The advocate-client relationship creates several rights and privileges for both the advocate and the

client, primarily stemming from the contractual, fiduciary, and agency nature of this relationship.
Nature of the Advocate-Client Relationship and its Implications:
 The advocate-client relationship can be contractual, where an advocate agrees to offer legal
services to the client through an express or implied contract. This contract, while governed by
general contract law principles, is influenced by the fiduciary nature of the relationship.
 It is also a fiduciary relationship based on the trust the client places in the advocate. This
necessitates that the advocate acts in utmost good faith and due diligence when dealing with the
client and their property.
 Furthermore, the advocate generally acts as an agent of the client in legal matters, including
receiving money and signing contracts on their behalf. As an agent, the advocate has an
obligation to disclose all information that may affect the client’s judgment.
Rights, Obligations, and Privileges of the Advocate:
 Right to Remuneration: An advocate has the right to be paid for their professional services.
This can be based on the Advocates Remuneration Order, a written agreement with the client, or
ex gratia. An advocate may take security for payment of their fees.
 Right to Charge Interest on Fees: An advocate is allowed to charge interest on their fee after
the payment deadline has passed, once the amount due is ascertained by agreement or taxation.
The current rate of interest is 14%.
 Right to Recover Fees: An advocate can sue the client for the recovery of unpaid fees after
sending a fee note and filing an Advocate-Client Bill of Costs, which is subject to taxation by
the High Court.
 Right to a Charge on Recovered Property: A court may declare an advocate entitled to a
charge on property recovered or preserved through their instrumentality for their taxed costs
related to the suit or matter.
 Right to Lien: An advocate has a lien over all papers relating to a client's affairs for their costs
until the fees are paid.
 Privilege of Non-Disclosure (Client's Privilege): While the primary obligation is
confidentiality to the client, this creates a privilege for the client. Section 134 of the Evidence
Act prohibits an advocate from disclosing any communication made to them in the course of
and for the purpose of their employment without the client's express consent. This privilege
extends even after the advocate-client relationship ceases.
 Authority to Act on Behalf of the Client: An advocate has the authority to act on behalf of
their client, which can be express or implied. In matters before the court, an advocate with
conduct of the matter may have ostensible authority to enter into a compromise or settlement
without the client's express consent, provided it is in the client's best interest and does not
diametrically oppose their instructions.
 Right to Refuse Instructions (in certain circumstances): While generally an advocate should
not refuse a brief based on personal conviction, they may decline instructions due to a conflict
of interest that would cause embarrassment to the court or prejudice the course of justice,
 especially without the client's informed written consent. An advocate may also disqualify
themselves on grounds of incompetence or conflict of interest.
Rights of the Client:
 Right to Legal Representation: The right to choose and be represented by an advocate is
constitutional.
 Right to Confidentiality: Clients have the right to expect that their advocates will maintain the
secrecy of their communications and not disclose privileged information without their consent.
 Right to Honest and Good Faith Representation: A client has the right to be represented by
their advocate with honesty and in good faith, with the advocate prioritizing the client's
interests.
 Right to Competent and Zealous Advocacy: Clients are entitled to competent and zealous
representation from their advocates, implying that only qualified individuals should practice
law. Clients can pursue legal redress against incompetent or negligent advocates.
 Right to Direct the Advocate: An advocate should generally follow the client's instructions,
though they must exercise control not to injure third parties or breach the code of ethics.
However, the advocate has control over matters before the court regarding defenses and
evidence.
 Right to Information: The advocate is supposed to inform the client about the progress of the
case and other relevant matters. As an agent, the advocate is obligated to disclose all
information that may affect the client's judgment.
 Right to Reasonable Fees: Clients are protected against being overcharged, and advocates' fees
are subject to taxation. Clients dissatisfied with a fee agreement can have it set aside or varied
by the court within a specific timeframe.
 Right to Termination of Retainer: The advocate-client relationship can be terminated by the
client.
 Right to Client Files: A client is entitled to copies of documents in their file for which they
must pay and to access their file, subject to the advocate's lien for unpaid costs and
considerations where multiple parties are involved.
 Protection Against Conflict of Interest: Clients have the right to expect their advocate to
avoid situations of conflict of interest. If a conflict arises, the advocate must withdraw unless
they obtain the client's informed consent.
It is crucial to recognize the fiduciary nature of the advocate-client relationship. This underpins many
of the rights and obligations, emphasizing the trust and confidence the client places in the advocate and
the corresponding duty of the advocate to act in the client's best interests.
The regulations concerning professional conduct and etiquette for advocates are primarily derived from
several sources outlined in the provided document, including statutes, rules, and generally accepted
standards of conduct.
Here are some key aspects of these regulations, citing the relevant legal provisions and statutes:
 General Obligation to Uphold Ethical Standards: When a person becomes a member of the
legal profession, they voluntarily submit to the rules of professional conduct. These rules
govern the behavior and business conduct of legal professionals. Prospective members are also
expected to conduct themselves in a manner that does not bring the profession into disrepute.
 Sources of Ethical Obligations: Ethical obligations in the legal profession in Kenya stem from
several sources, including the Advocates Act, rules made thereunder, the Law Society of Kenya
Digest of Professional Conduct and Etiquette, the Public Officer Ethics Act, common law, and
generally accepted standards of conduct/culture.
