being an advocate in Kenya

The steps required and process for admission of advocates to the bar.

Section 13 of the Advocates Act provides for the academic and professional requirements for the admission to the Kenyan bar. Section 13(1)(a) provides that one of the qualifications as any persons who has passed the relevant examinations in any recognized university or who is eligible to be conferred with a degree in law of that university. Sub-section 13(b)(i) requires anybody who is eligible to be admitted to the bar to have undertaken pupilage for a period of not exceeding eighteen months under an advocate of such class as may be prescribed. Sub-section (d) is to the effect that anybody who at the time being is an Advocate in the High Court of Tanzania and Uganda is duly qualified. However, section 13(2) bestows power to the council of legal education to exempt anyone from all or any of the above requirements.

Section 14 allows the Attorney General to take pupils. According to section 15(1)  any person whose duly qualified may apply for admission as an advocate through a petition addressed to the Chief Justice. A copy of the petition is also delivered to the secretary of the council of legal education. Sub-section (2) is to the effect that the notice in subsection (1) be exhibited publicly for one month. subsection (3) states that every petition will be heard by the Chief Justice in chambers and he is satisfied as to the moral fitness, service and qualifications of the petitioner, he shall adjourn the hearing in open court and shall order that the petitioner be admitted as an advocate. After the order has been made, the advocate is sworn in and there after he/she signs the roll of Advocates[1]. According to section 16, the custody of the roll of Advocates is vested upon the Registrar and can be inspected by anyone during office hours with no payment.

Section 10 of the Advocates Act allows an officer in the Attorney-Generals office, principal Registrar, any person holding office in a local authority and such other person who is a public officer as the AG may by notice in the Gazette may act as an Advocate in connection with duties of his office.

The Advocates rules of practice in Kenya.

The purpose of this rules is to govern the advocates practice in general and breach of this rules amounts to professional misconduct.

Ø  Undercutting: section 36 does not allow Advocates to charge less than prescribed under the remuneration order.

Ø  Sharing of profits: section 37 is to the effect that any advocate who shares profit with any person is guilty of an offence.

Ø  Employment by Advocates of persons struck-off the roll: section 41 prohibits Advocates from employing disbarred Advocates.

Ø  Offence by bodies corporate: no advocates are not allowed to join any association that does not deal with advocates. This is provide by section 43(1).

Ø  Section 31 prohibits unqualified person from acting as Advocates.

Ø   An advocate must not act in a matter which he knows that another advocate is acting or was previously on record.

Ø  An advocate should also not coach witnesses.

Complaints process for dissatisfied clients

Section 60(1) provides that a complaint against an Advocate of professional misconduct may be made to the committee by any person. Subsection (2) is to the effect that the complaint should be made inform of a affidavit and should be accompanied by such fees as prescribed by rules under section 58(6).  Subsection (3) provides for the committee to furnish the Advocate to whom the complaint has been made against with a copy of the complaint. He is also allowed to inspect the relevant document within 7 days before the hearing date is fixed.

The committee may however dismiss the case if according to its opinion the complaint does not disclose any prima facie case. Subsection (4) provides remedies which the committee may recommend which include admonishing the Advocate, suspension, striking out his name from the roll, paying of a fine not more than one million or compensating the aggrieved person a sum not exceeding five million shillings.

Disciplinary procedure for advocates.

In Kenya, the discipline of Advocates is done by the disciplinary committee and the advocates complaints commission. Section 57 establishes the disciplinary committee which consists of the AG, Solicitor-General or a person deputed by the AG, six Advocates of no less than 10 years standing. According to section 58(2), the Attorney General or Solicitor General shall be chairmen of the committee and shall preside over all meetings.

Section 58A (1) establishes Disciplinary Committees in five representative regions, other than Nairobi. Each Regional Disciplinary Committee shall have a jurisdiction concurrent to that of the Disciplinary Committee established under section 57. Under section 60A (1), the committee may hear complaint by or on behalf of the council, applications by the Complaints Commission and applications by or on behalf of any person.

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[1] Advocates Act 

NATURAL JUSTICE

Those of you who have practiced as lawyers must have come across the concept of natural justice. Of course, the laws of nature are designed to promote survival rather than justice. Nature is governed by principles such as the survival of the fittest and prevalence of might over right. When a herd leaves its weak members behind there is no question of the weak being supported or protected. Therefore, ‘natural’ justice is not justice found in nature; it is a compendium of concepts which must be naturally associated with justice, whether these concepts are incorporated in law or not. Justice is a great civilizing force. It ensures that the rule of law rather than the rules of nature prevail in regulating human conduct.

The principles of natural justice have evolved under common law as a check on the arbitrary exercise of power by the State. As the State powers have increased, taking within their ambit not just the power of governance but also activities in areas such as commerce, industry, communications and the like, it has become increasingly necessary to ensure that these powers are exercised in a just and fair manner. The common law, which is a body of unwritten laws which govern the legal systems of England, USA, Canada, Australia and other commonwealth countries including India, has responded to this need to control the exercise of State powers through applying the principles of natural justice to the exercise of such powers.

There is only one more principle that has slowly taken root as a part of natural justice. This is the principle that every decision must contain reasons for the decision. Reasons may be elaborate or may be brief. But these are beginning to be considered necessary to ensure fair decision making.

What exactly are these principles? Basically, these are principles which are necessary for a just and fair decision making. These principles are often embedded in the rules of procedure which govern the judiciary. For example, the Civil Procedure Code prescribes a detailed procedure under which the Defendant has the right to reply to the Plaint; both sides have the right to inspect the documents relied upon by the other side and both sides have the right to cross-examine one another’s witnesses. The judgment must give reasons for the decision.