THE RIGHTS, PRIVILEGE AND OBLIGATIONS OF AN ADVOCATE

1. INTRODUCTION:
 Advocates are human beings. They are entitled to all human rights as stipulated in Chapter 4 of the
Constitution of Kenya, 2010.1 These rights, inter alia, include:
a) Right to life h) Equality and freedom from discrimination
b) Privacy i) Freedom of conscience and religion, believe and opinion
c) Freedom of expression j) Freedom of the media
d) Access to information k) Fair hearing
e) fair administrative action l) Freedom of movement
f) Freedom of security to the person, slavery, servitude and forced labour
g) freedom of association, political rights, access to justice.
 The other rights of advocates include:
a) Rights of audience in the Courts
b) Right to represent clients of choice
c) Right to be heard in all Courts and Tribunals
d) Right to be represented in any Court of law or Tribunal
e) Disclosure of information: Section 134-137 of the Evidence Act, Cap 80 provides that there can be no
disclosure of communication with client except with express consent of client, or contents of any
document except for illegal activities, in case of fraud. The protection extends even after employment
of an advocate has ceased. The clerks, interpreters of advocates are also included in Section 134. There
can only be waiver of that privilege in case of being a witness in a case.
 Privilege is a doctrine that protects specific categories of information from disclosure in Court. In R. v.
Gruenke,2 it was held that privilege operates as a rule of evidence to exclude relevant information from
consideration by decision makers: If the aim of the trial process is the search for truth, the public and the
judicial system must have the right to any and all relevant information in order that justice be rendered.
Accordingly, relevant information is presumptively admissible.

UNQUALIFIED PERSONS ACTING AS ADVOCATES

1. INTRODUCTION:
 The provisions of Sections 9-13 of the Advocates Act, Cap 16 are absolute and as such any person who
purports to practice law as an advocate without complying with the said provisions will be held liable for
acting as an advocate when unqualified.
 No unqualified person shall act as an advocate: Section 31(1) of the Act provides that Subject to Section
833, no unqualified person shall act as an advocate, or as such cause any summons or other process to issue,

1
There are however instances where advocates rights have been violated i.e., Willie Kimani’s case.
2
[1991] 3 S.C.R. 263.
3
Section 83 provides in this regard that “[Nothing] in this Act or any rules made there under shall affect the provisions of any other written law
empowering any unqualified person to conduct, defend or otherwise act in relation to any legal proceedings.”
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
1
 or institute, carry on or defend any suit or other proceedings in the name of any other person in any Court
of civil or criminal jurisdiction.
 Consequences for acting as unqualified advocate: Section 31(2) of the Act highlights three consequences
for contravening the subsection. These are:
i. It may attract contempt of Court proceedings and appropriate punishment awarded against any person
who contravenes it.
ii. Any person who so acts shall be incapable of maintaining any suit for any costs in respect of anything
done by him in the course of so acting.
iii. Such a person shall be guilty of an offence punishable under Section 85 of the Act i.e., s/he shall be
liable to a fine not exceeding Ksh.100,000, or to imprisonment for a term not exceeding 2 years, or
both.
 Unqualified person not to prepare certain documents or instruments: Section 34 of the Act provides
that no unqualified person shall, either directly or indirectly, take instructions, or draw, or prepare any
document or instrument:
a) relating to the conveyancing of property; or
b) for, or in relation to, the formation of any Limited Liability Company, whether private or public; or
c) for, or in relation to, an agreement of partnership or the dissolution thereof; or
d) for the purpose of filing or opposing a grant of probate or letters of administration; or
e) for which a fee is prescribed by any order made by the Chief Justice under Section 44; or
f) relating to any other legal proceedings;
nor shall any such person accept or receive, directly or indirectly, any fee, gain or reward for the taking
of any such instruction or for the drawing or preparation of any such document or instrument: Provided
that this subsection shall not apply to:
i. any public officer drawing or preparing documents or instruments in the course of his duty; or
ii. any person employed by an advocate and acting within the scope of that employment; or
iii. any person employed merely to engross any document or instrument.
Any money received by an unqualified person in contravention of this section may be recovered by the
person by whom the same was paid as a civil debt recoverable summarily.
Second, it may be argued that Section 34 was intended to protect the public as well as the legal profession
and the course of justice. The section protects the public from unqualified persons acting as advocates
because public policy demands that people who deal with the public should be appropriately qualified
before they can offer services at a fee.
 Advocate not to act as agent for unqualified person: Section 39 of the Act provides that any advocate
who acts as agent in any suit, or in any matter in bankruptcy, for any unqualified person, or permits his
name, or that of any firm of which he is a partner, to be made use of in any such suit or matter, upon the
account or for the profit of any unqualified person, or who does any other act enabling an unqualified
person to appear, act or practise in any respect as an advocate in such suit shall be guilty of an offence.

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi.
2
  No costs recoverable where unqualified person acts as advocate: Section 40 of the Act provides that no
costs in respect of anything done by an unqualified person in contravention of this Part shall be recoverable
in any suit or matter by any person.
 When to practice on own behalf: The Advocates Act and the Council of Legal Education Act are clear on
when a newly admitted advocate is allowed to practice on his/her own. Accordingly, even after getting a
practice certificate, an advocate is not supposed to engage in practice on his own behalf either full-time or
part time unless he has practised in Kenya continuously on a full-time basis for a period of not less than 2
years after obtaining the first practising certificate in a salaried post either as an employee in the office of
the Attorney-General, or an organization approved by the Council of Legal Education, or of an advocate
who has been engaged in continuous full-time private practice on his own behalf in Kenya for a period of
not less than five years.4 The rationale for this requirement is malti-faceted. First, it helps to protect the
public from unqualified persons purporting to practice law and second, to protect the professional
standards. The period of 2 years may be served under more than one employer. Nonetheless, the cumulative
period must add up to 2 years before a certificate of compliance is issuable.
 Name and address of the drawer of a document or an instrument: Under Section 35(1) of the Act,
every advocate who prepares a document must have their name and address be entered on that document
for record purposes and any person omitting so to do shall be guilty of an offence and liable to a fine not
exceeding Ksh.5000 in the case of an unqualified person, or a fine not exceeding Ksh.500 in the case of an
advocate.
RETAINER5
1. INTRODUCTION:
 Retainer refers to ‘legal fees paid in advance’ by a client for ‘unrendered services.’
 Modes of a retainer: Retainer services fall between a ‘one-time contract’ and ‘full-time employment.’
Additional contracts regarding the performance of this work may also apply.
 The purpose of a retainer fee is to ensure payment for future services or work to be rendered.
2. NATURE OF A RETAINER:
 A retainer can be:
a) a single advance payment or a recurring (e.g., monthly) payment;
b) a fixed pre-negotiated rate, or on a variable hourly rate depending on the nature of retainer and also,
the practice of the lawyer/advocate being retained;
c) refundable if the work is not performed.
 An advocate is an agent of his client: Under the Civil Procedure Rules, 2010 an Advocate who is on record
is considered to be the party’s advocate to the final conclusion of a matter including any review or appeal.
While retained as such he is authorized to:
a) accept service of all documents which are not in all required to be served personally upon his client;
b) make formal written admissions in the course of proceedings for the purpose of those proceedings;