 Regulation by Different Bodies: The legal profession in Kenya is regulated by the Council of
Legal Education (regarding entry requirements), the Law Society of Kenya (LSK), and the
Judiciary (regarding the conduct of admitted lawyers). The LSK has an obligation to enforce
and maintain high professional and ethical standards among its members to protect the interests
of society.
 Professional Misconduct: Conducting oneself contrary to the accepted code of conduct
constitutes professional misconduct. The Advocates Act [Part VIII, ss. 36-43] has various
provisions on professional misconduct.
 Failure to Endorse Name on Instruments: Section 35 of the Advocates Act makes it
professional misconduct for an advocate to fail to endorse their name and address (or that of
their firm) on any document or instrument prepared by them.
 Prohibition Against Undercutting: Section 36 of the Advocates Act prohibits advocates from
directly or indirectly holding themselves out as being prepared to do professional business at
less than the remuneration prescribed by the Advocates Remuneration Order. Rule 3 of the
Advocates Practice Rules and rule 3(b) of the Law Society of Kenya Digest of Professional
Conduct and Etiquette also address this. Agreements to undercut are considered illegal.
 Prohibition Against Sharing Profits: Section 37 of the Advocates Act makes it an offense for
an advocate to share their professional profits with unqualified persons.
 Prohibition Against Advertising and Touting: Section 38 of the Advocates Act prohibits
direct or indirect advertising of services and fees, as well as soliciting for clients, which can
amount to professional misconduct. Rule 2 of the Advocates (Practice) Rules also states that no
advocate may directly or indirectly seek instructions for professional business in a manner that
can be reasonably regarded as touting or advertising or as calculated to attract business unfairly.
Rule 3(b) of the Law Society of Kenya Digest of Professional Conduct and Etiquette echoes
this.
 Employment of Persons Struck off the Roll or Suspended: Sections 41 and 42 of the
Advocates Act generally prohibit advocates from employing individuals whose names have
been struck off the Roll of Advocates or who are suspended, except with the written permission
of the Council of the Society under specific conditions.
  Advocates Employed by Non-Legal Employers: Rule 4 of the Law Society of Kenya Digest
of Professional Conduct and Etiquette and rule 4 of the Advocates (Practice) Rules outline
conditions for advocates working for non-legal employers, such as allowing the advocate to take
instructions from other clients and ensuring the employer does not advertise the advocate's
services. Rule 5 of the Advocates Practice Rules also prohibits such employed advocates from
drawing documents for their employer for which fees are charged to others and retained by the
employer.
 Advocate as Officer of the Court: Advocates have an ethical duty to tell judges the truth and
avoid dishonesty.
 Duty of Confidentiality: Advocates are obligated to maintain client secrets at all times, even
after the relationship ends. This is based on the fiduciary nature of the relationship and is
protected under sections 134, 135, and 136 of the Evidence Act.
 Duty to the Court: Advocates are considered trustworthy officers of the court and should stick
to the truth. Intentionally hiding the truth can lead to professional misconduct. Advocates also
have a duty not to hide any authority that may assist the adverse party.
 Professional Undertakings: Advocates are obligated to honor their promises to the adverse
party, even if not in writing. Breach of an undertaking constitutes professional misconduct.
 Acting Against Other Advocates: Rule 2 of the Law Society of Kenya Digest of Professional
Conduct and Etiquette suggests it is not right for an advocate to refuse to act in a matter merely
because the opposing party is represented by another advocate.
 Correspondence: Advocates are expected to reply to correspondence with minimal delay,
especially with other advocates and the Law Society. Failure to do so can be considered
professional misconduct.
 Client Accounts: Advocates must adhere to the detailed provisions of the Advocates (Accounts)
Rules, the Advocates (Accountant’s Certificate) Rules, and the Advocates (Deposit Interest)
Rules. Dishonoring a cheque drawn on a Client Account or failing to produce an Accountant’s
Certificate can lead to disciplinary action.
 Coaching Witnesses: Rule 10 of the Advocates (Practice) Rules prohibits coaching witnesses.
 Name and Description: Rule 11 of the Advocates (Practice) Rules restricts how an advocate or
firm can be described, generally only allowing the terms "Advocate" or "Advocates," with
exceptions for titles like "Notary Public" or "Commissioner for Oaths" if held.
 Telephone Directories: Rule 43 of the Law Society of Kenya Digest of Professional Conduct
and Etiquette states that it is objectionable for an advocate’s name to appear in heavy black type
in the telephone directory.
 Recording Telephone Conversations: Rule 44 of the Law Society of Kenya Digest of
Professional Conduct and Etiquette considers it wrong for an advocate to tape record a
telephone conversation with another advocate without their consent.
It's important to note that the Law Society of Kenya Digest of Professional Conduct and Etiquette
(2000) provides guidance on various aspects of professional conduct and etiquette and should be read
in conjunction with the Advocates (Practice) Rules, the Advocates (Accounts) Rules, and the Advocates
(Accountant’s Certificate) Rules. The Digest itself is not exhaustive, and the Council of the Law
Society can provide rulings on uncovered points.
The Advocates (Professional Conduct) Regulations, 1977 of Uganda are also included as Annexture 7.
While not directly applicable in Kenya, they offer a comparative perspective on professional conduct,
covering aspects like acting on behalf of clients, non-disclosure of client information, fiduciary
relationships, and prohibitions against unbecoming trade or advertising.
