THE LEGAL PROVISIONS THAT REGULATE THE CONDUCT OF LAWYERS IN
KENYA
BY WANJIRU ANN WANJA
The conduct of advocates is regulated by the advocates act cap 16 of the laws of Kenya. The
duties of a trial advocate are several and these include;
i.
Duty to the court
ii.
Duty to the client
iii.
Duty to the opponents
iv.
Duty to witness
v.
General duties
All lawyers are subject to strict standards of professional responsibility. These standards are set
forth in codes of conduct and privileges, ethics, rules of professional conduct that are established
by state bar association. The rules vary from state to state. The basic ethical professional rules
your lawyer must follow are as follows:
a) Must represent the client ethically, zealously and within the bounds of the law
b) Must competently analyze legal issues and exercise knowledge of the law applicable to
the client’s case
c) Must communicate with the client in a timely and effective manner
d) Must not create a conflict of interest
e) Must follow the client’s directions in handling your case unless they are illegal
f) Must keep the client’s personal property separate from his or her own property, and must
your money in an escrow account
g) Must return the client’s money or property when requested
h) Must keep client conversations confidential, except in specific and rare occasions
i) Must not act against the clients best interest unless he or she first obtains the clients best
interest, unless he obtains the client informed written consent
j) Must be royal to the client
If the lawyer fails to practice these rules, he or she can be disciplined by the disciplinary
committee.
The client’s duties
a) Should be truthful to his lawyer
b) Should be Cooperative with and responsive to the lawyer
c) Should be available to his lawyer and attend all legal proceedings as requested
d) The client should pay his or her legal bills in a timely manner.
Duty of an advocate to the court
An advocate is a special agent, a representative of parties, an officer of the court and public
citizen. In this position he is under a responsibility to ensure that the rule of law is upheld and
that justice is served to all who seek redress from the legal system.
The advocate’s sacred duties and position stem from the oath of office which precedes his
signing the role of advocates and admission to the bar. It also flows from his specialized training
of the law and the level of responsibility bestowed upon him as an advocate.
A substantial part of the advocate’s duties come from substantive law. However the rest flows
from the rules of ethics, conduct and etiquette promulgated by advocates themselves as
professionals within the conduct of statutory guidelines and good sense.
Duties of an advocate to court can be summarized as an obligation of honesty and directness.
The need for integrity is absolute. Lord Denning in the case of Ronder v Worsely1 highlighted
the role of an advocate to the court. He stated that as an advocate is a minister of justice who is
equal to a judge and as such has certain responsibilities.
He went on to assert that a barrister cannot choose his clients and should accept instructions from
any man who comes to court. A barrister is under a duty to defend a client to the end provided
that he is paid a proper fee or instances of dock brief a nominal fee. He also has the opinion that
the advocate’s duty to the court is paramount and that he owes allegiance to a higher cause which
according to him is the court.
The nature of those obligations was described by the House of Lords in Arthur J.S Hall and co.
v Simons2 lord hope’s comments, whilst specifically referring to advocates are of wider
application
Personal responsibility for conduct
An advocate is personally responsible for the conduct and presentation of their cases in court. He
must exercise personal judgment on the substance and purpose of statements made and questions
asked. Advocates are at all times responsible for their own in and out of court.
Duty not to give personal opinions
1
Rondel v Worsely [1967] 3 WLR 1666
Arthur Hall v Simons [2000] 3 WLR 543
2
An advocate shouldn’t assert a personal opinion on the facts or no the law. They may, however,
do so if invited to express a personal opinion by the court or if they are appearing before a
tribunal or if it is their duty to do so. Advocates should always speak in their role as advocates
and not in their personal capacities.
Duty to uphold the administration of justice
As an officer of the court, an advocate should only use proper and lawful means to promote and
protect the interests of his clients. Advocates must not knowingly mislead the court. He or she
should not fabricate evidence, coach witnesses to deceive the court or support any form of
perjury.
In Abraham v Justsun3, Lord Denning MR explained counsel’s duty as follows:
“its advocate’s duty to take any point which he believes to be fairly arguable on
behalf of his client and is only found to be guilty of misconduct if he is dishonest
and deceives the court.”
To obey Court Orders:
The advocate must maintain utmost respect for court orders. He or she needs to avoid issues
like:
i.
Obtaining and executing decrees without sending the draft to the other side for
approval- MwangiMbothu v GachiraWaitimu4
ii.
Showing the client how to circumvent Court orders and disobey injunctions as
outlined in the case of Shuck v Gemer5
3
Abraham v justsun[1963] 2 All ER 401 at p.404
MwangiMbothu v GachiraWaitimuCA (1993) Civil Application No. NAI 23
4
iii.
Obtaining ex parté injunctions without full disclosure as was the case in Tiwi Beach
Hotel v Staum6
Duty to disclose all relevant decisions
Duty not to mislead the court
Courtesy
An advocate should at all times uphold the dignity of the court through respectful conduct and
courteous speech. He should never adopt a confrontational view with the Court, even when there
is reason to believe that the judicial officer’s position is at odds with the law.
Duty to expedite proceeding
An advocate should make efforts to ensure that he or she does not waste the courts time through
unnecessary proceedings and technicalities.
An advocate should also aid in speedy decision-making by not subjecting the judge to excessive
material or more documents than strictly necessary which do not facilitate decision-making or
speedy resolution. Without detracting from his duty to his client, counsel can and should exercise
in the interests of justice as a whole a proper discretion so as not to prolong cases unnecessarily.
5
Shuck v Gemer(1846) 2 Ph 113
Tiwi Beach Hotel v Staum(1940) 2 KAR 189
6
In Ashmore v Corpn. Of Lloyd’s7 Lord Templeman said
“It is the duty of the counsel to assist the judge by simplification and concentration
and not to advance a multitude of ingenious arguments in the hope that out of ten
bad points the judge will be capable of fashioning a winner.”
Duty not to waste the courts time
Knowledge of facts assisting the opponent
Duty to comply with the court order
Respect judicial rulings which are essential to administration of justice. Failure to do so amounts
to professional misconduct.
Duty when prosecuting to act with scrupulous fairness

