KENYA SCHOOL OF LAW

ADVOCATES TRAINING PROGRAMME

2024/2025 ACADEMIC YEAR

ATP 105: PROFESSIONAL ETHICS AND PRACTICE

FIRM 11, CLASS F WORK

QUESTION THREE;

Musu is a prominent criminal lawyer. His legal expertise in criminal law is spoken of
highly within legal circles. He is famous for letting many criminal suspects off the hook. John, a
well-known mobster who is suspected of having committed many criminal offences, none of
which he has ever been convicted of, is charged with the offence of murdering Mary. John is
advised by friends that the only way he could secure his freedom, whether he committed the
offence or not, is by securing the legal services of Musu. During their interactions John
confessed that he indeed killed the deceased who was his girlfriend on suspicion that she was
cheating on him. In the course of taking instructions, John revealed to Musu that after he had
killed the deceased, only one person appeared from nowhere and witnessed the killing. In order
to conceal the evidence, John also chased after the eye witness and killed him. However, he was
not charged with the murder of the witness as there was no evidence linking him to the witness’
murder.

Putting yourself in Musu’s shoes, as an advocate receiving the above instructions, explain,
citing relevant authorities and legislation, what you should do in regard to the following.

a) Your Duties and Obligations as an Advocate to the Court in regard to the above instructions.
(10 Marks)
b) The client-advocates privilege and confidential information and situations in which you can
waive the said privilege. (10 marks)

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CONTENTS
QUESTION THREE;.....................................................................................................................i
A. YOUR DUTIES AND OBLIGATIONS AS AN ADVOCATE TO COURT IN REGARD
TO THE ABOVE INSTRUCTIONS............................................................................................1
1.1 INTRODUCTION............................................................................................................1

1.2 FACTS...............................................................................................................................3

1.3 DUTIES OF AN ADVOCATE TOWARDS THE COURT..............................................4

1.3.1 Duty to act as an officer of the court.........................................................................4

1.3.2 Duty not to mislead the court.....................................................................................5

1.3.3 Duty to assist the court in the administration of justice................................................6

1.3.4 Overriding duty to the Interest of Justice......................................................................7

1.3.5 Duty of Disclosure.........................................................................................................7

1.3.6 Duty not to prolong cases..............................................................................................8

1.3.7 Duty to be courteous......................................................................................................8

1.3.8 Duty not to abuse the court process...............................................................................9

1.3.9 Duty not to give personal opinions................................................................................9

1.4 APPLICATION.................................................................................................................9

1.5 CONCLUSION...............................................................................................................10

B. THE CLIENT-ADVOCATES PRIVILEGE AND CONFIDENTIAL INFORMATION

AND SITUATIONS IN WHICH YOU CAN WAIVE THE SAID PRIVILEGE...................11
2.1 ADVOCATE- CLIENT PRIVILEGE.............................................................................11

2.1.1 Who is an Advocate?...............................................................................................11

2.1.2 Who is a client?........................................................................................................11

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 2.1.3 Client-advocate privilege.........................................................................................11

2.1.4 Client-advocate confidentiality................................................................................13

2.2 SITUATIONS IN WHICH YOU CAN WAIVE THE CLIENT-ADVOCATES

PRIVILEGE...............................................................................................................................16

2.2.1 Kenya Legal Framework.........................................................................................17

2.2.2 Common Law Exceptions to Advocate-Client Privilege.........................................19

2.3 APPLICATION...............................................................................................................20

2.4 CONCLUSION...............................................................................................................21

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A. YOUR DUTIES AND OBLIGATIONS AS AN ADVOCATE TO COURT IN REGARD
TO THE ABOVE INSTRUCTIONS.

1.1 INTRODUCTION

One of the distinguishing factors about a profession is that professions are guided by certain
duties, obligations and principles that all professionals in that profession must adhere to and
follow. For Advocates, the profession is not an exception. Several laws govern the conduct and
obligations of advocates. These laws are the Constitution of Kenya, the Advocates Act, the
Council of Legal Education Act as well as the Advocates Code of Ethics.

The obligations that arise from these laws and common law principles that have been horned
throughout the years were perfectly brought out by the American Bar Association (ABA) Model
Rules of Professional Conduct which states that the role of a lawyer is threefold;

i) As a representative of clients
ii) As an officer of the legal system
iii) As a public citizen having special responsibility for the quality of justice1

Advocates serve as important agents of justice in the complex frame of the legal realm where
they are entrusted with the responsibility of upholding the integrity of the legal process.
Representation of their clients is not only the central role but also maintaining a balance of duties
and obligations towards the court. As officers of the court, advocates navigate various
dimensions where zealous advocacy intersects with the comprehensive aim of ensuring fair and
just proceedings.