Based on the sources and our conversation history, an advocate-client relationship can be terminated in
several ways:
 Client Withdrawal of Instructions: A client has the right to withdraw their instructions
from the advocate, which effectively terminates the relationship.
 Advocate Withdrawal with Court Permission: An advocate may withdraw from
representing a client if the court duly permits it.
 Client Disregards Fee Agreement: If the client disregards an agreement or obligation
regarding the payment of the advocate’s fees and disbursements, the advocate may have
grounds to withdraw.
 Conflict of Interest: If a conflict of interest is discovered during the representation and the
client does not give informed consent, the advocate must withdraw from the representation.
 Conclusion of Retained Business: When the advocate has concluded the specific business
they were retained to perform, the relationship ends. The advocate should communicate this
to the client both orally and in writing.
 Operation of Law: The advocate-client relationship may be terminated by operation of the
law, such as if the contract becomes illegal or if one of the parties to the agreement dies.
 Client Changing Advocate: If a client changes their advocate, this is considered a breach of
the agreement between the client and the original advocate.
 Termination of General Retainer: For a general retainer, which secures an advocate's
services for ordinary non-contentious business, the retainer ends when either party gives a
notice of termination to the other party.
It is important to note that even after the termination of the advocate-client relationship, the advocate's
duty of confidentiality regarding the client's information continues.
Based on the sources provided, to qualify as an advocate and practice law in Kenya, an individual must
fulfill several key qualifications. The Advocates Act contains the rules governing these qualifications
and admission. Here are the main requirements:
 Admission as an Advocate: First and foremost, a person must be admitted as an advocate.
The conditions for admission are detailed in sections 12-15 of the Advocates Act.
 Citizenship: Generally, a person must be a Kenyan, Ugandan, or Tanzanian citizen to be
admitted as an advocate, subject to certain exceptions outlined in section 13 of the Advocates
Act.
 Academic and Professional Qualifications: To be admitted, an individual typically needs to
have:
 Obtained an LL.B. degree from a recognized Kenyan university after passing the
relevant examinations, or become eligible for its conferment.
 Alternatively, obtained an LL.B. degree from a university, university college, or other
institution approved by the Council of Legal Education (CLE) after passing the relevant
examinations, or become eligible for its conferment.
 Passed all the examinations organized by the Continuing Legal Education (CLE).
 Worked as a pupil for not less than six months under an advocate of at least five
years' standing to receive training in the practical aspects of being an advocate. This
pupilage is part of the compulsory pupilage programme supervised and controlled by the
CLE through the Kenya School of Law.
 Passed such examinations as the Council of Legal Education may prescribe (the bar
exam).
 The training to become a well-trained advocate in Kenya incorporates several
components, including doctrinal theoretical teaching, practical teaching, professional
ethics, preparation for international practice, alternative dispute resolution, and
continuing legal education courses.
 Name on the Roll of Advocates: Once admitted, the advocate's name must be entered and
maintained on the Roll of Advocates, which is a register of persons recognized to practice in
Kenya as advocates of the High Court. Section 16 of the Advocates Act governs the keeping of
this Roll.
 Possession of a Current Practicing Certificate: Finally, an advocate must have in force a
current Practicing Certificate issued by the Law Society of Kenya (LSK) upon application.
The rules regarding Practicing Certificates are found in sections 21 to 31 of the Advocates Act.
 The absence of a Practicing Certificate disqualifies an advocate from signing any legal
document or appearing in any court as an advocate.
  A Practicing Certificate takes effect from the day it is issued and cannot have
retrospective application. Failure to have a current certificate invalidates transactions
done by the advocate in their professional capacity.
 Upon issuance of a Practicing Certificate, the advocate automatically becomes a member
of the Law Society of Kenya and the Advocates Benevolent Association without any
other fee.
It's crucial to understand the distinction between a lawyer and an advocate in Kenya. A lawyer is
generally someone learned in law, often possessing an LL.B. degree or higher qualification. However,
only advocates are licensed to practice law, meaning they are allowed to offer legal advice, draft
legal documents for a cost, and have the right of audience in court. Licensing is therefore an underlying
requirement for being an advocate.
Foreign advocates from Commonwealth countries may also be admitted to practice in Kenya under
certain conditions, such as being entitled to appear before superior courts of a Commonwealth country
and not being disqualified from practice, after paying the prescribed fees and appearing with or being
instructed by specific officers.
Drawing on the provided sources and our conversation history, the salient features of the adversarial
system, as it pertains to the Kenyan legal context, include:
 Win-Lose Basis: A defining characteristic is that lawyers typically operate on a win-lose
basis, where the goal is to secure a favorable outcome for their client.
 Potential for Withholding Information: In the pursuit of winning, lawyers in an adversarial
system might be tempted to hide crucial information that they would otherwise be obligated
to disclose to the court. This highlights a potential tension between zealous advocacy and
ethical duties.
 Societal Perception of Winning and Losing: The system can lead to a societal perception
where the lawyer who wins the case is seen as victorious and highly respected, while the
losing lawyer may be viewed negatively.
 Conflict Between Moral Probity and Legal Expectations: This perception and the pressure to
win can create a conflict between a lawyer's personal moral principles and the legal
expectations of their role.
 Zealous Advocacy: Lawyers are expected to act zealously for their clients, doing everything
possible within the bounds of the law and ethics to represent their interests.