4
Section 32(1), the Advocates Act, Cap 16. See, Mohammed Ashraf Sadique & another v. Matthew Oseko T/A Oseko & Co Advocates.
5
October 2017: Discuss in detail the concept of retainer in the legal profession.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
3
 c) bind his client by a compromise of existing proceedings on terms which do not involve extraneous
matters, unless the client has limited his authority and has communicated that limitation to the other
side, and subject to discretionary power of the Court;
d) make an order is required;
e) inquire into the circumstances and grant or withhold its intervention as it thinks fit, and subject also to
the disability of the client;
f) defer the action;
g) receive payment of debt, damages, or costs except when the client or litigant is under disability, or the
money is to be paid into Court, or to a particular person;
h) act as the client’s authorized agent in all matters which may reasonably be expected to arise for
decision in the proceedings.
 The conduct of an advocate under the retainer will be governed by the Advocates Act, Cap. 16. The Act
provides that a client includes any person who, as a principal or on behalf of another, or as a trustee or
personal representative, or in any other capacity, has power, express or implied, to retain or employ, and
retains or employs, or is about to retain or employ an advocate and any person who is or may be liable to
pay to an advocate any costs.
 Contractual relationship: The retainer creates a contractual relationship between an advocate and the client
irrespective of whether two or more clients are involved. That is to say that the relationship is not
‘tripartite.’ Each client has a separate retainer relationship with the common advocate.
 Arbitration clause: A retainer agreement may contain an arbitration provision covering malpractice claims
as long as the client is fully informed of the provision's effect and is advised to seek independent legal
advice.
 A retainer can come into being by operation of law: Where the law demands that one takes up a pauper
brief- this is retainer by operation of law.
3. ACTING FOR TWO OR MORE CLIENTS:
 Once the retainer is established the general principle is that an advocate should not accept instructions to
act for two or more clients where there is a conflict of interests between those clients as was in the case of
King Woolen Mills and Another v. Kaplan and Stratton Advocates. 6
 In cases where an advocate is retained by two parties as a common advocate each client has a separate
retainer relationship: with the common advocate so that the advocate cannot act for one of them in
enforcing certain obligations against the other since such advocate would already have obtained relevant
knowledge that may be detrimental to the other party’s case.
 Duty not to disclose: The fiduciary relationship created by the retainer between client and advocate
demands that the knowledge acquired by the advocate while acting for the client be treated as confidential
and should not be disclosed to anyone else without that client’s consent. This principle exists even where

6
Nairobi Civil Appeal No.55 of 1993.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
4
 an advocate acts for more than one parties as a common advocate and continues long after the matter for
which the retainer was created has been concluded.
 The general principle: is that once the solicitor has acted for a client, he should never act for the client or
opponent client in a subsequent litigation arising from the transaction or subject matter for which he had
acted for the client.
4. FACTORS TO CONSIDER BEFORE SIGNING A RETAINER:
a) Always be in writing: Oral agreements are common, even though ethical rules in many jurisdictions
prohibit or discourage them. Such agreements can lead to a “he said, she said” dispute. Sometimes a lawyer
will deny the existence of an attorney-client relationship if there is no formal written retainer agreement.
Without a written agreement one risks having no attorney and no recourse for an attorney error, even if s/he
has already paid.
b) Contain a statement that the firm has conducted a search for conflicts of interest: and either there are
no conflicts, or appropriate parties, including the client, have been advised of potential conflicts and waived
them. For large engagements, it is prudent to have the retainer agreement or some other writing specify the
steps taken to ensure a conflict-free representation.
c) Contain an estimation of all fees necessary to undertake the engagement: In fixed fee cases, this
provision should specify the terms and timing of compensation. For hourly fees, the agreement should
estimate fees and identify any external factors which may increase or decrease the estimated amount. If
there is a separate budget for the case, the retainer agreement should refer to and incorporate the budget.
d) Specify the scope of the engagement: If the lawyer is being hired to prosecute a civil case, specify
whether the engagement covers appellate work, or legal work to enforce the judgment. This is especially
important in work undertaken for a fixed fee, where attorneys will have an interest in limiting the scope of
the engagement, while clients will have an interest in expanding the scope. The agreement should identify
precisely who will work on the case, what s/he will do, and at what rates. The agreement should also note
that subsequent staffing changes will only occur with client consent.
e) Specify the goals of the engagement: If the subject of a retainer agreement is litigation, the goal may be
an early, favorable settlement, or victory by summary judgment. The agreement should make clear that the
goals are not guaranteed.
f) Identify favored methods of communication: Since failures in communication are arguably the most
common source of attorney-client friction, it makes sense to address effective communication at the
inception of the attorney-client relationship. Phone calls are still the number one way to communicate, but
these days many prefer e-mail for day-to-day communications. Keep a record of all communications with
the client and reduce any oral communications into writing for ease of reference.
g) Specify that any disputes between attorney and client should be referred in the first instance to non-
binding mediation or arbitration: An advocate should not sign an agreement that extinguishes the
client’s right to go to Court or to have a jury trial nor should s/he ask clients to settle disputes in Court. Let
the Court be the last place to go in the event of a dispute with a client.