Lord Macmillan states that,

"The advocate does not cease to be a citizen by becoming a counsel. He is himself a sense a
servant of the state. He takes the oath of allegiance on his admission to the Bar. His very

1
American Bar Association, “Model Rules of Professional Conduct”, <
https://www.americanbar.org/groups/professional_responsibility/publications/
model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/> , accessed 29th
May 2024

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privileges are conferred upon him by the state. The interest of his country must be paramount
with him as with every true citizen over every other concern.”2

Differently put, an advocate has a duty to the client, to the court and to the public as well. These
categories have been expounded on in various cases such as Rondel v. Worsley [1967] 3 WLR
1666 and Groom v. Crocker [1939] 1 K.B.

Rule 9 of the LSK Code of Conduct, differentiates between individuals recognized as Advocates
because their names are listed on the Roll of Advocates and those who are authorized to practice
as Advocates. The key difference is that the latter group holds a valid practicing certificate. This
certificate is issued annually and expires at the end of the calendar year for which it was granted. 3

Section 55 of the Advocates Act further confers an advocate to be an officer of the court as
follows, “Every advocate and every person otherwise entitled to act as an advocate shall be an
officer of the Court and shall be subject to the jurisdiction thereof and, subject to this Act, to the
jurisdiction of the Disciplinary Tribunal.”4

Ethical Foundation and professional standards

The Law Society of Kenya Act, Section 6 outlines how advocates should carry themselves in
discharge of their duties (guiding principles) as follows:

(a) the maintenance and advancement of constitutionalism, justice and the rule of law;5
(b) the facilitation of access to justice;6
(c) the protection of public interest;7

2
Lord Macmillan, Law and Other Things: The Ethics of Advocacy, 1937, 195
st
<https://archive.org/details/in.ernet.dli.2015.34301/page/n5/mode/2up> Accessed 31 May, 2024.
3
Law Society of Kenya Act (No 21 of 2014)
4
Advocates Act (No 16 of 1989).
5
Law Society Act (No 21 of 2014), S 6(a).
6
Ibid, S 6(b).
7
Ibid, S 6(c).

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(d) the maintenance of integrity and professionalism;8 and
(e) the promotion of cross border legal practice, inclusivity and equity.9

Lord Macmillan in his book, Law and Other Things on Ethics of Advocacy ascertains that,

“An advocate must not (whether by calling the accused or otherwise) set up an affirmative case
inconsistent with the confession made to him.”10

He warns against an advocate presenting an affirmative case in court that contradicts the
confession made by the client as the court is entitled to rely on counsels in not engaging to
mislead it.11 This means that if a client confesses to the advocate about committing a certain act,
the advocate should not then argue in court that the client did not commit that act or present
evidence that directly contradicts the confession. The prohibition against setting up an
affirmative case inconsistent with the confession is rooted in ethical considerations. Advocates
are expected to maintain honesty, integrity, and candor in their representations. Presenting
contradictory arguments or evidence that directly oppose what the client has confessed would be
seen as misleading the court and acting against the principles of honesty and fairness. It might as
well lead to the advocate's credibility being questioned, undermine the client's trust in their legal
representation, and potentially harm the overall pursuit of justice in the legal proceedings.

1.2 FACTS

In this case, a well-known mobster John, is charged with the murder of Mary. As Musu was
taking instructions so as to represent John, he confessed that he killed the deceased who was his
girlfriend on suspicion that she was cheating on him. Furthermore, he chased after and killed the
eye witness. He was not charged with the murder of the witness as there was no evidence linking
him to the witness’ murder.

8
Ibid, S 6 (d).
9
Ibid, S (e).
10
Lord Macmillan, Law and Other Things: The Ethics of Advocacy, 1937, 190
https://archive.org/details/in.ernet.dil.2015.34301/page/n5/mode/2up Accessed 31st May, 2024.
11
Ibid, 193.

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 1.3 DUTIES OF AN ADVOCATE TOWARDS THE COURT

It is imperative to note that advocates act as officers of the court. This is evidenced throughout
the entire career of an advocate, but more so, when advocates take an oath on admission to the
bar. Furthermore, the Advocates Act provides that every advocate is entitled to act as an officer
of the court and thus shall subscribe to the jurisdiction of the court. 12 There is an advocate’s
overriding duty to the court which triumphs over an advocate’s duty to his client. This was aptly
brought out in the case of Aaron Gitonga Ringera & 3 others v. Paul K. Muite & 10 others 13
whereby Mwera J. held:

“An advocate has the duty to the court that supersedes the one that he owes to the client
and where a client instructs an advocate to do that which will compromise the advocate’s
duty to the court then the advocate should be better of declining to execute such
instructions.”

The following are the various duties an advocate owes a court.

1.3.1 Duty to Act as an Officer of the Court

Section 55 of the Advocates Act states that;

“Every advocate and every person otherwise entitled to act as an advocate shall be an officer of

the Court and shall be subject to the jurisdiction thereof and, subject to this Act, to the

jurisdiction of the Disciplinary Tribunal: provided that the persons mentioned in Section 10,

other than those included in paragraph (c) of that section, shall not be subject to the jurisdiction

of the Disciplinary Tribunal.”