 Ethical Obligations to Other Parties: Despite the focus on the client's interests, lawyers still
have ethical obligations to other parties involved in the legal process.
 Pursuit of Truth vs. Victory: Ideally, while advocating for their clients, lawyers also have a
responsibility to promote a just and effective legal system and should be interested in the
pursuit of truth and veracity, not just achieving victory.
 Disclosure of Unfavorable Facts: An advocate is obligated to present all facts to the court,
whether or not they are favorable to their client. This is because the advocate is not a party to
the client's case and should not use unethical means to obstruct justice.
In our previous conversation, it was noted that the adversarial system in Kenya can create a difficult
situation for lawyers as they try to balance their duty to their client with their obligations to the court
and the broader administration of justice. The structure of the system, with its emphasis on winning,
can sometimes incentivize behaviors that might border on or cross the line of professional misconduct.
Based on the sources provided and our conversation history, several aspects of the legal aid system in
Kenya can be identified:
 Constitutional Right to Legal Representation: The right to legal representation is
constitutionally guaranteed. Specifically, Article 50 of the Constitution of Kenya provides
for a fair hearing for accused persons, implying the importance of legal representation.
 State-Funded Legal Representation: The Constitution recognizes the need for legal aid in
certain circumstances. An accused person has the right to be represented by an advocate
assigned to them by the State and at State expense, if substantial injustice would otherwise
result, and to be informed of this right promptly. This indicates that the state has a
responsibility to provide legal assistance in cases where a lack of representation could lead to
significant unfairness.
 Role of Civil Society Organizations: Certain civil society organizations, such as Kituo Cha
Sheria and the Federation of Women Lawyers (FIDA(K)), play a role in providing access to
justice. These organizations sensitize the society on various legal issues and, through their
advocates, even represent their clients in court. This suggests that these organizations act as
providers of legal aid to vulnerable populations.
 Law Society of Kenya's Pro Bono Scheme: The Law Society of Kenya has a scheme to assist
poor persons who cannot afford advocate fees, based on the principle that the work should be
undertaken on a pro deo basis, meaning without fee. Advocates participating in this scheme
provide their services for free to those who qualify as poor persons. This is a form of legal aid
provided by the legal profession itself. The scheme aims to help poor persons who are unable to
pay an advocate’s fee in the ordinary way.
 Advocates' Obligation for Affordable Access to Justice: While not strictly legal aid in the
sense of free or state-funded assistance, there is an expectation that advocates should contribute
to affordable and convenient access to justice by not charging exorbitant prices for their legal
services. However, advocates are also not supposed to charge less than the amount prescribed in
the Advocates (Remuneration) Order.
In summary, the legal aid system in Kenya appears to involve a constitutional right to representation
(especially in criminal cases where injustice might occur), the provision of legal services by civil
society organizations, a pro bono scheme facilitated by the Law Society of Kenya, and a general ethical
consideration for advocates to ensure affordability of legal services.
Based on the sources provided and our conversation history, there are significant consequences for an
advocate who represents a client without a current Practicing Certificate in Kenya:
 Disqualification from Practice: An advocate must have a current Practicing Certificate to
be qualified to practice law in Kenya. The absence of this certificate disqualifies the advocate
from signing any legal document or appearing in any court as an advocate.
 Invalidity of Transactions: Any actions taken by an advocate without a valid Practicing
Certificate are likely to be considered invalid. This includes signing legal documents and
representing clients in legal proceedings. The reasoning is that the failure to possess a current
Practicing Certificate is a matter of law that goes to the very root of the advocate's authority to
act.
 Incompetent Legal Documents: Legal documents signed by an advocate who does not hold a
current Practicing Certificate are deemed incompetent and cannot be relied upon in evidence.
This was affirmed in the case of Geoffrey Orao-Obura v Martha Karambu Koome, where the
Court of Appeal held that a Memorandum of Appeal signed by an advocate without a practicing
certificate was incompetent.
 No Retrospective Validation: A Practicing Certificate does not have retrospective effect.
Therefore, if an advocate acted on a client's behalf before obtaining a valid certificate, those
actions remain invalid even after the certificate is issued.
 Recall of Court Orders: As seen in the case of Belgo Holdings Limited v Esmail, court orders
obtained through the actions of an advocate without a valid practicing certificate can be
recalled by the court, regardless of the impact on the client.
 No Entitlement to Fees: An advocate who practices without a current Practicing Certificate is
not entitled to be paid for their services during that period. The failure to have a valid
certificate is not considered a mere oversight that the client should still compensate.
 Professional Misconduct and Offences: Acting as an advocate without a current Practicing
Certificate is considered an offence under the Advocates Act. Section 85 of the Act specifies a
potential fine for such conduct. Additionally, it can lead to disciplinary proceedings against the
advocate.
 Protection of Public Interest: The requirement for a Practicing Certificate is in place to
protect the public and maintain the standards of the legal profession. Public policy
demands that individuals offering legal services for a fee are properly qualified.
 Client's Awareness is Irrelevant: The validity of the advocate's actions is not dependent on
whether the client was aware that the advocate lacked a current Practicing Certificate. The
statutory requirements are mandatory.
In essence, representation by an advocate without a valid Practicing Certificate has severe legal and
professional consequences, potentially rendering all actions taken on behalf of the client invalid and
exposing the advocate to penalties and disciplinary measures. The focus of the law is on ensuring that
only duly qualified and licensed individuals provide legal services to the public.

