.S.K. Council pursuant to S.83
of the Advocates Act1. The Chief Justice must approve these rules
before they attain validity.

Four categories of rules have been made by the L.S.K. council pursuant
to the powers conferred by S.83

i. Advocates (Practice) Rules

ii. Advocates (Accounts) Rules
iii. Advocates (Deposit Interest) Rules
iv. Advocates (Accountant Certificate) Rules.

The definition of an advocate subsumes a partnership. Accordingly, a

breach of the said rules by a partner amounts to a breach by all
partners. A breach renders an advocate liable to face Disciplinary
proceedings and the consequential effects.

CLIENT MONEY

Rule 2. Of the Advocates (Accounts) Rules defines “client money”

as any money held or received by an advocate on account of a
person for whom the advocate is acting (client).

1
Cap 16

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 Such money could be received as fees, or disbursements yet to be
earned or incurred as expenses (legal)
 An advocate can also receive and hold client money as any agent,
trustee or bailee, stakeholder or in any other capacity.

The general principle is that any client money must be paid into the
client account without delay.
 Pursuant to R.5 of the 1998 Advocates (Practice) Rules, any money
payable to a client who is sui juris shall be released to the client not
later than 21 days from the date on which the proceeds are actually
paid into the Advocate’s Client Account.

CLIENT ACCOUNT
R.2 of the Advocates (Accounts) Rules defines a client account as a
current or deposit Account at a bank or a building society / financial
institution as defined in the banking Act, in the name of the advocate
but in the title of which the word “client” or “trust” appears.

CLIENT PROPERTY

 In most cases apart from criminal law cases, where there is an

advocate – client relationship, the question of client property will
always arise.
 In dealing with client money and property, an advocate is usually in
the position of a trustee and is accordingly required to carry out the
duties of a trustee.

THE ADVOCATES (ACCOUNTS) RULES

As noted, r.2 defines “client money”, “client account” and “an advocate”
for the purposes of the rules.
 R.3 thereof, an advocate is required to keep one or more client
accounts.
 R.4 requires an advocate to pay into the client account any client
money held or received by him without delay.
 R.5 allows an advocate to pay into the client account any trust
money and any money belonging to the advocate for the purpose of
maintaining the account etc.
 R.6 requires that any money paid into the client account which is
not clients money to be paid out as soon as possible.
 R.7 categorically prohibits payment of any other money being
clients money into the client account.
 R.9 allows an advocate to withdraw money properly required for
payment of clients any money that he is transferring to another

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 client account and any money properly required for payment of a
debt due to the advocate from the client.
 R.9 also requires that any cheque drawn upon a client account to
bear on its face the word “client account” or “trust account”.
 R.10 categorically prohibits any withdrawals from client account of
any sum in excess of amount held by the advocate to the order of
the client.

Books of Accounts

Pursuant to R.13, every advocate is strictly required to keep at all times,

properly written up, such books of accounts as may be necessary to
show;
i. Every receipt of him by clients money for each separate client.
ii. Every payment by him from clients accounts for each separate client.
iii. The amount held by him for the time being in a client account for
each separate client.
iv. The moneys expended by him for the costs charged by him to each
separate client.

Such books may be;

 Cash books or
 Ledger books

And must be supplemented by records showing the particulars of all Bill

of Costs delivered by the advocate to his clients; distinguishing between
profits, costs and disbursements

Pursuant to R.14, the books of accounts must be preserved for not less
than 6 years from the date of the last entry.

Under the 1998 Advocates (Practice) Rules R.5 thereof, any money
payable by an advocate to a client who is sui juris shall be paid to the
client not later than 21 working days from the date on which the
proceeds are actually paid / credited into the advocate’s client account.

Under R.6 thereof, where an advocate has reached a settlement

involving the payment of money as damages on behalf of a minor, for
whom he acts, he is required to apply to the court for approval of the
settlement of the money within 15 days.

THE ADVOCATES (DEPOSIT INTEREST) RULES

R.2 thereof provides that an advocate is not liable by virtue of the
relation between an advocate and a client for interest received by the
advocate on moneys deposited in a client for interest received by the

Page 54 of 114
advocate on moneys deposited in a client account being moneys
received or held on account of his clients generally.

However under R.3, an advocate is required to take instructions from a

client with respect to the investment of any client money held or
received by him and likely to be held by him for a length of time with
regard to which the money ought to earn interest.

Under r.4, where the money is deposited in a separate designated

account in the name of the advocate or his firm in the title of which the
word “client” appears, the advocate would be liable to account to the
client for interest.

THE ADVOCATES (ACCOUNTANTS CERTIFICATE)_RULES

Under R.3, thereof, an advocate is required to deliver once every year to

the L.S.K. Council a certificate signed by the accountant who is duly
qualified.

In giving and / or signing the said certificate the accountant is required

to satisfy himself that the Advocates (Accounts) rules have been
complied with. In doing this, the accountant is not required to do more
than:

a) Make a general examination of the Bank Pass Books and

statements.
b) Make a general examination of the books of Accounts kept by the
advocate.
c) Ascertain that the client account is kept.
d) Examine the liabilities of the advocate to his clients and the balance
standing to the credit of the client account.

Pursuant to R.7 certain advocates may be exempted from delivering an

accountants certificate i.e.

a) Those who hold their first practicing certificate.

b) Those who hold after having ceased to hold a current practicing
certificate for 12 months, hold their next practicing certificate.
c) Those who have not practiced law on their own account either alone
or in a partnership.
d) Those who have not at any time received or held clients money.

Under R.12, if any advocate fails to comply with the Advocates

(Accountants Certificate) Rules, a complaint in respect of such failure
may be made by or on behalf of the council to the disciplinary
committee.

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OFFICE ACCOUNT
It is advisable that an advocate maintain a distinct office account from
which the day to day office running expenses may be met i.e. wages,
rent, etc.
When it comes to money, (client money), the rules have been overtaken
by events. It is not only cash money; client money must be taken to be
inclusive of cheques endorsed.

Profit costs
To an advocate, profit costs arise from the surplus over all
disbursements and charges.
Party and party costs
These are created by the Remuneration Order and arise as follows;
when plaintiff A sues B and succeeds B is required to reimburse the
plaintiff his legal costs. In this regard, A is entitled to recover from B all
disbursements and a certain amount of legal fees paid.

In the high court, one is allowed to recover 1/3 of the fees paid and in
the subordinate court ½ of the fees paid.

TAXATION
This is a procedure by which Registrar of the High Court or a magistrate
in the lower courts (The Taxing Master) assesses the costs of an
advocate in any matter once the plaintiff’s advocate has been successful.

The advocate prepares a bill of costs in date sequence and files it in

court supported by the relevant documents i.e. decree, judgement,
receipts etc.

Once taxed, the bill of costs cannot be appealed against on facts i.e. if
one is questioning the figures, unless one is appealing on a matter of
law.

The registrar of the high court or the taxing master in the surbodinate
courts, in making his decision on taxation, is taken to be exercising
judicial discretion.

THE ECONOMICS OF PRACTISING LAW; THE ADVOCATES

REMUNERATION ORDER

 The legal profession involves and must involve economies –

principally because it is an economic enterprise.

 The practicing lawyer must think like any other businessman.

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  Part IX of the Advocates Act 2 is a clear indication of the fact that the
practice of law is an economic entity. It has provisions pertaining to
the Remuneration of Advocates, though it must be pointed out that
the remuneration of advocates is not only what it caters for.

 Among other objectives part IX also serves public interests by:

i. Protecting the public members from the activities of unscrupulous

advocates whose principal aim is quick enrichment at their expense.
ii. Protecting the public and advocates from the dangers of
undercutting and unfair competition and to an extent, from rendition
of legal services.
iii. Enabling the public to access affordable legal services and
accordingly to realize and enjoy their constitutional right to legal
representantion.
iv. Making the practice of law attractive to advocates by ensuring that
advocates get fees commensurate to their status in the society.
v. By providing a uniform and easily recognizable enforceable methods
of solving disputes between advocates and clients and between the
clients themselves.
vi. By providing the profession with a mechanism to monitor and police
unfair and / or unprofessional practice of billing clients.
vii. By providing a uniform legal costing system.
viii. By enabling the profession to produce independent and incorruptible
advocates capable of fearless defence of their clients without
financial anxiety.

DETERMINATION OF THE ADVOCATES REMUNERATION

SCALES

The Advocates Remuneration Scales are based on the

recommendations of the L.S.K. Council pursuant to the
provisions of S.44 of the Advocates Act3.
Principally S.44 thereof empowers the L.S.K. council to make
recommendations to the Chief Justice in respect to all mattes relating to
the Remuneration of advocates.

The chief justice is empowered to approve or reject the said

recommendations. In this regard, he is expected to bear in mind the
needs of both the profession and the public.

In practice, the Chief Justice appoints a judge to whom the

recommendations are forwarded before he gets them and in deciding

2
See note 1
3
See note 1

Page 57 of 114
 whether or not to approve the said recommendations, he sits with a
small committee of the L.S.K.

The L.S.K. does not make the recommendations in vain / idleness.

Usually, it undertakes a survey amongst advocates on the following
issues

i. How much it costs to run an office.

ii. The cost of living etc.

THE ADVOCATES REMUNERATION ORDER

It is principally a subsidiary legislation established under the

Advocates Act4, and founded on S.44 of the Advocates Act (1989).

The figures we apply today were legislated in 1982 and subsequently

amended in 1984 and 1986. The fees are first worked out by the Law
Society Council and assessed by cost accountants.

A recommendation on the costing is then submitted to the Chief Justice

who then appoints a judge to make a committee before which the
council makes a representation.

The Chief Justice is not bound to accept the recommendations by the

L.S.K. Council as noted. Usually, these recommendations cover both
contentious and non contentious business.

Pursuant to S.44 thereof, the rules pertaining to remuneration of

advocates cover
i. The labour involved.
ii. The skill involved.
iii. The place and circumstances etc.

The remuneration order also allows for the charging of interest. In

acting for a client, an advocate is allowed to charge interest on any fees
outstanding.

S.45 of the Act also allows an advocate to enter into an agreement with
a client for the payment of professional fees without regard to the
Remuneration Order. However what is agreed upon should not be below
what is provided for under the remuneration order.

The relationship between an advocate and a client is both fiduciary and

contractual. Accordingly, the advocate and his client are entitled to

4
See note 1

Page 58 of 114
agree on the fees payable. Any such agreement which is offensive to the
order is likely to be suppressed by the court.

This section is crucial to the client and the advocate who wishes to
agree on costs. However, such an agreement must be in writing and
must be signed by both the advocate and the client.

If a client wishes to challenge such an agreement, he can do so within 6

months on the following grounds:-
That the agreement is;
a) Unreasonable
b) Unconscionable
c) Harsh and exorbitant

The client’s challenge must be before a High Court judge sitting with 2
assessors who must be advocates of not less than 10 years standing.

A valid agreement under S.45 is not subject to taxation in court,

principally because that section talks of a valid agreement. In certain
instances, such an agreement can also be invalid pursuant to S.46 of
the Act.

i. Where the advocate is purchasing an interest in the subject matter,

then it is invalid.
ii. If the agreement relieves the advocate of professional
responsibility, it is invalid.
iii. If the agreement seeks to provide for fees on a contingency basis.
iv. If it seeks to provide for fees less than those prescribed by the
scales pursuant to S.44 etc.

Pursuant to S.48, once an advocate has completed acting for a client, he

must deliver a bill and if after one month it has not been paid , an
advocate is entitled to commence a suit for recovery of the fees.
However, there can be no judgement until such a bill is taxed.

If a client is about to leave the jurisdiction of the court, an affidavit can

be sworn in support of an application to get security of costs before
taxation.

Upon getting the security of costs, an advocate is entitled to charge a

client’s property pursuant to S.52.

AREAS COVERED BY THE R.O.

Prior to 1984, they covered only civil cases. After 1984, during Chief
Justice Madan’s era, the Act was amended to provide for remuneration

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of advocates in criminal cases. However, no bill of costs under criminal
law cases has ever been successfully taxed. Thus in practice the R.O.
applies mostly to civil cases, both in contentious and non-contentious
professional work.

For contentious work it covers remuneration for both subordinate courts

and the High Court, but not the court of Appeal where they have their
own rules.

Highlights of the R.O. Rules

 R.3: advocates are prohibited from accepting remuneration at scale

less than that provided for under the order.