Further, the Law Society of Kenya, Digest of Professional Conduct and Etiquette (hereinafter

referred to as the ‘LSK Digest’) under Rule 1 sub-rule (b), provides for various instances in

relation to the absence of an advocate from the court and what should be done in that instance. In

12
Section 55, Advocates Act CAP 16
13
Aaron Gitonga Ringera & 3 others v. Paul K. Muite & 10 others Nairobi High Court Civil Suit No. 1330 of 1991

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this regard, it can be correctly indicated that by the fact that the Advocates Act and the LSK

digest go further to provide for an advocate’s duty to the court, this very duty takes high up in the

hierarchy of duties of an advocate to the various key stakeholders in the profession. This

essentially means that the advocate’s paramount duty is to the court and if an advocate is not in a

position to appear in court in a matter, the same should be communicated to the court to avoid

wasting the court’s time. Hence, failure to attend court could amount to professional misconduct

and lead to disciplinary action.

1.3.2 Duty not to Mislead the Court

This is also known as the duty of candour. Advocates have a paramount duty not to mislead the
court when it comes to various issues such as evidentiary issues and legal issues. A lawyer
should not unreasonably raise or defend an action for which there is no legal justification.
Misleading the court includes actions such as knowingly misrepresenting or misstating the facts
in argument, inducing a witness to state misleading evidence and knowingly maintaining a false
pretense, misstating the law and many other ways in which advocates can mislead the court. 14 In
the case of Re G Mayor Cooke (1889).T.L.R, it was stated that evidence that is before court
should be drawn to judge’s attention notwithstanding that it might be adverse to counsel’s case.

Lawyers are also under a duty to make full disclosure of all the binding authorities relevant to a
case. This means that at all times, all the facts, laws, and evidence should be fully disclosed to
the court, whether they support or undermine the position being argued by that party. This duty
of disclosure emanated from the 1791 case of Fell v Brown (1791) 1 Peake 131.

In the case of Ex Parte Swain 1973 (2) SA 427, it was noted as follows:

“It is of vital importance that when the Court seeks an assurance from an advocate that a
certain set of facts exists the Court will be able to rely implicitly on any assurance that
may be given. The same standard is required in relations between advocates and between
advocates and attorneys. The Court refused to admit the applicant as an advocate where

14
Legal Ethics and Professional Responsibility. United Kingdom: Clarendon Press, 1995 pg 111.

5
 the circumstances disclosed that he had failed to disclose material facts and therefore
that he had failed to show that he was a fit and proper person to practice as an
advocate.”

1.3.3 Duty to Assist the Court in the Administration of Justice

In the interest of representing their clients adequately and upholding justice, advocates are faced
with challenges when clients confess to committing serious crimes such as murder (as is the case
with Musa’s client). This is to the fact that an advocate owes duties to both the client and the
court which conflict in the instance of confidentiality owed to the client which is not absolute.
The exceptions to advocate-client confidentiality are provided under section 134 of the Evidence
act as follows:

(a) any communication made in furtherance of any illegal purpose;

(b) any fact observed by any advocate in the course of his employment as such, showing
that any crime or fraud has been committed since the commencement of his
employment, whether the attention of such advocate was or was not directed to the fact
by or on behalf of his client.

Court of Appeal in Conlon v Conlons Limited, 15observed that the advocate-client privilege had
been zealously guarded by the courts as long as the history of the law goes and that there are
only two instances in which it is lost; if something of a criminal nature is involved and if there is
waiver by the client.

Lord Denning, in his book, The Family Story contends that an advocate is an equal to the judge
as a minister of justice and must put aside instructions from his client if it conflicts with his duty
to the court.16

Musu as an officer of the court is thus bound to uphold his duty to the court over his client’s
interests as it involves admission to crime.

15
[1952] 2 All ER 462
16
Lord Denning, The Family Story (Butterworths, 1981)

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 1.3.4 Overriding Duty to the Interest of Justice

Aaron Gitonga Ringera & 3 Others v Paul K. Muite & 10 Others

JW Mwera, stated that an advocate has the duty to the court that supercedes the one he owes to
the client. Where a client instructs an advocate to do that which will compromise the advocate’s
duty to the court, then the advocate should be better off declining to execute such instructions.
Further an advocate has a duty to be courteous in his interaction with other officers of the court-
judges, magistrates and fellow counsel.

Giannarelli v Wrath [1988] HCA 52; 165 CLR 543

Mason CJ, stated that the peculiar feature of counsel’s responsibility is that he owes a duty to
the court as well as his client. This duty to client is subject to his overriding duty to the court. In
the performance of that overriding duty, there is a strong element of public interest.