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi.
5
 h) Specify that the client controls the matter and must be consulted on all major decisions going
forward: An advocate can define “major decisions” as specifically as one wishes. For instance, in the
litigation context, clients should require informed consent for all substantial motions, legal research
projects, additions to staff, out-of-town travel, settlement offers, and engagements of experts or consultants.
Since clients have the right to provide lawful instructions to their counsel at any time during the course of
the representation, an advocate can amend instructions after the retainer agreement has been signed.
i) Specify the client’s right to terminate the attorney: and detail the attorney’s obligations after
termination. These obligations should include retaining the file for a number of years, and offering to copy
the file (at the client’s expense) for the client and/or incoming counsel.
5. RETAINERS BY SPECIAL PERSONS: They include:
a) Minors: They defend through guards and sue through next of kin.
b) Persons of unsound mind: Presumption of insanity is important.
c) Poor persons: This is through pauper briefs
d) Unincorporated bodies: The fees for incorporation to be paid by the promoters.
e) Companies: Depends on articles of association. A company cannot enter into contracts unless incorporated.
f) Trustees, executors and liquidators: They can appoint an advocate in the usual way. Trustees are personally
liable for the costs and can pay from the proceeds of the trust property.
g) Receivers: They may appoint an advocate and personally liable .can look into the assets of the company for
costs.
h) Partnerships: The partners may be liable on a retainer given by one of them for business.
i) Agents: Agents can only retain on behalf of the principal if they have actual authority and upon ratification
by the principal otherwise one can seek to be indemnified by the agent.
j) Persons with conflicting interests: An advocate not to represent such persons. S/he should instead advice
the client to seek for alternative representation.
In Muriithi Kireria & Associates Advocates v. Kenya Planters Co-operative Union Limited, [2017] eKLR, the
Union contended that there had never existed any advocate-client relationship between it and the advocate. The
Union asserted that it had by a resolution made on 7 th August 2012 only retained Senior Counsel Paul Muite to
act generally for the union in active cases pending in Court. By the same resolution, the union also resolved that
the Senior Counsel could engage junior counsel(s) in matters involving the union, the legal fees payable to both
the lead counsel and junior counsel would be agreed upon on ‘a brief by brief basis.’ On behalf of the Union,
Mr. Ongegu who appeared in for Mr. O. Obar’s stead urged that in the absence of a clear retainer, the advocate
could not file an advocate-client’s Bill of Costs. In the instant case, the retainer was with Paul Muite and the
Union would have had no problem if the Senior Counsel was the one who had filed the Bill of Costs. Mr.
Ongegu also relied on the case of Bugerere Coffee Growers Ltd. v. Sebaduka, [1970] EA 147 for the
proposition that where a retainer was disputed involving a company, the advocate needed to avail evidence in
the form of a minute book or resolution by either the company or its directors authorizing his firm or the
advocate to act for the company. He thus urged the Court to strike out the Bill of Costs as the advocate had
shown that a retainer existed. The Court held that:
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
6
 I return the verdict that a retainer existed between the advocate and the Union. I have found no evidence to
displace it. Existence of a retainer entitles an advocate to earn fees and be paid by the client for work done
and I have found for the advocate in this case. I consequently see no reason why the advocate-client Bill of
Costs should not go through a detailed assessment by the Deputy Registrar. The application by the Union to
stay proceedings will be and is hereby dismissed.
6. DURATION OF A RETAINER:
 An advocate can be retained and remunerated by way of salary until the conclusion of the matter for which
s/he is retained.
 An advocate’s independence would be interfered with if one client retained him for an extended period for
no known or particular cause. The advocate then has to act in such a manner that he is never in conflict
with the interest of that particular client.
7. TERMINATION OF A RETAINER: This can be through:
a) Notice in writing7; h) loss of capacity
b) a Court order i) frustration of the contract
c) lapse of time frame in which legal services were engaged j) death of a client
d) fraud k) declaration of bankruptcy
e) a clent’s intentions l) completion of business
f) change of advocates m) withdrawal
g) insanity of the client or the advocate
8. TAXATION OF BILL OF COST WHEN THERE IS A DISPUTE AS REGARDS RETAINER:
 In Mbugua & Mbugua Advocates v. Kenindia Assurance Co. Ltd.,8 the issue was as to whether a dispute as
to retainer can be a bar to taxation of a Bill of Costs? The respondent submitted that a dispute as to retainer
is not a bar to taxation. Section 51(2) of the Advocates Act stating that taxation can proceed and certificate
of taxation issued by a taxing officer even where an advocate’s retainer is disputed. The Court held that
there was a retainer in this case and the respondent was therefore entitled to his instruction fees and
disbursements that remain unsettled by the client, and that an advocate who has rendered services for the
client as instructed, should be remunerated and not impoverished. In the premise, the Court directed the
taxing officer to tax the advocate client Bill of Costs in accordance with the laid down principles for
taxation of an advocate-client bills of costs.
 Time-barred: In Abincha & Co Advocates v. Trident Insurance Co Ltd.,9 the issue was whether an
advocate’s Bill of Costs was time-barred under the Limitation of Actions Act? An advocate’s claim for costs
would be based on the contract for professional services between him and his client. An action to recover
such costs would be subject to the limitation period set out in Section 4(1)(a) of the Limitation of Actions
Act.10 Solicitor’s costs: If a solicitor sues for his costs in an action, the Statute of limitation only begins to