 R.4 allows advocates to receive additional remuneration for any

business to which he has attended outside normal business hours or
to which he has accorded special dispatch.

 R.5 allows advocates to receive a special fee for undertaking any

business of exceptional importance or of unusual complexity.

 R.6 allows advocates to accept security for the advocates

remuneration and R.7 allows advocates to charge interest on unpaid
fees after the expiry of one month from the date of the delivery of
the advocates bill to the client.

Generally, the R.O. caters for:

a) Contentious matters
b) Non contentious matters
N.B. S.2 of the Act defines and distinguishes contentious
and non contentious matters.
c) The mode of taxation on both the High Court and the
subordinate courts.
N.B. for the Court of Appeal, the Court of Appeal Order
made pursuant to the Appellate Jurisdiction Act 5, provides
for the remuneration of advocates in respect of any business
conducted before the Court of Appeal.

SCHEDULE 1
Provides for remuneration of advocates in regard of: -
 Conveyancing
 Mortgages
 Purchases etc.

5
Cap 9

Page 60 of 114
 The figures shown in the Schedule 1 are intended to cover all work,
attendances and correspondence.
Schedule 1 has three scales:
i. Scale I is on charges on sales, purchases and mortgages affecting
land registered in any registry.
ii. Scale II is in respect of charges relating to Memoranda of Equitable
Mortgages by deposit of documents or charges by deposit of title .
iii. Scale III caters for negotiating commission on sales and mortgages.

SCHEDULE II

It provides for remuneration of advocates in respect of the formation

and incorporation of companies with share capital.

SCHEDULE III

It also provides for the remuneration of advocates in respect of

i. Formation and incorporation of companies without share capital.

ii. Registration of foreign companies.
iii. Issue of debentures etc.

SCHEDULE IV

Provides for remuneration of advocates with respect to applications,

registration of users and assignment of trade marks and patents
amongst other activities.

SCHEDULE V
Provides for all other works not described by any schedule. It does not
provide for a specific charge. However, it gives the advocate discretion
to charge any figure he considers expedient, which must be justifiable in
all circumstances.

SCHEDULE VI AND VII

Provide for costs in the High court and in the subordinate courts
respectively.
The principle difference is that in respect of the High court, an advocate
is entitled to charge instruction fees which is independent of attendance
fees.

SCHEDULE VIII
Business Premises Tribunal.

SCHEDULE IX
Rent Restriction Tribunal.

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SCHEDULE X
Probate and Administration
 In regard of criminal cases Legal Notice No. (LN/83/84) introduced
an amendment which provides for taxation of work done fully under
the ambit of criminal law.
 R.49A provides that costs in criminal cases whether in the High
Court or Subordinate courts, if not agreed upon or ordered, shall be
taxable between the advocate and the client pursuant to Schedule V.
 Pursuant to R.74, in claiming for party and party costs, the
advocates bill may include witness expenses.

Page 62 of 114
 CHAPTER EIGHT

THE LAW SOCIETY OF KENYA

ORIGIN
The Law Society of Kenya is established under the Law Society of Kenya
Act. Section 3 thereof establishes the Law Society of Kenya as a body
corporate with perpetual succession and capable of suing and being
sued. However as a concept, it is largely borrowed from England where
the first society came into existence in 1729.

In Kenya, the 1897 Order – in – Council was enacted to create a law

society. Just like in England, the creation of the Kenyan Law Society
was precipitated by the need for a small group of professionals who had
to come together in order to enhance their practice and image.

The 1897 Order – in – Council had established a fused profession, unlike

in the U.K. where Barristers and Solicitors had distinct roles. Mainly
this was due to the fact that very few (if any) Barristers were willing to
come and practice law in Kenya. The Solicitors who came to Kenya
were the worst of a bad lot, who could not hope to make a decent living
in England. They came along with the settlers, who needed lawyers to
look after their legal affairs.

After the 2nd World War, the English Government offered a two-year
course in legal studies to those who were willing to study. Upon their
admission to the Bar, (in England) they came to the colony. Accordingly,
they were not very well trained and could thus not hope to practice law
successfully in England.

As the Kenyan economy developed further, the Asians sent their children
to England and India for legal training. Upon returning back to the
colony, they usually worked as clerks. The first African lawyers were
trained in India but had to wait for a long time before they got admitted
to the Kenyan Bar. To be allowed to practice in Kenya, one had to be a
member of the Law Society. For one to be chairman, one had to have
practiced law in the colony and to have served in the council for 10years
(and above).

Act No.10 of 1949 established the first Law Society of Kenya in the same
year. This Act was subsequently revised in 1962 which has not been the
subject of any amendment ever since. The principal object of this
society was to protect the advocates from the independent government.
In the initial stages, the Kenyan Bar was solely made up of Europeans.
Africans and Asians became members of the society in the later stages

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of its evolution. However, at present, the profession is overwhelmingly
African.

Up to the 1970’s, the Society was managed by whites. Sam Waruhiu

was the first L.S.K. chairman in 1970 and served for two years. The
takeover by Africans of the legal profession is by now, a trite fact.

NATURE THEREOF

 It is a body corporate with perpetual succession and common seal.

 It can sue and be sued in its name.
 It was first established by S.3 of the 1949 Act, which reproduced
in S.3 of Act NO. 30 of 1962.

THE L.S.K. ACT2

 It is an act of parliament to consolidate the law relating to the Law

Society of Kenya.
 S.3 thereof establishes the L.S.K. as a body corporate.
 S.4 thereof sets out the objects of the L.S.K.

Objects

a) To maintain and improve the standards of conduct and learning of

the legal profession in Kenya.
b) To facilitate the acquisition of legal knowledge by members of the
legal profession and others.
c) To assist the Government and the courts in all matters affecting
legislation and the administration and practice of law in Kenya.
d) To represent, protect, and assist members of the legal profession in
Kenya in respect of work conditions or otherwise.
e) To protect and assist the public in Kenya in all matters touching,
ancillary or incidental to the law.
f) To acquire, hold, develop and dispose of property whether
immovable and to derive capital or income therefrom for all or any of
the foregoing objects.
g) To raise money for all or any of the foregoing objects in such manner
and upon such security as may from time to time be determined by
the society.
h) To invest and deal with moneys of the society not immediately
required in a manner determined by the society.
i) To do all such other things as are incidental or conclusive to the
attainment of the said objects.

2
Supra 1 note 1

Page 64 of 114
The courts have had occasion to rule on disputes between members
regarding the objects of the Law Society of Kenya. In Aaron Gitonga
Ringera and others vs. Paul Muite and others, the applicants in their
capacity as members of the Law Society of Kenya to restrain them from
uttering political statements in their capacity as council members.
Subsequently, they alleged that the respondents had breached the said
Court Orders and hence sought to cite them for contempt. The
respondents were found to have deliberately disobeyed court orders and
were filed accordingly. In finding that the statements were made, the
respondents were not contemplated by the LSK Act i.e. they were ultra
vires the objects of the LSK, Mwera, J., stated thus:

The applicants in their capacity as members of the Law Society of Kenya

had sought for and obtained an injunction against the respondents who
were council members of LSK to restrain them from uttering political
statements in their capacity as council members. Subsequently, they
alleged that the respondents had breached the said court orders and
hence sought to cite them for contempt. The respondents were found to
have deliberately disobeyed court orders and were fined accordingly. In
finding that, the statements made by the respondents were not
contemplated by the LSK Act i.e they were ultra vires the objects of the
LSK, Mwera, J., stated thus:

“Here applicants as compulsory members of the LSK

have asked and the court has found that
Respondents’enjoyment of freedom of expression
especially issuing political statements or conducting
LSK business in any manner political as LSK Council
members jointly and or individually is injurious to
applicants. This court has a duty to protect them and
it did with an injunction. It should not be made to
appear as if all lawyers in LSK or indeed Respondents
have been gagged. Nobody could do this. Even
lawyers other than in LSK Council have made political
statements in the past; they are making them now.
They will probably make them in future. Applicants
are not complaining and they should not complain
about that. But once Respondents appeared set and
indeed made or continue to make their political
statements from the LSK Council, then they have this
injunction on them.”

In Kenneth Kiplagat vs. Law Society of Kenya (Misc. Civil Suit av.
542 of 1996) the applicants had sought a declaration that Section 4
of the Law Society of Kenya Act is inconsistent with Section 70(b),
78(1) and 80(1) of the Kenyan Constitution. Section 70(b)

Page 65 of 114
 guarantees the freedom of conscience of expression and of assembly
and association, section 78(1) guarantees the freedom of conscience
whereas section 80 has to do with freedom of association and
assembly. It was urged on behalf of the applicant that Section 4 of
the LSK Act made it compulsory that lawyers should be members of
the LSK then the same was unconstitutional. However, the court
found as a matter of fact that ir was section s 21(5) and 23(1)
Advocates Act which made provisions concerning membership of the
LSK and Section 4. As the applicant had not directed his prayers to
Section 2(b) and (1) Advocates Act, the court did not find it
necessary to deal with the question. Nevertheless, the court held
that it would not be reasonable to strike out section 4 of the LSK Act
as that would leave the LSK with no objects within which to work.

The applicant’s other prayer was for a declaration that the only
constitutionally justifiable activities that the LSK Act can sanction
are activities which are germane to the practice of law to wit:- (a)
Collection of dues (b) discipline of members and (c) regulation of the
profession. Any activity not within these three would then be ultra
vires. Though the court held that the LSK was bound to stay within
its objects under section 4, the court declined to grant a permanent
injunction banning the LSK from engaging in activities not germane
to the practice of law or to expand any monies to fund such activities
as are of a political, ideological and philosophical nature. The court
was of the view that a remedy would be too broad and would amount
to what the court in Aaron Gitonga Ringera and Others and P. K.
Muite and Others characterised as “gagging the LSK” if not more.

Pursuant to S.5 membership of the Society consists of

a) Any advocate who is a member of the society by virtue of S.28 of the

Advocates Act3.
b) Any person admitted to membership of the Society pursuant to S.6 of
the Act4.
c) Any person elected as an honorary member of the society pursuant
to S.7 of the Act.
d) Any person who has at any time been previously a member of the
society and who complies with the regulations.

S.6 thereof makes a provision for special membership, basically limited

to persons listed in the Advocates Act and to persons legally qualified
but not being full time Kenyan Residents.

3
Cap 16
4
Supra note 1

Page 66 of 114
S.7 makes a provision for honorary membership of any person whom the
society deems fit to honour.

Pursuant to S.8, all members of the society are required to pay annual
subscriptions (Honorary members are exempted)

Pursuant to S.9, no entrance fee may be paid by any person as a

condition for joining the society.

Under S.10, resignations from the Society are prohibited, thus

effectively making membership compulsory for all lawyers holding
current practicing certificates.

However, under S.11, any member of the Society, other than a member
who holds a current practicing certificate issued under S.26 of Cap 16,
and subject to S.28 of the same Act, or any honorary member, any
member of the society may be expelled on various grounds.

Pursuant to S.12, any member who ceases to be qualified for

membership ceases to be a member automatically.

MANAGEMENT OF THE L.S.K.

The Council

S.13 establishes the L.S.K. Council made up of a Chairman, Vice

Chairman and 9 other members, all of whom must be the society’s
members.

 The members of the Council are to be elected into office annually by

the rest of the members.
 One of the Council members must practice law in Mombasa, and
another must practice in any other town apart from Nairobi and
Mombasa.
 The Council is vested with authority to exercise the powers of the
L.S.K. pursuant to S.14 and is under S.15 empowered to delegate
powers and to determine its procedure (S.16)

CONFLICTS IN INTERPRETATION OF OBJECTS

 Pursuant to S.4(a), the L.S.K. is required to “maintain” and

“improve” the “standards of conduct” and legal education.

“maintain” logically presupposes the pre – existing standards before

the establishment of the L.S.K. by the 1949 Act.

Page 67 of 114
 “improve” logically means enhancing those pre – 1949 legal
education standards and those existing thereafter (upto date). It is
clearly in pursuit of this objective that the K.S.L. was established in
1970.

“standards of conduct” pertains to the policing of lawyers to ensure

that they comply with the rules laid out in Cap 16 5 and with other
unwritten rules of Professional Responsibility and Ethics.

It subsumes the aspect of continuity and punishment of those

members who deviate from the accepted standards of conduct.

 S.4 (b) requires the L.S.K. to “facilitate” the acquisition of legal

knowledge by the members. Principally, the L.S.K. is enjoined to
educate the public on the law and to encourage and facilitate the
acquisition by its members of further / higher legal education.

