Professional Ethics - 2021

Topic Content
2
1. What is a profession?
2. What constitutes the practice of law?
3. Who is a lawyer?
4. The role of the lawyer
5. History of the legal profession.
6. The different practice settings
7. Regulation of the legal profession.
8. Professional associations
9. The attitude of the society towards the legal
profession
10. Current issues in the legal profession
CBG OUMA & E ARUWA 2014 03/05/2025
 Topic Objectives
3
 At the end of this topic, the participant should be able to
 Define the term ‘profession’
 Distinguish between a profession and other callings
 Explain what it means to practice law in Kenya
 Explain the role of the lawyer in society
 Analyze & Evaluate the current regulatory framework
 Propose necessary reforms for the profession
 Identify the different practice settings and compare the career
options for lawyers in Kenya
 Determine the public perception of lawyers
 Identify the available professional associations
 Discuss the current issues in the legal profession
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 Readings
4
 Chapters 1-6 Ethics in practice
 The Hon Justice Michael Kirby AC CMG, Legal Professional Ethics
in Times of Change
 Russell G Pierce The Legal profession as a Blue State
 David B Wilkins ‘Beyond Bleached out professionalism’ (Chapter
11 ethics in practice)
 M Slabbert, The Requirement Of Being A "Fit And Proper“ Person
For The Legal Profession
 Tim Dare, The Standard Conception of the Lawyer’s Role in Tim
Dare (Author, Editor) The Counsel of Rogues? Ashgate May 1,
2009
 PLO Lumumba, The Legal Profession in Kenya. Towards a New
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Ethos
 Readings
5
 Steve Lohr ‘First, Make Money. Also, Do Good’. New York Times Published:
August 13, 2011
http://www.nytimes.com/2011/08/14/business/shared-value-gains-in-corporater
esponsibilityefforts.html?pagewanted=all

 Milton Friedman, “The Social Responsibility of Business Is to Increase Its

Profits,” New York Times Magazine, September 13, 1970.
 Aaron Ringera and others vs LSK HCC Misc. 1330 of 1991
 Kenneth Kiplagat vs LSK HCC Misc. 542 of 1996
 Kamau John Kinyanjui vs R 201 EKLR CA CR APP NO 295 of 2005
 Final Report on the DCJ
 The story of Cecil Miller Advocate and his attempt to head the IIEC
 Florida Bar vs James Harvey Tippler Supreme Court of Florida April 30, 2009
 StatementCBG
onOUMA
Moral Character Requirement California Bar
& E ARUWA 2014 03/05/2025

http://admissions.calbar.ca.gov/MoralCharacter/Statement.aspx
 Part 1
What/ Who is a Professional

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 7 Part Objectives
At the end of this part, the participant should be able to
 Define a profession
 Identify the characteristics of a profession
 Explain the implications of the characteristics of a
profession
 Distinguish between a profession and other vocations
 Relate the definition and characteristics of a profession
to societal expectations on legal professionals
 Use the definition and characteristics of a profession to
resolve practical ethical issues
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 8 What is a Profession?
 The 1980 report of the British Royal Commission on Legal Services
defined a profession as:
 – “……a body of men and women (a) identifiable by reference
with some register or record (b) recognized as having some
special skill and learning in the same field of activity in which
the public needs protection against incompetence, the standards
of skill and learning being prescribed by the profession itself (c)
holding themselves out as willing to serve the public (d)
voluntarily submitting themselves to standards of ethical
conduct beyond those required of the ordinary citizen by law (e)
undertaking to accept personal responsibility to those whom
they serve for their actions and to their professions for
maintaining public competence”
 So is law a profession?
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9 Characteristics of a Profession
 1. Member Identification through a register
 2. Members possess special skill and knowledge due to their wide and
thorough training
 3. Members offer their services to the public
 4. Adhere to certain ethical standards which are binding on the
members of the profession
 5. There exists enforcement mechanism for the code of conduct
 6. Members have high ethical standards beyond what is expected of
an ordinary citizen.
 7. Restrictions are imposed on entry and operation
 8. Professional advancement
 9. Fiduciary relationship

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 So which ‘professions’ meet this threshold?

10 ABA Comprehensive Guide to Bar Admissions
III. Moral Character and Fitness .
 Purpose. The primary purpose of character and
fitness screening before admission to the bar is the
protection of the public and the system of justice.
The lawyer licensing process is incomplete if
only testing for minimal competence is
undertaken. The public is inadequately protected by
a system that fails to evaluate character and fitness
as those elements relate to the practice of law. The
public interest requires that the public be
secure in its expectation that those who are
admitted to the bar are worthy of the trust and
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 CoK 2010 – Blurred Lines Between Public/ Private Life
11

 Article 75. (1) A State officer shall behave, whether in

public and official life, in private life, or in
association with other persons, in a manner that avoids
—(c) demeaning the office the officer holds.
 Section 20. (1) A public officer shall conduct his
private affairs in a way that maintains public
confidence in the integrity of his office.
 Leadership and Integrity Act – Sec. 32. A State officer shall
conduct private affairs in a manner that maintains
public confidence in the integrity of the office.

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12 Preamble to Judicial Code of Conduct
 It should always be remembered that each judicial
officer occupies a special and revered position which
must be protected both in public and private life, so
as not to bring the Judicial Service generally, into
disrepute. It is imperative, therefore, that every
judicial officer should adhere to this Code with
scrupulous care.
 A judicial calling is one of sacrifice and restricted
lifestyle. A lifestyle which is automatically accepted on
appointment to the bench

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13 Advocates Act

 S 15 (3) Every petition made under this section shall

be heard by the Chief Justice in chambers, and the
Council of Legal Education and the Society shall have
the right to be heard thereon; and, if the Chief
Justice is satisfied as to the qualifications,
service and moral fitness of the petitioner, he
shall adjourn the hearing into open court and shall
order that the petitioner be admitted as an advocate.

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14 My Life, My Choice in the Legal Profession?

 Discipline as a duty to the profession

 Bolton v Law Society [1994] 2 All ER 486, 492-3, the
court said: "A profession’s most valuable asset is its
collective reputation and the confidence, which that
inspires….The reputation of the profession is
more important than the fortunes of any
individual member.
 What do you think of the private life of CK , one of
the finest legal minds in the making?
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15
Private Conduct – Public Consequences

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 Part 2
What Constitutes the Practice of Law

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17 Part Objectives
At the end of this part, the participant should be able to:
 1. Describe the ‘practice of law’
 2. Cite and apply statutes provisions judicial decisions
describing the ‘practice of law’
 3. List examples of activities which amount to ‘ the
practice of law in Kenya’
 4. Compare the approaches in similar jurisdictions
 5. Explain the practical importance of the need for
clarity on ‘what constitutes the practice of law’

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18 What Constitutes the Practice of Law
 Practical application of abstract legal theories and
knowledge to solve specific individualized
problems,
 Advancement of the interests of those who retain
(i.e., hire) lawyers to perform legal services

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19 What Constitutes the Practice of Law
Differs from country to country but typically include-
 Oral argument in the courts
 Research and drafting of court papers
 Advocacy in administrative hearings and ADR proceedings
 Legal advice and client counseling (with regard to pending litigation)[
 Legal advice generally
 Protecting intellectual property
 Negotiating and drafting contracts
 Commercial transactions
 Conveyancing
 Carrying out the intent of the deceased
 Prosecution and defense of criminal suspects

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20
What Constitutes the Practice of Law in Kenya?

 Advocates Act Part VIII Sections 31-43 provisions with respect to

unqualified persons acting as advocates
 S 31. (1)
 S 33
 S 34
 S35
 S 39
 S40
 S41
 S42
 S43
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 Part 3
Who is a Lawyer/ Advocate

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22
Part Objectives
 At the end of this part, the participant should be able to
 1. Define the term ‘lawyer’/advpocate
 2. List the synonyms for the terms
 3. Give examples of variations in terminology across
jurisdictions
 4. Cite and apply statutory provisions and judicial
decisions employing the term or its synonyms
 5. Explain the practical importance of the need for
clarity in the use of the term ‘lawyer 'or ‘advocate’

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23
Who is a Lawyer/ Advocate?

 Differs form country to country

 A lawyer, according to Black's Law Dictionary,
is "a person learned in the law; as an
attorney, counsel or solicitor; a person
who is practicing law

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24 Common Law Terminologies

 Australia, the word "lawyer" is used to refer to both

barristers and solicitors (whether in private practice or
practising as corporate in-house counsel).
 Canada, the word "lawyer" only refers to individuals
who have been called to the bar
 England and Wales, "lawyer" is used to refer to
persons who provide reserved legal activities includes
practitioners such as barristers, solicitors, registered
foreign lawyers, patent attorneys, trade mark attorneys,
licensed conveyancers, commissioners for oaths,
immigration advisers and claims management services
[Legal Services Act 2007] as well as people who are
involved with the law but do not practise it on behalf of
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individual clients, such as judges, court clerks, and

25
Common Law Terminologies

 India, the term "lawyer" is often colloquially used,

but the official term is "advocate" as prescribed under
the Advocates Act, 1961.
 Scotland, the word "lawyer" refers to a more
specific group of legally trained people. It specifically
includes advocates and solicitors. In a generic sense, it
may also include judges and law trained support staff.
 United States, the term generally refers to
attorneys who may practice law. It is never used to refer
to patent agents or paralegals.

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26 Who is a Lawyer/ Advocate in Kenya?

 Advocates Act
 S 2 definition of ‘advocate’
 See Part III s 9-11 ‘provisions relating to the right to
practise as an ‘advocate’
 Part IV ss 12-16 Entry into the profession
‘admission as an ‘advocate’
 Part V ss 17-19 senior counsel
 Part VI s 20 precedence
 Part VII SS 21-30 practicing certificate
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27 Qualifications

 Difference between s 2 ‘definition of advocate’

and s9 ‘qualifications to practice as an
advocate’
 Nationality
 Education
 Experience
 Reciprocity
 Moral fitness
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 To deal with specific matters

28 Routes to Qualification

 LLB KSL Pupillage

 S11 Foreigner AG Specified cases
 S 12 Specified officers-Cannot charge fees
 S 13 Exceptions by CLE from some or all
 S 13 Commonwealth admitted practitioners
from the five EAC Countries

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29 Moral Fitness

 What constitutes moral fitness

 Irreproachable conduct
 Exemplary service
 Are the morally unfit permanently blacklisted
or is rehabilitation possible?

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 Part 3-1
Who is a Lawyer/ Advocate? Kenya
Case Law
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31 Case Law 1
 KPLC v Chris Mahinda t/a Nyeri Trade Centre HCCA
148/2004 (unreported)
 NBK V Wilson Ndolo Ayah -2009 eKLR
 Professor Huq v Islamic University [1995] LLR 44
(SCU)
 Kajwang vs. LSK 2002 1 KLR 846
 Geoffrey Obura v Martha Koome [2000] LLR 3251
(CAK)
 Samaki v Samaki [1996] LLR 429 (CAK)
 Mohammed Ashraf Sadique & another V Matthew Oseko
T/A Oseko And Company Advocates [2009] EKLR
 Okenyo Omwansa George & another v Attorney General &
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32 Case Law 2
 Njagi v Kihara [2000] LLR 1698 (HCK)
 Kingsway Tyres v Alson [1998] LLR 1074 (CCK)
 Air Alfaraj Ltd VS Raytheon Aircraft Credit Corporation &
anor 2000 KLR 315
 Khanji v Khanji [1992] LLR 597 (HCK)
 Kilimani Leasing v Morris Catering [1994] LLR 190 (HCK)
 Malindi Air v Prestige Air [1997] LLR 842 (HCK)
 Khalid Butt v Kanjabi [1992] LLR 975 (HCK)
 Kazungu v K.P.A. [1998] LLR 993 (HCK)
 Mwalia v KEBS [2000] LLR 993 (CCK)
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 Part 4
The Role of the Lawyer/ Advocate

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 Part Objectives
34
At the end of this part, the participant should be able to:
 1. Recognise the variations across jurisdictions on the
‘role of the lawyer’
 2. Make some broad generalizations on the role of the
lawyer
 3. List some specific roles
 4. Cite and apply statutory provisions and judicial
decisions on the role of the lawyer
 5. Explain the impact of different practice settings on
the role of the lawyer
 6. Explain the practical importance appreciating the
role of the lawyer
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35 The Role of the Lawyer

 Varies from one legal system to another.

 But some generalities can be drawn
 Play different roles depending on their practice
setting
 A lawyer has roles with respect to clients, the
profession itself, the state and the public
interest generally

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 The Role of the Lawyer
36

 The clarion call for zealous advocacy - Lord Brougham in Trial of

Queen Caroline 8 (1821), said:-
 'An advocate, in the discharge of his duty, knows but
one person in all the world, and that person is his client.
To save that client by all means and expedients, and at
all hazards and costs to other persons, and, amongst
them, to himself, is his first and only duty; and in
performing this duty he must not regard the alarm, the
torments, the destruction which he may bring upon
others. Separating the duty of a patriot from that of an
advocate, he must go on reckless of consequences,
though it should be his unhappy fate to involve his
country in confusion’
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 The Role of the Lawyer
37

 Lord Cockburn’s response to Lord Brougham:-

 ‘My noble and learned friend, Lord Brougham, whose
words are the words of wisdom, said that an advocate
should be fearless in carrying out the interests of his
client; but I couple that with this qualification and this
restriction-that the arms which he wields are to be the
arms of the warrior and not of the assassin. It is his duty
to strive to accomplish the interest of his clients per fas,
but not per nefas; it is his duty, to the utmost of his
power, to seek to reconcile the interests he is bound to
maintain, and the duty it is incumbent upon him to
discharge, with the eternal and immutable interests of
truth and justice’
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38 The Role of the Lawyer

 The advocate as an officer of the justice

 SS 15(4) & 55 Advocates Act KE : Preamble ABA
Model Rules (2004)
 Preamble Code Of Conduct for Lawyers In the
European Union [CCBE CODE], (2002).
 UN Basic Principles on the Role of Lawyers
Adopted by the Eighth United Nations Congress on
the Prevention of Crime and the Treatment of
Offenders, Havana, Cuba 27 August to 7
September 1990
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 39 The Role of the Lawyer – Officer of the Court
 The importance of an advocate as an officer of the court was
emphasized by Lord Upjohn in Rondel V Worsley (1967) 1QB
443
 “As an advocate he is a minister of justice equally with the
judge….He must accept the brief and do all he honourably can
on behalf of his client. I say honourably can because his duty is
not only to his client. He has a duty to the court, which is
paramount. It is a mistake to suppose that he is the
mouthpiece of his client to say what he wants; or his tool to do
what he directs. He owes allegiance to a higher cause, it is a
cause of truth and justice….He must disregard the most
specific instructions of his client if they conflict with the duty of
the court.”
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 …….A profession’s most valuable asset is its collective

40 Officer of the Court

 The idea of an advocate as an officer of the

court is as old as the profession itself
 It appears to transcend all legal systems
 It has been accepted almost uncritically as the
raison d’etre for the special role lawyers play
in the justice system

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41 A Universal Principle?