7
See, Mercy Nduta Mwangi t/a Mwangi Kengara & Company Advocates v. Invesco Assurance Company Limited [2016] eKLR.
8
[2015] eKLR.
9
[2013].
10
Section 4(1) of the limitation of Actions Act in this regard provides that: The following actions may not be brought after the end of six years
from the date on which the cause of action accrued:
a) actions founded on contract;
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
7
 run from the date of termination of the lawful ending of the retainer of the solicitor. If there is an appeal
from the judgment in the action, time does not begin to run against the solicitor, if he continues to act as
such, until the appeal is decided. If judgment has been given and there is no appeal, time runs from the
judgment, and subsequent items of costs incidental to the business of the action will not take the earlier
items out of the statute. In respect of miscellaneous work done by a solicitor, time under statutory limitation
begins to run from the completion of the whole of each piece of work. A solicitor cannot sue a client for
costs until the expiration of one month after delivery of a signed bill, but nevertheless time runs against a
solicitor from the completion of the work and not from the delivery of the bill.
 Termination of retainer needs to be in writing: In Mercy Nduta Mwangi t/a Mwangi Kengara & Company
Advocates v. Invesco Assurance Company Limited, [2016] eKLR, the respondent’s submissions on the
issue of limitation of time was that there was no letter terminating the retainer, or evidence of when
judgment was entered in the primary cause in Stella Mutabe Ndumi v. Kimeu Mula,11 or a notice of change
of advocate duly filed in Court and served upon the advocate's Law Firm. The Court held that a perusal of
the Bill of Costs showed that the last service delivered by the respondent before the filing of the Bill of
Costs was on 20th July 2005 when the respondent sought instruction fees for defending the applicant in
Stella Mutabe Ndumi case. The Bill of Costs was filed on 26th October 2015, ten years later. However, the
applicant did not bring any evidence of the end of the respondent’s retainer in this respect, or evidence of
when judgment was entered in the primary cause. For that reason, the Court did not find that that the Bill of
Costs filed by the respondent was time-barred.
9. EFFECTS OF TERMINATION OF A RETAINER:
 Right to recover retainer fee: Section 45(5) of the Evidence Act, Cap 80 provides that an advocate who is a
party to a retainer agreement and who has acted diligently for the client is entitled to sue and recover for the
whole retainer fee should his client default in payment thereof. As long as the advocate has been diligent,
his entitlement to the fixed sum is so outright that he need not tax his costs nor give statutory notice to the
client prior to his pursuit of the said fee. Consequently, it behooves such advocate to ensure that the retainer
agreement once made, is reduced into writing.
 Right to terminate retainer: In Richard Buxton (Solicitors) v. Mills-Owens,12 the Court held that solicitors
should not terminate their retainers, leaving their clients with the task of finding fresh solicitors to complete
the job.
10. AUTHORITY ON DOCUMENTS AFTER TERMINATION OF RETAINER:
Where a client terminates the retainer, an advocate should do the following:
a) Determine whether or not the client is retaining new counsel.
b) Prepare a final bill for the client in order to settle accounts (whether the client owes you money, or you are
required to refund money to the client).

b) actions to enforce recognizance;

c) actions to enforce an award;
d) actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written
law.
11
Kithimani RMCC N0.135 of 2004.
12
[2010] EWCA Civ 122.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
8
 c) Remind the client of limitations or deadlines that might affect the client’s legal rights or obligations.
d) Suggest that the client instruct new counsel.
e) Arrange for the transfer of client’s property to the client or his new counsel.
f) Confirm your communications in writing.
Where an advocate terminates the retainer, s/he should do the following:
If a lawyer withdraws from a file, or is discharged, they must do the following;
i. Give the client reasonable notice: This will allow the client time to make alternate arrangements for
representation, and reduces the chance that the client will feel abandoned.
ii. Remind the client of important dates: For instance, limitation dates, trial dates, examinations for discovery.
If you have not provided the client with a roadmap, advise the client of these matters so that the client can
take proper steps to protect his or her rights, or meet obligations. However, if you have already provided
the client with a roadmap, this will amount to confirming what you have already told them.
iii. Give a final reporting letter which would confirm the result: and remind the client that s/he will have to
take steps to collect on the judgment.
iv. Using a model client survey: can be helpful to track the efficacy of your client communication skills and
help you identify strengths and weaknesses in your practice.
v. You might wish to provide the client with the survey at the beginning of the retainer: and ask them to fill it
out when the work has been completed. This approach lets the client know that you are interested in
communicating effectively, and that you value their feedback. It might also allow the client to alert you to
points of strength, or areas of concern, earlier in the relationship.
vi. Copies of documents: When you transfer a file, make copies of the content, as you may be required to prove
that a bill is fair and reasonable. It is also important to keep copies of core materials as they can be used to
defend against future claims a client might make regarding the services you provided.
vii. Liens to secure payment: While a lawyer may assert a lien on a file, the Court may order the file to be
delivered to the client. This is meant to protect a client from injury. 13
11. GUIDE TO DOCUMENTS HELD IN A RETAINER: Documents:
a) prepared by the solicitor for the benefit of the client: and which may be said to have been paid for the
client, belong to the client.
b) prepared by the solicitor for his own benefit as protection: the preparation of which is not regarded as an
item chargeable against the client, belong to the solicitor.
c) sent by the client to the solicitor during the course of the retainer: the property in which was intended at the
date of dispatch to pass from the client to the solicitor, e.g., letters, belong to the solicitor.
d) prepared by a third party: during the course of the retainer and sent to the solicitor (other than at the
solicitor's expense), e.g., letters belong to the client.
In McInerney v. Macdonald, a patient requested copies of the contents of her medical file from her doctor.
The doctor delivered copies of the records that she had prepared herself, but refused to produce copies of
reports and records that she had received from other doctors who had treated the patient. She took the