In criminal proceedings he should ensure that every material point is made which
supports the prosecution

When presenting evidence on behalf of the state they must do so dispassionately and with
scrupulous fairness

They shouldn’t regard themselves as appearing for a party but as representing their
interests
Ashmore v Corpn. Of Lloyd’s[1992] 1 WLR 446, at p.453
7

Should lay before the court fairly and impartially whole of facts which constitute the case
for the prosecution and should assist the court on all matters of law appropriate to the
case

Prosecution should mention all relevant facts and reveal all mitigating circumstances

They should attempt to obtain a conviction by all means at their disposal where such
means does not to give the full information concerning the facts

They should inform the courts of its sentencing powers if invited to do so. However it
appears to be in misapprehension about this powers
The goal of the legal system is basically to ensure that each party should have its own case
adjudicated, thus the advocate should therefore not release out the court statements regarding an
anticipated or impending court case. This is because such actions may improperly affect the
court by making it biased towards the accused
As prosecuting counsel an advocate should regard himself as a minister of justice with the
responsibility not only to secure connections, but to help impartially in the administration of
justice. In Enahoro v The Queen8; when the prosecuting counsel asked the court to impose a
maximum penalty the court observed that the counsel for the crown should refrain from asking
for the maximum penalty for the accused person and confine themselves to the relevant facts
such as the record of the accused and the prevalence of the offence.
An advocate should refrain from abusing the process of the court. He should follow the due
process. In Halaby v Halaby9 counsel filled an appeal knowing the grounds. He did so merely to
8
9
Enahoro v The Queen (2007) 5 ACLR 403 at 427
Halaby v Halaby (2001) 44 A.D 2d 495
delay the ends of justice. He later wished to withdraw his appeal but the court held it was abuse
of the court process hence the appeal should be struck out
Duty to the client
An advocate has a duty to protect the client’s interests and carry out his instructions by all proper
means. The advocate shall consult with his client on all the questions of doubt and shall keep the
client informed when necessary. The relationship between the client and the advocate is highly
fiduciary and it’s the duty of the advocate to fearlessly uphold the interest of the client by fair
and honorable means without regard to any unpleasant consequences to himself or any other
person.
Duty of care to client.
First it’s to ensure that their interests are not hurt in any manner by acts of omission. They should
represent the clients with no bias on the prediction of guilt as the client is innocent until proven
guilty. He shouldn’t abuse or take advantage of the confidence reposed to him by the client.
The act recognizes that an advocate may be liable to his client for negligence. Sir Kenneth
O’ConnorP expressly sets out the advocate’s duty in the conduct of litigation. In Lobo vSaleh
S. Dhiyed,10 it was stated that an advocate appealing on behalf of the client’s case is retained to
advance or defend his client’s case and not his own. He must do so strictly upon the instruction
and with a scrupulous regard to professional ethics. Remembering that he is an officer of the
court and he owes the court as well as his client.
The standard of skill and care can be expressed in a number of general obligations:
10
Lobo v. Tamco, 182 Cal. App. 4th 297 (Cal. Ct. App. 2010)