 Ancient Rome - The ‘ advocatus’ was called

upon to by the proctor to assist in the cause of
a client with an solemn admonition to ‘avoid
artifice and circumlocution’
 Europe - The principle was recognized in
virtually the whole of Europe by the middle
ages

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42 Frederick II of Germany (1712-1786)

 “We will that the advocates to be appointed, as well in our

court as before the justices and bailiffs of the provinces, before
entering their offices, shall take their corporal oath on the
Gospels, that the parties whose cause they have undertaken
they will in all good faith and truth, without any tergiversation,
saccour; nor will they allege anything against their sound
conscience; nor will they undertake a desperate causes;
and, should they have been induced, by misrepresentation
and the coloring of the party to undertake a cause which, in
the progress of the suit, shall appear to them, in fact or law,
unjust, they will forthwith abandon it.”

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43 Frederick II of Germany (1712-1786)

 Liberty is not granted to the abandoned party to have

recourse to another advocate. They shall also swear that, in
the progress of the suit, they will not require an additional
fee, nor on the part of the suit enter into any compact;
which oath it shall not be sufficient to them to swear to
once only, but they shall renew it every year before the
officer of justice. And if any advocate shall attempt to
contravene the aforesaid form of oath in any cause, great
or small, he shall be removed from his office, with the
brand of perpetual infamy, and pay three pounds of
the purest gold onto our treasury
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 Part 5
History of the Legal Profession in Kenya
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45

Part Objectives
At the end of this part, the participant should be
able to:
 1. Narrate the history of the legal profession in
Kenya
 2. List the important dates in the history of the
profession in Kenya
 3. Identify the turning points in the history of the
profession
 4. Discuss the lessons learn from the history of
the profession
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46 History of the Legal Profession in
Kenya
 East African Legal Practitioners Rules No. 8 of 1901
 Advocates Ordinance, 1949 (No. 55 of 1949)
 Advocates Ordinance 1961(No 34 of 1961)
 Law Society of Kenya Ordinance
 Denning Report(Report of the Committee on Legal
Education for Students from Africa (1966))
 Advocates Act
 Law Society of Kenya Act Cap 18 LOK(repealed)
 Law Society of Kenya Act 2014
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47 History of the Legal Profession in Kenya

 Period of full traditionalism had no lawyers

 Colonization in the 19th Century brought about a
political system, economic activities and other
relationships that witnessed the growth of and
necessity of lawyers.
 No facility for training lawyers. W. Twinning –Legal
Education within EA talks of the perception that
training lawyers = training of politicians
 Legal professionals were trained abroad

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48
History of the Legal Profession in Kenya

 East African Legal Practitioners Rules No. 8 of

1901 specified requirements for legal practice-
 Members of the bar of England, Solicitors of
the Supreme Court of England & Ireland,
pleaders who had been admitted to practice in
the High Court of India, Native Vakeels( the
last two had temporary licenses to practice in
native courts

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49
History of the Legal Profession in Kenya

 Denning Committee appointed by British

Government to inquire into legal education for
Africa. Denning Report(Report of the
Committee on Legal Education for Students
from Africa ) had 2 main recommendations
 – Over and above British qualifications one
needed local training in Law
 – Scheme of training for local lawyers that
included University training and considered
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that one Faculty of Law was enough for the

50
History of the Legal Profession in Kenya
 The Law School established in 1963 to provide
professional training
 Re-established in 1995 to provide ATP
 Akiwumi Report 1998 led to establishment of CLE
under CLE Act. Later this brought confusion
because KSL was an agent of CLE
 Muigai Task Force of 2005 recommended
separation of CLE to regulate legal education and
KSL for ATP, CPD, Paralegal training etc
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51
History of the Legal Profession in Kenya
 LN 400 of 2007 KSL Regulations
 LN 169 170 and of 2009 KSL Regulations
Accreditation Regulations
 KSL Act 2012 , Legal Education Act 2012 separation
of regulation from service provision
 Statute Law (Misc Amendment ) Act 2012 Various
amendment to the Advocates Act. Foreign lawyers
given window of opportunity to practice
 Statute Law (Misc Amendment ) Act 2014 Bar Exam
to be administered by CLE
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 Part 6
Different Practice Settings

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53 Part Objectives

At the end of this part , the participant should be

able to:
 1. Identify the different practice settings
for legal professionals
 2. Compare the terms and conditions of
service in the different practice settings
 3. Make a suitable choice for a future
career in the legal profession
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54 The Different Practice Settings

 Academia
 Public service
 Judicial service
 Prosecution service
 Corporate counsel
 Civil society
 Private practice
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 Part 7
Regulation of the Legal Profession

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56
Part Objectives
At the end of this part, the participant should be able to
 1. Discuss the regulatory framework for legal
professionals
 2. Identify the variations created by the different
practice settings
 3. Analyse public perceptions about the regulatory
framework
 4. Compare self regulation with public regulation
models
 5. Identify the strengths and weaknesses of the
regulatory framework
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 6. Evaluate the efficacy of the regulatory framework

57 Regulation of the Legal Profession

 The choice between;

1. Self-Regulation
2. Public Regulation
3. A mixture of the two
 The choice between of structural and behavioral
interventions

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 Part 8
Professional Associations

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59
Part Objectives
At the end of this part, the participant should be
able to:
 1. Identify the various professional
associations for lawyers
 2. Describe their mandate structure and
membership conditions
 3. Show the benefits of joining such
professional associations
 4. Evaluate the track record of the Law Society of
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60 Professional Associations
 Law Society of Kenya
 East African Law Society
 International Bar Association
 Other Bar Associations
 Law Related Professional Associations e.g. FIDA
 Objectives
 Mandate
 Structures
 Membership
 Leadership
 Services to the profession
 Track records
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 Part 9
Perceptions of Society on the
Legal Profession
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62 Part Objectives

 At the end of this part the participant should be able

to:
 1. Point out some common perceptions about
the legal profession
 2. Explain the basis or origins of those
perceptions
 3. Evaluate the accuracy of the perceptions
 4. Propose interventions to manage negative
perceptions
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63
Anecdotal Evidence
 Are lawyers above the law? EAS Published on
09/03/2010 By Musyoki Kimanthi
 A. The relationship between advocates and the
public is characterized by mistrust if the
jokes told about lawyers are anything to go
by. But jokes aside, statistics on complaints
against lawyers are shocking. According to
the Advocates Complaints Commission, 425
complaints were received between January 2008
and June 2009. These figures do not include
complaints made to the Disciplinary Committee of
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the Law Society of Kenya.

64
Lawyer Jokes - Honesty
A lawyer named 'Strange' was shopping for a
tombstone. After he had made his selection, the
stonecutter asked him what inscription he would like
on it. "Here lies an honest man and a lawyer,“
responded the lawyer. "Sorry, but I can't do that,“
replied the stonecutter. "In this state, it's against the
law to bury two people in the same grave. However,
I could put 'Here lies an honest lawyer'." "But that
won't let people know who it is," protested the
lawyer. "It most certainly will," retorted the
stonecutter. "People will read it and exclaim, "That's
CBG OUMA & E ARUWA 2014 03/05/2025

Strange!"
 From the Past
65
 “The town is so full of lawyers that one can hardly
go into the streets. They are the jest of the court
and the hate of all people. Their clothes are much
out of date as their speech which none can
understand but when they ask their fees.” 1665
 William Shakespeare “first thing let’s kill all the
lawyers.” - Henry VI, Part 2 Act 4, scene 2, 71–78
 King Cromwell, 1656 “Lying lawyers whose hands
are full of mischief and their pens dipped in gall,
their teeth are swords and spears and their
throats, open sepulchers to devour and swallow
up the poor and the needy amongst men
CBG OUMA & E ARUWA 2014 03/05/2025
 … and Present
66
 http://bullyonline.org/old/successunlimited/humou
r/lawyer.htm

 https://www.washingtonpost.com/news/wonk/wp/2
016/01/19/how-the-most-disliked-and-elected-prof
ession-is-disappearing-from-politics/

CBG OUMA & E ARUWA 2014 03/05/2025

67
Kenyan Commentators – Pravin Bowry
 Spotlight needs to shine on lawyers, too EAS
Published on 12/07/2011 By Pravin Bowry
 The number of complaints received from January
1 to June 30 in the Complaints Commission
was 605.
 It is believed that some advocates have over 100
complaints against them!
 Since 2006 Kenya Anti-Corruption Commission has
received 1,377 complaints against advocates
with 227 complaints having been referred to
CBG OUMA & E ARUWA 2014 03/05/2025

this year.
68
Kenyan Commentators – Fatuma Sichale
 Fatuma Sichale (2009) - Between January 2008 and June
2009 425 complaints lodged against advocates
 Most of the complaints relate to withholding of funds and
failure to render professional services
 There has been a marked increase in the number of
complaints against advocates over the last 10 years
 Additionally, the Registrar of the High Court is aware of
hundreds of cases of advocates giving post-dated
cheques, a criminal offence now under the Penal Code.
There are reliable reports that many advocates are engaged in
schemes of evading payment of court fees. The recent
electronic collection of court fees has revealed cartels of
CBG OUMA & E ARUWA 2014 03/05/2025

advocates forging court documents to pay reduced court fees.

69
Kenyan Commentators – Justice R. Kuloba
Kuloba J in Muthanwa & Co Advocates vs Apollo
Insurance Co Ltd
 “[That lawyers] are triple satanic … and the
wrongs done are in a litany which stretches like
Banquo’s line of kings to the cracks of doom”

CBG OUMA & E ARUWA 2014 03/05/2025

70

Are Lawyers Bashed Unfairly?

Dare, Tim. The Counsel of Rogues?: A Defence of the
Standard Conception of the Lawyer's Role. Farnham,
Surrey, England: Ashgate, 2009. 18th Ed
 “There is a widespread and ancient perception that
lawyers are grasping, callous, self-serving, devious
and indifferent to justice, truth and the public good.
Ironically, the profession most obviously charged with
the protection and defence of ‘justice’ is commonly
regarded as being inimical to that very virtue. The
perception is recorded in literature, in philosophy and
in popular culture.”
CBG OUMA & E ARUWA 2014 03/05/2025
71

Are Lawyers Bashed Unfairly?

 “Lawyers are not popular, they are not trusted, and
lawyers are not respected. You are embarking on a
career that will lead you to ridicule, criticism and
suspicion, your work will seldom be understood or
appreciated by your friends, by the public or even by
your own clients...”
 Roy D. Simon; Murray L. Schwartz ,Lawyers and the
Legal Profession: Cases and Materials (Contemporary
Legal Education Series)1994 Lexis Nexis

CBG OUMA & E ARUWA 2014 03/05/2025

72

Are Lawyers Bashed Unfairly?

 “The last two decades have witnessed a conspicuous
rise in public disparagement of lawyers and the
judicial process in Kenya.
 Much of this public dissatisfaction with lawyers has
been a disappointment in the law itself, often
generated by exaggerated expectations of what
the law can achieve in reality.”
(Prof. PLO – Lumumba)

CBG OUMA & E ARUWA 2014 03/05/2025

 Part 10
Current Issues in the Legal
Profession
CBG OUMA & E ARUWA03/05/2025
2014 73
74

Are Lawyers Bashed Unfairly?

 “The last two decades have witnessed a conspicuous
rise in public disparagement of lawyers and the
judicial process in Kenya.
 Much of this public dissatisfaction with lawyers has
been a disappointment in the law itself, often
generated by exaggerated expectations of what
the law can achieve in reality.”
(Prof. PLO – Lumumba)

CBG OUMA & E ARUWA 2014 03/05/2025

75

Are Lawyers Bashed Unfairly?