Based on the sources provided, several specific offences can lead to penal action against the person
committing them:
Offences by Unqualified Persons Acting as Advocates:
 Acting as an Advocate When Unqualified: Any unqualified person who acts as an advocate,
causes summons or process to issue, or institutes, carries on or defends any suit in the name of
another person commits an offence. This can lead to contempt of court proceedings and
appropriate punishment. Additionally, such a person cannot maintain a suit for any costs
related to those actions. Furthermore, they are guilty of an offence punishable under the
Advocates Act.
 Wilfully Pretending to be a Qualified Advocate: An unqualified person who wilfully pretends
to be, or uses any title implying they are qualified to act as an advocate, is guilty of an offence.
 Taking Instructions or Preparing Legal Documents for a Fee: An unqualified person is
prohibited from taking instructions or drawing legal documents and from accepting any fee for
such actions. Contravention of this requirement makes them guilty of an offence pursuant to
section 34(3) of the Act, and any money received can be recovered as a civil debt.
 Omission of Name and Address on a Document: An unqualified person who draws a
document listed in section 34 of the Advocates Act without endorsing their name and address
(or firm's name and address) is guilty of an offence and liable to a fine not exceeding five
thousand shillings.
 Touting for Clients: An unqualified person who procures or attempts to procure the
employment of an advocate in consideration of a benefit to themselves, or solicits payment from
an advocate for such employment, is deemed to be a tout. While the specific penalty for touting
by an unqualified person isn't explicitly stated in this section, it is implied to be an illegal
activity.
 Enabling an Unqualified Person to Act as an Advocate: Any person who allows their name
to be used in a suit for the profit of an unqualified person, or assists an unqualified person in
contravening the Advocates Act, is guilty of an offence.
Offences and Professional Misconduct by Advocates:
 Failure to Endorse Name on an Instrument: An advocate who fails to endorse their name and
address (or firm's name and address) on documents mentioned in section 34 of the Advocates
Act is guilty of an offence and liable to a fine not exceeding five hundred shillings. This can
also be considered unprofessional conduct.
 Undercutting: An advocate who charges or accepts fees lower than the prescribed minimum
under the Advocates Remuneration Order is guilty of an offence. Agreements to undercut are
considered illegal ab initio.
  Sharing Profits with Non-Advocates: It is an offence for an advocate to share their
professional profits with any unqualified person. There are limited exceptions for paying
annuities to retired partners or employees.
 Advertising and Touting: Advocates are generally prohibited from advertising or touting for
clients in a manner calculated to attract business unfairly. Engaging in such activities can lead to
professional misconduct proceedings.
 Acting as an Agent for an Unqualified Person: An advocate who allows an unqualified
person to use their name for profit or assists an unqualified person in practicing as an advocate
is guilty of an offence.
 Employment of Persons Struck off the Roll or Suspended: Employing a person struck off the
Roll of Advocates (except those struck off at their own request with Council permission)
without informing the advocate of their disqualification is an offence for the disqualified
person, who is liable to a fine not exceeding fifty thousand shillings, or imprisonment for a
term not exceeding two years, or both. While not explicitly stated as an offence for the
advocate in this specific section, employing such a person without permission can lead to
professional misconduct proceedings.
 Breaching Professional Undertakings: Knowingly breaching the terms of a professional
undertaking is considered professional misconduct (although this specific regulation is from
the Advocates (Professional Conduct) Regulations, 1977 of Uganda, mentioned in Annexure 7).
In Kenya, advocates are held liable for their professional undertakings, even if not in writing.
Failure to act diligently before giving an undertaking can lead to consequences.
 Failure to Attend Court: Failure to attend court without a valid reason can amount to
professional misconduct and lead to disciplinary action.
 Failure to Reply to Correspondence: Neglecting to reply to correspondence, particularly with
other advocates and the Law Society, has been held to amount to professional misconduct.
 Misleading the Court: An advocate will be held guilty of professional misconduct if found to
have intentionally hidden the truth from the court.
 Breaching Rules of Professional Conduct: Generally, any act or omission that violates the
established rules of professional conduct for advocates in Kenya can lead to disciplinary
action.
It's important to note that "professional misconduct" can have various consequences, potentially
leading to sanctions such as fines, suspension from practice, or being struck off the Roll of Advocates,
depending on the severity and nature of the misconduct. The Law Society of Kenya plays a crucial role
in enforcing the code of discipline for advocates. The courts also have the jurisdiction to deal with
misconduct of advocates.
Based on the sources provided, there are strict prohibitions and regulations regarding the
advertising of legal services by advocates in Kenya. These rules aim to maintain the dignity of the
legal profession, protect the public, and prevent unfair competition.
Here are the key rules and principles regarding advertising legal services:
 General Prohibition: Advocates are not allowed to directly or indirectly advertise their
services and/or fees. They are also prohibited from directly or indirectly soliciting for clients,
as these actions amount to professional misconduct. This is explicitly stated in Rule 2 of the
Advocates (Practice) Rules, which says, "No advocate may directly or indirectly apply for
or seek instructions for professional business, or do or permit in the carrying on of his
practice any act or thing which can be reasonably regarded as touting or advertising or as
calculated to attract business unfairly".
 Rationale for Prohibition: Several reasons are advanced for regulating and prohibiting
advertising and solicitation:
 Protection of the Public: To prevent the public from being misled by unscrupulous
advocates.