S.4(c) requires the society to “assist” the public on matters touching

on law. “Assist” principally means to help But not to advise.

S.4 (d) requires the Society to “assist” “protect” and “represent” its
members. “Represent” clearly pertains to pursuing the best
interests of the profession / its members.

N.B. the word “assist” is used frequently in the subsections to S.4. It

is confounding and ambiguous. At whose initiative is the assistance
to be given? The chairman’s? The members? Or the public?

Further, the fact that the objectives of the L.S.K. are listed down in
detail, does it mean that the Council must in its activities confine itself
to those objects?

It appears that the list is exhaustive and that the L.S.K. Council must
strictly confine itself to the objects listed in S.4 and no other.

Any deviation from the listed objects will therefore be ultra vires the
Act, and accordingly any member of the Society can seek an injunction
to restrain from acting ultra vires the Act.

This position was accorded judicial sanction by the court in the case of
Kenneth Kiplagat v. The Law Society of Kenya Misc. Civil suit No.542 of
1996 in which the applicant sought to restrain certain actions of the
council of the LSK as being ultra vires the LSK Act. The court held that

5
Advocates Act

Page 68 of 114
matters of a political nature were not contemplated by the Act and were
hence ultra vires.

This position was accorded judicial sanction by the court in the case of
Aaron Ringera and Others v. Paul Muite and Others where the
applicants successfully sought an injunction to restrain the L.S.K.
Council from issuing political statements.

 The court observed that such an injunction did not violate the
Council member’s freedom of expression, as long as they were L.S.K.
members and council members at that, they were restricted from
acting in a manner ultra vires to the provisions of S.4 of the Act.
 The court made this position explicitly clear by finding the Council
Members to be guilty of being in contempt of court (after they had
issued political statements despite the injunction) and condemned
each of them to pay a Kshs. 10,000/= fine.
 Followed ardently, this precedent may turn out to be a dangerous
highly incapacitative precedent and must therefore be applied with
care. Perhaps the said decision signifies the need for amending the
1962 Act.

Largely, the L.S.K. is also empowered to ensure that unqualified persons

do not become members of the society. Clearly, this power arises out of
objective 4(a). It is in pursuit of the said objective that the L.S.K.
Council declined to grant M/S Rita Biwott membership to the Council on
the ground that she was not duly qualified pursuant to the provisions of
S.9 of the Advocates Act6. See Rita Biwott v. L.S.K.

Object: Achievement thereof

1. Seminars: the L.S.K. organizes public seminars albeit infrequently.

Seminars have been held on the Law of Succession, the Law of the
Child, International Commission of Jurists Kenyan Chapter, and recently,
various seminars were held during the 50th L.S.K. Anniversary
Celebrations. However, much more needs to be done, the L.S.K. must
play a more active role in improving and shaping the Kenyan Legal
System.

2 Conferences: infrequent and occasional failures principally due to

lack of commitment.

3. Expressing opinions: the L.S.K’S capacity to express opinions is

severely restricted by the rule in the Aaron Ringera and Others v.
Paul Muite and Others case.

6
See infra

Page 69 of 114
 All the same the L.S.K. rarely expresses its opinions on anything, any
issues and when it does, they will frequently be in the form of
personalized statements by the chairman.

Ideally, the L.S.K. ought to issue opinions on a wide range of issues

pertaining to public interest. Such opinions may for instance be
addressed to;

a) The Public Law Institute(s)

b) The Law Reform Commission
c) Parliament through the speaker of the National Assembly.
d) The Judiciary through the Chief Justice.
e) The Attorney General.

It is worth noting that the A.G. does not send draft bills to the L.S.K.
any longer.

4. Publications and pamphlets

 The L.S.K. rarely issues any pamphlets
 The L.S.K. sponsored magazine, The Advocate, was started in 1982,
died in 1985 and has been quite slow in being resurrected.

5. Law Reports
 The last law reports were published in 1980
 Clearly the L.S.K. has absconded its duties / obligations.
 The only effective measure it has taken is to make subsidiary
legislation, basically rules of conduct which are at best, rarely
enforced effectively.
 Much, much more needs to be done if the L.S.K. is to meet its
mandate as set out in S.4 of Cap 18.

Salient Observations

Correctly, the 1997 Council Meeting (held on 8 th March.1997) resolved

that the L.S.K. Act was outdated and needed to be urgently, amended.
The reasons for the amendments were listed as;

a) The need to bring it in line with the ever changing realities of the
legal profession and the country. The Act was last amended in 1976.
b) The society was/is frequently mired in internal controversy which
threatens to sunder it and make it loose public credibility (if it has
not already)
c) The need to provide stricter financial accountability measures on the
part of the council members.

Page 70 of 114
 *Clearly, these pitfalls and many others not listed have contributed to
the dismal performance of the L.S.K.

Further, it is evident that the need to overhaul the L.S.K. Act cannot be
gainsaid7

CHAPTER NINE

DISPUTE RESOLUTION

The L.S.K. has always played a fundamental role in policing the

discipline and professional conduct of its members.

Ever since their emergence, they (law societies) in most commonwealth

countries have always been self – managing. Principally, this means that
the profession itself has always been responsible for disciplining its
members.

Prior to the amendment in 1989 the disciplinary process took the

following procedure:

i. If any person had a complaint against an advocate he/she was

required to inform the L.S.K. Secretary who was also the Secretary
to the Disciplinary Committee.
ii. Upon receiving the complaint, the Secretary would refer the
complaint to a Board of Inquiry, which was a committee of the L.S.K.
This committee was composed of 3 advocates who had to be of over
5 years practice.

7
This heed has indeed been recognised recently and there have been various tangible attempts by the present
council of the LSK to push for reforms of the Act and of the laws affecting the profession generally. The need
for such a review of the present regime was expressed in a paper authored by Ojienda T. Odhiambo entitled
“The Law Society of Kenya Act: of Changing Circumstances and the Need for Reform in the Objects,
Framework and Roles of the Law Society of Kenya”. The LSK has indeed arisen to the challenges presented
in this paper and a lot has since been done towards meaningful reform of the legal profession.

During the annual conference of the LSK in the year 2000 under the theme: “Lawyers at Crossroads, Defining
the Future of the Legal Profession”, it was generally conceded that there was an urgent need to reform the legal
profess in order to salvage its deteriorated public image. In the 18th and 19th October 2001 an annual
conference was held under the theme: “Laying Foundation for Reform”. Prior to that, a reform committee had
been appointed which committee had prepared questionnaires to members on aspect for reform of the LSK Act
and the legal profession generally. Out of these, the views of the respondents were collated and used as a basis
to propose amendments to the LSK Act. It seemed as though the committee had worked beyond schedule and
discussion during the annual conference. Among new issues proposed was the formation or recognition of
regional branches of the Law Society and mandating the same to perform some of the functions of the larger
LSK body. Rules regarding professional indemnity insurance and continuing legal education were proposed
and discussed. It is hoped that there will be a new regime of law governing legal professionals by early 2002
during the LSK’s Ordinary general meeting.

Page 71 of 114
 iii. This Board of Inquiry would then investigate the matter by calling
the advocate concerned and recording his statement and also by
hearing the complainant. The Board had mandate to determine
whether the complaint had any merits.
iv. If the Board determined that the complaint was meritorious, it
would by writing, inform the council.
v. The complaint would then be filed/placed before the Disciplinary
committee which was chaired by the A.G; or the S.G (Solicitor
General) or the Registrar General and two other elected members
who had to be advocates of not less than 10 years standing.
vi. The Disciplinary Committee would then try the accused advocate for
the offence in quasi judicial proceedings. A prosecutor appointed by
the L.S.K. would prosecute the matter on behalf of the Society. The
advocate, if he so wishes could be represented by counsel during
the proceedings.
vii. If the Committee found for the complainant, the advocate concerned
could be;
a) Admonished.
b) Struck off the roll.
c) Warned.
On the other hand, the committee could acquit him if it was not
convinced of his guilt.
viii. An advocate with respect to whom the committee decided against
had a right to appeal against the decision to the High Court and if
need be, to the Court of Appeal.

This system was found wanting due to frequent inordinate delays as

a result of the committee’s frequently lengthy proceedings.

Other misgivings about the committee were purely cruxed on

political factors; mainly because the L.S.K. was viewed as a closed
shop.

As a consequence thereof, a new dispute resolution mechanism was

provided and set up under the new Advocates Act, vide Act No. 18 of
1989. Further amendments were introduced Vide Act No. 2 of 2002
with a view of strengthening the disciplinary process.

THE CURRENT MECHANISM

 Provided for under parts X and XI of the Advocates Act1

 Part X makes provisions for the establishment of the Complaints
Commission.

1
Cap 16, Laws of Kenya.

Page 72 of 114
  Part XI makes provisions pertaining to discipline and consequences
of breach. Principally, it outlines the substantive provisions.

COMPLAINTS COMMISSION
Established pursuant to S.53 of the Act.
 It is comprised of such commissioners (or commissioner) as shall be
appointed by the president.
 Its principal purpose is to enquire into complaints against any
advocate or firm of advocates or any member or employees thereof.
 If a single commissioner is appointed, it must be a person who is
qualified to be appointed as a High Court judge.
 If more than one commissioner is appointed, it has to have one
such ,person as a member (the commission).
 Pursuant to S.53 (3), the commission is empowered to require any
person whom it considers necessary for the performance of its duties
to assist it. Pursuant to Act No. 2 of 2002, which introduced a new
section 3A, it becomes an offence for any person to, without a lawful
excuse fail or refuse to assist the commission when required to do
so.
 The commission has the following powers when dispensing its
duties;

i. If in its view there is no substance in the complaint, it can reject it

forthwith.
ii. If in its view there is substance in the complaint, it can refer the
matter to the Disciplinary Committee, but only if the complaint
reveals a Disciplinary offence.
iii. If in its view there is substance but it does not amount to a
Disciplinary Offence, it can notify the advocate concerned and call
upon him to respond within a reasonable period specified.
iv. If the reasonable period specified in Para. (iii) Above expires, the
commission is entitled to investigate the matter. In this regard, the
commission may:-
a) Call witnesses.
b) Require production of documents.
c) Examine witnesses on oath.
d) Take any step generally it may consider proper.
e) Hear any submissions from either party.
f) Make such an order or award in accordance with S.53
as it deems fit, just and proper.
v. If it appears to the commission that though there is substance in the
complaint but it discloses no Disciplinary Offence, which can be
addressed by the Disciplinary Committee, and the Commission is
further of the view that it can not competently deal with the matter,

Page 73 of 114
 and that the proper remedy is only available in the courts it shall so
advise the complainant.

The Commission is also empowered to:

a) Endeavour to promote reconciliation and to facilitate an amicable
settlement between the parties to the complaint.
b) Award the complainant reimbursement of expenses not
exceeding Kshs.10,000/= if the commissioner considers that the
complainant has suffered loss/damage by reason of the
advocate’s conduct. However the conduct in question should not
amount to a Disciplinary Offence.
c) To issue a warrant for the levy of the amount of any sum ordered
to be paid by virtue of S.53 on the immovable property and
movable property of the person/firm by whom the compensation
is ordered to be paid by distress and sale under warrant.

Vide Act No. 2 of 2002, the above compensation was enhanced to Kshs.
100,000/=. By a myriad of other amendments, further changes were
introduced to attempt to enhance the efficiency of the disciplinary
process under the Advocates Act. Under the new subsection (6A) where
the Commission makes an order of reimbursement the same shall be
registered with the High Court and becomes enforceable through
ordinary legal execution process. Additionally, subsection (6B)
empowers the Commission to order the surrender of client’s funds and
property in the possession of an advocate but which is not disputed by
the advocate. The Commission while empowered to investigate the
accounts of an advocate against whom a complaint is made may also
require such advocate to prepare a detailed fee note in a matter in
which a complaint has been made against him.

Any party who is aggrieved by a decision or order of the Commission is

at liberty to appeal to the High Court. The decision of the High Court in
such appeal shall be final.

Pursuant to S.53A, the President is empowered to determine the

remuneration of the commissioners by whichever way, which shall be
paid out of moneys provided by parliament.

Under S.54, the Attorney General is empowered to appoint /provide any

other officers the commission may require.

The rules and procedure to be adopted by the Commission in the

discharge of its rules shall be made by the Attorney General pursuant to
S.54 (3).