 “The last two decades have witnessed a conspicuous
rise in public disparagement of lawyers and the
judicial process in Kenya.
 Much of this public dissatisfaction with lawyers has
been a disappointment in the law itself, often
generated by exaggerated expectations of what
the law can achieve in reality.”
(Prof. PLO – Lumumba)

CBG OUMA & E ARUWA 2014 03/05/2025

76

Part Objectives
 At the end of this part, the participant should be able
to
 1. Identify the major current issues in the legal
profession
 2. Summarise the competing views
 3. Conduct a comparative survey of international best
practices
 4. Analyze and critique the views
 5. Propose a reform agenda for the legal profession
CBG OUMA & E ARUWA 2014 03/05/2025
77 Current Issues in the Legal Profession

 1. Legal education
 2. The role of the lawyer
 3. Advocates remuneration
 4. Access to legal services
 5. Declining standards of conduct
 6. Regulation of lawyers

CBG OUMA & E ARUWA 2014 03/05/2025

78 Firm Tasks

 Draft a petition for admission as an advocate

 Identify emerging practice options for legal
professionals in Kenya
 Get statistics on the state of discipline in the
legal profession
 Find some newspaper reports on public
perceptions about the legal profession in Kenya
 Find local decisions where the courts have
expressed displeasure with the conduct of advocates
 Identify the possible causes of the decline in
CBG OUMA & E ARUWA 2014 03/05/2025

professionalism in Kenya
79

CBG OUMA & E ARUWA 2014 03/05/2025

ATP 105
Professional
Ethics - 2016
LECTURE 5 – ETHICS: LEGAL EDUCATION
Course Instructor – Stephen Mallowah LLB, LLM, MSc
 Topic Content
81

1. History of legal education education

2. The philosophy of legal 9. Financing of legal education
education 10. A comparative survey
3. Objectives of legal 11. Harmonization
education 12. Evaluation of legal
4. Structure of legal education education in Kenya
13. Way forward
5. Prerequisites of legal
education
6. Content of legal education
7. Provision of legal education
8. Regulation of legal
STEPHEN MALLOWAH 2016 03/05/2025
 Topic Objectives
82

At the end of this topic, the participant should be able to

 1. Trace and narrate the history of legal education.
 2. Determine the philosophy and objectives of legal
education in Kenya
 3. Discuss the structure, content, prerequisites,
management , provision and regulation of legal
education in Kenya
 4. Evaluate the efficiency and effectiveness of legal
education in Kenya
 5. Propose necessary reforms
STEPHEN MALLOWAH 2016 03/05/2025
 Desired Outputs
83

 A paper on legal education in Kenya

 A group presentation on legal education in Kenya
 A plenary discussion on legal education in Kenya
 A memorandum to the Kenyan Parliament on
proposed amendments to the Legal Education Act
2012 and Kenya School of Law Act 2012

STEPHEN MALLOWAH 2016 03/05/2025

 Learning Resources

STEPHEN MALLOWAH 2016 03/05/2025 84

85
Statutes
 The Advocates Act Cap 16 Laws of Kenya
 The Law Society of Kenya Act Cap 18 LOK
 The advocates(admission regulations ) 1997 LN
357/97
 The Council of Legal Education Act Cap 16A LOK
 S32 Advocates Act
 LN 400 of 2007 ,
 LN 169 170 of 2009
 Proposed KSL Regulations 2014
STEPHEN MALLOWAH 2016 03/05/2025
86
Statutes
 The Advocates (Continuing Legal Education)
Regulations, 2004 LN 58/2004
 Advocates (Compulsory courses)Regulations 2005 LN
2618/05
 Kenya School of Law Act 2012
 Legal Education Act 2012
 Statute Misc. Amendments Act No 14 of 2012
 • Statute Misc. Amendments Act No 42 2014
 LSK Act 2014
 LSK CPD Rules 2014
STEPHEN MALLOWAH 2016 03/05/2025
87
Case Law
 1. In the matter of an application by Rita Biwott NRB
HCC Misc. App 1122 of 1994 (Justice A B Shah) C.A
C.App 238 of 1994 (Cockar, Muli Akiwumi JJA)
 2. Geoffrey Theuri vs AG NRB HCC Misc. 72 OF 1984
 3. HCC Misc. Civ. App No 137 of 2004 Ex parte Njuguna
 4. Mohammed Ashraf Sadique & Another vs. Matthew
Oseko T/A Oseko and Company Advocates NRB HCCC
901, 933, 934, 935, 936, 937 & 938 of 2007 [2009]
EKLR
 5. Okenyo Omwansa George & another v Attorney
General & 2 others [2012] eKLR. 1.
STEPHEN MALLOWAH 2016 03/05/2025
88
Case Law
 1. Susan Mungai v Council of Legal Education & 2 others
[2012] eKLR
 2. HCC PET 12 of 2012 Timothy Makokha et al vs CLE
KSL et al
 3. Republic v The Council of Legal Education Exparte
Keniz Otieno Agira & 23 others [2013] eKLR
 4. Eunice Cecilia Mwikali Maema v Council of Legal
Education & 2 others Civil Appeal No 121 of 2013
 5. Maumar Nabeel Onyango Khan v Council of Legal
Education & 2 others [2014] eKLR
STEPHEN MALLOWAH 2016 03/05/2025
 Readings
89

 1. Harvey an introduction to the legal system in EA pp.

1-57
 2. Ojwang and Salter: Legal Education In Kenya 33 J. Afr.
L. 78 1989
 3. Ghai and Mac Auslan Public Law and Political Change
in Kenya
 4. MacCrate et al Legal Education and Professional
Development-an Educational Continuum, ABA,sec.Legal
Edu. & Admission To The Bar B.1003104 (The MacCrate
Report)
STEPHEN MALLOWAH 2016 03/05/2025
 Readings
90

 The Denning report (1961 cmnd 1255 London HSMO

1962)
 Task Force On The Development of a Policy and Legal
Framework for Legal Education in Kenya 2006 (Situation
Papers 2005)
 Report of the Task Force On The Development of a
Policy and Legal Framework for Legal Education in Kenya
2006
 The Akiwumi report 1995

STEPHEN MALLOWAH 2016 03/05/2025

 Other Learning Resources
91

 LSK Website
 Council of Legal Education / Kenya School of
 Law Website
 KSL Strategic Plan
 LSK Strategic Plan 2012-2017

STEPHEN MALLOWAH 2016 03/05/2025

 Part 1
History of Legal Education

STEPHEN MALLOWAH 2016 03/05/2025 92

 93
Important Milestones
 1. The Denning Report 1961
 2. Advocates Ordinance 1961
 3. UON
 4. Moi University
 5. Advocates Act No 18 of 1989
 6. The Akiwumi Report 1995
 7. CLE Act 1995
 8. Stakeholders Workshop Mombasa 27-29th Sept 2004
 9. Muigai Task Force 2005/6
STEPHEN MALLOWAH 2016 03/05/2025
 94
Important Milestones
 1. LN 357 of 1997
 2. Advocates, Continuing legal education rules 2004
 3. LN 2618 of 2005
 4. LN 400 of 2007
 5. LN 169 170 of 2009
 6. KSL Act 2012
 7. LE Act 2012
 8. Draft LSK CLPD RULES 2014
 9. SL (Misc Amm) Act 14 2012
 10. SL (Misc Amm) Act 2014
STEPHEN MALLOWAH 2016 03/05/2025
 Part 2
The Philosophy of Legal Education

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 96
Policy Framework
 Crosscutting- Affecting the socio-economic and political
sector generally; Crosscutting- Affecting the whole
education sector
 Legal-education-specific policies
 Constitution of Kenya 2010, Acts of parliament and legal
notices
 Text writers and Commentators
 Denning Report, Akiwumi, Report ,Muigai Report
 Various commissions on education - Frazer, Mackay,
Ominde. Koech, Odhiambo
STEPHEN MALLOWAH 2016 03/05/2025

 Vision 2030
97
Philosophy of Legal Education in Kenya

 It’s a shared responsibility

 Different players at distinct stages
 Multiple service providers
 A Public –Private Partnership
 Emphasis on quality assurance by a public
institution but with participation from the legal
profession

STEPHEN MALLOWAH 2016 03/05/2025

98
Philosophy of Legal Education in Kenya
 Originally elitist but now open access
 Attempt to link legal education with prevailing
socioeconomic and even political needs
 Produce for the market
 Let the market forces prevail
 Produce the public spirited lawyer
 Give ethics and professional responsibility a
center stage

STEPHEN MALLOWAH 2016 03/05/2025

 Part 3
Objectives of Legal Education

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100
The Objectives of Legal Education
 S3. LE Act
 The objective of this Act is to—
 (a)promote legal education and the maintenance of
 the highest possible standards in legal education; and
 (b)provide a system to guarantee the quality of legal
education and legal education providers.
 See also sections 4 & 5 KSL Act

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101
The Objectives of Legal Education

From the legal and policy framework

 1. Provide doctrinal training
 2. Provide practical training
 3. Hone problem solving skills
 4. Provide training in ethics and professional
responsibility
 5. Provide continuing professional development
 6. Harmonize and standardize legal education
 7. Public control of legal education with private sector
participation
STEPHEN MALLOWAH 2016 03/05/2025
 Part 4
The Structure of Legal Education

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103
The Structure of Legal Education
 Pre-primary education
 Primary education
 Secondary education
 Post secondary education
 Doctrinal University education
 Practical training at the KSL
 Mandatory continuing professional
development under the LSK for practicing
lawyers
STEPHEN MALLOWAH 2016 03/05/2025
 Part 5
Prerequisites of Legal Education
in Kenya
STEPHEN MALLOWAH 2016 03/05/2025 104
105
Prerequisites of Legal Education in Kenya
 Key issue is the entry requirements into law
schools whether at diploma degree
graduate or postgraduate(e.g ATP)
 Are the current requirements fair to all
applicants or an unnecessary barrier to
entry?
 What is the objective of the current
requirements
 Who sets the requirements?
 What have the court said about the
STEPHEN MALLOWAH 2016 03/05/2025
106
Prerequisites of Legal Education in Kenya
 Entry requirements to University governed
by the respective statutory instruments
regulating university education
 Admission to KSL governed by the
provisions of the Advocates Act KSL Act and
LE Act
 See Part III SS 16 & 17 ,Sch 2 KSL Act , S 8
LE Act 2nd Schedule LE Act

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 107
University of Nairobi

 Degree Regulation Detail BACHELOR OF LAW(LL.B)

 Entry Requirements (BACHELOR OF LAW)
 Candidates must satisfy the minimum University entry
requirements.
 Subject to the regulation above, no candidate shall be
registered for the degree of Bachelor of Laws unless
he/she has passed the Kenya Certificate of secondary
Education (KCSE) examination with a minimum grade
of B+ (B plus) in English.
 http://lawschool.uonbi.ac.ke/degree_regulation_details/15
STEPHEN MALLOWAH 2016 03/05/2025

56
 108
University of Nairobi

 Degree Regulation Bachelor of Laws Minimum Requirements

 In addition to the common regulations for the Bachelors Degree for
the University of Nairobi, eligible candidates must have at least
grade B (Plain) in English. Categories of persons to whom
admission is open include:
 a) Holder of degree(s) from a recognized university
 b) Holder of Advanced Level Certificate with at least three principal
passes equivalent.
 c) Holder of KCSE Certificate with minimum university entry
points of at least C+.
 d) Holders of at least a credit pass in a Diploma from a
STEPHEN MALLOWAH 2016 03/05/2025

recognized institution in addition to KCSE Certificate with a Mean

 109
Catholic University of East Africa

 KCSE with a minimum grade of B plain or equivalent, or

KACE with a minimum of 2 principal passes and a
subsidiary in general paper with a total of 10 parts or the
equivalent, or
 Diploma or professional certificate in a relevant discipline
from an institution recognized by the senate, or
 A bachelors degree from a recognized university
 A minimum grade of B plain in English or equivalent,
or
 Any qualification accepted by the university senate as
STEPHEN MALLOWAH 2016 03/05/2025

equivalent
 110
Strathmore University Law School

 Required entrance qualifications and grades:

a) KCSE minimum mean aggregate of B+ with a minimum

grade of A- in English.
b) GCE A – Level minimum grades ABB with A in English
Language or English Literature.
c) IB minimum 34 overall points with grade 5 and above in
English.
 All candidates shall be required to sit and pass a special
entrance examination set by SLS and an oral interview.
STEPHEN MALLOWAH 2016 03/05/2025

 http://www.law.strathmore.edu/study-at-sls/admission
Qualifications for Admission to Kenya School of Law
111

 Part III sections 16 and 17 KSL Act

 Schedule 2 KSL Act
 Section 8 LE Act
 LN 169 LE Act (Basis of application?)
 Effect of section 8(4) LE Act(supremacy clause?)
See previous requirements
 LN 357 of 1997
 LN 2618 of 2005
 LN 400 of 2007
Q May CLE & KSL interrogate the degree ?
STEPHEN MALLOWAH 2016 03/05/2025
Qualifications for Admission to Kenya School of Law
112

 S16. KSL Act A person shall not qualify for admission to a

course of study at the School, unless that person has met
the admission requirements, set out in the Second
Schedule for that course.
 s17(2) KSL Act: The School shall consider an application
submitted under paragraph (1) and if it is satisfied that
the applicant meets the admission criteria, admit the
applicant to the School.
 See also 2nd schedule KSL Act
 Once you qualify, admission is automatic. (Danger of over
STEPHEN MALLOWAH 2016 03/05/2025

enrollment? Case for more service providers?)

Qualifications for Admission to Kenya School of Law
113

 In the matter of an application by Rita Biwott NRB HCC Misc.App

1122 of 1994 (Justice A B Shah) C.A C.App 238 of 1994 (Cockar,
Muli Akiwumi JJA)
 Geoffrey Theuri vs AG NRB HCC Misc. 72 OF 1984
 HCC Misc. Civ. App No 137 of 2004 Ex parte Njuguna
 Susan Mungai v Council of Legal Education & 2 others[2012]eKLR
 Republic v The Council of Legal Education Exparte Keniz Otieno
Agira & 23 others [2013] eKLR
 Eunice Cecilia Mwikali Maema v Council of Legal Education & 2
others Civil Appeal No 121 of 2013
 Maumar Nabeel Onyango Khan v Council of Legal Education & 2
STEPHEN MALLOWAH 2016 03/05/2025

others [2014] eKLR

Qualifications for Admission to Kenya School of Law
114

Para-Legal Diploma
 Part III sections 16 and 17 KSL Act
 Schedule 2 KSL Act
 Section 8 LE Act
 LN 169 LE Act (Basis of application to KSL?)
 Effect of section 8(4) LE Act (A supremacy clause?

STEPHEN MALLOWAH 2016 03/05/2025

 Part 6
Content of Legal Education in Kenya

STEPHEN MALLOWAH 2016 03/05/2025 115

 Content of Legal Education in Kenya
116

 Current structure assumes

 Theoretical training at university level.
Mandatory core subjects
– What is the rationale for the mandatory core
subjects?
– Does it impede specialization at KSL
 Practical training at KSL. Non electives

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 117
2nd Schedule LE Act – Core Degree Courses
 1. Legal Research.  9. Law of Business Associations
 2. Law of Torts. (to include Insolvency).
 3. Law of Contract.  10. Administrative Law.