To be skilful and careful

To advice his client on all manners relevant to his retainer so far as may be reasonably
necessary

To protect the interest of his client

To carry out his client’s instructions by proper means

To consult his clients on all questions of doubt which wouldn’t fall within the express or
implied discretion left to him

To keep his clients informed to such extent as may be reasonably necessary
It should however be noted that it is not every misjudgment of an advocate that will amount to
professional negligence. In the case of Tarlochan SinhnRai v J.S Gopal & Others11 the court
considered what might constitute negligence.
Duty to make full and frank disclosure.
He must at the commencement of his engagement and during its continuation make full and
frank disclosure to his client relating to his connection with the parties, and of any interest he
may have in hand, or about the case, as is likely to affect his clients’ judgement in engaging him
on continuing the engagement
Duty to ensure no conflict of interest
If he feels that there will be a conflict of interest in filling a case on behalf of his client his duty is
to advice the client to engage some other client
11
Tarlochan Sinhn Rai v J.S Gopal & Others (2002)2 EA 537
Duty to maintain confidentiality
The relationship between the advocate and the client involves the highest degree of personal trust
and confidence. He shouldn’t disclose the communication made between him and his client
during the course of engagement unless the client expressly gives him permission to do so.
Under the Evidence Act the lawyer and advocate are privileged and imposed on a duty not to
reveal them or use them in any way to the client’s disadvantage. It’s the client who can decide
whether to waiver the privilege or not. Lawyers cannot choose to make any part of the client’s
information public even though they believe it’s the client’s best interest to do so. This duty is
strict and uncompromising.
However this privilege only applies to legal matters. In the case of Descoteaux v Mierzwinski12
an accused person made an application for legal aid, the police sought to enforce a search
warrant on the legal aid office to obtain a copy of the applicant’s form in order to establish if
there was fraud in the application. The court held that the financial privileged and the lawyer
wasn’t compelled to release it
Lawyers can disclose the information that they share with their clients to defend themselves from
cases of malpractice. In the case of Piercy v Piercy 13a client challenged a lawyer’s fees while the
matrimonial litigation was pending. In defending himself he had to diverge information about a
chosen strategy. This information came to the wife and her lawyer. The client was deemed to
have waivered his right to privilege by commencing the assessment process and therefore could
not stop his wife from using the information against him.
12
13
Descôteaux v Mierzwinski, [1982] 1 SCR 860
Piercy v Piercy (1912) 18 Cal.App.751
Lawyers can also disclose the information in order to collect fees or defend themselves against
clients who want to harass them
Duty to act only on the client’s instructions
The engagement comes to an end when the client cannot or isn’t able to give instructions because
of a mental illness or other reasons.
Duty to charge reasonable fee
An advocate must charge a fee consistent with the advocate’s act cap 16 laws of Kenya and the
advocate (remuneration) order, the advocates act14 expressly recognizes the right of an advocate
to enter into agreements with his client, with respect to remuneration. On the other hand, the
act15 provides for undercutting and it provides that this is an offense under the act.
Advocates must disclose all costs and shouldn’t accept hidden fess. Expression permission must
be obtained where an advocate has instructed someone else to get the fees.
To be zealous advocates on behalf of clients
The advocate should act as the client’s mouthpiece. He should ensure that at least the outcome of
the case should be favourable to his client. He should also have a good grasp of the law and an
ability to think on his feet. A trial advocate should as far as possible and within the bounds of the
law zealously and fearlessly defend the interests of his clients.
14
15
Section 45(1)[5] of the Advocates Act
section 36(6) of the Advocates Act
The duty of a barrister is to “promote and protect fearlessly and by all proper and lawful means
the best interests” of the client16 without regards to the barrister’s self-interest or to any personal
consequence.17 The advocate’s duties must be within the bounds of the law, as no professional
privilege exists if the actions of the advocate were to help the client in the commission of a
criminal act.18
He ought not to engage in conduct that jeopardizes the client’s interests. He should shun
mediocrity at all times regardless of the client’s status in society- financial or otherwise.
It is a duty for an advocate to defend his client.
He must do so to the conclusion of the suit even if that client fails to pay his fee. Once a suit is
concluded an advocate is permitted to sue for his fees. This is the correct procedure of dealing
with clients. An advocate should never abandon a case on the grounds that he had not been paid
his fee but as stated above must conclude the suit to its finality then sue for his fees- J.P.
Machira v Abok James Odera as per Ang’awa, J.19
Duties to Disclose and Keep client informed
The duty of keeping the client informed is an important duty and one that the surveys show is a
major reason for criticism of the profession. The duty to disclose the likely success or otherwise
of the actions that would be taken by the lawyer and alternatives that might be available could
have been given greater emphasis. This is so especially in the context that litigation should be a
remedy of last resort.
Butterworths, Halsbury’s Laws of England, vol 3(1) (2005 reissue) 3 Professional Practice and Conduct,
‘Duty to the lay client’ [510]
17
Rondel v Worsley[1969] 1 AC 191 at 227 as per Lord Reid
18
Section 134- 137, Evidence Act, Cap 80 of the Laws of Kenya