13
Re Galland, (1885), 31 Ch. D. 296 (C.A.)
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
9
 position that those records were the property of those other doctors. The Supreme Court of Canada held
that the relationship between the doctor and patient is a fiduciary relationship. Information revealed to the
doctor in his/her professional capacity is held in a manner somewhat similar to a trust. While the doctor
owns the actual medical records, the information is to be used by the doctor for the benefit of the patient.
Generally a patient is entitled to reasonable access to examine and copy all information in the patient's
medical file which the doctor considered in administering advice or treatment provided that the patient pays
a legitimate fee for the preparation and reproduction of the information.
12. DISABILITIES OF AN ADVOCATE IN A RETAINER AGREEMENT:
 Fiduciary relationship of client and advocate: Utmost good faith must exist between an advocate and his
client. It is a fiduciary relationship. An advocate must seek to give disinterested advice at all times and that
is why s/he act for more than one client at a time. This disability continues even after cessation of the
relationship or demise of the client.
 Purchase by an advocate from the client: An advocate is not allowed to make a purchase from their
client when retained as such, but it will be open to one to show that the bargain entered between one and
their client is as good a bargain as would be entered with any other party. If one is selling to their client, the
same role applies.
 Loans by an advocate to his client: The general rule is that an advocate should never borrow money from
his client when on retainer. One can only borrow from their client if there is no one else to borrow from and
at their costs. If the client wants security, one must give them adequate security. In Norton v. Ashburton, it
was held that one may lend money to the client and take security upon the loan. However, it is not
encouraged. Instead, an advocate should advise the client on where to go to obtain the facilities.
 Gifts to the advocate by the client: An advocate is properly entitled to his fees. One can only ask their
client to donate to their favourite charity. Any gift one is given, it is open to the Deputy Registrar to include
the value of that gift in the amounts to be taxed off. This rule applies in retainer agreement.
 Bequest and devices to advocate from client: If one is instructed to procure a Will and the client
intimates that they want to leave something for you, one must cease to take instructions and advice the
client to get another lawyer. The advocate may be accused of having undue influence over the client and
therefore it would not be proper to act for the testator. An advocate who is independent must draw the will.
 Advocate as an agent in a purchase: Where advocates are agents for clients in transactions, an advocate
cannot purchase from the client and make a profit from the resale. If one does that, the profits are due to the
client. An advocate is only entitled to the commission that has been negotiated as a retainer as an agent.
 Costs: An advocate is entitled to take security for costs due. This is an area that is quite troublesome in that
it becomes difficult to realise security for costs where it can be shown that the security was way above the
fees due under the retainer. An advocate should not have an interest in the subject matter of the suit.
 Sureties: An advocate should never be a surety for their client at any time. Even if on retainer.
 Affidavits: It is not open to the advocate to cause an affidavit to be drawn that contains untruths. An
affidavit must be very clear as to what has to be substantiated. An advocate should always shun swearing

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi.
10
 any affidavit on behalf of the client, unless they are deponing to matters that are within their knowledge.
An advocate must not file affidavits that they are aware contain untruths.
LIEN
1. INTRODUCTION:
 Lien is a legal claim. A charge upon real or personal property for the satisfaction of some debt or duty, A
right in one to control or hold and retain the property of another until some claim of the former is paid or
satisfied.
 What is the nature of the right that an advocate can exercise lien over? The right attaches, deeds, papers and
other personal properties which come into possession of an advocate in the cause of professional
employment with the sanction of the client and are the client’s property i.e., letters of administration,
money, insurance policy, etc.
2. CONDITIONS IN EXERCISE OF THE RIGHT TO LEIN:
One must be careful when determining if they are in a possession to exercise lien over client property. As
such, the following must be taken into account:
a) The property must be delivered to the advocate: in respect of whose bill is to be paid. The bill is what gives
the advocate the right to exercise lien.
b) The advocate must have received the document or property in his professional character: If he receives the
property for example as a trustee, he cannot exercise lien, it has to be in his professional capacity. As
against the trust, an advocate can exercise lien over documents in his possession.
c) An advocate cannot exercise a right of lien in a clients’ representative action: when claiming fees from
those who have not paid. If the majority have paid, an advocate must release the documents. On the other
hand, if it is the majority who have not paid, the Court will order that they pay and the advocate has right to
lien over their documents.
d) The client has no right to the deeds or documents that are being held.
3. LIMITATIONS TO LIEN:
 Delivery of documents will be ordered where payment of an advocates’ costs are secured.
 If one has security for costs, they cannot exercise a lien. Delivery will also be ordered where the interest in
the documents may be injured or lost through exercise of the lien.
 No advocate can create a lien beyond his or her interest. This means that under limitations if a client
delivers documents where their interests are limited an advocate can only exercise lien to the limits of the
interests of the client.
 In a mortgagor/mortgagee where an advocate acts for both parties he cannot exercise lien over the same
documents as against the mortgagee for costs that are due from the mortgagor. This explains the general
rule of where a person is exercising greater title they are entitled to the documents. In this case you have to
give the documents to the mortgagee coz his interests are greater than those of the mortgagor.
4. TYPES OF LIEN:
a) Common law lien
b) Statutory lien
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
11
 c) Retaining lien: Also referred to as ‘General lien’ is founded on the general law of lien, which springs from
possession. It is a right at common law depending on the implied agreement.
d) Specific lien.
5. WHAT IS SECURED BY A LIEN?
 Costs: Lien is limited to costs on work done in respect of a particular matter. These are taxable costs
charges incurred by an advocate for his client.
 An unqualified person cannot exercise lien as he is not entitled to fees
 The personal representatives of a deceased advocate have a right to exercise lien. This would be for costs
due to the estate.14
6. PROVISIONS ON LIEN:
a) Power of the Court to order advocate to deliver his bill and deed: Section 47 of the Advocates Act, Cap
16 provides that the jurisdiction of the Court to make orders for the delivery by an advocate of a Bill of
Costs, and for the delivery of deeds, documents or papers in his possession, custody or power, is hereby
declared to extend to cases in which no business has been done by him in the Court.
b) Action for recovery of costs: Section 48 of the Act also provides that no suit shall be brought for the
recovery of any costs due to an advocate or his firm until the expiry of one month after a bill for such costs,
which may be in a summarized form, signed by the advocate or a partner in his firm, has been delivered or
sent by registered post to the client, unless there is reasonable cause to be verified by affidavit filed with the
plaint, for believing that the party chargeable therewith is about to quit Kenya or abscond from the local
limits of the Court’s jurisdiction, in which event action may be commenced before expiry of the period of
one month. Such a suit may be brought for the recovery of costs due to an advocate in any Court of
competent jurisdiction. A Bill of Costs between an advocate and a client may be taxed notwithstanding that
no suit for recovery of costs has been filed.
c) Charging orders: Section 52 provides that any Court in which an advocate has been employed to
prosecute or defend any suit or matter may at any time declare the advocate entitled to a charge on the
property recovered or preserved through his instrumentality for his taxed costs in reference to that suit or
matter, and may make orders for the taxation of the costs and for raising money to pay or for paying the
costs out of the property so charged as it thinks fit, and all conveyances and acts done to defeat, or
operating to defeat, that charge shall, except in the case of a conveyance to a bona fide purchaser for value
without notice, be void as against the advocate: provided that no order shall be made if the right to recover
the costs is barred by limitation.
d) Betrayal of trust: Section 80 provides that any person who, being an advocate, is entrusted in his
professional capacity with any money, valuable security or other property to retain it in safe custody with
instructions to pay or apply it for any purpose in connection with his duty as an advocate fails to pay, apply
or account for the same after due completion of the purpose for which it was given, shall be guilty of an
offence: provided that no prosecution for an offence shall be instituted unless a report has been made to the
Attorney-General by the Tribunal constituted to hear a complaint against the advocate under Section 61(3).