 4. Legal Systems and Methods.  11. Constitutional Law.

 5. Criminal Law.  12. Jurisprudence.

 6. Family Law and Succession.  13. Equity and the Law of Trusts.
 7. Law of Evidence.  14. Property Law.

 8. Commercial Law (including  15. Public International Law.

 Sale of Goods, Hire Purchase  16. Labour Law

and Agency).
STEPHEN MALLOWAH 2016 03/05/2025
 118
2nd Schedule LE Act – Core ATP Courses
 1. Civil Litigation
 2. Criminal Litigation
 3. Probate and Administration
 4. Legal Writing and Drafting
 5. Trial Advocacy (including clinical programme)
 6. Professional Ethics
 7. Legal Practice Management
 8. Conveyancing
 9. Commercial Transactions
 10. Pupilage (six months attachment
 • Is there a case for specialization at KSL?
STEPHEN MALLOWAH 2016 03/05/2025
 ATP Core Courses
119

 Rationale?
 Basis for selection?

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 Part 7
Provision of Legal Education in Kenya
STEPHEN MALLOWAH 2016 03/05/2025 120
 Provision of Legal Education in Kenya
121

 General Pre university education

 Universities
 Post Secondary institutions
 KSL
 LSK accredited providers
 Others

STEPHEN MALLOWAH 2016 03/05/2025

 Provision of Legal Education in Kenya
122

 UON  KCA
 KU  Inorero
 Moi  NIBS
 JKUAT  Kenya Polytechnic
 CUEA  Mombasa Polytechnic
 MKU  KSL
 MU  LSK
 Nazarene  OTHERS
 Strathmore
STEPHEN MALLOWAH 2016 03/05/2025
123
Modes of Delivery

 Distance Education
 Audio-visual equipment
 Print media
 E-Learning/Computer-aided web-based
 Face to face interaction
 Blended learning
 New instructional design technology
 Situated learning
STEPHEN MALLOWAH 2016 03/05/2025
 124
Delivery Methods

 Lectures  Roundtables
 Clinical method  Workshops
 Discussion  Break-out sessions
 Projects  Debates
 Case method  Moots
 Problem solving
 Plenary sessions
 Small group sessions

STEPHEN MALLOWAH 2016 03/05/2025

 Part 8
Regulation of Legal Education in
Kenya
STEPHEN MALLOWAH 2016 03/05/2025 125
126
Regulation of Legal Education in Kenya

 Education sector regulation

 Sector specific regulation
 Self regulation

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127
Regulation of Legal Education in Kenya
 Council of Legal Education Act Cap 16 A (repealed)
 Advocates Act
 Legal Education Act
 Objects of CLE
 Structure of CLE
 Powers of CLE
 Composition of CLE/Composition of the KSL Board
 Issue :possible conflict of interest
 Issue: stakeholder participation
 Issue: Role of LSK
STEPHEN MALLOWAH 2016 03/05/2025
 Part 9
A Comparative Study

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129
Comparison
 Compare our situation with the situation in
 1. USA
 2. UK
 3. Ghana
 4. Uganda
 5. Tanzania
 6. Rwanda
 7. Burundi
 8. South Africa
STEPHEN MALLOWAH 2016 03/05/2025
 Part 10
Evaluation

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 131

Evaluating
 Basic Education Act Current Statutes
LN 2618 of 2005
 CUE Act  LN 400 of 2007
 Various Universities Acts  LN 169 170 171 of 2009
 and Charters  KSL Regulations 2011
 CLE Act 1995  LSK CLE Rules
 Advocates Act Cap 16  KSL Act 2012
 LSK Act cap 18  LE Act 2012
 LSK Act 2014  Statute Law Misc Amm. Act
 LN 357 of 1997  2012 & 2014
 Advocates, Continuing legal  Draft LSK CLPD Rules 2014
education rules 2004
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132 Current Issues
 Philosophy and objectives
 Regulation
 Providers
 Prerequisites
 Content/Relevance
 Mode
 Harmonization

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 Part 11
Way Forward

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 134
Way Forward

 Philosophy  Curriculum development

 Objects  Providers
 Structure  Regulation
 Prerequisites  Teaching
 Content  Financing
 Duration  Harmonization
 Delivery mode  Mutual recognition
STEPHEN MALLOWAH 2016 03/05/2025
135

STEPHEN MALLOWAH 2016 03/05/2025

136

Task 1
 Compare the legal education systems
in Kenya Uganda Tanzania UK and US
 Identify the differences
 Identify the similarities
 Evaluate the systems
 Suggest improvements to the Kenyan
system.

STEPHEN MALLOWAH 2016 03/05/2025

137

Task 2
 Outline the requirements for
accreditation of a legal education
programme
 Identify the key players and their roles
 Outline the steps taken in the
accreditation process
 Prepare a complete application for
accreditation of a legal education
programme noting to provide all the
STEPHEN MALLOWAH 2016 03/05/2025

required information
 Task 3

 Outline the steps towards admission

138

as an advocate from the time of

completing the KSL ATP
 Identify the key players in the process
and their roles
 Draft a petition for admission as an
advocate
 Role play the entire admission process.

STEPHEN MALLOWAH 2016 03/05/2025

 ATP 105 Professional
Ethics - 2016
LECTURE 7 – ETHICS: RIGHTS DUTIES AND OBLIGATIONS OF THE ADVOCATE
Course Instructor – Stephen Mallowah LLB, LLM, MSc
 Topic Objectives
140
• At the end of the next three lessons, involved
you should be able to 6. Propose a solution the ethical
1. Name the multiple stakeholders issues arising
to whom an advocate has 7. List and Explain the specific
obligations duties
2. Identify the sources of these 8. Illustrate the duties with
obligations examples from decided cases
3. Identify the potential for 9. Determine the prospects of a
conflicting obligations culture change in the legal
4. Identify the source of ethical profession
problems for a lawyer
5. Explain the inherent moral issues
STEPHEN MALLOWAH 2016 03/05/2025
 Topic Organization
141
 Part 1
 Introduction
 duties to court
 Part 2
 Duties to Clients
 Part 3
 Duties to other stakeholders
 Part 4
 Rights of advocates
 Disabilities of advocates
STEPHEN MALLOWAH 2016 03/05/2025
 Learning Resources

STEPHEN MALLOWAH 2016

03/05/2025 142
 Readings
143
 Pagone G.T. : The advocate’s duty to the court in
adversarial proceedings Victorian Bar Ethics
Seminar, 23 July 2008
www.vicbar.com.au/GetFile.ashx?
file...Advocate's+Duty+to...Court...
 BellRobert and Abela Caroline A Lawyer's Duty To
The Court
http://www.advocates.ca/assets/files/pdf/education/S
ymposium-on-Professionalism/Duty_to_Court.pdf
 Lumumba PLO: The Legal Profession in Kenya:
Towards aNew Ethos
STEPHEN MALLOWAH 2016 03/05/2025
 Readings
144
1. Giannarelli v Wraith (1988) 165 CLR 543, 555-6
2. Lewis v His Honor Judge Ogden (1984) 153 CLR 682
3. Air Alfaraj Ltd VS Raytheon Aircraft Credit Corporation & anor
2000 KLR 315
4. Rondel vs Worsely[1969] 1 AC 191, 227 (Lord Reid), 271
5. Myers v Elman [1940] AC 282 at 291
6. Arthur J.S Hall and Co. v. Simons (A.P.)
7. Polk County v. Dodson, 454 U.S. 312 (1981)
454 U.S. 312
8. East African Foundry Works (K) Ltd vs. KCB 2002 (2) KLR 443
9. D K Njogu vs NBK
10.David Alan Westerfield
STEPHEN MALLOWAH 2016 03/05/2025
145 Stakeholders
1. The court
2. The client
3. The employer
4. The profession
5. Third parties
6. The public

STEPHEN MALLOWAH 2016 03/05/2025

 A Multiplicity of Roles
146

• “The ABA Model Rules of Professional Conduct define the role

of the attorney as threefold;
• A lawyer,
1. as a member of the legal profession, is a representative of clients,
2. as an officer of the legal system and
3. as a public citizen having special responsibility for the quality of
justice”
• Roberta K. Flowers, The Role of the Defense Attorney: Not Just
an Advocate

STEPHEN MALLOWAH 2016 03/05/2025

 Sources of Ethical Obligation
147
 Statutes impacting on the advocate e.g. the
Advocates Act, the Law Society of Kenya Act the Public
Officers Ethics Act, Judicial Services Act
 Common Law; e.g. the cab rank rule in Rondel vs
Worsely
 Codes of conduct and ethics; LSK Digest of
professional conduct and etiquette , Code of conduct for
judges and magistrates, National prosecution code of
conduct and ethics
 Generally accepted standards of conduct; conduct
not befitting a member of the Honourable profession of
STEPHEN MALLOWAH 2016 03/05/2025

law see section 60 Advocates Act. Also preamble to LSK

 Geoffrey Hazard- An Inherent Moral Problem
148

Moral expectations • These are mutually

• Autonomy exclusive expectations,
• Impartiality hence the lawyers
• Truthfulness moral dilemma
• There is a disconnect
Legal expectations between the
hypothesised morality
• Agency
and the reality
• Partisanship
• Confidentiality
STEPHEN MALLOWAH 2016 03/05/2025
 The practice setting is irrelevant
149

 The language of the most codes of conduct and

ethics do not differentiate the roles based
on the kind of law the lawyer practices
 There are substantial overlaps between the
ethical obligations of lawyers in private practice ,
those in salaried employment in the private
sector, and those in employment in the public
sector
 But there are sector specific obligations
STEPHEN MALLOWAH 2016 03/05/2025
 The Roles are not Prioritized!
150

 Most sources of ethical obligations do not

prioritize the different roles.
 This lack of differentiation leads to the
conclusion that all lawyers, no matter what area
of law, have a responsibility that goes
beyond merely advocating for the client.
 But they provide scant guidance when there
is a conflict of obligations

STEPHEN MALLOWAH 2016 03/05/2025

 The Roles are Prioritized!
151

 Rondel vs Worsely
 The court comes first!
 Polk County v. Dodson 454 U.S. 312 (1981)
454 U.S. 312
 The court comes first
 D K Njogu & Co vs NBK
 The court comes first

STEPHEN MALLOWAH 2016 03/05/2025

 Part 1
Duties to the Court

STEPHEN MALLOWAH 2016

03/05/2025 152
153 The Court Comes First!
 The essence of this argument is that the advocate
is in a unique position because the duty to his or
her client is subject to the advocate’s overriding
duty to the court. This duty may require the
advocate to act to the disadvantage of the client’s
case, even if the client instructs to the contrary.
 For example, the advocate must not mislead the
court and must not withhold documents or
authorities, even if they detract from his or her
client’s case 03/05/2025
STEPHEN MALLOWAH 2016
154 Truth seeking in an adversarial context

 An attorney must act as an officer of the court,

respecting the need for truth and truth-
seeking within the confines of the adversary
system and as an active participant of a system
that places justice as a core value.
 He urges his clients cause zealously within the
bounds of the law

STEPHEN MALLOWAH 2016 03/05/2025

155 Not Just a Hired Gun
 A lawyer is not just a hired gun
 He can only urge his clients cause zealously within
the bounds of the law
 But the truth must be sought within the limits of the
adversarial system
 It is in his clients best interest that he behaves
ethically
 The system that protects the client is founded on
the assumption that advocates as the principal
STEPHEN MALLOWAH 2016 03/05/2025

participants therein will behave ethically

156 The advocate as an officer of the court

 Officer of the court; any person who has an obligation

to promote justice and effective operation of the judicial
system, including judges, the attorneys who appear in
court, bailiffs, clerks, and other personnel.
 As officers of the court lawyers have an absolute ethical
duty to tell judges the truth, including avoiding dishonesty
or evasion about reasons the attorney or his/her client is
not appearing, the location of documents and other
matters related to conduct of the courts
 http://legal-dictionary.thefreedictionary.com/officer+of+th
STEPHEN MALLOWAH 2016 03/05/2025

e+court
157 The advocate as an officer of the court
 Officer of the court…. advocate, appointed
official of the court system, attorney,
attorney-at-law, barrister, counsel,
counselor, counselor-at-law, designated
official of the court system, judicial
designate, judicial officer, judicial official,
legal advisor, legal advocate, legal
consultant, legal practitioner, member of
the legal profession, official of the court
STEPHEN MALLOWAH 2016 03/05/2025
158 A Universal Principle
 The idea of an advocate as an officer of the
court is as old as the profession itself
 It appears to transcend all legal systems
 It has been accepted almost uncritically as the
raison deter for the special role lawyers play in
the justice system

STEPHEN MALLOWAH 2016 03/05/2025

159 A Universal Principle
 Ancient Rome
 The ‘ advocatus’ was called upon to by the
proctor to assist in the cause of a client with an
solemn admonition to ‘avoid artifice and
circumlocution’
 Europe
 The principle was recognized in virtually the
whole of Europe by the middle ages

STEPHEN MALLOWAH 2016 03/05/2025

160 Fredrick the Second of Germany (1221)
 We will that the advocates to be appointed , as well in
our court as before the justices and bailiffs of the
provinces, before entering their offices, shall take their
corporal oath on the Gospels, that the parties whose
cause they have undertaken they will in all good faith
and truth , without any tergiversation, saccour; nor will
they allege anything against their sound conscience;
nor will they undertake a desperate causes; and,
should they have been induced, by misrepresentation
and the coloring of the party to undertake a cause
which, in the progress of the suit, shall appear to
them, in fact or law, unjust, they will forthwith
STEPHEN MALLOWAH 2016 03/05/2025
161 Fredrick the Second of Germany (1221)
 Liberty is not granted to the abandoned party to have
recourse to another advocate. They shall also swear
that, in the progress of the suit, they will not require
an additional fee, nor on the part of the suit enter into
any compact; which oath it shall not be sufficient to
them to swear to once only, but they shall renew it
every year before the officer of justice. And if any
advocate shall attempt to contravene the aforesaid
form of oath in any cause, great or small, he shall be
removed from his office, with the brand of
perpetual infamy, and pay three pounds of the
purest gold onto our treasury
STEPHEN MALLOWAH 2016 03/05/2025
162 Potential Conflict
 This principle has been recognized
throughout the history of the profession in
virtually all legal systems
 It has far reaching implications as it may be
in direct conflict with the advocates duties
to his clients