1.3.5 Duty of Disclosure

Section 134(1) of the Evidence Act provides for the privilege of advocates and states as follows;
“No advocate shall at any time be permitted unless with his client’s express consent, to disclose
any communication made to him in the course and for the purpose of his employment as such
advocate, by or on behalf of his client, or to state the contents or condition of any document with
which he has become acquainted in the course and for the purpose of his professional
employment, or to disclose any advice given by him to his client in the course and for the
purpose of such employment: provided that nothing in this section shall protect from disclosure –
any communication made in furtherance of any illegal purpose; any fact observed by an
advocate in the course of his employment as such, showing that any crime or fraud has been
committed since the commencement of his employment, whether the attention of such advocate
was or was not directed to the fact by or on behalf of his client.”

Pursuant to this, the general rule is that an advocate is prohibited from disclosing any
communication made to him or the contents of any document that he comes across in the course
of his employment by the client. An advocate cannot also disclose any advice he or she gives to
the client. However, there are exceptions to this rule. An advocate can disclose to the court any
information showing furtherance

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 1.3.6 Duty not to Prolong Cases

Advocates have an obligation to act with fairness when dealing with the court, and in extension,
fellow advocates and members of the public. This is partly captured in Article 50 of the
Constitution. Specifically, Article 50 (2)(e) provides for the right to have a trial begin and
conclude without unreasonable delay. It therefore requires the advocate to expedite proceedings
and not to waste the courts time which is fairness to the court.

In Halaby v Halaby (2001)44 A.D.2d 495, the lawyer had filed an appeal knowing the grounds
that he did so merely to delay the ends of justice. He later wished to withdraw his appeal but the
court held it was abuse of the court and thus should be struck out. In Ashmore v Corporation of
Lloyd’s [1992]17, Lord Templeman said:

“The parties and particularly their legal advisers in any litigation are under a duty to
cooperate with the court by chronological, brief and consistent pleadings which define the
issues and leave the judge to draw his own conclusions about the merits when he hears the
case. It is the duty of the counsel to assist the judge by simplification and concentration and
not to advance a multitude of ingenious arguments in the hope that out of ten bad points the
judge will be capable of fashioning a winner. In nearly all cases the correct procedure works
perfectly well. But there has been a tendency in some cases for legal advisers, pressed by
their clients, to make every point conceivable and inconceivable without judgment or
discrimination.”

1.3.7 Duty to be Courteous

An advocate should always uphold the dignity of the court through respectful conduct and
courteous speech. It is always presumed that to be a good lawyer, you have to be authoritative.
This can easily be taken out of context and turn into rudeness. Advocates should never adopt a
confrontational view with the court, more so, when there is reason to believe the judicial officer’s
position is blatantly wrong.

17
Ashmore v Corporation of Lloyd’s [1992] 1 WLR 446

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 1.3.8 Duty not to Abuse the Court Process

Cases filed in court or issues raised during proceedings should be based on merit. The integrity
of courts requires lawyers to desist from making allegations or bringing proceedings for ulterior
purposes.18 Clients may bring frivolous cases just with the intention settling scores they may
have with other individuals. In such instances, advocates need to resist from taking on such
cases, otherwise, they will be acting improperly as was held in R v Weisz [2008] QCA 313.
Furthermore, once advocates give undertakings as officers of the court, they are expected to
abide by them. An undertaking which is not honoured may result to an abuse of a court process
as courts should have confidence that lawyers, as officers of the court, will honour their
undertakings.

1.3.9 Duty not to Give Personal Opinions

An advocate should not give their personal opinion on the case unless called upon to do so by the
court. They are only employed by clients to advocate for their rights and to represent them Thus,
advocates should strictly stick to what the law provides. Advocates should always speak in their
role as advocates and not in their personal capacities.

1.4 APPLICATION

In the instant case, Musu had interacted with various instances whereby his duty as an advocate
to the court was tested. Firstly, during their interactions John confessed to him that he killed his
girlfriend on suspicion that she was cheating on him. He further killed the eye witness who
witnessed the murder. These acts calls to mind the duty not to mislead the court. By representing
John after knowing this, then he will be misleading the court with his facts, evidence and every
other material he might use to defend John. This duty calls to Musu to disclose to the court the
fact that John had killed his girlfriend. It also brings out the duty not to misuse the court process.
This is because courts are used as a tool of justice and used to protect human rights. Therefore,
representing John in court, most especially after having a good track record of defending
criminals and thus might defend him until he is acquitted, will be using the courts to cleanse the
murders he committed.

18
Wanjiru Ann Wanja,”The Legal Provisions That Regulate The Conduct Of Lawyers in Kenya”

9
Musu should start by clearly explaining to John the ethical boundaries of legal representation. He
must emphasize that while he is dedicated to defending John’s rights, he cannot and will not
assist in misleading the court. This includes presenting false evidence or testimony. Musu needs
to convey that his professional integrity and legal obligations require honesty and transparency.