19
J.P. Machira v Abok James Odera[2006] eKLR
16
An advocate who fails to honestly disclose the true chances of success puts his interests before
those of his client as he would be seeking to earn higher fees through litigation rather than
properly advising a client on the available alternatives that may be cheaper and more
expeditious.
Loyalty
The advocate’s loyalty must be undivided. Advocates are committed to acting in the interests of
the client to the exclusion of their own interests, or the interests of any third party.
An advocate must not betray the client’s trust by misappropriating client’s money or assets. This
is expressly provided for in section 80 of the Advocates Act. The principle was also upheld in the
recent case of Kinyanjui v Republic20.
Duty to maintain clients' confidences.
The advocate-client confidentiality is protected under section 34(1) of the evidence Act which
states:
“No advocate shall at any time be permitted unless with the client’s express consent, to disclose
ant communication made to him in the course and for the purpose of his employment as such
advocate…”
The Evidence Act establishes professional privilege between an advocate and a client.21 This is
to enable the work of an advocate as an agent of the client. In Omari v Hassan22, the appellant
was convicted of murder. During trial, counsel for the accused informed the Court that the
accused person had refused to testify under oath, against his counsel’s advice. The disclosure by
20
Kinyanjui v Republic (2010) eKLR
ibid
22
Omari v Hassan (1956) 23 EACA 580
21
the advocate was held, on appeal, to be a breach of professional privilege, and the trial court
should not have allowed it to affect its mind in the deliberations.
However, this privilege is not absolute and it may be overlooked where the disclosure pertains23:
i)
any communication made in furtherance of any illegal purpose
ii)
any fact showing that a crime or fraud has been committed since the commencement
of employment of the advocate
The solicitor holds documents in the right of his client, and can assert in respect of its seizure no
greater authority than the client holds himself. In R v Peterborough Justices, ex parté Hicks,
24
some solicitors, acting on behalf of an accused person, were given documents by the accused
person, one of which was a forged document granting power of attorney to the accused. The
solicitors went to court to challenge the seizure of the document by the police, under search
warrant, claiming that the document was protected by legal privilege. It was held that as the
client possessed no legal authority to hold it, then the claim must fail.
Duty to carry out instructions
As the legal advisor, it is key that you remain in control. If in your considered opinion, the
client’s instructions are unlawful and/ or unethical, it is your duty to;
a. Advise the client accordingly, if they insist,
b. Decline to carry out the instructions
Duty to act competently and with due diligence.
23
24
An advocate is first an officer of the court, then a confidant to their client
R. v. Peterborough Justices, ex parte Hicks [1977] 1 WLR 1371, [1978] 1
Duty to act with utmost good faith.
Duty to account to the client.
This also involves giving the client good notice when opting out of service of the client, and also
refunding any moneys paid in excess of service, where necessary.
Duty to account for any moneys received on behalf of the client
Duty to advice the client of any requisite payments over and above their legal fees.
the duty to expedite proceedings
Justice delayed is justice denied. An advocate should at all times endeavor to ensure that client’s
matters are concluded in a timely fashion. He must avoid unnecessary delays which would be
prejudicial to a client’s interests.
This duty is also owed to the court.
Self-Dealing
An advocate is prohibited from what is known as self-dealing with a client. In other words, a
lawyer cannot misuse to his benefit the assets of his client.
It is a duty of an advocate acting for both parties in a transaction not to act against one for
the other
If an advocate acts for both parties in the in the same transaction, he may not act for one against
the other. This was stated by the Court of Appeal in King Woollen v Kaplan & Stratton25. The
decision was upheld by the same court in Uhuru Highway Development Ltd & 3 others v
25King Woollen v Kaplan & Stratton Civil Appeal No. 55 of 1999 (Unreported)
Central Bank of Kenya & 4 Others26, where an advocate who had acted for both parties in the
preparation of a charge was barred by the Court of Appeal from appearing as a witness for one
party against the other in an ensuing dispute before the High Court, which action was also
proscribed by the Advocates 27
Duty to the society
Advocates have a duty and responsibility to the society. Corthorn et all in their article “a
lawyer’s duty to the profession is a commitment to promote and preserve public good…that the
interest of society are advanced by the existence of a genuine legal profession rather than a legal
industry in which lawyers operate businesses in law.” They stated that the profession doesn’t
exist as of right. Lawyers are afforded privileges as part of a bargain with the society “in which
they promise conscientiously to serve the public interest, even if do so may at times be at their
very own expense.’’
Chief justice Madan Stated “the lawyer’s duty to the community and his role in national
development is higher than that of an ordinary citizen because of the lawyer’s training and
specialised knowledge.” The late Chief Justice was of the opinion that all lawyers have a duty to
assume the role of leaders in order to manage the affairs of the nation mainly because of their
legal education and the strictness of ethics which prepare lawyers for political leadership more
than other professions
26Uhuru Highway Development Ltd & 3 others v Central Bank of Kenya & 4 Others (2003) KLR
27
Rule 9 of the Advocates Act
This duty of advocates to the society is set out in the objects of the Law Society of Kenya.
Section 4 thereof provides two objects that are relevant in this regard;