 Protection Against Overreaching: To shield clients and prospective clients from
overarching by advocates.
 Protection of Professional Dignity: Advertising and price competition are seen as not
conducive to the dignity of the legal profession. Commercializing the profession
through advertising can lead to unnecessary and unhealthy competition.
 Prevention of False Promises: When advocates solicit for clients, they might engage in
false promises to secure business, ultimately harming the consumers of legal services.
 Minimizing Frivolous Litigation: The prohibition also aims at minimising frivolous
or vexatious litigation.
 Maintaining Standards: The focus should be on the quality of legal services offered,
not on attracting clients through low charges. Advertising can lead to price wars and a
potential diminution in the quality of services.
 Specific Restrictions:
 Advocates should not make publications, broadcasts, and appearances that could
reasonably be regarded as touting or advertising or calculated to attract business unfairly.
 Advocates are only allowed nameplates of reasonable size on their doors, and these
should not include slogans common in commercial advertisements. Details such as
areas of specialization or affiliations should also not be included.
 According to Rule 3 of the Law Society of Kenya Digest of Professional Conduct
and Etiquette, advocates should, as far as they can control it, not permit the press to
make reference to their professional careers or publish photographs of advocates in
wig and gown, except when appointed to an established judicial or legal office in the
service of the State.
  Advocates should not allow their name (associated with their designation) to be used
on their clients' own note-paper, except when the advocate uses that paper qua
advocate on the client's business.
 Touting: The Advocates Act specifically addresses touting. According to section 38, an
unqualified person who procures or attempts to procure the employment of an advocate for a
benefit or solicits payment from an advocate for such employment is deemed a tout. This
provision targets individuals employed to solicit clients for advocates. Rule 2 of the Advocates
(Practice) Rules also implicitly prohibits advocates from engaging in or permitting acts of
touting.
In conclusion, the rules governing the advertising of legal services in Kenya are highly restrictive,
emphasizing the professional and ethical obligations of advocates to maintain dignity and avoid unfair
means of attracting clients. The focus is on the quality of service rather than promotional activities.

Based on the sources, the Law Society of Kenya (LSK) plays a significant role in the regulation
and maintenance of standards within the legal profession in Kenya. It was formed in 1920 through
the merger of the Mombasa Law Society and the Nairobi Law Society and is currently established
under section 3 of the Law Society of Kenya Act.
Here are the key roles and functions of the LSK as described in the sources:
 Regulation of the Legal Profession: The LSK is one of the three main machineries concerned
with the regulation of the Kenyan legal profession, alongside the Council of Legal Education
and the Judiciary. It specifically regulates the conduct of lawyers once they have been
admitted to the legal profession.
 Membership: Membership to the LSK is free and mandatory for every advocate who has a
current Practicing Certificate. An advocate cannot resign their membership while holding a
current Practicing Certificate.
 Objectives: Section 4 of the Law Society of Kenya Act outlines the objectives of the LSK,
which include:
 Maintaining and improving the standards of conduct and learning of the legal
profession in Kenya.
 Facilitating the acquisition of legal knowledge by members of the legal profession
and others.
 Assisting the Government and the courts in all matters affecting legislation and the
administration and practice of the law in Kenya.
 Representing, protecting, and assisting members of the legal profession in Kenya
concerning conditions of practice and otherwise.
  Protecting and assisting the public in Kenya in all matters touching, ancillary, or
incidental to the law.
 Annual Subscription: Once an advocate becomes a member (except for honorary members),
they are required to make an annual subscription to the Society, subject to sections 27 and 28
of the Advocates Act.
 Constitutional Considerations: The mandatory membership and subscription have raised
constitutional and ethical issues, particularly concerning the freedom of assembly. The case of
Kenneth Kiplagat v the Law Society of Kenya highlighted that if compulsory fees are not used
for the objects set out in the Act, it could infringe on a member's constitutional rights.
 Independence: The LSK is expected to be independent from the Executive, the Legislature,
and the Judiciary and should remain within the objects set out in the Law Society of Kenya
Act.
 Non-Intervention in Court Proceedings: The LSK generally has no power to intervene in
proceedings before any court under its object clause, even if the parties agree.
 Regulation of Political Discussions: Neither the LSK nor its members should engage in
political discussions of the country to an extent that goes beyond its mandate. Its role is
primarily to regulate the affairs and conduct of its members, not the democratization process.
The case of Aaron Gitonga Ringera and 3 others v Paul Muite and 10 others illustrates the
court's stance against the LSK issuing political statements beyond its objectives.
 Discipline of Members: The LSK plays a major role in the discipline of members who
engage in professional misconduct and other offences. It is considered the major institution
entrusted with the enforcement of the code of discipline of advocates and has an obligation
to carry out this mandate seriously to protect the interests of society.
 Issuance of Practicing Certificates: The LSK is responsible for issuing Practicing
Certificates to advocates upon application and payment of the necessary dues. Holding a
current Practicing Certificate is one of the requirements for an advocate to be qualified to
practice law in Kenya.
 Continuing Legal Education (CLE): The Council (which has the meaning assigned to it in the
Law Society of Kenya Act) conducts and accredits CLE programs. Every member of the
Society must obtain at least five units of CLE each year, and proof of this is required for the
issuance of an annual practicing certificate.
 Recommendations for Remuneration Order: The Chief Justice makes the Advocates
(Remuneration) Order on the recommendations of the Law Society of Kenya.