Musu should inform John of the potential legal and ethical consequences of attempting to
deceive the court. This includes the risk of perjury charges if John lies on the stand and
additional charges if any attempt to conceal evidence is discovered. Musu should explain that
being complicit in deception could harm both his career and John's case, potentially leading to
severe repercussions.

If John insists on a defense strategy involving dishonesty, Musu should consider withdrawing
from the case. According to the Law Society of Kenya Code of Ethics and Conduct for
Advocates, an advocate can withdraw if continued representation violates ethical rules. Musu
should inform John of his decision to withdraw, explaining the ethical necessity behind it,
thereby ensuring he adheres to his professional responsibilities.

1.5 CONCLUSION

Musu, as an advocate, must navigate the challenging balance between client confidentiality and
his duty to the court. By clearly communicating the ethical boundaries to John, advising him on
the severe consequences of attempting to deceive the court, and considering withdrawal if
necessary, Musu ensures he upholds the integrity of the legal profession and the justice system.
These steps demonstrate Musu’s commitment to ethical practice, reinforcing the principle that
the pursuit of justice must always be conducted with honesty and integrity.

c) The client-advocates privilege and confidential information and situations in which you can
waive the said privilege. (10 marks)

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B. THE CLIENT-ADVOCATES PRIVILEGE AND CONFIDENTIAL INFORMATION
AND SITUATIONS IN WHICH YOU CAN WAIVE THE SAID PRIVILEGE.

2.1 ADVOCATE- CLIENT PRIVILEGE

From the moment a potential client reaches out to an advocate about their intention to utilize
their services, until and even after the close of their case, it is the responsibility of the advocate to
cultivate an atmosphere of trust and confidence.

This paper seeks to examine that relationship between an advocate and their client, fostered on
confidence, as well as highlight instances where such confidence may be breached. To do this
exhaustively, we must seek to understand who these two people are, and in so doing, outline their
responsibilities and immunities from said responsibilities if at all.

2.1.1 Who is an Advocate?

An Advocate as per Section 2 of the Advocates Act (“the Act”) is one whose name has been
entered into the Roll of Advocates, or as per Section 10 read together with Section 13 of the Act,
any person who having attained the professional and academic qualifications outlined in the
latter, is authorized to act as an advocate.

2.1.2 Who is a Client?

A client is defined under Section 2 of the Act as 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.

The elements brought out in this definition include as earlier mentioned, a relationship between
the client and an advocate even prior to them retaining the said advocate.

2.1.3 Client-Advocate Privilege

Under client-advocate privilege, an advocate is required to act in a certain manner when

disposing their duty to their client.

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Hence when a client approaches an advocate, to

(1) seek legal advice from that advocate in his professional

(2) capacity as an advocate, any

(3) information divulged relating to that, having been made in

(4) confidence, by that

(5) client, that information is

(6) forever protected from being

(7) divulged by him or the legal professional, apart from when he (8) waives that
right/privilege.19

It safeguards against disclosure of communications between a client and an attorney made for the
purpose of securing legal advice. It aims to act as an assurance that communications held in
confidence are safeguarded.20

Privilege in communication occurs where:

i. ‘Communication safeguarded within the law from obliged disclosure in legal
proceedings.
ii. Or cannot be used against the utterer of such communication. Nonetheless, there
are varied circumstances where the privilege can be relinquished.’
Where any legal advice is sought from a professional legal adviser acting in his capacity, the
communications relating to the matter confided to the advocate by the client are at his instance,
invariably protected from disclosure by himself or by the legal adviser save for when the
privilege is waived. 1
Litigation Privilege

19
John Henry Wigmore, Evidence in Trials at Common Law pages 2292, at 554 (John T. McNaughton rev. 1961)
20
Christopher Campbell and Antonious Sadek (2024). Protecting Attorney-Client Privilege and Work Product in a
GenAI World, https://www.lexisnexis.com/community/insights/legal/practical-guidance-journal/b/pa/posts/
protecting-attorney-client-privilege-and-work-product-in-a-generative-ai-world

12
This kind of privilege applies to third parties- those not privy to the client and the advocate but in
established circumstances. The House of Lords brings about this privilege as:
Communications a lawyer or a lawyer’s client to a third party or to ‘any document
brought about for the dominant purpose of being used in litigation.’2

Legal Professional Privilege

In the case of Ventouris v Mountain [1991] 1 W.L.R (607), Lord Justice Bingham elaborated the
principle of public interest in a client as being at liberty to unburden themselves without reserve
to their legal advisors, and on the other hand, their legal advisors being at liberty to provide
honest and candid advice on a sound factual basis, without fear opponents may place reliance
on these communications in court should a dispute arise.