Page 74 of 114
DISCIPLINARY COMMITTEE
Established pursuant to the provisions of S.57 of the Advocates Act2.
It is comprised of;
a) The Attorney General
b) The Solicitor General
c) 6 advocates (other than the chairman, vice chairman and secretary
general) of not less than 10 years standing one of whom shall be an
advocate who does not practice in Nairobi. (Prior to Act No. 2 0e
2002, the number of advocates was only three). Other persons were
also introduced such that vide paragraph (d) the Attorney – General
appoints 3 other persons who are not advocates but on the
recommendation of the Law Society of Kenya. The 6 advocates are to
be elected.

Pursuant to S.55, all advocates and every other person entitled to act as
an advocate shall be an officer of the court and shall be subject to the
jurisdiction of the Disciplinary Committee.

Under S.56, the powers of the Chief Justice and of any of the Judges of
the court to deal with misconduct/and/ or offences by an advocate
cannot be superseded, lessened or interfered with, even by the activities
of the Complaints Commission or of the Disciplinary Committee.

Pursuant to S.58, the committee may act as a tribunal of either 3 or 5

members and may require the chairman or vice chairman of the society
or both to sit as an additional member(s) for the purpose of any
complaint where on grounds of availability/ convenience, a tribunal
would not otherwise be available.

The Attorney General/Solicitor General chairs the committee and

presides all meetings. Alternatively in the absence of either of them, a
person deputed by the A.G. under S.57 (1) (b) shall be the chairman of
that meeting.

In the alternative, the tribunal is entitled to appoint a chairman from the

members present if the A.G., the S.G. or the deputed person is absent.

Pursuant to S.58 (5), all proceedings before the committee shall be

deemed for the purposes of chapter XI of the Penal Code, Cap 63, to be
judicial proceedings and for purposes of the Evidence Act Cap 80, to be
legal proceedings. (Chapter XI Cap 63 deals with offences relating to the
administration of justice which essentially means acts or omissions
tending to sabotage the process of judicial tribunals, courts and offices.
Under such circumstances, the disciplinary Committee is elevated to a

2
Supra

Page 75 of 114
 level of a court and the rules of evidence under Cap 80 apply in it as
well.

Under S.58 (6) the committee is empowered to make its own rules of
procedure for determining and hearing of any applications and
complaints.

S.60 thereof makes provisions pertaining to complaints against

advocates.
 Such a complaint must be for professional misconduct, which
expression is said to include disgraceful or dishonourable conduct
incompatible with the status of an advocate.
 Any person is allowed to make a complaint against an advocate to
the committee.
 Such a complaint must be made by way of an affidavit by the
complainant setting out the allegations of professional misconduct.
 The complaint must be accompanied by such fee as may be
prescribed by rules made pursuant to S.58 (6).

Where a complaint is referred to the committee by the commission, the

committee must:
i. Give the advocate an opportunity to appear before it.
ii. Furnish the advocate with a copy of the complaint and any
supporting evidence.
iii. Give him an opportunity to inspect any relevant documents at least 7
days before the hearing date.

If the complaint does not disclose any prima facie case of professional
misconduct, the committee is empowered to discuss the complaint at
any stage of the proceedings.

Further, after hearing the complaint, the committee may also hear the
concerned advocate and may after considering any adduced evidence;
the committee may dismiss the complaint.

However, if a case of professional misconduct is established, the

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

Page 76 of 114
Pursuant to S.60(5) the committee may make orders as to the payment
of costs, witness expenses and the committees expenses.

Seemingly, a person may complain to the Committee on account of costs

in which case the Committee may upon request of the complainant order
such advocate to prepare a fee note out of which it may make a decision
on the appropriate fee chargeable and where the advocate has filed a
bill of costs, the Committee may want for it top be taxed.

Eventually, the Committee is empowered to make orders regulating the

costs claimed and fees payable to an advocate in the same way as a
taxing officer of the Court is allowed to. Where such an order is made, it
becomes enforceable as a decree of the Court,, provided no appeal has
been filed against it under section 62(1).

The amendments additionally seek to clothe the Disciplinary Committee

with power to levy enhanced penalties and carry out its functions with
more efficiency.

Section 60A is a new section that sets out the procedure for the hearing
of complaints. It has the power to determine whether or not the services
of an advocate to a client are reasonably proper and on that basis
recommended the amount of fees that the advocate would be entitled to.
Thus the Committee may ;

a) Determine costs payable,

b) Direct the advocate or firm of advocates to rectify a mistake in favour

of a client at their own expense,

c) Take such other action as may be in the client’s interest.

Under S.60 (12), the committee may make any orders as to levying of
the amount ordered to be paid on any property of the advocate by
distress and sale under warrant.

Pursuant to S.62, any advocate who is aggrieved by an order of the

committee may appeal against it to the High Court within 14 days.

 Both the advocate and the council may make submissions during the
hearing of the appeal.

 An appeal cannot operate as a stay or a suspension of any order

appealed against.

 Under S.64, the court may:

Page 77 of 114
 a) Remit the matter to the committee for reconsideration.

b) Confirm, set aside, or vary any order of the committee or

substitute therefore such order as it deems fit.

c) Make any order as to costs or otherwise in relation to the

appeal.

The powers of the High Court must, pursuant to S.65, be exercised by

two judges in the least.

Under S.67, any advocate aggrieved by the decision of the High Court
may appeal to the Court of Appeal though the appeal shall not operate
as stay or suspension of the court orders.

Saving

S.68 of the Advocates Act describes a final order of the Disciplinary

Committee. It is an order which:-

a) Has not been the subject of any appeal

b) Though appealed against to the High Court, no appeal has been

preferred thereafter to the Court of Appeal.

Under S.69(1) the L.S.K. must be informed of any ongoing disciplinary

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

Restoration to the Roll

Prior to the amendments, any advocate who has been struck off the Roll
could be restored by the Chief Justice in his own discretion either on his
own motion or upon recommendation of the committee. However, under
the new section 71, this function is exercised by the Chief Justice only
upon the recommendation of the Disciplinary Committee.

Usually, the council has a right of audience in these proceedings, and it

usually consults the Disciplinary Committee i.e. to ensure that it has no
objections.

Page 78 of 114
The struck off advocate’s behaviour (during the time his name is not on
the roll ) will usually play a crucial role on the determination of the
question as to whether the advocate should be restored i.e. in case of
theft, has there been any form of Restitution?

All the same, once one has been struck off the roll, the chances of one
being restored to the roll even after 5 years are virtually nil. However,
the Chief Justice is empowered pursuant to S.71 to restore or reinstate
the struck off advocate but only upon the recommendation of the
committee. Now while provision is made for advertisement of the
advocate whose name has been struck off, no corresponding publicity is
envisioned for one who has restored to the Roll.

LIMITATIONS

1. The members of both the Complaints Commission and the

Disciplinary Committee are appointed by the President.

Naturally, they are likely to owe allegiance to the one who has
appointed them (their benefactor).

Accordingly, they may also be biased towards the will and whims of
the government. This state of affairs renders the autonomy and
independence of these two bodies questionable.

It is also beyond doubt that they may be used as a tool against anti –
establishment lawyers.

2. Delay: the proceedings of both the commission and the committee

take far too long.

There is an obvious need for the establishment of other such like

bodies in the provinces.

3. Complexity: the process is quite complicated, thus for the

complainants who do not understand the law, those who cannot
afford to hire an advocate to represent them (assuming there are any
who are willing) may find themselves unable to comprehend / nor
follow the proceedings.

There’s need to make the procedure less onerous.

4. Others: the commission and the committee are clearly not well
structured and staffed. Further, the committee does not sit on a
permanent basis, accordingly causing a backlog of undetermined
complaints.

Page 79 of 114
 While the new amendments set out to increase efficiency in the
advocates disciplinary process, criticisms have been leveled against
them on the ground hat they have given too much power to the
complaints commission at the expense of the disciplinary committee and
even the courts. They have been said to infringe the independence of the
bar in various ways. It is said that the new role and powers of the
commission are contradictory to its role of investigation, conciliation
and amicable resolution of disputes. It usurps certain of the functions of
the disciplinary committee such as making decisions on past incidences
of professional misconduct. As regards the disciplinary committee, the
introduction of non-lawyers into the body negates the principal that
professionals should be self-regulating. The power of both these bodies
to assess fees payable to an advocate has the effect of interfering with
the advocate/client relationship.

Caution:

Being struck off is the ultimate penalty, and is quite a harsh penalty for
the advocate concerned. Thus it is imperative that the committee
should tread with care when contemplating striking off advocates.

Further, where an advocate has misapplied and/or converted client

money or property, striking off of the concerned advocate is clearly not a
remedy for the unfortunate client. The committee should be empowered
to order Restitution.

ASSESSING THE NEED FOR THE COMMISSION AND THE

COMMITTEE

Why is it necessary to have rules of discipline and bodies to enforce

them?

i. In order to uphold the standards of professional conduct.

ii. To ensure uniformity both in standards as well as performance.

iii. In order to maintain public confidence in the profession and public

goodwill.

iv. In order to correct and control cases of misconduct and bad

performance.

v. To act as a deterrent.

vi. To foster and enhance the pursuit of high quality standards of

performance by advocates.

Page 80 of 114
vii. To comply with statutory requirements.

viii. To assist the court in maintaining order and discipline amongst its
officers.

ix. In order to focus the profession to pursue perfection, or something

close to it.

Observation:

Currently, the profession is reeling from an endemic onslaught of public

outcry and vicious accusations.

Principally, the dissatisfaction of the public with the profession is due to

the emergence of a breed of young lawyers who deserve to be labeled as
“sharks”.

They have no remorse, no qualms and they discarded professional ethics

and responsibility rules a long time ago.

Their trail is littered with devastated clients, a trail evidenced by the

recent A.K.I – L.S.K. controversy.

Unless something is done urgently to curb this malaise, the future of the
Kenyan legal profession is quite bleak.

The sentiments of Kuloba J. in Apollo Insurance Co. v. Muthanwa & Co.

Advocates succinctly outline just how far the legal profession has
degenerated in terms of discipline and conduct.

“to – day, the hungry and unscrupulous advocates are not “few”;
they are not merely “hungry and unscrupulous”, they triple satanic
depravity [sic] with wicked greed and ever increasing ethical
decadence. Their number grows by the day, the few occasions of
“serious abuse” now comes with cruel ravishment. The wrongs
done are in a litany which stretches like Banquo’s line of Kings, to
the crack of doom”.

Clearly, a beautiful summary of the sorry state of affairs with regard to

the discipline of advocates in Kenya.

PROPOSALS FOR REFORM

In the year 2000 the Attorney General published statute law

(Miscellaneous amendments) bill in which a wide variety of changes
were proposed on the arena of discipline of advocates. More stringent
measures to curls indiscipline were proposed. However on 25th June,
2001, the Statute Law (Miscellaneous Amendments) Bill 2001 was

Page 81 of 114
published but ideally with similar proposals. Generally the proposed
amendments seek to give more powers to the complaints commission
and the disciplinary committee in a way in which some have criticised as
being intrusive in the independence of the legal profession. See for
example Ojienda T. O. in his paper “Exploring New Horizons in
Managing Complaints against Advocates, Towards a Review of the
Existing Regime of Law”. Presented at a workshop on Honesty and
Excellence in the Provision of Legal Services, 14 – 15 th May, 2001,
Whitesands Hotel Mombasa.

Page 82 of 114
 CHAPTER TEN

THE LEGAL PROFESSION AND CONTEMPORARY LEGAL ISSUES

THE L.S.K VERSUS THE INSURANCE INDUSTRY

 An area infested with controversy and confusion.

 An area which can be credited with breeding a litany of professional
misconduct cases by advocates.
 An area which can also be credited with the emergence of “sharks”:-

 A category of lawyers sui generis, whose specialty is parting

clients with their money as fast as possible.
 Money, which is definitely hard earned, for which the
devastated client has paid a dear price i.e. a leg, a hand, or
even a head!
 Money arising out of compensation for injuries suffered in a
Road Traffic Accident, paid to the clients by insurance
companies, through the lawyer(s) and which the client(s)
never get.

At the root of the controversy

The battle between the L.S.K. and the insurance industry as represented
by the Association of Kenya Insurers (AKI) is mainly cruxed on the
notorious practice of some lawyers who fail to pass compensation money
paid out by the insurance companies to their clients.