In summary, the Law Society of Kenya is a crucial body in Kenya responsible for regulating the
conduct and upholding the standards of advocates, ensuring professionalism, protecting the public, and
facilitating the administration of justice within the defined objectives of the Law Society of Kenya Act.
Based on the sources, there appears to be a distinction made between "professional misconduct"
and "unprofessional conduct" within the legal profession in Kenya. However, the term "unethical
misconduct" is not explicitly defined as a separate category in the excerpts provided. Instead, the
sources discuss "unethical" conduct in a broader sense, often in relation to professional ethics.
Here's a breakdown of how the source addresses these concepts:
 Professional Misconduct:
 Chapter 8 of the Advocates Act [ss. 36-43] has various provisions on professional
misconduct, outlining conducts that are not befitting a member of the legal
profession.
 When an advocate conducts themselves in a manner contrary to the accepted code of
conduct, they are guilty of professional misconduct.
 Examples of conduct that can lead to professional misconduct, as discussed in the
provided excerpts, include:
 Prohibition against undercutting fees below the prescribed scale.
 Prohibition against sharing profits with unqualified persons.
 Prohibition against advertising and touting for clients.
 Acting as an agent for an unqualified person.
 Employment of persons struck off the Roll or suspended without permission.
 Intentionally hiding the truth.
 Breaching professional undertakings.
 Unauthorized disclosure of a client's information.
 Engaging in practices that may inflict unnecessary harm to the public.
 Refusing to take a client's brief for reasons such as personal conviction (though
this raises constitutional and ethical issues).
 Preparing or drawing legal documents without a current Practicing
Certificate.
 Failure to inform a previous advocate of a change of advocates.
 The Act prescribes procedures for raising and dealing with complaints against advocates
for professional misconduct in Parts X and XI (though these are not detailed in the
provided excerpts).
 Unprofessional Conduct:
 The source indicates that unprofessional conduct on the part of an advocate may not
necessarily lead to disciplinary action against the advocate.
 Examples of what might be referred to as unprofessional conduct include corruption,
rudeness, and disorderliness. These seem to be behaviors that are not beneficial to the
legal profession but might not be explicitly listed as grounds for disciplinary action in
the Advocates Act.
 Ethics and Unethical Conduct:
  Ethics is defined as a system of moral principles or moral rules governing the
appropriate conduct for a person or group.
 Legal ethics denotes the minimum standards of appropriate conduct within the legal
profession, involving duties to one another, clients, the court, and the public. It involves
the regulation of legal professionals in a manner that conforms to minimum moral
standards required by the legal profession.
 Unethical conduct, according to the standards of the legal profession, may not
necessarily be what is regarded as unethical in ordinary standards.
 Lawyers have fiduciary duties to their clients, which are more than mere contractual
obligations.
 Advocates are expected to behave in all cases in the spirit of the rules of the
profession, which are guiding principles for their business.
 "Unethical Misconduct":
 While the source does not explicitly define "unethical misconduct" as a distinct legal
term, it is reasonable to infer that it would likely encompass actions by an advocate that
violate the ethical principles of the legal profession.
 Given the distinction between professional misconduct (which can lead to disciplinary
action under the Advocates Act) and unprofessional conduct (which may not), "unethical
misconduct" could potentially be seen as a broader term that might include both
categories, especially if the "unprofessional" conduct also violates fundamental ethical
duties.
 It's plausible that conduct deemed "unethical" might be the underlying basis for
categorizing an action as either "professional misconduct" (if it falls under specific
prohibitions in the Act or rules) or simply "unprofessional" (if it violates broader ethical
expectations but isn't explicitly prohibited with sanctions).
In summary, the source distinguishes between "professional misconduct," which has specific
prohibitions and potential disciplinary consequences under the Advocates Act, and
"unprofessional conduct," which encompasses behaviors detrimental to the profession but may
not always lead to formal disciplinary action. The term "unethical misconduct" is not explicitly
defined but would likely refer to actions violating the ethical principles of the legal profession,
potentially overlapping with both professional and unprofessional conduct.
Based on the sources, there are three main institutions responsible for the regulation of the legal
profession in Kenya:
 The Council of Legal Education (CLE). The Council of Legal Education regulates the entry
requirements into the legal profession. This is primarily done through the Kenya School of
Law, which was established by the Council pursuant to section 6 of the Council of Legal
Education Act. The school offers postgraduate training for those seeking to join the bar as
advocates. The CLE supervises and controls the quality of legal education in Kenya and
may advise the Government on legal education matters. It is also responsible for bar
examinations and pupilage. Admission to the bar requires passing the bar exam and
undergoing a compulsory pupilage program supervised by the Council of Legal Education. The
Council may also exempt any person from some or all of the prescribed requirements for
admission under certain conditions.
 The Law Society of Kenya (LSK). The Law Society of Kenya, established under section 3 of
the Law Society of Kenya Act, regulates the conduct of lawyers once they have been
admitted to the legal profession. Membership to the LSK is free and mandatory for every
advocate who has a current Practicing Certificate. The objectives of the LSK, as outlined in
section 4 of the Law Society of Kenya Act, include maintaining and improving the standards
of conduct and learning of the legal profession. The LSK also plays a major role in the
discipline of its members who engage in professional misconduct and other offences. It is
considered the major institution entrusted with the enforcement of the code of discipline of
advocates. Additionally, the LSK is responsible for issuing Practicing Certificates to
advocates. The Chief Justice makes the Advocates (Remuneration) Order on the
recommendations of the Law Society of Kenya. The "Council" mentioned in the Advocates
(Continuing Legal Education) Regulations 2004 has the meaning assigned to it in the Law
Society of Kenya Act.