In Anderson v Bank in British Colombia (1876) 2Ch D 644, Justice Jessel MR opined that the
purpose of legal professional privilege was the protection of classified communication occurring
between the client and his legal advisor.
2.1.4 Client-Advocate Confidentiality

Client-advocate confidentiality is closely similar to the privilege because it means that the lawyer
must not reveal information shared with him by the client in the course of taking instruction. 21

Black’s Law Dictionary defines confidentiality as a term applying to something that has the
quality of being secret or privileged. 22 Hence the two terms both have a close connection in
regards to what they both entail. The elements to show the existence of said privilege entail the
facts that such information was divulged in confidence for the purpose of seeking, obtaining or
providing legal assistance to or on behalf of a client.23

In understanding both, they are faucets of the right to privacy enshrined in the constitution
with specific reference to Articles 31(c) and (d) which state every person has the right not to
have:-

21
Annette Waambulwa (2023). Explainer: What is advocate-client confidentiality? The Star
https://thelawdictionary.org/?s-confidentiality
Annette Waambulwa (2023). Explainer: What is advocate-client confidentiality? The Star
22
23

13
 “c) information relating to their family or private affairs unnecessarily required or
revealed
d) the privacy of their communications infringed”

Therefore, the privilege of advocate-client confidentiality stands as a fundamental pillar within

constitutional provisions, particularly enshrined in the Bill of Rights, ensuring that all individuals
have the right to enjoy this protection. It serves as a cornerstone in legal ethics, guaranteeing that
individuals can openly communicate with their advocates without fear of their discussions being
disclosed without consent. This principle reinforces the broader notion of privacy and trust
within the legal system, affirming the importance of safeguarding confidential information
exchanged between advocates and their clients as a fundamental aspect of justice and fairness for
all.

Clearly, the manner in which John approached Musu can be seen as one of privacy as he was
giving him the facts concerning the murder as a confession since there was no public knowledge
of the extent of happenings that occurred on the fateful day said events occurred.

In addition, the period of said confidentiality extends beyond the employment of the advocate as
mentioned in section 134(2) of the Evidence Act.24

In line with the above, the court in Aden Ibrahim Mohammed & 6 others v County Assembly of
Wajir & 6 others; Governor of Wajir County Mohammed Abdi Mohammud & 3 others
(Interested Parties) [2021] eKLR 25 pronounced its position in regards to the issue through its
determination when it stated that;

“To this extent, there is need to protect the public trust that is entrusted to Advocates
alongside ensuring the continuity of legal service, without fears of potential
embarrassment resulting from the disclosure of secret and confidential information
passed from a client to the Advocate. It is obvious that in the absence of the Advocate-
Client relationship, the information in issue would have remained secret and
confidential. It is therefore necessary to maintain the secrecy and confidentiality even
with the existence and after the end of the Advocate-Client relationship”.
24
Cap 80 Laws of Kenya
25
Consitutional Petition E009 of 2021 eKLR

14
The above case further expounds the idea that an advocate ought to accord the information
received when acting for his/her client during the subsistence of their relationship and even after
that period.

Under Section 134 of the Evidence Act, highlights the confidentiality requirement, scope of
confidentiality and the purpose for the privilege. It maintains that for the duration where the
advocate is under the employment of the client and taking instructions from them, they are not
permitted to disclose any information such as communications, documents and advice given by
the client unless where the client permits such to be the case which is made by said client or on
their behalf.

Similarly, under the Law Society of Kenya Code of Standards of Professional Practice and
Ethical Conduct26 establishes in 103 SOPPEC-7 that the communication between an advocate
and client is protected by the rule regarding confidentiality in the Advocate-Client
communication hence making the advocate bound by his duty to keep information received by
and for his client confidential.

It further highlights the above as a doctrine of professional privilege which is one of the pillars of
professional practice and conduct as highlighted in its rationale for the standard in 104 which
states;

“The protection accorded to communication between the Advocate and client and
advice given by the Advocate to client through the doctrine of professional privilege is
a crucial element of public trust and confidence in the administration of justice and the
independence of the legal profession. The Advocate cannot render effective
professional service to the client unless there is full and unreserved communication
between them. The client is entitled to assume that, without his express consent or
unless otherwise required by law, matters disclosed to or discussed with the Advocate
will be held secret and confidential.”

Hence in undertaking the execution of John’s matter, Musu ought to conduct himself in a
manner- which goes without saying, by maintaining confidentiality of any and all

26
Gazette Notice no. 5212 (26th may, 2017). The Kenya Gazette, vol. Cxix – no. 69

15
information which he receives from his client or on his behalf, which instills faith in his
client’s decision to have him as his advocate.

Despite the reflection of what the relationship in regards to confidentiality between an advocate
and client, advocate, however, is not an independent party altogether. In taking on a case, they
essentially undertake to be under two masters, one of the said masters will always tramp the
other.
The legal professional’s first duty is to the law and due process. He/she is an officer of the court
and must at all times and in all his dealings show fidelity to the law and demonstrate respect for
the rule of law and due process. The legal professional must therefore never subvert or connive
in the subversion of the law or due process in his/service of the client’s interests27.