Due to the fact that over the years numerous accident victims have lost
their awards to unscrupulous lawyers, the AKI has adopted the practice
of issuing two cheques, one for the client and the other for the lawyer to
cover his legal fees and costs.

Majority of the lawyers (L.S.K. members) view this practice as a

dangerous invasion of the fiduciary and contractual relationship that
exists between a lawyer and his/her client.

But the insurance companies, while discharging their perceived role as

a watchdog over their insured’s award, have stuck to their guns. As a
consequence, a raging conflict and clash of interests has ensued,
culminating in a high court decision contrary to the existing precedents.
Clearly an unheard of occurrence, a High Court Judge blatantly defying
laid down Court of Appeal precedent! As will soon be evident, the judge
in question defied the subsisting precedent by distinguishing it in a very
sneaky manner.

Page 83 of 114
 In Apollo Insurance Co. Ltd v. Muthanwa & Co. Advocates the insurance
Co. and its insured jointly filed a suit against an advocate and his client
seeking declarations to the effect that;
i. It was a just and legal method to settle claims by accident victims
for insurance by issuing two cheques;
a) One for the sum of compensation for the insured in his
name.
b) The other in the name of the advocate for the sum settled
as covering his legal fees.
ii. By issuing the two cheques, an insurance company be deemed to
have sufficiently compensated the claimant.

Before going to court, the insurance company had settled a claim

against it out of court then purported to pay the award in two cheques
as outlined. At the instigation of the defendant / respondent lawyers,
the two cheques had been promptly returned to the company on the
grounds that they were not acceptable, and a notice of intention to
attach the Insurance Company’s property issued (by the advocate).
Accordingly, the Insurance Company (applicant), also sought restraining
orders (a temporary injunction) to restrain the respondent from
attaching its property. The principal issue was whether the Insurance
Company was entitled to settle the claim against it for insurance by way
of two cheques or only one cheque in the lawyer’s name.

It was contended that the Insurance Company had dutifully honored

their obligations to the victim, who had declined to accept the award
and instead opted to return the cheque(s) to the company. It was
argued for the respondent lawyer that an Insurance Company had no
locus standi in a claim between an injured and tortfeasor’s insured by
the company. It was further contended that the dispute between the
insured and the injured was res judicata.

It was also argued that pursuant to Order III of the Civil Procedure
Rules, a lawyer acting for a successful litigant was entitled to receive
the party’s decretal sums on behalf of the party/litigant; and that an
insurance company could not after subrogation tell a successful party
how he/she should receive the award.

Further it was argued that only a taxing master was empowered to

determine how much the advocate was entitled to receive and not the
Insurance Company.

In its submissions, the respondent firm of advocates had relied on the

decision of Mango J. in K.B.S. Ltd v. Susan Muteti1, where the learned
judge had categorically stated that the advocate on the record for the
1
Civ. App. No. 15 of 1992

Page 84 of 114
claimant was entitled to receive all payments arising from the suit on
behalf of the claimant. The said decision was upheld by the Court of
Appeal.

The trial judge, Hon. Kuloba, distinguished Muteti’s case(above) on the

facts and proceeded to observe as follows;
i. That the Court of Appeal in Muteti’s case above had refrained from
examining the efficacy of the statutory rules providing for policing
and disciplining of advocates.
ii. That the Court of Appeal was content with theorems and abstract
paper rules pertaining to the same.
iii. That the rules and the disciplinary committee, though in place,
lawyers (some) were still stealing client’s money.
iv. That the same lawyers when struck off could get reinstated to the
roll of advocates.

Kuloba J. then proceeded to state as follows;

i. That the advocates in question were bound to receive the moneys

paid by the company and by declining to do so, had actually flouted
the principles of agency relationship.
ii. That the advocates in question had by returning the moneys paid
to the client and to them by the company estopped themselves
from later insisting that the Insurance Company had failed to
honour its obligations.
iii. That both the insured and the insurer had discharged their
obligations and neither the advocate nor the client was entitled to
decline to accept the payment, mode notwithstanding.

The judge then granted the temporary injunction sought and ordered
that the awarded monies be deposited in court until the matter was
substantively heard and determined.

The judge also observed quite bitterly that the legal profession in Kenya
was to date “full of elements who preferred to crucify Jesus and free
Barnabas!” He also observed that the legal profession was enveloped in
a decaying ethical environment and any remedial measures, which could
be taken to protect clients, should not be hindered.

It is thus clear from the ruling of Kuloba J. that the mood of the court is
to grant the declarations sought and accordingly allow the two-cheque
system.

The position on the two – cheque system has since been conclusively
decided upon by both the High Court been firmly decided upon by both
the High Court and the Court of Appeal in a number of decisions. The

Page 85 of 114
High Court in the case of United Insurance Company v. Dorcas Amunga
Civil Case No. 462 of 2000 followed the decision of the court of Appeal
in Kenya Bus Ltd v. Susan Muteti Civil Appeal No. 15 of 1992. The court
categorically stated that an advocate is the agent of his client and that
their relationship is governed by the retainer which is the contract that
determines their rights and liabilities subject only to terms which the
said will infer in the particular circumstances. In following the Susan
Muteti’s case, the learned Commissioner of Assize Alnasir Visram cited
a passage therefrom thus:

“There can be no doubt that generally an advocate is

authorised to act as his clients agent in all matters not failing
within an exception which may reasonably be expected to arise
from decision in the course of proceedings. It follows
therefore, in our view that an attorney is obviously entitled to
demand and receive moneys due to his client until such time
his instructions are withdrawn”.

The court proceeded to point out that the cases of Lakestar Insurance
Company v. Mark Githiru T/A Githiru & Co., Advocates NBI HCCC
NO.295 “B” OF 2000 and Appollo Insurance Co. Ltd vs. Scholastica K.
Kamau and Another HCCC NO.1945 OF 1999 both upholding the two –
cheque system as having been wrongly decided and that the judges
therein had wrongly distinguished the facts in those cases as a way of
sidestepping the Susan Muteti Case which was binding upon them. In
that regard the learned commissioner of Assize concluded that:

“The issue before me is almost identical with the issue

that was before the court of Appeal in the Susan
Muteti case. I am bound by it. I must follow it. And I
cannot fritter it away with fine distinctions”.

It is worth considering why the learned judges in the Lakestar Insurance

Case and Apollo Insurance case sought to come up with circumstances
justifying their sidestepping a binding decision. It seems they were
driven by a desire to save the public from the ravenousness of some
layers on account of moneys received on behalf of clients. One would be
justified in questioning the grounds for such thinking when it was not a
matter for which judicial notice could be taken of. It may be worth
concluding that these two decisions are based on shaky grounds and
should not be cited as law said to show the extent to which sometimes
our courts will go in ignoring established principles of the law in an
attempt to do what has been referred to as “palm – tree justice”.

Page 86 of 114
THE L.S.K AND LEGAL AID
The concept of legal aid is not moved in Kenya although the many
attempts at establishing the same have been far from successful.

Basically, legal aid is the dispensation of legal services to the

disadvantaged persons in the society who cannot afford top pay
advocates for their legal services. It is delivered through an institution
specifically designed to facilitate the same.

In other jurisdictions, legal aid dispensation has actually become

entrenched. Especially in the U.K., delivery of legal aid by law societies
is in advanced stages.

CASE STUDY

THE NEW CASTLE LAW SOCIETY

This particular Law Society is based in Northumbria, U.K. and has an

advanced mechanism for dispensing legal aid to the poor.

It facilitates dispensation of four legal aid packages;

i. Legal assistance and advice (L.A.A.)
ii. Assistance by way of representation
iii. Civil Legal Aid (C.L.A)
iv. Criminal Legal Aid (C.L.A.)

L.A.A. (LEGAL ADVICE AND ASSISTANCE)

Both solicitors and barristers take part in giving free legal advice and
assistance to those who cannot afford to pay advocates.

Usually this package is delivered of the Newcastle Citizens Advice

Bureau, which is staffed by volunteer lawyers. These lawyers volunteer
one or two hours of their valuable time to dispense free legal advice at
the bureau.

This system is supplemented by the Duty Solicitor Scheme. This is

whereby different solicitors dispense legal advice over the phone at
various towns to those who call. In Newcastle, anyone can access free
legal advice 24hrs a day over the phone.

A further facet of the Duty Solicitor Scheme is where the Newcastle Law
Society ensures that there is always a duty solicitor at the police station.
The solicitor dispenses free legal aid to those who have been brought
into police custody after arrest.

Page 87 of 114
ABWOR (ASSISTANCE BY WAY OF REPRESENTATION)

The Newcastle Law Society encourages its members to provide free civil
and criminal legal aid. In respect of civil legal aid, its members
dispense legal aid, the society encourages its members to render free
legal advice to accused persons and organizes legal representation
where the same is needed.

All of these packages are also available at the Newcastle Legal Aid
Clinic in whose establishment the Newcastle Law Society has played a
crucial role.

L.S.K. AND LEGAL AID (OBSERVATIONS)

Currently the L.S.K. lacks any initiative to be involved in the
dispensation of legal aid. As a matter of fact, it has since its conception,
shown singular aversion to legal aid. It does not even encourage nor
recognize any efforts by its members to dispense legal aid to the poor.

Clearly, much more needs to be done. The L.S.K. must awaken, it must
refocus its objectives;

 It must come alive to the plight of many Kenyans who cannot enforce
their legal rights due to lack of counsel.
 It must refocus its goals and the goals of its members.
 In a nutshell, it is time the L.S.K. quit being preoccupied with
internal wrangles and sallied forth, facilitating the dispensation
much needed legal aid to the nations poor.
 It must take the mantle and abscond its duties.

OTHER CONTEMPORARY ISSUES

There are certain intangibles that a lawyer must endeavour to develop

especially, Kenyan lawyer(s).

1. Fairness

Amongst the kaleidoscope array of qualities that a lawyer must possess

is fairness. Only a lawyer can purport to vindicate the constitutional
guarantee right to a fair hearing2

Though it is not easily quantified, its absence is quickly felt. Unfairness

is gangrene in the body politic, a gangrene which if not dealt with
urgently, will consume the Kenyan Legal profession. Only a lawyer who
is fair can be aptly described as an officer of the court.

2
S.77(1) and 77(9) of the constitution

Page 88 of 114
The duty of fairness is inherent in the nature of the work performed by
lawyers. Lord Reid summed it up in Rondel v. Worseley3

“….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.

Fairness is also the foundation of the bar’s independence; and the bar’s
independence is fundamental to freedom in our country as is the
independence of the judiciary. Without fairness, no advocate can
practice independently.

Advocates need to avoid issues like:-

a) Obtaining and executing decrees without sending the draft for the
other side’s approval as was the case in Mwangi Mbothu v.
Gachira Waitimu4
b) Going for formal proof without verifying the date to a party who
has entered appearance as was the case in Waweru v. Ndiga 5
c) Showing the client how to circumvent court orders and disobey
injunctions as was the case in Chuck v. Cremer 6
d) Obtaining exparte injunctions without full disclosure as was the
case in Tiwi Beach Hotel v. Staum7

Others

 Not placing relevant authorities both for and against one before
the judge, especially where counsel is appearing ex-parte.
 Taking unwritten and vague preliminary objections and altering
them in reply.
 Serving and executing non-existent court orders etc.

No fair lawyer should be party to the said practices.

3
[1969] 1 A.C. 191
4
Court of Appeal Civil Application No. NAI 233 of 1993.
5
[1983] 1KAR 210
6
(1846)2 Ph 113
7
[1990] 2KAR 189

Page 89 of 114
2. Independence

 Advocates are enjoined by their oath to work fairly and without

favouring parties in their choice of clients. They are called upon to
work independently.
 The rule of law requires not only an independent judiciary, but also
an independent bar.
 The bar must be independent from the executive, the judiciary, the
client and must be independent from the desire to win at any cost.

Independence from the Executive

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

Independence from the Judiciary

It is important that the advocate retains his independence from the

expressed or implied suggestions and directions of the court. The
advocate is entitled to take every defense or maintain every position
that a client can take or maintain for herself / himself. It is the
advocate’s duty to do so.

An advocate should gratefully and gracefully accept such proper

suggestions from the court but must always remain conscious that that
is not the court’s function, and that the conduct of his client’s case is his
sole preserve. To quote Madan JA:

“the litigant and their professional advisers are the best judge of
their affairs.”

See M.M. Butt v. Rent Restriction Tribunal8

An advocate ought to test court suggestions against the following

criteria:

i. The client’s best interests: Do the court’s suggestions further

them?
ii. The advocates own professional judgement: How do they compare?