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Representatives of the Estate of Maxwell Ombogo v. Standard Chartered Bank and LSK.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
12
 PRO BONO SERVICES
1. INTRODUCTION:
 Pro bono is a Latin phrase for professional work undertaken voluntarily and without payment. Unlike
traditional volunteerism, it is service that uses the specific skills of professionals to provide services to
those who are unable to afford them.
 Various organizations do pro bono work in Kenya i.e., Kituo Cha Sheria, LSK, M-Sheria, Lawyers Without
Boarders, KNCHR, and various higher institutions of learning i.e., University of Nairobi.
2. INSTANCES WHERE PRO BONO SERVICES ARE ALLOWED IN KENYA:
 Pro bono services are offered in the Supreme Court, Court of Appeal, High Court and the Magistrate
Courts.
 Pro bono services are offered in capital cases and cases of children in conflict with the law in the
Magistrate Courts.
3. PURPOSE FOR OFFERING PRO BONO SERVICES:
 To enhance accountability and;
 To provide a clear framework of entry and exit to the Scheme.
 Access to justice: Article 48 of COK provides that the State shall ensure access to justice for all persons
and, if any fee is required, it shall be reasonable and shall not impede access to justice.
 Fair hearing: Article 50(1) of COK provides that every person has the right to have any dispute that can be
resolved by the application of law decided in a fair and public hearing before a Court or, if appropriate,
another independent and impartial tribunal or body. Moreover, Article 50(2)(h) provides that every accused
person has the right to a fair trial, which includes the right to have an advocate assigned to the accused
person by the State and at State expense, if substantial injustice would otherwise result, and to be informed
of this right promptly.
4. ADVANTAGES OF DOING PRO BONO WORK:
a) It provides an early opportunity for substantial and meaningful direct interaction with clients.
b) It often offers young litigators the opportunity to develop skills through experiences that simply would not
be available to them from paying work.
c) It provides experience in a far wider range of subject matters than the standard commercial litigation fare.
d) It gives a young litigator an edge over their peers due to the exposure.
e) It can help one in specialization, it is an opportunity for a young advocate to find their area of interest.
f) It is a way of giving back to society.
g) It is fulfilling to know that you helped a person in need.
5. PROCEDURE FOR OFFERING PRO BONO SERVICES:
 An advocate shall apply to serve using a standard application form.
 Pro bono briefs are allocated to individual advocates and not firms.
 An advocate appointed by the State shall be discharged if the accused person, appellant or their family
engages an advocate.

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Kenyatta University School of Law, Parklands, Nairobi.
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  All Court Stations shall form Pro bono Committees chaired by the Registrar, Deputy Registrar, or Head of
Station. The other committee members include: Court Administrator, a representative of the Law Society of
Kenya and two nominees of the Court Users Committee that shall allocate pro bono briefs.
 Any new brief being allocated to an advocate shall be evaluated against pending pro bono work load of an
advocate.
 The fees payable is:
a) an all-inclusive sum of Ksh.30,000, paid in 2 installments. The first installment is after first appearance
and the second installment upon completion of the brief;
b) managed centrally at the Chief Registrar’s Office;
c) based on certification by the station Pro bono Committee.
 The Registrars of the respective Courts keeps a Register of all advocates involved in pro bono services
where relevant information and feedback on their performance is recorded.

MARKETING AND ADVERTISING

1. INTRODUCTION:
 Advertising is making known of the services that one can provide.
 Advertising has been very controversial in most jurisdictions and Kenya is no exception. People have not
agreed in principle that advertising should not happen.
 Section 38 of the Advocates Act, Cap 16 prohibits touting even though there seems to be massive touting.
Third parties are not allowed to tout.
 Rule 2 of the Advocates (Practice) Rules, 1966 does not allow advertising.
 In Kenya, advocates are now using newsletters that they let circulate to clients either on emerging issues of
law, etc., however, the question is, is this advertising? Sending the newsletter to a bank with the intention
that the bank might need their services, then it amounts to advertising.
 Okenyo Omwansa George & another v. Attorney General & 2 Others,15 Justice Majanja held that a
complete ban of advertising by advocates is unconstitutional and inconsistent with Articles 35, 46(1) and
48 of the Constitution which provides for ‘right to access to information,’ ‘consumers right to information
to gain the full benefit of goods and services offered by either a public or a private person’ and ‘right to
access to justice’ respectively. This followed a petition to the High Court to challenge the requirement of
newly admitted advocates to set up independent legal practice and to challenge the prohibition against
advertising in the legal profession.
The brief background to this petition was that the petitioners who are advocates of the High Court of Kenya
raised two issues. One was with regard to Section 32 of the Advocates Act, Cap. 16 which prevents an
advocate from engaging in practice on his own behalf either full-time or part time unless he has practiced in
Kenya continuously on a full-time basis for a period of not less than two years after obtaining the first
practicing certificate in a salaried post. This is either as an employee in the office of the Attorney General