A good example to differentiate the two would be, if a client retains an advocate, and confesses
that they are guilty of past crimes, then the advocate may keep that information confidential.
However, if they disclose that they are intent on committing a crime in the future, or even come
running to your office immediately after, say, a robbery, then in the interest of justice, and as an
officer of the court, here the advocate would not be obliged to keep that information
confidential.28

2.2 SITUATIONS IN WHICH YOU CAN WAIVE THE CLIENT-ADVOCATES

PRIVILEGE

Waiver issues typically surface when a client does not desire for a communication to be
confidential or when it is seen by a third party. It is quite unlikely that the advocate-client
privilege will arise solely because a third person is involved. An advocate's obligation to his
client to maintain confidentiality is not absolute. There are statutory and constitutional
restrictions on the obligation. As a result, in order to uphold the interests of justice and fairness,
an advocate may be required or permitted to reveal privileged or sensitive information.

27
LSK Code of Conduct, Vol. CXIX—No. 69 The Kenya Gazette, 26th of May 2017
28
Ottawa Citizen, April 6, 2012 Friday, CITY; Michael Edelson; Pg. C2, 1024 words, Michael Edelson,
Ottawa Citizen

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 2.2.1 Kenya Legal Framework
In Kenya, common law and statutes regulate this kind of exceptional circumstances. Statutory
exclusions are outlined in the Evidence Act, Cap. 80, Laws of Kenya, and the 2010 Kenyan
Constitution.

2.2.1.1 Information Accessibility

In rare circumstances, a court may order the release of privileged information if it is thought to
be essential to the administration of justice or to further the interests of the general public.
The freedom of accessing information is recognized by Article 35 of the 2010 Kenyan
Constitution. Therefore, if obtaining the information is necessary to defend a right or a basic
freedom, a citizen has a right to information owned by another person. 29
In the case of Nairobi Law Monthly Ltd v KenGen & 2 others [2013] eKLR 30 the courts have
interpreted this legal clause to mean that anyone who is a citizen and a natural person can get an
order from the court compelling them to give whatever information they may possess. The court
determined that a citizen requesting access to information must not only demonstrate that the
material is in the possession of the person requesting it, but also proof that the information
sought is necessary for the exercise or defense of another right. In Nelson O. Kadison v.
Advocates Displinary Commission & Others [2013] eKLR, Majanja J. said that he would, under
the relevant circumstances, order the production of protected information if it pertains to and is
necessary for the preservation of rights.

2.2.1.2 Communication with the Intent to Commit a Crime or Promote an

Unlawful Purpose.
When a client communicates in a way that facilitates criminal conduct or the performance of
unlawful acts, the advocate cannot conceal this as confidential. The Court of Appeal held this in
the case of Mohammed Salim Balala & Anor vs. Tor Allan Safaris Ltd stating that

“The advocate-client privilege can only be breached where the advocate observes that the client
used the privilege to commit a crime or where the advocate's communication with the client
furthers an illegal purpose."

29
See The Constitution of Kenya Art 35(1)(b).
30
available at www.kenyalaw.org

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The Evidence Act serves as the substantive legislation that underpins legal privilege as an
evidentiary norm. The exceptions to the legal privilege are outlined in S. 134(2) of the Evidence
Act. The policy stipulates that revelations of privileged information occur in the following two
situations which are first, when a client and advocate engage in a way that facilitates an illegal
intent; and second, when the advocate notices that the client has used their privilege to conduct a
crime. In Mohammed Salim Balala & Anor vs. Tor Allan Safaris Ltd. [2015] eKLR, the Court of
Appeal upheld this stance. This disclosure is authorized under the public interest doctrine, which
permits an advocate to reveal client-specific confidential information for matters involving
public safety and security. The Court will require an advocate to provide whatever information
that a client has given them, even if that information reveals that the advocate is supporting a
crime that harms the public, such as terrorism. When legal counsel is engaged in order to aid in
illegal action, the communications are illegal in nature and violate the principle of advocate-
client confidentiality.

In order for this exemption to be applicable, it must be demonstrated that the client went ahead
and shared with the advocate knowing that he intended to perform an unlawful act or that he had
been duped about his purpose. This implies that the client must be informed that the proposed
behavior was against the law. If he claims he was unaware that his actions were illegal, that
defense is inadmissible.

2.2.1.3 Commission of Fraud by Advocate

An advocate could be compelled to provide information given by a client if it is claimed that the
advocate committed fraud while working as one of his official capacities as in Section134(2) of
the Evidence Act. A person injured by the fraud may file a court application to force the
information to be released by the advocate. Such information is not protected by privilege. An
advocate helped the parties in the case of Barclays Bank Plc v. Eustine [1995] ALL ER 511, to
make a decision that was very detrimental to the bank that they were creditors of. The counsel
was asked to provide the details he gave the client by the bank. He claimed privilege. The
information and other papers had to be released, since the court dismissed the plea of privilege.