 The Judiciary. The courts have played a significant role in disciplining advocates who
engage in unprofessional and criminal or tortious conduct in their practice, especially in cases
raised by clients where advocates are found guilty. Section 31 of the Advocates Act authorizes
the court to deem certain actions as contempt of court by an advocate, which constitutes
misconduct. The Judiciary is part of the disciplinary machinery for lawyers in Kenya.
In summary, the Council of Legal Education primarily regulates entry into the legal profession
through education and examinations. The Law Society of Kenya focuses on regulating the conduct and
maintaining standards of admitted advocates, as well as handling disciplinary matters and issuing
practicing certificates. The Judiciary also plays a disciplinary role through court proceedings related to
professional misconduct.
Based on the sources provided, here is information regarding touting, types of retainers, termination of
a retainer, professional negligence, and professional undertaking:
Touting:
 Touting for clients is a form of professional misconduct that is prohibited under the
Advocates Act.
 According to section 38(1) of the Advocates Act, an unqualified person who procures or
attempts to procure the employment of an advocate in consideration of a benefit to themselves
in any suit or matter, or solicits from an advocate any payment or advantage in consideration of
such employment, is deemed to be a tout.
 The prohibition against touting aims to protect the public from being misled by unscrupulous
advocates, protect clients from overarching by advocates, protect professional dignity, and
protect the public against lay interference. It also aims at minimizing frivolous or vexatious
litigation.
 Advocates are also not allowed to directly or indirectly solicit for clients as this amounts to
professional misconduct.
Types of Retainers:
 A retainer or engagement fee is a fixed amount of money a client agrees to pay to secure a
lawyer's services. It is a separate, non-refundable payment that guarantees the lawyer will be
available if needed.
 The retainer fee does not include fees paid for the actual work done; extra fees are charged
for work like court appearances.
 The amount of retainer depends on prevailing circumstances, such as the inconvenience to the
lawyer of being available and turning away other clients. The reasonableness also depends
on the client's experience in paying retainers.
 Paying a retainer can prevent a lawyer from representing the client's competitor and ensures
the client has access to the lawyer's services when needed.
 There are five widely used forms of retainers:
 General or traditional retainer: Intended to secure an advocate's services for ordinary
non-contentious business when needed. It runs indefinitely, and the advocate may ask for
payment periodically.
 Special or specific retainer: Subsists for a specific reason, like a particular litigation.
The duration depends on how long that activity takes.
 Non-refundable retainer: (Mentioned as a type, but the source also notes the general
retainer fee is non-refundable).
 Security retainer.
 Hybrid retainer.
 A retainer is often paid in a single lump sum or on an ongoing basis (monthly or quarterly).
Termination of a Retainer:
  The duration of a retainer depends on the existence of the advocate-client relationship.
 A general retainer ends when either party gives a notice for termination to the other party.
 The retainer may also be terminated by operation of law, such as when the contract becomes
illegal or one of the parties dies.
 When an advocate has concluded the business they were retained to perform, they should
communicate this to the client both orally and in writing, clearly indicating they are no longer
obligated for that client. This avoids potential confusion.
Professional Negligence:
 The law of tort places an obligation on the advocate to take reasonable care when dealing
with the client. This duty of care arises from the fiduciary nature of the advocate-client
relationship.
 A client may institute a claim for negligence where the advocate fails to use reasonable care
and skill.
 However, not all negligent practice by advocates results in claims for negligence. An advocate
will be held liable only where their conduct causes damage which results in the client's loss.
 The best practice is for the advocate to exercise due diligence when dealing with the client to
avoid such claims.
 Proof of a duty of care is intertwined with proof of the existence of the advocate-client
relationship.
 An advocate is obligated to offer correct legal advice to their client and can be held liable for
incorrect advice if the client acts on it to their detriment.
 Mistakes by an advocate due to incompetence or ineffectiveness can have disastrous
implications for the client, leading to financial and time loss, giving the client a right to legal
redress.
Professional Undertaking:
 A professional undertaking is any unequivocal declaration by a professional (an advocate
or their staff) in the course of practice to someone who reasonably places reliance on it. An
undertaking by an advocate themselves need not be in the course of practice.
 An undertaking can be made orally or in writing, as long as it is unequivocal and
unambiguous.
 Once made, an undertaking binds an advocate at a personal level and creates an obligation
that must be upheld. This obligation follows the advocate even if they move to another law firm.
 Where an advocate makes an undertaking on behalf of a client, they will be bound even if the
client later changes their mind. An advocate cannot qualify a clear and binding undertaking due
to accounting disputes between parties.
 Advocates must act with due diligence and obtain very clear instructions from their clients
before making a professional undertaking on their behalf. Failure to do so means they must
take the consequences.
 Breach of a professional undertaking constitutes professional misconduct.
 The case of Kenya Reinsurance Corporation v Muriu illustrates that an advocate who gives a
solemn professional undertaking to pay a certain sum is bound by it and cannot resile from it.
Reliance on the undertaking by the other party creates an expectation that must be honored.