STEPHEN MALLOWAH 2016 03/05/2025

163 Potential Conflict
 An advocates duty to his client is to fearlessly
to raise every issue, advance every argument,
and ask every
question, however, distasteful, which he thinks
will help his client’s case.
 But as an officer of the court concerned
in the administration of justice, he has an
overriding duty to the court, to the standards
of his profession, and to the public, which may
and often does lead to conflict with his
STEPHEN MALLOWAH 2016 03/05/2025

client's wishes or what the client thinks

164 Giannarelli v Wraith Mason CJ
 The peculiar feature of counsel's
responsibility is that he owes a duty to the
court as well as to his client. His duty to
his 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

STEPHEN MALLOWAH 2016 03/05/2025

165 Swinfen v Lord Chelmsford Pollock CB
 "The conduct and control of the cause are
necessarily left to counsel ... A counsel is
not subject to an action for calling or not
calling a particular witness, or for putting or
omitting to put a particular question, or for
honestly taking a view of the case which
may turn out to be quite erroneous. If he
were so liable, counsel would perform their
duties under the peril of an action by every
disappointed and angry client
STEPHEN MALLOWAH 2016 03/05/2025
166 The advocate as an officer of the court s
55 Advocates Act
 S 55. 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
 DK Njogu & Co Advocates vs NBK
 Air Alfaraj Ltd VS Raytheon Aircraft Credit
Corporation & anor 2000 KLR 315. Duty to
court is paramount
STEPHEN MALLOWAH 2016 03/05/2025
167 Primary jurisdiction

 The court has the primary jurisdiction for the

discipline of advocates
 Mohammed Ashraf Sadique & another v Matthew
Oseko t/a Oseko And Company Advocates [2009]
eKLR
 High Court at Nairobi (Nairobi Law Courts)
Miscellaneous Application 901, 933, 934, 935, 936,
937 & 938 of 2007 (Consolidated With Misc.
Applications Nos. 933, 934, 935, 936, 937 and 938
STEPHEN MALLOWAH 2016 03/05/2025

OF 2007)
168 "Lawyers' Duties to the Court" (1998) 114
Law Quarterly Review 63
 Justice David Ipp
1. General duty to conduct cases efficiently and
expeditiously
2. Duty to be competent and to make the system
of the administration of justice work effectively
3. Duty of disclosure to the court,
4. Duty not to abuse the court process and;
5. Duty not to corrupt the administration of
03/05/2025

justice,
STEPHEN MALLOWAH 2016
169 "Lawyers' Duties to the Court" (1998) 114
Law Quarterly Review 63
 A competing duty, the duty to take all points for
one's client and the duty to exercise an
independent judgment.
 This does not mean that counsel must determine
which points are likely to succeed and refrain from
presenting or arguing any others (although that
might be excellent advocacy); on the other hand, it
does mean that counsel must determine which
points are reasonably arguable, and must
jettison the rest.
STEPHEN MALLOWAH 2016 03/05/2025
Lawyers'
170 Duties to the Court" (1998) 114 Law
Quarterly Review 63
 This approach is not radically different to what has
been said in past times, it merely requires
counsel not to waste public resources on
points that are in his judgment bound to fail.

STEPHEN MALLOWAH 2016 03/05/2025

Lawyers'
171 Duties to the Court" (1998) 114 Law
Quarterly Review 63
 This general duty requires counsel to present the
issues as clearly and economically as
possible and, in appropriate circumstances, to co-
operate so as to avoid needless disputes.

STEPHEN MALLOWAH 2016 03/05/2025

Lawyers'
172 Duties to the Court" (1998) 114 Law
Quarterly Review 63

 Breaches will result when lawyers waste time, and

are guilty of prolixity and repetition, and when the
use of aggressive and discourteous tactics lead to
the incurring of delay, inconvenience and needless
cost.
 Lawyers who fail to adhere to rules and
practices laid down to speed up litigation
may thereby breach their duty to the court.
STEPHEN MALLOWAH 2016 03/05/2025
Divided
173 loyalty-Lord Hoffman in Arthur J.S Hall and
Co. v. Simons (A.P.)
 They should not waste time on irrelevancies even if the
client thinks that they are important.
 Sometimes the performance of these duties to the court
may annoy the client.
 So, it was said, the possibility of a claim for negligence
might inhibit the lawyer from acting in accordance with his
overriding duty to the court.
 That would be prejudicial to the administration of justice.

STEPHEN MALLOWAH 2016 03/05/2025

Divided loyalty-Lord Hoffman in Arthur J.S Hall and
174
Co. v. Simons (A.P.)
 Lawyers conducting litigation owe a divided loyalty. They
have a duty to their clients, but they may not win by
whatever means.
 They also owe a duty to the court and the administration of
justice.
 They may not mislead the court or allow the judge to take
what they know to be a bad point in their favor.
 They must cite all relevant law, whether for or against their
case.
 They may not make imputations of dishonesty unless they
have been given the information to support them.
STEPHEN MALLOWAH 2016 03/05/2025
Professional Conduct Rules of the Law Society of Western
175
Australia – Rule 14
1. Not intentionally deceive or mislead the court.
2. Act with due courtesy.
3. Use best endeavors to avoid unnecessary expense and
waste of the court's time.
4. Inform the court of the probable length of the case,
when requested.
5. Inform the court of the possibility of settlement if
possible without revealing the existence or the content
of “without prejudice” communications.
6. Inform the court of any development which affects the
information already before the court.
STEPHEN MALLOWAH 2016 03/05/2025
176 Western Australian Bar Association Rules 2006

1. Have a duty to ensure that the court is not misled.

2. Have an express "duty to opponents". For example, they must
not knowingly make a false statement to their opponent.
3. Have a duty to their client, to advance and protect the client’s
interests and to assist them to understand the issues in the
case.
4. Must inform the client or the instructing solicitor about the
alternatives to fully contested adjudication. They must not act
as a mere “mouthpiece” for the client or the instructing
solicitor and must give their truthful opinion on any
matter submitted to them for advice.
STEPHEN MALLOWAH 2016 03/05/2025
177
The ‘Cab Rank Rule’ –per lord Hoffman Rondel vs Worsely [1969] 1 AC 191,

 It is a valuable professional ethic of the English bar that

a barrister may not refuse to act for a client on the
ground that he disapproves of him or his case.
 Every barrister not otherwise engaged is available
for hire by any client willing and able to pay the
appropriate fee.
 This rule protects barristers against being criticised for
giving their services to a client with a bad
reputation and enables unpopular causes to
obtain representation in court
STEPHEN MALLOWAH 2016 03/05/2025
178 When the Lawyer Knows the Client is
Guilty
• When the Lawyer Knows the Client is Guilty: David
Mellinkoff's 'The Conscience of a Lawyer', Legal Ethics,
Literature, and Popular Culture UCLA School of Law
Research Paper No. 06-44 Cardozo Legal Studies
Research Paper No. 181
1. Michael Asimow (Stanford Law School) & Richard
Weisberg (Benjamin N. Cardozo School of Law)
• http://papers.ssrn.com/sol3/papers.cfm?abstract_id=94
8291&download=yes

STEPHEN MALLOWAH 2016 03/05/2025

 179 the Lawyer Knows the Client is Guilty
When

 The classic puzzle in legal ethics: what should a

criminal defense lawyer do when the lawyer is
certain that the client is factually guilty, but the
client insists on an all-out defense?

STEPHEN MALLOWAH 2016 03/05/2025

180 When the Lawyer Knows the Client is
Guilty
 Literature casts doubt on whether a lawyer can
ever know with the requisite certainty whether
a client is guilty
 A lawyer ought not to be a judge in his clients
cause
 The client has no duty to prove his innocence

STEPHEN MALLOWAH 2016 03/05/2025

181 Polk County v. Dodson, 454 U.S. 312 (1981)
454 U.S. 312
 Respondent brought suit in Federal District Court
under 42 U.S.C. 1983 against petitioners Polk
County, its Offender Advocate, its Board of
Supervisors, and Martha Shepard, an attorney in
the Offender Advocate's Office. As the factual basis
for his lawsuit, respondent alleged that Shepard,
who had been assigned to represent him in an
appeal of a criminal conviction to the Iowa
Supreme Court, failed to represent him adequately
since she had moved for permission to withdraw as
STEPHEN MALLOWAH 2016 03/05/2025

counsel on the ground that respondent's

182
Polk County v. Dodson, 454 U.S. 312 (1981)

 In his complaint in the District Court the

454 U.S. 312

respondent had alleged that Shepard's actions,

especially her motion to withdraw, had deprived
him of his right to counsel, subjected him to cruel
and unusual punishment, and denied him due
process of law

STEPHEN MALLOWAH 2016 03/05/2025

183
Polk County v. Dodson, 454 U.S. 312 (1981)
454 U.S. 312

 Held, inter alia,

 Although a defense attorney has a duty to
advance all colorable claims and defenses, the
cannons of professional ethics impose limits
on permissible advocacy.

STEPHEN MALLOWAH 2016 03/05/2025

184
Polk County v. Dodson, 454 U.S. 312 (1981)

 It is the ethical obligation of any lawyer - whether

454 U.S. 312

privately retained or publicly appointed - not

to clog the courts with frivolous motions or
appeals.
 Respondent has no legitimate complaint that
Shepard failed to prosecute a frivolous appeal
on his behalf

STEPHEN MALLOWAH 2016 03/05/2025

185
Polk County v. Dodson, 454 U.S. 312 (1981)

 Within the context of our legal system, the duties

454 U.S. 312

of defense lawyer are those of a personal

counselor and advocate.
 It is often said that lawyers are "officers of the
court.“

STEPHEN MALLOWAH 2016 03/05/2025

186
Polk County v. Dodson, 454 U.S. 312 (1981)

 The system assumes that adversarial testing

454 U.S. 312

will ultimately advance the public interest in

truth and fairness.
 But it posits that a defense lawyer best serves the
public, not by acting on behalf of the State or in
concert with it, but rather by advancing [454 U.S.
312, 319] "the undivided interest of his
client." This is essentially a private function,
traditionally filled by retained counsel, for which
state office and authority are not needed
STEPHEN MALLOWAH 2016 03/05/2025
187
David Alan Westerfield

 David Alan Westerfield (born February 25, 1952),

of San Diego, California was convicted and
sentenced to death for the murder and kidnapping
of seven-year-old Danielle Van Dam in 2002.
 He was a successful, self-employed engineer who
owned a luxury motor home and lived two houses
away from Van Dam.
 At the trial the defence advanced a theory
that someone else may have been the killer
STEPHEN MALLOWAH 2016 03/05/2025
188
David Alan Westerfield

 There was an outrage after the trial when the

evidence of the prior plea talks surfaced in the
media.
 Many people were concerned Westerfield attorneys
misled the jury by fabricating the unknown
kidnapper scenario when they clearly knew their
client was involved in the crime because he knew
the location of the body.

STEPHEN MALLOWAH 2016 03/05/2025

189
David Alan Westerfield

 The press reported that defense counsel had

approached the prosecution before trial and
offered to have their client disclose the
location of the body if the state would agree
not seek the death penalty.
 A T.V. personality immediately seized upon this
information, claiming that defense counsel were
“liars” who “misled” the jury during the trial. He
also charged that the attorneys violated the state
ethics rules by their “misleading” tactics.
STEPHEN MALLOWAH 2016 03/05/2025
190
David Alan Westerfield

 A defense attorney said that the job of the defense

is to seek “truth and justice.”
 A judge said that Westerfield’s defense attorneys
were wrong to “suggest to the jury another theory
of how [Danielle] died, because in doing so, they’re
perpetrating a fraud on the jury by suggesting
something they know in their own minds and
hearts to be false.”

STEPHEN MALLOWAH 2016 03/05/2025

191
David Alan Westerfield

 If criminal defense counsel believes his or her

client to be guilty, does it mean the case is over?
 At that point, does counsel “mislead” the judge or
jury by vigorous cross-examination of prosecution
witnesses, or by arguing alternative
interpretations of the evidence?

STEPHEN MALLOWAH 2016 03/05/2025

192
David Alan Westerfield

 Is Counsel is morally and ethically bound not to

dispute evidence and theories he or she “knows”
to be true?
 Should counsel disclose information obtained in
confidence from the client if such disclosure is for
the “greater good”?

STEPHEN MALLOWAH 2016 03/05/2025

193
David Alan Westerfield

 Given the failure of the plea negotiations, what

should the attorneys have done at trial?
1. Declined to cross-examine the state’s
witnesses?
2. Refused to raise and argue reasonable
inferences from the evidence?
3. Concede that the evidence proved their client
to be guilty beyond a reasonable doubt?
STEPHEN MALLOWAH 2016 03/05/2025
194
David Alan Westerfield

 What exactly were Westerfield’s defense attorneys

supposed to do?
1. Refuse to negotiate a plea bargain that would
save their client’s life?
2. Disclose the confidential information obtained
from their client, thereby potentially further
incriminating him?
3. Declare a conflict-of-interest and get off of the
case? STEPHEN MALLOWAH 2016 03/05/2025
195
David Alan Westerfield

 His attorneys were obliged to do their damnedest to

obtain the best result possible for him.
 They sought an advantageous settlement for him.
 They did not (and could not) present any false evidence or
perjured testimony at the trial.
 They did challenge the government’s proof and argued
that it had failed to meet its burden.
 They did argue reasonable inferences that could be drawn
from the evidence, including the possibility that someone
other than their client committed the murder.
 Some say that not only was their conduct ethical, it
STEPHEN MALLOWAH 2016 03/05/2025
196
David Alan Westerfield

 The Westerfield case got complicated when, post-

conviction, a serial hardcore offender who had
been linked with several rapes kidnappings and
murder confessed to the killing.
 Prosecutors declined to believe him!

STEPHEN MALLOWAH 2016 03/05/2025

197
David Alan Westerfield

 Criminal defense attorneys are never the judges of

the facts.
 Indeed, they are not even always right in their
assumptions of what the facts are.