8
C.A. Civil. App. No. NAI. 6 of 1979

Page 90 of 114
Independence from the Client

While strenuously acting in the client’s best interests, advocates must

endeavour to remain independent from them.

Usually, most clients seek professional advice from an advocate.

However, there are certain clients both corporate and individual, who
see the advocate as an employee. An advocate should be live to the fact
that his legal / professional fees do not buy him (the advocate), they buy
his/her best professional judgement and advice and be prepared to even
lose the brief. This is rendered necessary by the fact that the moment
an advocate loses his independence to the client, he loses his
professionalism. Accordingly, she/he cannot protect his client’s best
interests.

Independence from winning at any cost

 A temptation faced by an advocate through out his career. This is

because its insidious nature attacks both senior and junior counsel.
 This temptation must be resisted. It will always lead to a breach of
professional rules and etiquette. It logically defies all other laws as
well; i.e. the law of statistics, you cannot win them all, the more one
becomes desperate and thus employs desperate means.

Other qualities that a lawyer ought to cultivate are: -

 Perseverance – it keeps honour bright.

 Courtesy.
 Respect for the truth and honesty.

A lawyer should also hold the following beliefs clear:

i. A belief that the work of lawyers includes the curbing of the abuse
and misuse of power and to set limits to power.
ii. A belief that all social activity has limits and is subject to rules,
including politics.
iii. A belief that lawyers must participate in remedying injustice and
the abuse of power.

Saving
An advocate’s word should be his bond. An advocate should not lightly
give his word. An advocate must think first before making a
commitment, especially if they affect his clients. Once an advocate gives
his word he should not turn on it. The court and colleagues must rely on
his word without any apprehensions.

Page 91 of 114
A lawyer is a realist. Accordingly, his starting point is the
acknowledgement of reality of facts as they exist. A lawyer cannot
advice a client, prepare a case on the basis of what might be. “What is”
should be a lawyer’s starting block. A lawyer should be “nobody’s
darling”. Popularity is not why one seeks to pursue a career in law.

Page 92 of 114
 THE LAW SOCIETY OF KENYA

DIGEST OF PROFESSIONAL CONDUCT AND ETIQUETTE

(Current as at 1st January, 2001)

This Digest is intended to give guidance to advocates concerning their

professional conduct and the etiquette of the profession. It should be
read in conjunction with the Advocates (Practice) Rules, the Advocates
(Account) Rules and the Advocates (Accountant’s Certificate) Rules.

This is not exhaustive treatise, and where points are not covered,
reference should be made to the Council of the Law Society for a ruling.

INDEX

Rule 1 - Absence

(a) From Chambers

(b)From Court
Rule 2 - Acting against other Advocates
Rule 3 - Advertising
Rule 4 - Advocates employed by Non – Legal Employers
Rule 5 - Advocates fees
Rule 6 - Advocates Offices

(a) Branch Offices

(b)Sharing Offices

Rule 7 - Agreements for Sale – Vendors’ Costs

Rule 8 - Attestation of Signatures – Registration of Titles
Act (Cap 281)
Rule 9 - Bowing
Rule 10 - Chambers of Commerce
Rule 11 - Clients Accounts
Rule 12 - Clients’ files
Rule 13 - Commissioners for Oaths – Duties
Rule 14 - Consultants
Rule 15 - Correspondence
Rule 16 - Counsel
(a) Briefing
(b)Cases taken out of the List
Rule 17 - Counsel’s Fees
Rule 18 - Court Fees
Rule 19 - Debt Collecting
Rule 20 - Disclosure and Privilege
(a) Income Tax Authorities

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 (b)Police

Rule 21 - Dissolution of Partnership

Rule 22 - Execution Proceedings
Rule 23 - Extraneous Activities
Rule 24 - Honorary Legal Adviser
Rule 25 - Insurance
Rule 26 - Leases and Counterparts
Rule 27 - Letter – Heads
(a) Agents
(b)Assistants
(c) Client’s Letter – heads
(d)Trade Mark Agents
(e) Barristers and Solicitors
Rule 28 - List of Authorities
Rule 29 - Loans by Advocates
(a) To Clerks in Government Offices
(b)To members of the Judiciary
Rule 30 - Medical Profession Fees
(a) Deceased’s Estates
(b)Medical damages
(c) Special damages
(d)Taxed Costs

Rule 31 - Name of Firm

Rule 32 - Office Expenses – Limited companies
Rule 33 - Pleas in Mitigation
Rule 34 - Poor Persons Litigation
Rule 35 - Practising Certificate
Rule 36 - Press Reports – Court Cases
Rule 37 - Publications
Rule 38 - Recovery of Money due from Advocates
Rule 39 - Remuneration
(a) Agency
(b)Professional Clients
(c) Transferred Decree
(d)Undercutting
Rule 40 - Representations to the Chief Justice
Rule 41 - Smoking in Court
Rule 42 - Staff – Unqualified, Remuneration
Rule 43 - Telephone and other Directories
Rule 44 - Telephone Conversations – Recording
Rule 45 - Threats of Criminal proceedings
Rule 46 - Undertakings
Rule 47 - Witnesses

Page 94 of 114
DIGEST OF OPINIONS OF THE COUNCIL OF THE LAW SOCIETY
OF KENYA

On matters of Professional Conduct and Etiquette

1. ABSENCE

(a) From Chambers

(i) When advocates close their offices for the purposes of annual
holiday or sickness extending over then days, they should make
arrangements for their mail to be collected and acknowledged and
the clients informed of the non-availability of the advocates during
the period.

(b)From Court

(i) Advocates who propose to leave the country should make

arrangements for their court cases to continue during their
absence. It is not sufficient merely to brief a colleague to ask for
an adjournment since this disorganises the work of the Courts.
Where for any valid reason an advocate cannot appear in Court,
he must inform the Court at the earliest possible opportunity.

(ii) In criminal cases advocates must attend court on the day of the
hearing once having appeared on plea day and having accepted a
hearing date. Non -–appearance on the hearing day upsets the
Court’s calendar and accused persons are held in custody longer
than necessary.

(iii) As a matter of professional etiquette an advocate should on the

date of plea request the court to dispense with his attendance on
mention dates.

(iv) It is the paramount duty of defending counsel to ensure that the

accused person is never left un-represented at any stage of the
trial. In any event the advocate must notify the court and his
client at the earliest possible opportunity of his inability to attend
Court. Advocates should contact the court either personally or by
telephone, or telegram, if there is not sufficient time for letters to
reach the Court.

(v) When an accused person ins represented by two advocates neither

should absent himself other than for a purely temporary period
except for good reason and then only if the consent of the
instructing advocate, if any, or the client is obtained.

Page 95 of 114
(vi) Where an accused person is represented by only one advocate,
that advocate must normally be present throughout the trial and
may only absent himself in exceptional circumstances which he
could not reasonably have been expected to foresee and provided:-

(a) he obtains the consent of the instructing advocate, if any, of his

client; and
(b)another advocate takes his place who is well informed about
the case and is liable to deal with any questions which might
reasonably be expected to arise.
(vii) Failure to attend court could amount to professional misconduct
and lead to disciplinary action.

2. ACTING AGAINST OTHER ADVOCATES

It is not right for an advocate to refuse to act in a matter merely

because the opposite party is another advocate. This is intended as a
statement of general principle and it is recognised that, in particular
cases, there may be circumstances in which an advocate should
property refuse to act.

3. ADVERTISING
The Press should not be permitted, so far as advocates can control it, to
make reference to their professional careers publish photographs of
advocates in wig and gown. This does not apply to advocates on
appointment to an established judicial or legal office in the service of the
State.

(a) Considering the application of Rule 2 of the Advocates (Practice)

Rules, and bearing in mind the fundamental principle that advocates
should not advertise, the following rulings are set out for the
guidance of the profession.

(b)An advocate should at all times have regard to the need to uphold the
good name of the Profession. He should also be conscious of the fact
that certain publications, broadcasts and appearances might well
involve a breach of Rule 2 of the Advocates (Practice) Rules.

(c) In particular, a breach could easily be committed by the manner or

frequency of doing things not otherwise objectionable, in particular if
they are done frequently.

(d)Subject to (b) and (c) above, where an advocate:

(i) broadcasts on radio or television;

Page 96 of 114
 (ii) gives a talk or lecture; or
(iii) gives an interview to the press; or
(iv) contributes an article or letter to the press; or
(v) edits or writes a book or other periodicals;

Whether on a legal or non legal subject:-

He may be identified by name only or by a designation, but the name

and the designation may not be coupled PROVIDED THAT where an
advocate contributes a legal article or letter to a legal journal or
publication or edits or writes a book periodical on a legal subject
particulars may be given of his basic and academic qualifications or any
professional appointments currently or previously held by him and of
specified knowledge relevant to the subject matter of the publication,
letter, talk or lecture, and his business address in the case of
publication, letter, talk or lecture and his business address in the case of
publications or letters;

(i) Nothing should be published identifying or likely to identify

individuals or organisations for whom he or his firm acts or has
acted;

(ii) he should not enter into correspondence on an advocate/client

basis with readers, viewers or listeners who are not already his
clients;

(iii) Prior press announcement or subsequent press reports relating to

the above matter in relation to the identity and qualifications of an
advocate may either name the advocate or give his designation,
but the two must not be coupled.

4. ADVOCATES EMPLOYED BY NON-LEGAL EMPLOYERS

(a) Subject to what follows, there is no objection to an advocate agreeing

to do legal work for an employer in consideration of a fixed salary

(b)Provided his employer allows it, he may also accept instructions from
other clients. Such an advocate must comply with the Advocates
(Accounts) Rules and the Advocates (Practice) Rules.

(c) Such an advocate must ensure that his employer neither directly nor
indirectly advertises his services and in particular does not
recommend him to fellow-employees.

(d)The advocate must satisfy himself that any recommendation by the

employer was made only at the express request of the intending

Page 97 of 114
 client, and that he must explain that the employee is free to instruct
any advocate of his choice or such advocate whom he may wish to
instruct. Only on being satisfied that there is not, would the advocate
be justified in accepting instructions.

(e) In no circumstances may an employed advocate allow his employer to

receive any part of any profit costs he may earn acting for clients
other than the employer.

(f) As regards the employer’s legal work, the position is regulated by

rule 4, proviso (ii) of the Advocates (Practice) Rules. The employed
advocate can only set off the costs of contentious and non-
contentious work done by him for his employer to the extent of his
salary and reasonable office expenses. In other words, any amount
by which the total fees exceed the advocate’s salary and office
expenses must be paid to him by the employer.

(g)No employed advocate can comply with proviso (i.) to Rule 46 of the
Advocates (Practice) Rules unless he keeps a bill delivered book
showing the full profit costs of all work done for the employer, and
there is an annual accounting with his employer in terms of the
proviso.

(h)An employed advocate who is also a Commissioner for Oaths cannot,

of course, administer an oath when he has drawn the document.

(i) It is improper for such an advocate to administer an oath to any

official of his employer in respect of that official’s duties. Employer’s
personal affidavits are subject to the considerations set out in (d)
above.

5. ADVOCATES’ FEES
Where one advocate acts for the client of another at the latter’s request,
the two advocates may conclude an agency or other agreement to
provide for the remuneration of the advocate who does not work. In the
absence of such an agreement, the advocate who carries out the work is
entitled to treat the other advocate as being in the same position as a
lay client and to charge him accordingly.

6. ADVOCATES OFFICES

(a) Branch Offices

There is no objection to the establishment of a branch office to be

visited periodically by an advocate and to act otherwise only as a
reception centre for making appointments and holding papers,

Page 98 of 114
 provided that the office is under the effective control of an advocate
and that his name is not merely made use of to enable other persons
to practise under cover of it.

(b)Sharing Offices

It is improper for an advocate to share accommodation with someone

who is not an advocate since this would almost inevitably lead to the
unfair attraction of business and breach of Rule 2 of the advocates
(practice) Rules.

7. AGREEMENTS FOR SALE – VENDORS COSTS

There is no objection to the insertion in conditions of, or contracts for, a
sale of land of an express provision requiring either party to pay the
costs of the other party, provided that each party is left free to employ
his own advocate in each transaction. It is improper to suggest that the
advocate be employed by the other party.