To assist the government and court in all matters affecting legislation and administration
of justice in Kenya

To protect and assist the public in Kenya in all matters touching or are incidental to the
law
They are expected to provide leadership in the management of human affairs. Therefore they
should be very visible as members of this profession in the society as leaders. Lawyers must
ensure the respect and enforcement of human rights and the rule of law. In the words of Lord
Atkins “there is no other profession which has done more in the way of both effort and sacrifice
to maintain the supremacy of the law and to preserve the safeguards of liberty against any form
of invasion whether from the aristocracy of sovereign or from the domination of a class or from
the seductions and threats of a crowd.”
Article 4 of the basic principles on the role of laws adopted the 8th United Nations Congress on
the Preservation of Crimes and the treatment of offenders, it provided that “lawyers in
protecting the rights of their clients and promoting the course of justice shall seek to uphold
human rights and fundamental freedoms recognized by both the national and international laws
and shall at all times act freely and diligently in accordance with the law and recognize the
standards and ethics of the legal profession
The role of lawyers to the society can be summarised as follows;

To uphold the rule of law and to ensure respect of human rights for all. They should
promote knowledge of and inspire the rule of law and an appreciation of all people of
their rights under the law

To help ensure the existence of a reasonable legislature by ensuring a responsible
legislature elected by public process and an independent judiciary. They should always
be vigilant in the protection of civil liberties and human rights