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 2.2.1.4 Privilege Expressly Waived by Client
The client-advocate privilege is held by the client, not the advocate, hence the client has an
ultimatum over whether to invoke it or not. The advocate/client privilege prohibits an advocate
from being compelled to reveal a client's affairs without the client's express permission or
authorization. According to the ruling in King Woolen Mills Ltd. & Another v. Kaplan & Stratton
Advocate31, this position is applied in Kenyan courts. It states that;

"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."

Therefore, a court or any other individual cannot force an advocate to violate the aforementioned
rule. The client alone is capable of waiving or lifting the same as stated in the case of Manani
Lilan & Mwetich Co. Advocates v Veronica Sum [2022] eKLR where the Court dismissed the
application of the advocate to waive the privilege because the rule belongs to the client, not the
advocate, and therefore an advocate cannot claim protection under it.

2.2.2 Common Law Exceptions to Advocate-Client Privilege

2.2.2.1 Implied Waiver
In the establishment of implied waiver, the court in Brennan v Sutherland City Council (2009)
ICR 479 is exemplary in establishing this privilege. In this case, the appellant disclosed the
existence of legal advice in addition to the substance of the advice given or not. Contradiction
arose as the fact that the appellants’ previous advisors offered no advice hence, they were not
informed of the requisite statutory limitations of time but in an amended witness statement that
the legal advisor cautioned against filing an appeal. They argued poor advice on time limitation
of an appeal when they could have filed for one, or that they were misled on the lack of merit of
an appeal when indeed merits existed. The court sought to ensure that either way the losing party
in the appeal- appellants would be able to secure recourse to their advisors for the consequential
losses incurred. In the end the court allowed disclosure. It adopted Brennan’s view in paragraph
66 depicting privilege is a ‘highly paramount protection’ and set parameters on what kind of
information and documents would be given. The court was guided by the following principles:

31
(1990-1994) E. A 244

19
 i. The nature of disclosure- if it amounted to the substance of the advice received in
comparison to the effect it had.
ii. The extent of the disclosure made- whether it was simply in existence or stretched
to the terms of the advice relied upon.
iii. Whether the denial of disclosure would amount to unfairness.
Therefore, the lesson depicted in this case is that privilege can be waived through implication
even if no legal advice was given.
2.2.2.2 Unprivileged Documents
Documents that are not within the ambit of privilege do not acquire non-disclosure offered by
privilege. In the case of University of Dundee v Mr. Prasun Chakraborty 32, the Claimant was a
Post-Doctoral Research Assistant for the University (Respondent). The University appointed an
independent member of staff to investigate the Claimant’s complaint of bullying, harassment and
discrimination based on race. The Respondent’s legal advisors reviewed the report and suggested
various amendments prior to the final report being formulated. The Claimant applied for the
original report to be disclosed to the court to draw an inference into what legal advice was given.
The Tribunal rejected the Respondent’s argument that the legal advice privilege extended to the
original report and ordered the production of the same. Upon appeal to the Employment Appeal
Tribunal, the Respondent relied on the grounds that litigation privilege extended to
communication and documents produced and hence matter was sufficiently covered in the
privilege.
The court upheld the opinion of the Tribunal that the original report was excluded from privilege.
It placed reliance on the case of Buttes Gas and Oil Co. V Hammer (No. 3) [1981]33 which had
similar facts. The court ruled that ‘the original unamended document was not privileged and did
not become privileged retrospectively even if disclosure would enable comparison with the final
report and permit inferences to be drawn between the two versions.’
These are instances posited by courts, in which privilege can be seen not to apply. Privilege will
therefore be considered waived impliedly where no legal advice is given and documents outside
the ambit of privilege do not acquire retrospective privilege.

32
University of Dundee v Mr. Prasun Chakraborty [2022] EAT 150
33
Buttes Gas and Oil Co. V Hammer (No. 3) [1981] Q.B 223 [Para 30,31 and 32]

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 2.3 APPLICATION

In the scenario where John confesses to Musu about murdering his girlfriend Mary and an
eyewitness, Musu must navigate these principles carefully. First of all, unless there is an explicit
exception, Musu ought to keep John's confessions confidential. He has to determine if John is an
immediate threat to others, which might necessitate disclosure to prevent imminent harm. Musu
could try to get John's consent to disclose certain information, but it's doubtful in this particular
situation. Musu must abide by any court order to provide the information after pursuing all
available legal options to safeguard John's interests. In addition, if John insists on pursuing a
dishonest defense strategy, Musu should consider withdrawing from the case in order to uphold
his ethical obligations.

2.4 CONCLUSION

In order to guarantee confidence and competent legal counsel, client-advocate privilege is

essential. It is not, however, absolute and may be waived under certain conditions, including
those requiring client consent, preventing crime or injury, legal issues involving the advocate,
and court orders. By understanding these exclusions, advocates may effectively manage the
intricate relationship between upholding confidentiality and meeting their wider ethical and legal
responsibilities, safeguarding the legal profession's integrity and advancing the public interest.

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