8. ATTESTATION OF SIGNATURES – REGISTRATION OF TITLES

ACT (CAP 281)
An advocate who is requested to attest a signature in pursuance of this
Act should insist on the signature being appended in his presence and
should not accept an acknowledgement of signature by the person
requesting attestation. It is not considered that the advocate should
accept any further responsibility for the identification of the signatory
than that suggested above.
Advocates are requested to print, type or rubber-stamp their names
below their signatures.

9. BOWING
Advocates un-admitted assistants and clerks should not bow to any
court. This privilege is, by custom, restricted to Members of the Bar
appearing before the Court.

10.CHAMBERS OF COMMERCE
There is no objection, in principle, to an advocate or firm of advocates
being a member of a Chamber of Commerce.

11.CLIENTS’ ACCOUNTS

(a) The attention of advocates is called to the detailed provisions of the

Advocates (Accounts) Rules, the Advocates (Accountant’s Certificate)
Rules and the Advocates (Deposit Interest).
(b)If a cheque drawn on a Client Account is dishonoured professional
misconduct is disclosed and disciplinary action will follow.

Page 99 of 114
(c) Failure to produce an Accountant’s Certificate (or statutory
declaration in lieu thereof) pursuant to the Advocates (Accountant’s
Certificate) Rules is professional misconduct.

12.CLIENTS FILES

(a) Upon the dissolution of a business partnership an action was

instituted by the outgoing partner against the continuing partners.
The advocate who had acted for the partnership during its
subsistence had refused to allow the advocate acting for the
continuing partners to have access to the file relating to the
partnership business. His costs had been paid and there was no
question of a lien for them. A client is entitled to copies of a any
documents in his file that he may require and for which he must pay,
and to access to his file.

(b)A client is entitled to the files relating to his own matters and an
advocate should accordingly hand them over to a client on his
request, subject to the qualifications:-

(i.)that an advocate has a lien over all papers relating to a client and
that client’s affairs for his costs; and
(ii) that if more than one party were involved, the advocate might be
entitled to retain the files if required in connection with another
client’s affairs in the same matter.

(c) Clients files may be forwarded to the Public Archives only with the
client’s consent.

(d)Subject to the foregoing, there is no objection to destruction or

disposal of records by advocates on the clear understanding,
however, that the ultimate responsibility for this course of action is
that of the advocate.

(e) Any advocate who is leaving the country and or ceasing to practice
must make arangements for the retention or disposal of records and
must inform the Secretary of the Law Society of the arrangements.

(f) Records Disposal

It is agreed that the following periods are reasonable but not
obligatory for the disposal of records:-

Conveyancing - after 20 years

Debt Collection files - after 6 months
Litigation + acting for - after the period of limitation from the
cause

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 The defendant of action
Divorce and family
Matters - Never destroy until it is known that all
parties
Have died. These should be brought up
every
30 years.
Common Law matters - after 6 months
Probate and
Administration where
Whole estate is wound up
And distributed - after 5 years

(g)Advocates should also bear in mind that although in view of the

Limitation Act, the Advocates (Accounts) Rules and the Kenya Income
Tax Acts, it is essential and even obligatory to preserve certain
records for at least six years, it may be in the interests of both the
advocate and the client to preserve such records for up to 12 years
since, in exceptional cases, the Income Tax authorities may demand
information going back 12 years.

(h)Advocates should have regard to the interests of their clients or

former clients as well as their own, since records in the possession of
advocates may have a bearing on their clients’ affairs.

13.COMMISSIONER FOR OATHS – DUTIES

(a) The attention of Commissioners for Oaths is drawn to the statutory

requirements which are set out in the Oaths and Statutory
Declarations Act (Cap 15) and the Supplementary Legislation
published thereunder.

(b)A Commissioner may not act as such in any proceeding in which he

has acted as advocate to any of the parties to that proceeding or
which he is interested. The “Proceeding” referred to is not limited to
a Court proceeding and also includes, for instance, all documents
prepared by a partner or clerk in the Commissioner’s firm. If a
Commissioner is in any doubt as to whether he is (interested) or not,
he should refuse to act.

(c) Affidavits consisting of more that one page, or with exhibits annexed,
should be sewn across the top left hand corner and sealed prior to
representation to the Commissioner.

(d)The entire responsibility for the contents of the affidavit rests with
the deponent and the advocate who prepared it. It would be

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 impossible for a Commissioner to determine whether the deponent
understood every statement made in the affidavit unless he himself
had read it to deponent, and had himself mastered the facts of the
case. Such a course would be impracticable and beyond the duties of
the Commissioner.

(e) It is the duty of the Commissioner to satisfy himself that the oath
which he is administering is, in form and upon the face of it, an oath
which his commission authorizes him to administer.

(f) When the deponent attends upon the Commissioner, subject to the
exception as to blind and illiterate persons, all that a Commissioner is
required to do is to ascertain that the deponent is actually in his
presence, the deponent apparently competent to depose to the
affidavit and that he knows that he is about to be sworn by the
Commissioner as to the truth of the statements it contains and that
the exhibits (if any) are the documents referred to. If the answers to
the Commissioner’s questions are in the affirmative, the oath may be
administered.

(g)Where an affidavit is sworn by a blind or illiterate deponent, the

Commissioner must certify, in the jurist, that the affidavit was read in
his presence to the deponent, and that the deponent seemed to
understand it, and made his signature (or mark) in the presence of
the Commissioner.

(h)If it comes to the notice of a Commissioner that an affidavit is

incomplete, e.g because it contains blanks, or the Commissioner is
not satisfied from evidence before him, or in his possession, as to the
capacity of the deponent to understand the Oath, or the
Commissioner has good cause to believe that the affidavit is false, he
should refuse to take Oath.

(i) Alterations and interlineations (including manuscript insertions in

blanks left in typescript) must be authenticated by the Commissioner
appending his initials in the margin against such alterations or
interlineation.

(j) No alterations may be made in an affidavit after it has been sworn

and in any such case a second jurat commencing with the word
“Resworn” must be added and that the deponent must be resworn
though there is no need for him to sign again.

(k) Every exhibit referred to in an affidavit and whether annexed to it or

not, must bear a certificate, signed by the Commissioner, to identify it
with such affidavit. It is the duty of the advocate, or his clerk, to

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 request the commissioner to mark the exhibits. The commissioner
cannot have knowledge of the exhibits, unless his attention is drawn
to them without reading the affidavit and this he is not required to
do.

(l) The modern form of oath, the use of which (with any modifications
required by the circumstances) is recommended, dispenses with the
commissioner’s enquiry as to the identity of the deponent which was
formerly required. The procedure is as follows:-

The Commissioner places the affidavit before the deponent open at

the page containing his signature and the jurat and says to the
deponent, “Take the book in your right hand and raise that hand.
Repeat after me the following words – “I swear by Almighty God that
this is my name and hand-writing and that the contents of this my
affidavit is true”.

Where there are two or more deponents, each must be sworn

respectively, but one jurat is sufficient, provided that it refers to both
deponents, thus “Sworn by the deponents ………………………
and…………………….at, etc

(m) A Commissioner for Oaths is entitled to charge for each copy of

the Affidavit and exhibits he is asked to sign in addition to charging
for the originals.

14. CONSULTANTS

No person’s name may be shown as Consultant on the letterhead of any

firm of advocates, unless,

(i) he is a former partner of the firm, and

(ii) he continues to hold a practising certificate, and
(iii) his advice is available only to that firm, and
(iv) he does not advise or appear in court in matters other than those
originating in the firm concerned
(v) The description of “advocate” should not be displayed on the name
board or any place other than his office.

15. CORRESPONDENCE

(a) Attention is drawn to the absolute necessity of advocates replying to

correspondence with the minimum of delay, particularly in the case of
correspondence with other advocates and with the Law Society.

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(b)Failure to reply to correspondence has been held to amount to
professional misconduct.

16. COUNSEL

(a) Briefing

An advocate should always inform his opponent if he proposes to brief

Counsel, or a leader from the junior Bar.

(b) Cases taken out of the list

Advocates who have briefed counsel, or a leader from the junior Bar,
should maintain close liaison with their leader. In particular, cases
should not be taken out of the list, nor should hearing dates be altered
without first obtaining the agreement of the leader.

17. COUNSEL’S FEES

(a) Where it is desired to tax, in the Court of Appeal for Kenya or in the
High Court, any sum as disbursement for fees paid to Counsel, the
taxing officer will require in addition to Counsel’s receipt, the brief
with a dated backsheet showing the work to be done by Counsel and
endorsed with the fee agreed to be paid.

Counsel are requested to treat the delivery of a backsheet with their

instructions as essential as a matter of etiquette in every case, unless
emergency renders this impossible when the backsheet should be
delivered within 48 hours.

(b)The fixing of Queen’s Counsel’s fee is primarily a matter of

arrangement between Queen’s advocate and the client on the other.

In Kenya, the instructing advocate is not bound to appear in court,

leaving his leader (A Queen’s Counsel of from the Junior Bar) to
conduct the court work on his own, or may himself appear in court.
It is felt, in these circumstances, that it is impracticable to lay down a
hard and fast rule as to any relationship which should exist between
the quantum of fees paid to a leader )whether Queen’s Counsel or a
member of the Junior Bar) and to the Junior concerned in the matter.
As to the Junior, in whatever capacity, it is considered that he would
be well-advised to fix his own fee with the client at the same time as
the Leader’s fee is fixed.

18. COURT FEES

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Advocates should not ignore requests for payment of court fees; such
fees should be paid promptly.

19 DEBT COLLECTION

(a) Letters of demand threatening proceedings in default of payment

should save in exceptional circumstances, allow:-

7 days where the debtor resides in the same town as the advocate;
not less than 10 days where he resides in a different town in Kenya.
15 days where he resides outside East Africa.
(b)There is no objection to requiring a debtor to pay the creditor’s
advocate’s costs of collection in consideration of an agreement to
accept payment of the debt by installments; if that condition is
imposed at the time of acceptance of the proposal. It is not,
however, permissible to claim costs from the debtor in the original
letter on behalf of a client.

(c) A creditor is entitled to receive payment in full and accordingly

should not suffer loss by deduction of Bank Commission where the
debtor’s cheque is drawn on a bank in a different town.

20. DISCLOSURE AND PRIVILEGE

(a) Income Tax Authorities

(i.)As a guiding principle, advocates should not disclose the addresses of

parties to e.g. land transactions, if requested so to do by the Income
Tax Department, unless authority is produced for the requirement, or
the client consents. In the case of persons who are not clients, the
advocate should state that he does not act and accordingly is not in a
position to give any information.

(ii) Where an advocate is asked for details of transactions as well as of

parties, he should ask the clients whether they are prepared to
waive privilege and give information only if the clients agree.

(iii) The Commissioner for income Tax has agreed that section 61 of
the Kenya Income Tax Act, (No.16 of 1973), cannot be made to
apply to the affairs of an advocate’s client generally.

(iv) If an advocate is asked by the Tax authorities to disclose the

address of a client who had left Kenya, the test of whether
disclosure is or is not permissible is whether the address is
disclosed by the client “in secret”.

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(v) If an advocate is asked by the Tax Authorities to disclose the
address of a client who had left Kenya, the test of whether
disclosure is or not permissible is whether the address is disclosed
by the client “in secret”.

(b) Police

(i.) “Privilege” is the privilege of the client, not that of the advocate.
It may accordingly be waived by the client, but not by the
advocate.

(ii) The object of the rule of privilege and its cardinal principle, is to
ensure that a client can confide completely and without
reservation in his advocate, and the privilege extends to
communications made to the advocate'’ agents and to Counsel
where the advocate acts as solicitor.

(iii) In litigious matters the advocate’s privilege is no greater than the

client’s right. If, therefore, a client could not refuse discovery, an
advocate could not establish privilege.

(iv) There is no privilege in respect of communications made in

furtherance of a fraud or crime, but communications made to an
advocate for the purpose of a defence in criminal proceedings are
within the rule and privilege.

(v) If there is any doubt in an advocate’s mind as to whether or not

communication is privileged, he should claim that it is.

(vi) The preceding paragraph applies equally to preliminaries and non-

litigious matters on the one hand and to actual proceedings before
the court on the other. It is for the court to decide, in proceedings
before it, whether a claim of privilege holds good or whether the
advocate is bound to disclose.

(vii) The foregoing is not intended to be an exhaustive review of all

points arising in a vast and complicated subject, but only as a
guide to some of the more important general principles which may
arise.