STEPHEN MALLOWAH 2016 03/05/2025

198
David Alan Westerfield – a Comment

 I am a capital defense attorney. No matter how

strongly I believe that I “know” what happened,
my job is not to decide guilt or innocence.
 My job is to vigorously defend my clients, to make
sure that their constitutional rights are
scrupulously honored, to require the government
to prove its cases beyond a reasonable doubt, and
to maintain the confidences of my clients at all
peril to myself.
 And I intend to continue doing my job properly and
STEPHEN MALLOWAH 2016 03/05/2025
199
Air Alfaraj Ltd VS Raytheon Aircraft Credit Corporation & anor 2000 KLR 315

 An advocate may not approbate and reprobate at

the same time
 The practice of taking technical points on the
narrowest basis without any real substance
(raising arguments that split legal hairs) is
contrary to the code of conduct and ethics and is
to be deprecated

STEPHEN MALLOWAH 2016 03/05/2025

200
Representations by a Lawyer

 An advocate is responsible for pleadings and other

documents prepared for litigation, but is usually
not required to have personal knowledge of
matters asserted therein, for litigation
documents ordinarily present assertions by the
client, or by someone on the client's behalf, and
not assertions by the lawyer

STEPHEN MALLOWAH 2016 03/05/2025

201
Representations by a Lawyer

 However, an assertion purporting to be on the

lawyer's own knowledge, as in an affidavit by the
lawyer or in a statement in open court, may
properly be made only when the lawyer knows the
assertion is true or believes it to be true on the
basis of a reasonably diligent inquiry.

STEPHEN MALLOWAH 2016 03/05/2025

202
Representations by a Lawyer

 There are circumstances where failure to make a

disclosure is the equivalent of an affirmative
misrepresentation.
 There is an obligation not to counsel a client to
commit or assist the client in committing a fraud
applies in litigation.

STEPHEN MALLOWAH 2016 03/05/2025

203
Offering Evidence

 Lawyers should refuse to offer evidence that they

know to be false, regardless of the client’s wishes.
 This duty is premised on the lawyer’s obligation as
an officer of the court to prevent the trier of fact
from being misled by false evidence.

STEPHEN MALLOWAH 2016 03/05/2025

204
Offering Evidence

 If a lawyer knows that the client intends to testify

falsely or wants the lawyer to introduce false
evidence, the lawyer should seek to persuade the
client that the evidence should not be offered.
 If the persuasion is ineffective and the lawyer
continues to represent the client, the lawyer must
refuse to offer the false evidence

STEPHEN MALLOWAH 2016 03/05/2025

205
Offering Evidence

 If only a portion of a witness's testimony will be

false, the lawyer may call the witness to testify but
may not elicit or otherwise permit the witness to
present the testimony that the lawyer knows is
false

STEPHEN MALLOWAH 2016 03/05/2025

206
Offering Evidence

 The prohibition against offering false evidence

only applies if the lawyer knows that the evidence
is false.
 A lawyer’s reasonable belief that evidence is false
does not preclude its presentation to the trier of
fact.
 A lawyer’s knowledge that evidence is false,
however, can be inferred from the circumstances.
STEPHEN MALLOWAH 2016 03/05/2025
207
Offering Evidence

 Thus, although a lawyer should resolve doubts

about the veracity of testimony or other evidence
in favor of the client, the lawyer cannot ignore an
obvious falsehood.

STEPHEN MALLOWAH 2016 03/05/2025

208 Legal Argument

 Legal argument based on a knowingly false

representation of law constitutes dishonesty
toward the tribunal.
 A lawyer is not required to make a disinterested
exposition of the law, but must recognize the
existence of pertinent legal authorities.

STEPHEN MALLOWAH 2016 03/05/2025

209
Legal Argument

 Furthermore, an advocate has a duty to disclose

directly adverse controlling authority in the
jurisdiction that has not been disclosed by the
opposing party.
 The underlying concept is that legal argument is a
discussion seeking to determine the legal
premises properly applicable to the case.

STEPHEN MALLOWAH 2016 03/05/2025

210
Ex-Parte Proceedings

 Ordinarily, an advocate has the limited

responsibility of presenting one side of the matters
that a tribunal should consider in reaching a
decision; the conflicting position is expected to be
presented by the opposing party.
 However, in any ex parte proceeding, such as an
application for a temporary restraining order, there
is no balance of presentation by opposing
advocates.
STEPHEN MALLOWAH 2016 03/05/2025
211
Ex-Parte Proceedings!

 The object of an ex parte proceeding is

nevertheless to yield a substantially just result.
The judge has an affirmative responsibility to
accord the absent party just consideration.
 The lawyer for the represented party has the
correlative duty to make disclosures of
material facts known to the lawyer and that
the lawyer reasonably believes are
necessary to an informed decision.
STEPHEN MALLOWAH 2016 03/05/2025
212

Lewis v His Honour Judge Ogden (1984) 153 CLR 682

 Robust action in front of a judicial officer is

warranted and sometimes necessary.
 At times allegation of bias and application for
disqualification of a judicial officer is also required.
 Contempt used only to protect integrity of
court and proceedings not to protect the
sensitivities of the judge.

STEPHEN MALLOWAH 2016 03/05/2025

213
Do not be a witness in your clients cause!

 East African Foundry Works (K) Ltd vs. KCB

2002 (2) KLR 443
 Advocates must avoid swearing affidavits
based on contested facts on behalf of the
client

STEPHEN MALLOWAH 2016 03/05/2025

214

Lewis v His Honour Judge Ogden (1984) 153 CLR 682

 The High Court considered whether a barrister

should have been found guilty of contempt of the
court for his address to the jury, in which he
sought to redress an imbalance which – he
perceived – had arisen from various comments
made by the judge.

STEPHEN MALLOWAH 2016 03/05/2025

215

Lewis v His Honour Judge Ogden (1984) 153 CLR 682

 The relevant legislation provided that a finding of

contempt required the barrister to have willfully
insulted the judge, and the High Court concluded
this to mean “‘intentionally’ or ‘deliberately’ in
the sense that what is said or done is intended as
an insult; it does more than negative the notion of
"inadvertently" or "unconsciously", and imports
the notion of purpose.
 Discourtesy is disciplinary – Contempt is criminal
STEPHEN MALLOWAH 2016 03/05/2025
216

Lewis v His Honour Judge Ogden (1984) 153 CLR 682

 Rudeness and discourtesy in court can amount to

contempt of court. "Discourtesy is not limited to
the tone of correspondence or the vigour of its
language.
 Those members of the legal profession who seek
to win a momentary advantage for their clients
without observing the usual and proper courtesies
invite correction by the court and the
disapprobation of their colleagues
STEPHEN MALLOWAH 2016 03/05/2025
217

Remedial Measures

 Having offered material evidence in the belief that

it was true, a lawyer may subsequently come to
know that the evidence is false.
 Or, a lawyer may be surprised when the lawyer’s
client, or another witness called by the lawyer,
offers testimony the lawyer knows to be false,
either during the lawyer’s direct examination or in
response to cross-examination by the opposing
lawyer
STEPHEN MALLOWAH 2016 03/05/2025
218

Remedial Measures

 In such situations or if the lawyer knows of the

falsity of testimony elicited from the client during a
deposition, the lawyer must take reasonable
remedial measures. In such situations, the
advocate's proper course is to remonstrate with
the client confidentially, advise the client of the
lawyer’s duty of candor to the tribunal and seek
the client’s cooperation with respect to the
withdrawal or correction of the false statements or
evidence. STEPHEN MALLOWAH 2016 03/05/2025
219

Remedial Measures

 If that fails, the advocate must take further

remedial action. If withdrawal from the
representation is not permitted or will not undo
the effect of the false evidence, the advocate must
make such disclosure to the tribunal as is
reasonably necessary to remedy the situation,
even if doing so requires the lawyer to reveal
information that otherwise would be protected.

STEPHEN MALLOWAH 2016 03/05/2025

220

Remedial Measures

 The disclosure of a client’s false testimony can

result in grave consequences to the client,
including not only a sense of betrayal but also loss
of the case and perhaps a prosecution for perjury.
 But the alternative is that the lawyer cooperate in
deceiving the court, thereby subverting the truth-
finding process which the adversary system is
designed to implement
STEPHEN MALLOWAH 2016 03/05/2025
221

Evolving Culture

 Most codes of conduct and ethics now require

lawyers for the opposing parties to agree to the
sensible resolution of issues without the constant
intervention of the court.

STEPHEN MALLOWAH 2016 03/05/2025

222

Evolving Culture

 This requires lawyers to be competent, but also to

understand the significance of the duty they owe
the court, and the broader community, to advance
matters to trial on the real issues, plainly stated,
with the relevant, not marginally relevant
documents filed in support of the case.

STEPHEN MALLOWAH 2016 03/05/2025

223

Evolving Culture

 It means argumentative applications about

pleadings, that can be worked out at trial should
not be brought to obfuscate and delay the
determination of the real issues between the
parties.
 It requires a changing culture to the proper
conduct of litigation.

STEPHEN MALLOWAH 2016 03/05/2025

224

Our Local Experience

 What is important however is that highly

professional and competent legal practitioners
accept and actively seek to realize the duty they
and their clients bear to cooperate and act in good
faith so that this becomes the prevailing
culture within the system of administration
of justice.

STEPHEN MALLOWAH 2016 03/05/2025

225

Our Local Experience

 Advocates are admitted to practice by the High

Court
 It is the registrar of the High Court who issues
practicing certificates
 The primary responsibility to discipline advocates
is with the court
 They have an exclusive right to bow
 They have a special bench (the bar)
 They have a right of audience in court
STEPHEN MALLOWAH 2016 03/05/2025
226

Our Local Experience

 The new civil procedure rules have adopted case

management procedures which emphasize
expeditious disposal of cases
 A pre trial settlement conference is now
mandatory
 Disclosure requirements have been enhanced
 Advocates have a responsibility in case
management and docket clearance
 . STEPHEN MALLOWAH 2016 05-Apr-16
227

STEPHEN MALLOWAH 2016 03/05/2025

 ATP 105 Professional
Ethics - 2016
LECTURE 8 – ADVOCATES DUTIES TO CLIENTS
Course Instructor – Stephen Mallowah LLB, LLM, MSc
 Topic Overview
229
The objective of this lecture is to sensitize the
participant to the often ignored thinking in the
profession;
1. That the advocate is not a mere agent of the
client; and
2. That the relationship between the advocate and
the client is not entirely contractual but is
based on status as well
3. That in view of the foregoing there is a case for
immunity of advocates
STEPHEN MALLOWAH 2016 03/05/2025
 Topic Content
230
1. A changing culture
2. The nature of the relationship
3. The cab rank rule
4. Categories of the advocates duties
5. Specific duties
6. Professional responsibility
7. Control of the advocates brief
8. The case for immunity

STEPHEN MALLOWAH 2016 03/05/2025

 Topic Objectives
231
 At the end of this lesson, you should be able to
1. Make a case for changing culture in the profession
2. Explain why the advocate’s conduct is a key element of a
successful adversarial system of justice
3. Discuss the primacy of the duty to the justice system
4. Explain the nature of the relationship between an advocate
and his client
5. Explain the implications of the cab rank rule
6. Identify the categories of the advocates duties
7. List and discuss the specific duties of an advocate
8. Discuss the desirability of immunity of advocates
STEPHEN MALLOWAH 2016 03/05/2025
 Learning Resources

STEPHEN MALLOWAH 2016

03/05/2025 232
 Case Law – Professional Responsibility
233
1. Heaven v Pender (1883) 11 QBD 503
2. Derry v Peek (1889) LR 14 App Cas 337
3. Nocton v Lord Ashburton [1914] AC 932
4. Hedley Byrne & Co Ltd v Heller & Partners Ltd
[1964] AC 465
5. Henderson v Merrett Syndicates Ltd [1994] 2 AC
145
6. White v Jones [1995] 2 AC 207

STEPHEN MALLOWAH 2016 03/05/2025

 Case Law – Professional Responsibility
234
1. Myers -v- Elman [1940] AC 282; [1939] 4 All ER 484
1939 HL
2. Polk County v. Dodson, 454 U.S. 312 (1981)
454 U.S. 312
3. Air Alfaraj Ltd VS Raytheon Aircraft Credit Corporation &
anor 2000 KLR 315
4. Champion Auto Spares vs Phadke & ors 1969 EA 42
5. East African Foundry Works (K) Ltd vs. KCB 2002 (2) KLR
443
6. Omwoyo vs. AH & P Co Ltd 2002 1 KLR 68
7. Kettlemen vs. Hansal Properties Ltd 1988 1 ALLER 38
STEPHEN MALLOWAH 2016 03/05/2025
 Case Law – Immunity
235
1. Munster v Lamb. said ([1881–85] All ER Rep
2. Allen -v- Alfred MacAlpine and Sons Ltd [1968] 2 QB
259; [1968] 1 All ER 543 1968 CA
3. Rondel vs Worsely 1969 HL)
4. Arthur J.S Hall and Co. v Simons (2000) 3 AER 673
5. Giannarelli v Wraith (1988) 165 CLR 543
6. Omwoyo vs. AH & P Co Ltd 2002 1 KLR 68
7. Kogo vs Nyamogo & Nyamogo CA CA 53 OF 2003
2003 EKLR

STEPHEN MALLOWAH 2016 03/05/2025

 Case Law – Conflict of Interest
236
1. Rakusen vs. Ellis Munday 1912 1 Ch 831
2. Re A firm of Solicitors 1992 1 ALL ER 353
3. Kays & anor vs. Boutler & ors 1971 1 ALL ER 289
4. Imena vs. Ethuro 2005 1 KLR 417
5. Delphis Bank vs. Chatthe 2005 1 KLR 766
6. King Woolen Mills vs Kaplan & Stratton