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[2012].
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
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 or an organization approved by the Council of Legal Education, or an advocate who has been engaged in
continuous full-time legal practice in Kenya for a period of not less than five years. Secondly, the
petitioners averred that Rule 2 of the Advocates (Practice) Rules, 1966 barred advocates from advertising.
The said Rule specifically provides that, no advocate may directly or indirectly apply for or seek
instructions for professional business, do or permit in carrying on his practice any act or thing which can be
reasonably regarded as advertising or as calculated to attract business unfairly.
2. ARGUMENTS FOR ADVERTISING:
 In the year 2000, the LSK appointed a committee to review the rules of advertising but ultimately it was
rejected by members. Most lawyers felt that it was the big firms who were advocating for advertising and
they therefore rejected it.
 Advertising can be said to enhance awareness.
 From a consumer rights perspective there is a place to pass information.
 There is an explosion of number of advocates coming into the market and people need to know who is in
the market and where to find them.
 Specialization of law. There some lawyers who are specialists in certain areas and people ought to know
which lawyer is good at what field. People should be allowed to publicize their specialty.
 Most people think that if lawyers were allowed to advertise, it will force the lawyers to be consistent with
the picture that they have presented in their adverts making them better lawyers. To be competitive lawyers
will be forced to give exemplary service at very competitive prices.
 It is more of benefit to young lawyers, big law firms need not advertise, they are already known.
 Clients are a lot more sophisticated and the majority will demand for legal services that are specialized.
They need information on what is available. It would be better for the majority if they knew exactly where
to go.
3. ARGUMENTS AGAINST ADVERTISING:
 Advertising is an expensive business – young lawyers would not afford it making the competition unfair.
 Advertising tends to give the impression that it is the ingenuity of the lawyer that gets you justice rather
than the justice of the case.
 There is an assumption that justice is blind and it does not matter where the law firm but the essence should
be the same.
 Advertising tends to give the wrong impression that what matters is the capacity or character of the lawyer.
 Advertising places unreasonable expectations on an advocate’s ability to deliver. It will tend to give the
indication that a lawyer will deliver and therefore capacity for a lawyer to cut corners are compromised as a
lawyer tries to deliver on the promises that they have made. It is the Court that makes the final
determination and so the advocate cannot make promises.
 Advertising lowers the dignity of profession as it tends to reduce it to sort of a retail trade.
 Advertising will increase the cost of litigation.

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Kenyatta University School of Law, Parklands, Nairobi.
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  In reality the choice of a lawyer is based on personal knowledge, referrals and most people do feel that
good lawyers do not need to advertise. There are people who feel that advertising has no impact.
 Advertising makes a bad situation worse by lowering the perception of advocates even lower.
4. THE ADVOCATES MARKETING AND ADVERTISING RULES, 2012:
 General Conduct: No Advocate shall directly or indirectly apply for or seek instructions for professional
business, or do or permit in the carrying on of his practice anything which can be reasonably regarded as
calculated to attract business unfairly.
 Advertising: No Advocate shall advertise himself or his practice nor allow himself or his practice to be
advertised other than in accordance with the rules.
 Manner of advertising: Any advertisements allowed under the rules must be objective true and dignified.
They shall in all cases be respectful of the ethics of the profession and shall not attempt to denigrate any
other advocate or professional.
 Information which may be advertised: The following information may be advertised:
a) the identity of the advocate or his firm;
b) the year of his admission as an advocate;
c) the location of office, postal address, telephone, fax, email address and website.
d) the hours the office is open and language in which for conducting business;
e) the professional and academic qualifications;
f) the law firms to which the firm is associates with;
g) any publications or cases in which the advocate or other professional members of the firm may have
made contributions to.
 Information which may not be advertised:
a) names or identities of clients of the advocates or the firm;
b) pictures;
c) non-legal positions distinctions or occupations held or formerly held by the advocate
d) reference to fees to be charged or reductions thereof;
e) promises to achieve results or to complete business in any particular time or quicker than other
advocates, and in the event of failure to achieve such results, that no fee will be charged;
f) deceitful or erroneous information or persuasive, ideological, comparative advertising or phrases of
self aggrandizement.
 Manner of advertising:
a) In telephone, fax telex and similar non-legal directories, an advocate shall only advertise the
information specified in Rule 6 without any added emphasis and in the normal type of the directory.
b) In legal and/or professional directories (including national and international) an advocate may
advertise all the information set out in Rule 6 and 7.
c) On the internet an advocate may advertise all the information set out in Rules 6 and 7.
d) In magazines, newspapers, booklets, publications, periodicals or any graphic media or internet, an
advocate may advertise all of the information set out in Rules 6 and 7 in a type size and face and
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
16
 manner normally used in the advertising pages of the graphic media set out above and so that the area
used for the advertisement is no longer than is required for the inclusion of the information and is no
event shall it be large than 5 x 5 inches.
e) Advertisement referred to in under Rule 10(4) may only be done once per quarter in each year.
f) No advocate/firm may advertise in any of the print media noted in clause 9(4) more than once monthly.
g) No advocate shall advertise on television other than to appear in order to give personal opinions on
issues of general interest or in connection with professional matters in which he is involved provided
that in all such circumstances the advocate must respect professional decorum.
h) On radio, an advocate shall only advertise the information specified in Rule 6.
i) No advocate shall place illuminated signs or placards in any place whatsoever in an attempt to
advertise his location and type of business but plates or plagues advertising an advocate’s professional
activity to be affixed to the walls or access doors or building in which the advocate’s firm is located
are permitted. The maximum size of such plate shall be 0.5 x 0.35 m.
j) Seminars and Media - An Advocate may take part in conferences and seminars including those not
involving legal issues and may publish papers, circulars and periodical articles on issues of law, even
in media that do not specialize on such issues whereby the Advocate concerned may only append his
name and designation as a lawyer.
 Prohibited manner of advertising:
a) No advocate shall seek to solicit or to attract business through any of the following means, through:
i. an “intermediary” that would amount to professional touting;
ii. unsolicited “in person” contact;
iii. a retainer by a non-lawyer who has not sought the advocate’s advise;
iv. false or misleading statements, or where undue influence is used, or where the potential client is in
a physical or mental condition that would make it unlikely that such client could have exercised
considered judgment in the selection of an advocate.
b) An Advocate shall at all times be permitted to seek further or additional business from his exiting or
former clients.