They should be concerned with the prevalence of poverty, ignorance and inequality in
human society and they should take a leading role in providing measures which will help
eradicate these evils. Lawyers are therefore required to engage actively in the promotion
of legal aid and pro bono work providing services to the poor free of charge so that the
poor can access justice and enjoy civil rights.
Duty to the opposing counsel.
Advocates owe a duty to fellow advocates in the profession, these may be dubbed as the general
duties of good faith and courtesy. These duties extend from the pre-trial stage up to the point of
sentencing and/or acquittal. They include:
1. Advocates must not unnecessarily embarrass opposing counsel by not giving adequate
notice of one’s legal argument and authorities.
2. Advocates are advised to maintain a professional manner, and would be well advised to
remember the objectivity and detachment inherent in professionalism. They therefore
must not send correspondence to, or communicate with the opposing counsel in a manner
that is abusive, offensive, or otherwise inconsistence with the proper tone of a
professional communication.
3. An advocate also has a duty to deal promptly with communication from professional
colleagues (opposing counsel). Communications that require an answer must be answered
promptly. Similarly advocates are not permitted to communicate or to negotiate a matter
directly with any person who is represented by another lawyer except with the express
consent of the opposing counsel.
4. An advocate should not falsify evidence, meaning that he has to be truthful to the
opposing counsel. He/she should honor his/ her word. Fraudulent or deceitful conduct by
one advocate towards another will render the offending advocate liable to disciplinary
action.
5. They should not knowingly disobey an obligation under the rules of a tribunal except in
the case where it is an open refusal based on an assertion or argument that no such legal
obligation exists in the circumstances or that its unconstitutional.
6. Advocates must also not make a frivolous discovery request or fail to make diligent effort
to comply with a legally founded discovery request by an opposing party.
7. Duty to not communicate with the judicial officer without the presence of opposing
counsel, unless in circumstances allowed by the Court.
8. Advocates must specifically agree with the opposing counsel reasonable requests
concerning trial dates, adjournments, any waiver of procedural formalities and any
similar matters that do not prejudice the right of the client.
9. Duty to seek consent from opposing counsel when introducing new evidence after
substantial hearing of the case has been completed.
10. Advocates must not unlawfully obstruct another party’s access to evidence unlawfully
alter or conceal a document or other material having potential evidentiary value nor shall
he assist another person to do so
Duty to the witnesses.
An advocate should thoroughly investigate and marshal the facts; therefore an advocate may
properly interview any person, because a witness does not ‘belong’ to any party. His duties to a
witness include the following:
1. Advocates should not pay, offer to pay, or acquiesce in the payment of compensation
to a witness contingent upon the content of the witnesses’ testimony or the outcome
of the case. In addition, an advocate may advertise for witnesses to a particular event
or transaction but not for the witness to testify to a particular version that advances
his case.
2. An advocate has a duty to inform a witness about the date a case is going to be heard
promptly
3. An advocate must furnish the witnesses with the full details of the case so that their
testimony can be correct.
4. An advocate must not barger witnesses with unreasonable questions. He or she should
therefore be tactful and gentle. Sallazar v Republic28: the Court deplored an
advocate’s disrespectfulness towards witnesses and the Court at large.
28
Sallazar v Republic(2004) F Supp. 2d 105
5. He should not make baseless attacks on a client’s character. There must be sufficient
reason for attacking a witness’ character before launching such an attack29
6. Moreover, an advocate should never be unfair or abusive or inconsiderate to adverse
witnesses or opposing litigants, they should ask questions intended legitimately to
discredit the assertions of the witness, but not to insult or degrade them.
7. He should avoid any suggestion calculated to induce any witness to suppress evidence
or deviate from the truth. However an advocate may tell the witness that he or she
does not have any duty to submit to an interview or to answer questions propounded
by the opposing counsel unless required to do so by judicial or legal process.
8. The Advocate should refrain from asking indecent, scandalous, insulting or annoying
questions. The Court has discretion to restrain such questions, despite the fact that
they may reveal relevant information to the case30
9. Advocates should not suppress any evidence that the lawyer or the client has a legal
obligation to reveal or produce. Advocates should not advise or cause a person to
secrete himself or herself or to leave the jurisdiction of a tribunal for the purpose of
becoming unavailable as a witness. However, except when legally required, it is not
an advocates’ duty to disclose any evidence or the identity of any witness.
29
30
Section 158 of the Evidence Act.
Sections 159-16 of the Evidence Act.