STEPHEN MALLOWAH 2016 03/05/2025

 Case Law – Lack of a Practicing Certificate
237
 Kajwang vs. LSK 2002 1 KLR 846
 NBK vs Wilson N Ayah
 Mahinda & Co vs KPLC
 Koome vs Obura
 National Bank vs Anaj Warehousing – Supreme Court
Petition 36 of 2014 -

 http://www.nation.co.ke/lifestyle/smartcompany/Supr
eme-Court-saves-lenders-from-rogue-lawyers/-/1226/
2987682/-/qc0092z/-/index.html
STEPHEN MALLOWAH 2016 03/05/2025
 Part 1
A Changing Culture

STEPHEN MALLOWAH 2016

03/05/2025 238
 A Changing Culture
239
 Advocates and their clients bear a duty to
cooperate and act in good faith so that this
becomes the prevailing culture within the
system of administration of justice.
 Without this, there would not be the implicit
trust between the Bench and the Bar which
does so much to promote the smooth and
speedy conduct of the administration of
justice
STEPHEN MALLOWAH 2016 03/05/2025
 A Changing Culture
240
 At present it can be said with confidence in this
country that where there is any doubt the vast
majority of counsel put their public duty before
the apparent interests of their clients.
 But there is room for improvement
 And possibly a conscious effort to promote this
culture of professionalism
 The gains of this culture of professionalism are
not always obvious and to some it may look like
a painful sacrifice.
STEPHEN MALLOWAH 2016 03/05/2025
 Not A Mere Agent
241
 To a large extent the lawyer is indeed the agent
of his client and the usual rules of agency on
rights and duties and powers of the agent
would apply to the relationship
 However the lawyer is not a mere agent
 An agent, generally, has no moral and
ethical obligations to anyone but his
principle.
 A lawyer has ethical and moral obligations to a
multiplicity of stakeholders
STEPHEN MALLOWAH 2016 03/05/2025
242 Not a Mouthpiece of the Client
 Not a mouthpiece of the client
 Not a hired gun
 Duties as an officer of the court are
paramount
 It is not enough to say ‘ these are my
instructions’
 Zealously prosecute your clients cause but
within the bounds of the law, and ethics
STEPHEN MALLOWAH 2016 03/05/2025
 An Essential Element of the Adversarial System
243

 Appropriate conduct by lawyers (who practice a

profession, and do not simply run business), is
an essential element of the adversarial system.
 The adversarial system put an enormous amount
of responsibility faith and trust on the players in
the system
 Inevitably this provides enormous opportunities
for sharp practice

STEPHEN MALLOWAH 2016 03/05/2025

 Primacy of Duty to the Justice System
244

• There are suggestions that the lawyers’ duties to

the court are paramount and, in some
circumstances, may oblige lawyers to decline to
follow their clients’ instructions.
• Client instructions cannot overcome ethical
considerations
• The client should never be allowed to dictate
forensic style or technique, or forensic
judgments during the trial
• See Polk County v. Dodson, 454 U.S. 312
STEPHEN MALLOWAH 2016 03/05/2025
 Primacy of Duty to the Justice System
245

 Per Lord Morris Of Borth-Y-Gest (Rondel vs.

Worsely 1969( HL)
 It would be a retrograde development if an
advocate were under pressure unwarrantably to
subordinate his duty to the court to his
duty to the client

STEPHEN MALLOWAH 2016 03/05/2025

 Primacy of Duty to the Justice System
246

 As an officer of the court concerned in the

administration of justice, he has an overriding
duty to the court, to the standards of his
profession, and to the public, which may and
often does lead to a conflict with his
client’s wishes or with what the client
thinks are his personal interests(Lord Reid
Rondel vs. Worsely 1969 HL)

STEPHEN MALLOWAH 2016 03/05/2025

Myers -v- Elman [1940] AC 282; [1939] 4 All ER 484 1939 HL
247

• A solicitor's duty advising his client on discovery

is to investigate the position carefully and to
ensure so far as is possible that full and proper
disclosure of all relevant documents is made.
• He has overall responsibility for the process
and should not leave it all to his client

STEPHEN MALLOWAH 2016 03/05/2025

Myers -v- Elman [1940] AC 282; [1939] 4 All ER 484
1939
248 HL
 Per Lord Atkin : "From time immemorial judges
have exercised over solicitors . . a disciplinary
jurisdiction in cases of misconduct . . If the Court
is deceived or the litigant is improperly delayed
or put to unnecessary expense, the solicitor on
the record will be held responsible and will be
admonished or visited with such pecuniary
penalty as the Court thinks necessary in the
circumstances of the case
STEPHEN MALLOWAH 2016 03/05/2025
 The nature of the relationship
249

 The relationship is a mixture of status and

contract
 Some elements of the relationship are defined by
contract
 Other obligations are inherent and cannot be
amended by contract
 Some matters are left to issues of informed
consent
 Others require a more absolute and general
STEPHEN MALLOWAH 2016 03/05/2025

prohibition
250 No longer ‘Business as Usual’
• Attitudes and practices in the profession need to
adapt to keep pace with changes in the legal
system.
• The advocate is;
1. No longer a hired gun,
2. No longer a mouthpiece of the client,
3. Not entirely an agent of the client.

STEPHEN MALLOWAH 2016 03/05/2025

 Part 2
The Nature of The Relationship

STEPHEN MALLOWAH 2016

03/05/2025 251
252 The Nature of the Relationship

 The duties to the client depend on whether or not

the relationship of advocate client exist
 It is therefore important to know when precisely
the relationship arises
 The relationship can arise formally, informally and
non-formally

STEPHEN MALLOWAH 2016 03/05/2025

Prospective
253 vs. Actual client
 Togstad v. Vesely, Otto, Miller & Keefe, 291 NW 2d
686 - Minn: Supreme
 The duties to a prospective client are no less than
the duties to an actual client

STEPHEN MALLOWAH 2016 03/05/2025

Fiduciary
254 Relationship of Client -Advocate

 Nocton v Lord Ashburton [1914] AC 932

 Lord Ashburton was buying a property for £60,000
on Church Street, Kensington, London.
 His solicitor was Mr. Nocton. Mr. Nocton advised
Lord Ashburton to release part of the mortgage
security.
 This was a bad idea, because as Mr. Nocton in fact
knew, this meant that the security would become
insufficient.
STEPHEN MALLOWAH 2016 03/05/2025

 Lord Ashburton alleged the advice was not given in

255 Categories of duties

• Rondel vs Worsely [1969] 1 AC 191 ; The

duties are not just contractual
1. Contractual
2. Tortuous
3. Fiduciary
4. Ethical
5. Statutory
6. Etiquette
STEPHEN MALLOWAH 2016 03/05/2025
 Part 3
The Cab Rank Rule

STEPHEN MALLOWAH 2016

03/05/2025 256
Lord
257 Pearce: in Rondel vs. Worsely [1969] 1 AC 191
 ‘… It is easier, pleasanter and more advantageous
professionally for barristers to advise, represent or
defend those who are decent and reasonable and
likely to succeed in their action or their defence than
those who are unpleasant, unreasonable,
disreputable, and have an apparently hopeless case.
Yet it would be tragic if our legal system came to
provide no reputable defenders, representatives or
advisers for the latter. . And that would be the
inevitable result of allowing barristers to pick and
choose their clients…’
STEPHEN MALLOWAH 2016 03/05/2025
A258general obligation to act?
 The right to counsel is a basic need and therefor right
 Advocates as officers of the court play an important
role in promoting access to justice
 Only advocates have the right and privilege to
represent others in court
 It would be tragic if some defendants were to be
deprived of the quality of legal representation they
deserve
 The lawyer only has a limited right to decline to take
instructions
STEPHEN MALLOWAH 2016 03/05/2025
 Part 4
The Specific Duties

STEPHEN MALLOWAH 2016

03/05/2025 259
260 The Specific Duties

1. Duty of care
2. Duty to act competently and professionally
3. Duty of loyalty
4. Duty of confidentiality
5. Duty to keep his clients money and property separately
6. Duty to conduct the case expeditiously
7. Duty to keep client updated on his case and the costs
incurred
8. Duty to avoid conflict of interest
9. Duty to charge reasonable fees
STEPHEN MALLOWAH 2016 03/05/2025

10.Duty to avoid unnecessary expense

 Part 5
Professional Responsibility

STEPHEN MALLOWAH 2016

03/05/2025 261
262 Who Controls the Conduct of the Case?
 Lawyers are, of course, still expected to forcefully
represent the interests of their clients and
discharge duties owed to those clients.
 However, lawyers are increasingly required to
exercise their judgment to narrow issues in
litigation, and to have those issues determined by
the court in a way that is more efficient and cost
effective

STEPHEN MALLOWAH 2016 03/05/2025

263 Who controls the conduct of the case?
 Duties owed by lawyers to clients (of
confidentiality, and to advance the interests
of the client), may at times be inconsistent
with duties owed to the court.
 In those circumstances, the duty to the
court is paramount

STEPHEN MALLOWAH 2016 03/05/2025

264 Who controls the conduct of the case?
 It is sometimes suggested that lawyers are
obliged to take all available points on behalf
of their clients, subject only to the lawyer
not knowingly misleading the Court about
the evidence or the law

STEPHEN MALLOWAH 2016 03/05/2025

265 Who controls the conduct of the case?
 It has also been suggested that a party’s rights
“are to be determined by the court, not by his
attorney or counsel” and that lawyers should
not “impose a pre-trial screen through
which a litigant must pass before he can put
his complaint or defence before the court”

STEPHEN MALLOWAH 2016 03/05/2025

266 Who controls the conduct of the case?
 Certainly, lawyers owe a duty to their
clients to ensure that they act so as to
protect and advance their clients’ interests
and are obliged to conduct each case in
the manner that the lawyer considers
will be most advantageous to the
client.

STEPHEN MALLOWAH 2016 03/05/2025

267 Who controls the conduct of the case?
 Certainly, lawyers owe a duty to their
clients to ensure that they act so as to
protect and advance their clients’ interests
and are obliged to conduct each case in
the manner that the lawyer considers
will be most advantageous to the
client.

STEPHEN MALLOWAH 2016 03/05/2025

268 Who controls the conduct of the case?

 However, lawyers are also under an important

obligation to exercise independent judgment about
how to best protect and advance their clients’
interests.
 In exercising that judgment, lawyers are required
to have in mind not only the interests of their
clients but also the speedy and efficient
administration of justice
STEPHEN MALLOWAH 2016 03/05/2025
269 Who controls the conduct of the case?

 Any notion that lawyers should argue every point

indiscriminately is inconsistent with lawyers’
duties to the court to only advance those points
that are reasonably arguable. Such a duty is
paramount.

STEPHEN MALLOWAH 2016 03/05/2025

270 General Duty of Care
1. Hedley Byrne and co Ltd v. Heller and Partners
1964 AC 465
2. Togstad v. Vesely, Otto, Miller & Keefe, 291 NW 2d
686 - Minn: Supreme
3. Rondel v. Worsley [1969] 1 Ac 191
4. Arthur Hall vs Simons (2000) 3 All ER 673
5. Kogo vs Nyamogo and Nyamogo Advocates CA CA
53 OF 2003 2003 EKLR
6. Omwoyo vs. AH & P Co Ltd 2002 1 KLR 68
STEPHEN MALLOWAH 2016 03/05/2025
271 General Duty of Care
1. Derry v Peek (1889) LR 14 App Cas 337
2. Heaven v Pender (1883) 11 QBD 503
3. Hedley Byrne & Co Ltd v Heller & Partners Ltd
[1964] AC 465
4. White v Jones [1995] 2 AC 207
5. Henderson v Merrett Syndicates Ltd [1994] 2 AC
145

STEPHEN MALLOWAH 2016 03/05/2025

272 Derry v Peek (1889) LR 14 App Cas 337

 Derry v Peek is a case in English law on the

tort of deceit.
 The House of Lords determined there was no
general duty to use ‘care and skill’ in the
context of issuing a prospectus to refrain
from making misstatements.

STEPHEN MALLOWAH 2016 03/05/2025

273 Derry v Peek (1889) LR 14 App Cas 337

 The shareholders' action failed, because it

was not proved that the director lacked
honest belief in what they had said. Lord
Herschell however did point out that though
unreasonableness of the grounds of belief is
not deceitful, it is evidence from which
deceit may be inferred.

STEPHEN MALLOWAH 2016 03/05/2025

274 Derry v Peek (1889) LR 14 App Cas 337

 There are many cases, "where the fact that

an alleged belief was destitute of all
reasonable foundation would suffice of itself
to convince the court that it was not really
entertained, and that the representation
was a fraudulent one."

STEPHEN MALLOWAH 2016 03/05/2025

Heaven
275 v Pender (1883) 11 QBD 503

 Heaven v Pender, Court of Appeal) was an

English tort law case, which foreshadowed
the birth of the modern law of negligence.
 The case occurred when an owner of a dry
dock supplied ropes which supported a stage
slung over the side of a ship.
 The stage failed owing to the ropes having
been previously burned.
STEPHEN MALLOWAH 2016 03/05/2025
Heaven
276 v Pender (1883) 11 QBD 503

 The failure of the stage injured an employee

of an independent contractor working in the
dry dock.
 The ship-owner, the defendant, had failed in
his duty of care to give reasonably careful
attention to the condition of the ropes, prior
to employing them to hold up the stage.
 The defendant was found liable.
 STEPHEN MALLOWAH 2016 03/05/2025
Heaven
277 v Pender (1883) 11 QBD 503

 The Master of the Rolls, William Brett, 1st

Viscount Escher, suggested that there was a
wider duty to be responsible in tort to those
who might be injured if ‘ordinary care and
skill’ was not exercised.
 Brett MR's obiter views would later be
expressly adopted by Lord Atkin in the
House of Lords in Donoghue v Stevenson
when the general concept of a tortuous duty
STEPHEN MALLOWAH 2016 03/05/2025
Heaven
278 v Pender (1883) 11 QBD 503

 The House of Lords was content to decide

the case on the basis a duty of care was
owed by an occupier of land (the owner of
the dry dock) to invitees (the employees of
the contractor who were on the site to the
economic benefit ultimately of the dry dock
owner).