CHAMPERTY
1. INTRODUCTION:
 Champerty: This is where one promotes litigation as a third Party. There is no legitimate interest in the
matter. But they promote it for a benefit to themselves from the litigation that will ensue.
 Champerty is prohibited under Section 46 of the Advocates Act which makes invalid:
a) a purchase by an advocate of an interest in his clients’ suit, or
b) an agreement which stipulates for payment only in the event of success of the suit, or
c) that an advocate shall be paid at different rates depending on the failure or success.
 Pursuant to Section 45 of the Advocates Act, an advocate may exercise three options in charging fees:
a) the use of Advocates Remuneration Order in charging;
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
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 b) entering into an agreement with the client on the means of charging, and
c) the advocate may charge ex gratia on agreements with the clients as to costs.
Such agreements are only valid and binding on the parties if it is in writing and signed by the client or his
agent duly authorized in that behalf.
2. EVILS SOUGHT TO BE AVOIDED BY THE CURRENT STATE OF LAW:
a) A litigious society and commercialization: Litigation is an expensive way of getting justice compared
alternative dispute resolution methods as one has to meet the Court costs, advocate’s fees and costs of the
suit. When it emerges that a litigant (client) can have his suit financed by another party at the cost of a
percentage of the money won and paid, litigating is preferred. Champerty therefore results into a litigious
society as there are willing financers of suits and willing litigants. The aim of bringing actions to court will
therefore shift from getting justice to winning suits.
b) Speculation in lawsuits: Champerty promotes successful suits for the financier to get his share of the
money paid. Contingency fees on the other hand would advocate for a win so that the advocate can get
paid. It is hard to predict the outcome of a suit, leading to speculation. This may consequently affect their
behavior in court where the advocate would deviate from the law in his arguments and the litigant would be
focused on winning.
c) Pressure by the advocate to settle the case out of Court: The advocate financing the lawsuit would
promote settlement as it guarantees his share of the proceeds. The litigant however, may want to settle for
maintaining a good relationship with his opponent. This consequently leads to conflict of interest between
the two. The outcome of a suit may not appear promising even though the litigant in the champertous
agreement is the aggrieved. Pressure is mounted on litigants to settle as it is the only way money to be
shared with the client will come forth, thus achieving his self-serving interest.
d) Illegality: Permitting payment of contingency fees would mean that if a lawsuit is not successful, the
advocate would not get paid. This is contrary to Section 44 of the Advocates Act which provides for
remuneration of advocates for all their professional business whether contentious or non-contentious. It
would also be unjust not to pay an advocate simply because he did not win the lawsuit.
e) Conflict of interest: The primary duty of an advocate as an officer of the Court established in Rondel v
Worsley, gets compromised when imposing champertous and contingency fee because advocates have
limited regard to their duty to litigate on behalf of the client zealously. Consequently, advocates act at their
clients’ expense.
f) Attraction to particular fields: Advocates are persuaded to practice the fields which reap the highest
benefits where contingency fee arrangements are used.
g) Unethical practices: The main reason against the practice of champerty is the fear that it may incite
lawyers to abuse the legal process for their own benefit and gain. Since the lawyer undertakes to assume
litigation costs, they would have invested quite a significant amount of man power and money from their
own pockets. This would make the prospect of losing the case even riskier since they will not only forego
any fees but will most probably lose out financially. Such a prospect of risk may drive lawyers to engage in

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi.
18
 unethical practices such as suppressing evidence or corrupting witnesses as an underhanded way of
winning the case.
h) Corruption of public justice: Champerty agreements could be extortionate and unconscionable, for
instance, when a lawyer draws up such an agreement with the intention of taking advantage of a poor and
uninformed client. This is contrary to the principles of justice and equity and is detrimental to the public.

TORT OF NEGLIGENCE IN PROFESSIONAL ETHICS

1. INTRODUCTION:
 An advocate ought to be able to read the law to know what is required before instituting the suit.
 A suit for negligence can be instituted against an advocate because of:
a) failure to attend the Court proceedings;
b) not appearing in Court when the cause is listed;
c) mismanaging a case so much so that the Court can determine that an advocate properly admitted would
not have handled a case the way the particular advocate handled it.
2. MANAGEMENT OF THE CASE:
 Management of the case involves the manner of examination of witnesses, calling of witnesses, manner of
cross-examination, certain aspects of determining if certain documents need to be admitted, preferring
certain interrogatories.
 Interpreting a case in a certain manner – it is doubtful whether interpretation can lead one to a suit in
negligence.
 In De Sousa v. Minister of State for Immigration, French J. regarded the proceedings instituted by the
solicitor in that case as reflecting a “… serious failure to give reasonable attention to the relevant law and
facts…” that amounted to a serious dereliction of duty to the Court.

PROFESSIONAL MISCONDUCT
1. Undercutting
2. Champerty: Advocate agrees to finance lawsuit or matter in return for a percentage of the fees.
3. Sharing Profits: It is an offence to share profits with an unqualified person. Sharing of bonus with
employees is excepted.
4. Touting: (sell by pestering people). S 38 prohibits unqualified persons from touting.
5. Agent of an unqualified person: S 39-40 is an offence
6. Employment of persons struck off the Roll of Advocates: Sections 41-42. You can employ only with the
written permission of the Council.
7. Breach of an undertaking. Rule 46 Digest
8. Advertising soliciting and attracting business unfairly: The case of Okenyo Omwansa George & another v
Attorney General & 2 others declared Rule 2 unconstitutional.
9. Failing to attend Court Rule 1(b)(6) of the Digest.
10. Practicing without a practicing certificate Rule 35 Digest
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
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11. Failure to Endorse the Name of an Advocate on an Instrument [s. 35].
12. Unpaid cheques drawn on a clients account Rule 11(b) digest.
13. Failing to provide an accountants certificate when one is demanded rule 11 (c ) digest.
14. Failure to respond promptly to correspondence Rule 15 Digest
If one is found guilty of the above, the Disciplinary Committee can order that:
a) such advocate be admonished; or
b) such advocate be suspended from practice for a specified period not exceeding five years; or
c) the name of such advocate be struck off the Roll; or
d) such advocate do pay a fine not exceeding one million shillings;
e) such advocate pays to the aggrieved person compensation or reimbursement not exceeding five million
shillings, or
f) such combination of the above orders as the Committee thinks fit
g) Payment of costs and witness expenses.

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi.
20