21.DISSOLUTION OF PARTNERSHIP

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Where two advocates have dissolved partnership, it would be impoper
for the outgoing partner to act for a claim against the continuing
partner arising to act for a client in a claim against the continuing
partner arising out of events which had occurred during the partnership
but with which the outgoing partner had not been concerned .

22.EXECUTION PROCEEDINGS

When proceedings for the execution of a judgement debt have been file
and payment has been made prior to a further step in execution, for
example, prior to the date of hearing of an application to show cause, an
advocate should notify the court and subject to payment of any costs
incurred, endeavour to have the proceedings withdrawn.

23.EXTRANEOUS ACTIVITIES

Before engaging in other professions or business there are two tests to

be satisfied. First, the profession or business must be an honourable
one that does not detract from one’s status as an advocate. Secondly, it
must not be calculated to attract business to the advocate unfairly,
which would be in breach of the advocates (practice) rules. Subject as
aforesaid, the following guidelines are given, but in case of doubt an
advocate should not hesitate to seek a ruling from the council.

(a) It is improper for a non-practising advocate to undertake some

conveyancing work after office hours, either for friends or in
connection with those types of business in which he had an interest.
(b)There is no objection to an advocate being appointed as a Honorary
Consul.

(c) There is no objection to an advocate acting as an agent for insurance

companies. He would not, however, be justified in charging clients
for work done in placing and maintaining their insurance policies
where a commission is earned from the insurance company.

(d)He must not, however, include any reference to the fact he is sich an
agent on his professional note-paper or include any reference to the
fact that he is an advocate on the paper that he uses in connection
with his Agency work, nor may the appointments be combined in any
way on any brass plate.

(e) An Advocate temporarily ceasing to practise in order to into a

family’s business may;

 Renew his practising certificate

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 Should not appear in court on behalf of the business, though there is
no objection to his doing preliminary advocate’s work on behalf of the
business;
 That he should not conduct interviews in respect of legal matters at
the business premises.

(f) An advocate who wishes to become an active partner in a (non-legal)

firm dealing with insurance agencies and office routine is advised
that it would not be proper to enter into such partnership.

(g)It is improper for advocates to register a limited liability company to

undertake on their own account company work and the registration
of companies.

(h)There is no objection to an advocate, or firm of advocates, acting as

the secretary of a limited company, provided that there is no
reference to the professional qualifications or any law degree of the
secretary in the company’s letter-heads and other documents.

(i) There is no objection to an advocate entering into a (non-active)

partnership in a petrol station business in order to assist a client.

24.HONORARY LEGAL ADVISER

Any person wishing to act as a legal adviser to any professional body or
association should first be admitted as an advocate.

25.INSURANCE
In their own interests, advocates should ensure that they are protected
against the consequences of negligence in their offices by a proper
Professional Indemnity Insurance Policy.

26.LEASES AND COUNTERPARTS

A lessen is entitled to the original Lease (the Lessor retaining the
Counterpart) on the basis that a grantee is entitled to the Grant.

27.LETTER – HEADS

(a) Agents

The name of agents outside Kenya may not be shown on an advocate’s

letter head.

(b)Assistants
The names of assistants, qualified outside Kenya, but not admitted in
Kenya, may not be shown on advocates’ letter-heads.

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(c) Client’s letter-heads
An Advocate should not allow his name (associated with his designation)
to be used on his clients’ own note-paper whether he is described as
advocate, honorary legal advisor, or otherwise, except only where the
advocate himself uses that paper qua advocate on the business of the
client.

There is no objection to the incorporation of an advocate’s name

(without his description as such) on the note-paper of a limited liability
company, or a director of such company.

(d)Trade Mark Agents

This description may not be inserted on an advocate’s letterhead.

(e) An advocate may not describe himself as either a barrister or a

solicitor or a Writer to the Signer on an advocate’s letterhead.

28.LISTS OF AUTHORITIES
As a matter of professional courtesy, the advocate acting for the
opposing party should be furnished with a copy of the list of authorities
as submitted to the librarian, at least one day prior to the hearing.

29.LOANS BY ADVOCATES

(a) Any request for loans by clerks in government offices should be

ignored and being highly irregular, any such case should be reported
immediately to the appropriate Departmental Head.
(b)It is improper for advocates to lend money to members of the
judiciary whatever the circumstances.

30.MEDICAL PROFESSION-FEES
As a result of discussions with representatives of the Kenya Medical
Association, the following rulings should be noted:-

(a) Deceased’s Estates

It would be discourteous for an advocate acting for the deceased’s
representatives, where the administration of the estate is likely to be a
lengthy matter, not to inform a member o another profession who has a
claim against the estate for fees that a delay in payment is expected.

(b)Medical Opinions and Reports

There is a distinction to be drawn between requests made by advocate
for opinions and reports, in which case they are primarily liable for the
doctor’s fees, and requests made by them on behalf of their clients, in
which case the clients are primarily liable.

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(c) Special Damages
In cases where doctor’s fees are claimed, and recovered as special
damages, the advocate is under a duty to discharge those fees without
delay .

(d)Taxed Costs
The doctor’s fee should be paid in full, regardless of the amount allowed
in respect thereof on taxation.

31.NAME OF FIRM

(a) It is undesirable for firms to practise under any name other than that
of a past or present member or members.
(b)Advocates are reminded that in the event of any change of name or
address, the secretary to the Law Society and the Registrar of the
High Court should be informed immediately for record purposes.
(c) When a partner in a firm has been appointed to the judiciary, there is
no objection to the retention of the firm name by the remaining
partners.

32.OFFICE EXPENSES – LIMITED COMPANIES

There is no objection in principle to advocates forming limited

companies to deal with all expenses in connection with the running of
their practices.

33.PLEAS IN MITIGATION

(a) In any case where an advocate is instructed by his client to put

forward matters in mitigation which involve serious imputation upon
the character of a person or persons who are not in a position, at the
time when such matters are ventilated, to challenge their accuracy,
then he should, whenever practicable, avoid mentioning in open
court any details which would enable the identity of the person
impugned to be ascertained. Where necessary, names, addresses or
other such details should be written down and handed in.

(b)In normal circumstances, an advocate should see his lay client

personally after conviction and sentence.

34.POOR PERSONS LITIGATION

(a) The basis of the Law Society’s scheme to assist poor persons who are
unable to pay an advocate’s fee in the ordinary way is that the work
should be undertaken on a pro deo basis, that is, without fee.

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 Accordingly, an advocate should not “reduce” the proper fee payable
which would amount to undercutting, nor should he agree to accept
remuneration in the event of a successful outcome which might lay
him open to allegations of champerty and maintenance.

From the foregoing, it follows that pro deo litigation should not be
undertaken in the expectation of any fee and that if a fee be offered,
whether as the result of the litigation being successful or otherwise, it
should be refused.

In the event of the court awarding costs to a successful pro deo litigant,
such costs should be retained by the advocate concerned but should be
paid by him into a fund to be maintained by the society and from which,
eventually, nominal fees could be paid to advocates acting on behalf of
poor persons.

(b)When acting for a wife on a pro deo basis, she is to be treated as

pledging her husband’s credit. In such circumstances, the advocate
could probably retain costs recovered from the husband.

35.PRACTISING CERTIFICATES

(a) Practising certificates should be applied for prior to the end of

January in each year. Applications submitted after this date are not
backdated. Members practising without a certificate after the month
of January do so illegally.
(b)To practise without taking out a practising certificate is an offence.
(c) It is not proper for an advocate to take out a practising certificate
while he is still on the bench.

36.PRESS REPORTS – COURT CASES

Reporters of court cases in Kenya are interested in the news value of the
proceedings and not in reporting who are, no doubt, better judges of
news value than advocates and who regard the independence of the
press as of paramount importance may well rent unsolicited approaches
from, or suggestions by, advocates as to the form and contents of their
stories.

On the other hand, subject to his client, it would be discourteous in an

advocate to refuse any help which a reporter may request to elucidate
an incident or points, and an advocate who did so refuse could not
complain of being misreported.

An advocate who considers that he has been misreported should bear

the news value angle in mind but, subject thereto, will usually find that

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an Editor will sympathetically consider any complaint which may be
made to him and will endeavour to make a correction if the complaint be
justified.

Advocates also may have the right to draw the attention of the court to
grave or substantial cases of misreporting. The practice should be to
mention any such instance at the hearing immediately following
publication and, where possible, the newspapers should be informed in
advance of the intention to mention the report.

It is stressed that it is unprofessional for an advocate concerned in court

pleadings which may be reported to encourage publicity for himself in
the report of the case.

37.PUBLICATIONS
There is no objection to an advocate publishing his memoirs (including
references to cases in which he has been engaged) provided that he
bears points of professional etiquette in mind at all times and it is
immaterial whether or not he has a practising certificate in force.

38.RECOVERY OF MONEY DUE FROM ADVOCATES

Advocates are under a duty to report to the law Society immediately
where a judgement debt against an advocate has not been satisfied in
seven days.

39.REMUNERATION

(a) Agency
There is nothing wrong in paying or receiving agency as between
advocates and legal practitioners in other countries. Advocates are at
liberty to make such arrangements as they think proper.

(b) Professional clients

A firm of Attorneys outside East Africa instructed advocates in Kenya to
take legal action against a Kenya resident, the plaintiff in the action
being a partner in the firm of Attorneys. In such circumstances, there
was no reason why the advocates should not raise their proper charges
and that there would appear to be no reason for the allowance of
agency.

(b)Transferred decree

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Certain “foreign” advocates deducted a percentage of the amount
recovered under decrees obtained in Kenya and transferred for
execution abroad in addition to raising their normal charges.

A system which might amount to giving advocates a pecuniary interest

in litigious proceedings is not favoured.

(d)Undercutting
An extremely serious view is taken of advocates who make a practice of
charging fees at rates lower than those set out in the advocates
(Remuneration) order, and attention is drawn to rule 2, Advocates
(practice) Rules.

40.REPRESENTATIONS TO THE CHIEF JUSTICE

The Honourable the Chief Justice has stated that, whilst he would not
wish to restrict the right of any advocate to approach him direct, he
would prefer all representations and complaints, on other than personal
matters, to be made through the Council of the Law Society. This
practice is commended to advocates since departure therefrom might, in
some instances, create circumstances which would be embarrassing to
the Chief Justice or the Council.

The same principles should apply to approaches to judges and

magistrates.

41.SMOKING IN COURT
The habit of smoking in court before the commencement of proceedings
is deprecated and advocate are requested not to do so.

42.STAFF-UNQUALIFIED: REMUNERATION
Although it may be permissible, in certain circumstances, to pay
bonuses to unqualified staff at annual or other intervals of time in
accordance with the employer’s accounts. It is not permissible for
advocates to pay unqualified staff on the basis of a percentage or
commission on the fees charged for work introduced or carried out by
such unqualified staff. The attention advocates is drawn to Rule 4 of the
advocates (practice) rules.

43.TELEPHONE AND OTHER DIRECTORIES

(a) It is objectionable for an advocate’s name to appear in heavy black

type in the Telephone directory.
(b)There is no objection to an advocate supplying biographical details
requested by any Embassy of High Commission with diplomatic
offices in Kenya.

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(c) There is no objection to the insertion of an Advocate’s name, address
and telephone number in :Classified Trades” section of the telephone
directory or of a business directory.
(d)Advocates should not include the qualification of “Advocate” in a
telephone or other directory against their residential, as opposed to
their office, addresses.

44.TELEPHONE CONVERSATION- RECORDING

It is wrong for an advocate to tape record by any means a telephone
conversation with another advocate except with that advocate’s consent.

45.THREATS OF CRIMINAL PROCEEDINGS

Advocates should carefully consider the implications involved before
threatening a person with criminal proceedings on behalf of a client.

46.UNDERTAKING
An undertaking shall be in a form which is clear and once accepted by
an advocate shall bind him or his firm to the undertaking and any
breach thereof shall constitute professional misconduct.

47.WITNESSES
(a) The attention of advocates is drawn to Rule 9 of the Advocates
(Practice) Rules.
(b)It is improper for an advocate to converse with his witness from the
time when he begins to be examined by the other side until that
examination is completed.
(c) An exception may have to be made when the witness is the client and
he requires advised during that time on matters other than the
evidence which he is giving, but in such circumstances it is prudent
to inform the opposing advocate generally of the circumstances.
(d)It is duty of an advocate to guard against being made the instrument
by which publicity is obtained for allegations which are merely
scandalous or calculated to vilify or insult any person.
12 February, 1982
th

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