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Hedley Byrne & Co Ltd v Heller & Partners Ltd
279
[1964] AC 465
 Hedley Byrne & Co Ltd v Heller & Partners
Ltd [1964] AC 465 is an English tort law case
on pure economic loss, resulting from a
negligent misstatement.
 Prior to the decision, the notion that a party
may owe another a duty of care for
statements made in reliance had been
rejected, with the only remedy for such
losses being in contract law.
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 Hedley
280 Byrne & Co Ltd v Heller & Partners Ltd
[1964] AC 465
 The House of Lords overruled the previous
position, in recognising liability for pure
economic loss not arising from a contractual
relationship, introducing the idea of
"assumption of responsibility

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 281
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

 Hedley Byrne were a firm of advertising agents. A

customer, Easipower Ltd, put in a large order.
 Hedley Byrne wanted to check their financial
position, and credit-worthiness, and subsequently
asked their bank, National Provincial Bank, to get a
report from Easipower’s bank, Heller & Partners
Ltd., who replied in a letter that was headed,
"without responsibility on the part of this bank"
 It said that Easipower was, "considered good for its
ordinary business engagements".
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282
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

 Easipower went into liquidation and Hedley

Byrne lost £17,000 on contracts. Hedley
Byrne sued Heller & Partners for negligence,
claiming that the information was given
negligently and was misleading.
 Heller & Partners argued there was no duty
of care owed regarding the statements, and
in any case liability was excluded.

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Hedley
283 Byrne & Co Ltd v Heller & Partners Ltd
[1964] AC 465
 The court found that the relationship
between the parties was "sufficiently
proximate" as to create a duty of care. It was
reasonable for them to have known that the
information that they had given would likely
have been relied upon for entering into a
contract of some sort.

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 284 Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465
Hedley

 This would give rise, the court said, to a

"special relationship", in which the
defendant would have to take sufficient care
in giving advice to avoid negligence liability.
 However, on the facts, the disclaimer was
found to be sufficient enough to discharge
any duty created by Heller's actions. There
were no orders for damages

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Hedley
285 Byrne & Co Ltd v Heller & Partners Ltd
[1964] AC 465

 Per Lord Morris of Borth-Y-Gest

“I consider that it follows and that it should now be
regarded as settled that if someone possessing
special skill undertakes, quite irrespective of contract,
to apply that skill for the assistance of another person
who relies upon such skill, a duty of care will arise.
The fact that the service is to be given by means of or
by the instrumentality of words can make no
difference”
STEPHEN MALLOWAH 2016 03/05/2025
Hedley
286 Byrne & Co Ltd v Heller & Partners Ltd [1964]
AC 465
 Per Lord Morris of Borth-Y-Gest
“Furthermore, if in a sphere in which a person
is so placed that others could reasonably rely
upon his judgment or his skill or upon his
ability to make careful inquiry, a person takes
it upon himself to give information or advice
to, or allows his information or advice to be
passed on to, another person who, as he
knows or should know, will place reliance
upon it, then a duty of care will arise”
STEPHEN MALLOWAH 2016 03/05/2025
287
White v Jones [1995] 2 AC 207

 In this case, which was only carried by a 3:2

majority, a solicitor was told to draw up a
new will, splitting the testator's estate
between the two plaintiffs, his daughters. He
negligently failed to do this by the time of
the testator's death, and the estate passed
in accordance with the testator's wishes
expressed in a previous will.

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288
White v Jones [1995] 2 AC 207

 The daughters sued the solicitor in

negligence. It was held that the solicitor had
assumed a special relationship towards
them, creating a duty of care which he had
carried out negligently, and therefore had to
indemnify them for their loss. Once again
this extended Hedley Byrne liability to a
proximate third party.

STEPHEN MALLOWAH 2016 03/05/2025

 289
Henderson v Merrett Syndicates Ltd [1994] 2 AC 145

 This case concerned the near collapse of

Lloyd's of London when hurricanes in
America devastated its property holdings. It
called upon its "Names" (the shareholders)
to indemnify them for its losses.
 The Names sued the shareholding company
for mismanagement and negligence

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 290
Henderson v Merrett Syndicates Ltd [1994] 2 AC 145

 It was held that Merrett Syndicates was

liable to both types of shareholders, as there
was enough foreseeability to extend pure
economic loss liability to "un-proximate"
third parties.
 The major significance here was, however,
the allowance of claims in both contract and
tort, which blurred the divide between the
two.
 Some of the first party Names claimed in
STEPHEN MALLOWAH 2016 03/05/2025
 Part 6
The Case for Immunity

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03/05/2025 291
292
Should advocates be granted immunity?

 Munster v Lamb. said ([1881–85] All ER Rep

 A solicitor was sued for defamatory words which
he had spoken while defending an accused person
 Held; an absolute immunity applies

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293
Should advocates be granted immunity?

 Sir Baliol Brett MR at p 792, letter c; (1883), 11

QBD at p 599
 ‘To my mind it is illogical to argue that the
protection of privilege ought not to exist for a
counsel, who deliberately and maliciously slanders
another person. The reason of the rule is, that a
counsel who is not malicious and who is acting
bona fide may not be in danger of having actions
brought against him.’
STEPHEN MALLOWAH 2016 03/05/2025
294
Should advocates be granted immunity?

 Fry LJ dealing with the analogous cases of judges

and witnesses said ((1883), 11 QBD at p 607,
[1881–85] All ER Rep at p 797):
 ‘The rule of law exists, not because the conduct of
those persons ought not of itself to be actionable,
but because if their conduct was actionable,
actions would be brought against judges and
witnesses in cases in which they had not spoken
with malice, in cases in which they had not spoken
with falsehood STEPHEN MALLOWAH 2016 03/05/2025
295
Should advocates be granted immunity?

 ‘ It is not a desire to prevent actions from being

brought in cases where they ought to be
maintained that has led to the adoption of the
present rule of law: but it is the fear that if the rule
were otherwise numerous actions would be
brought against persons who were merely
discharging their duty.’ Fry LJ ibid

STEPHEN MALLOWAH 2016 03/05/2025

296
Should advocates be granted immunity?

 It must always be borne in mind that it is not

intended to protect malicious and untruthful
persons, but that it is intended to protect persons
acting bona fide who under a different rule would
be liable, not perhaps to verdicts and judgments
against them but to the vexation of defending
actions. Per Fry J Ibid

STEPHEN MALLOWAH 2016 03/05/2025

297
Should advocates be granted immunity?

 The argument before your lordship has been

directed to the general question of barrister’s
liability and has ranged widely. For the appellant it
was said that all other professional men, including
solicitors, are liable to be sued for damages if loss
is caused to their clients by their lack of
professional skill or by their failure to exercise due
care; so why should not barristers be under the
same liability. (Lord Reid Rondel vs Worsely
1969 HL) STEPHEN MALLOWAH 2016 03/05/2025
298
Should advocates be granted immunity?

 For the respondent it has been shown that for at

least two hundred years no judge or text writer
has questioned the fact that barristers cannot be
so sued, and a variety of reasons have been
adduced why the present position should continue
 . (Lord Reid Rondel vs. Worsely 1969 HL)

STEPHEN MALLOWAH 2016 03/05/2025

299
Should advocates be granted immunity?

 It is, I think, clear that the existing rule was

based on considerations of public policy; but
public policy is not immutable and doubts appear
to have arisen in many quarters whether that rule
is justifiable in present day conditions in this
country. So it appears to me to be proper to re-
examine the whole matter
 (Lord Reid Rondel vs Worsely 1969 HL)

STEPHEN MALLOWAH 2016 03/05/2025

300
Should advocates be granted immunity?

 Lord Morris Of Borth-Y-Gest: in Rondel vs.

Worsely :
 … The quality of an advocate’s work would suffer
if, when deciding as a matter of discretion how
best to conduct a case, he was made to feel that
divergence from any expressed wish of the
client might become the basis for a future
suggestion that the success of the cause had
thereby been frustrated
STEPHEN MALLOWAH 2016 03/05/2025
301
Should advocates be granted immunity?

 Lord Morris Of Borth-Y-Gest: in Rondel vs.

Worsely : [In the Court of Appeal
 In my view, the public advantages [of the
immunity] outweigh the disadvantages. They do
so overwhelmingly in respect of criminal cases and
considerably so in respect of civil cases

STEPHEN MALLOWAH 2016 03/05/2025

302
Should advocates be granted immunity?

 SALMON LJ: in Rondel vs. Worsely [In the Court of

Appeal]
 The Bar has traditionally carried out these duties,
and the confidence which the Bench is able to
repose in the Bar fearlessly to do so is vital to the
efficient and speedy administration of justice.

STEPHEN MALLOWAH 2016 03/05/2025

303
Should advocates be granted immunity

 Otherwise the high standard of our courts would

be jeopardised. This is the real reason why public
policy demands that there should be no risk of
counsel being deflected from their duty by the fear
of being harassed in the courts by every litigant
or, criminal who has lost his case or been
convicted.

STEPHEN MALLOWAH 2016 03/05/2025

304 Should advocates be granted immunity

 Is one, then, to compel counsel to advise or to

defend or conduct an action for such a person
who, as anybody can see, is wholly unreasonable,
has a very poor case, will assuredly blame some
one other than himself for his defeat and who will,
if it be open to him, sue his counsel in order to
ventilate his grievance by a second hearing, either
issuing a writ immediately after his defeat or
brooding over his wrongs until they grow greater
with the passing years and then issuing the writ
STEPHEN MALLOWAH 2016 03/05/2025

nearly six years later (as in the present case. Per

305
Should advocates be granted immunity?

 I think it is right to say that the barrister’s

immunity from liability for professional
negligence in the conduct of litigation is an
exception from a general rule of professional
liability. It is based on public policy. On order
to show the recognised basis and scope of the
exception, I will cite some passages from
authoritative judgments. . Per Lord Pearce Rondel
vs Worsely (1969) HL
STEPHEN MALLOWAH 2016 03/05/2025
306
Should advocates be granted immunity?

 Arthur J.S Hall and Co. v Simons (2000) 3

AER 673
 The lords re-evaluated the public policy issues.
The critical factor was the duty of a barrister to the
court under ss27(2a) and 28(2A) courts and legal
services act 1990 (inserted by s42 access to
justice act 1999).
 The question was whether the immunity is
needed to ensure that barristers will respect
their duty to the court STEPHEN MALLOWAH 2016 03/05/2025
307
Should advocates be granted immunity?

 In 1967, the answer was that assertions of

negligence would tend to erode this duty and
accorded a special status to barristers. Nowadays
a comparison with other professionals
demonstrated that barristers' immunity
against being sued in negligence was
anomalous

STEPHEN MALLOWAH 2016 03/05/2025

308
Should advocates be granted immunity?

 Allowing civil action was unlikely to produce a

flood of claims and, even if some claims did
emerge, a claimant alleging that poor advocacy
resulted in an unfavorable outcome would face
the very great difficulty of showing that a
better standard of advocacy would have
resulted in a more favorable outcome.
Unmeritorious and vexatious claims against
barristers are simply struck out
STEPHEN MALLOWAH 2016 03/05/2025
309
Should advocates be granted immunity?

 Thus, it was no longer in the public interest

that the immunity in favour of barristers
should remain in either civil or criminal
cases.
 This did not imply that Rondel v Worsley was
wrongly decided.
 But in today's world, that decision no longer
correctly reflected public policy. The basis of
the immunity of barristers has gone.
STEPHEN MALLOWAH 2016 03/05/2025
310
Giannarelli v Wraith (1988) 165 CLR 543

 Giannarelli confirmed by a 4:3 majority the

existence of the advocate’s immunity from suit for
in-court work.
 Not surprisingly, this decision has been criticised,
particularly by those professionals who ‘contrast
the imposition upon them of ever more
stringent obligations of care with the
immunity accorded by the law to its own

STEPHEN MALLOWAH 2016 03/05/2025

 311
Champion Auto Spares vs Phadke & others 1969 EA 42

 No Liability for reasonable error of judgment or for

ignorance of some obscure point of law but for an
act of gross negligence or ignorance of some
elementary matters of law constantly arising in
practice

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 312
Kogo vs Nyamogo & Nyamogo C.A C.A 53 OF 2003 2003 EKLR

 It is not the duty of the advocate to help the

appellant in gathering evidence with which to
prove his case

STEPHEN MALLOWAH 2016 03/05/2025

313
Omwoyo vs. AH & P Co Ltd 2002 1 KLR 68

 The courts cannot afford the luxury of entertaining

the negligence of advocates in litigation
 The time has come when advocates must bear the
consequences of their mistakes
 .

STEPHEN MALLOWAH 2016 03/05/2025

314 Section 46(b) Illegal Agreements

 S 46 (b) any agreement relieving any advocate

from responsibility for professional negligence or
any other responsibility to which he would
otherwise be subject as an advocate; or

STEPHEN MALLOWAH 2016 03/05/2025

315
Requirement of professional indemnity insurance

 2. (1) Every advocate practising on his own behalf

shall purchase a policy of insurance (in these
Regulations referred to as “the professional
indemnity cover”) the value of which shall be not
less than one million shillings
 4. No practising certificate shall be issued to an
advocate to whom these regulations apply, unless
the requirements in paragraph (2) are complied
with.
STEPHEN MALLOWAH 2016 03/05/2025
316
Purpose of indemnity insurance

 3. The professional indemnity cover shall be used

in the compensation of clients for loss or damage
from claims in respect of any civil liability or
breach of trust by the advocate or his employees
 5. Nothing in these Regulations shall be taken to
preclude any agreement between an advocate or
a firm of advocates and a client in respect of any
insurance cover as may be deemed appropriate.

STEPHEN MALLOWAH 2016 03/05/2025

 317
Rationale for immunity

 The first relates to the special role of the advocate

and the potential impact on the
administration of justice if advocates were
subject to actions in negligence for in-court work.
 The second relates to the negative effect on the
administration of justice if issues were relitigated
and court decisions subject to collateral attack

STEPHEN MALLOWAH 2016 03/05/2025

318

Allen -v- Alfred MacAlpine and Sons Ltd [1968] 2 QB 259; [1968] 1 All ER 543 1968 CA

 The court described the peculiarly difficult

position of a solicitor sued for the
negligence of losing litigation for his client
by reason of having his client's claim struck
out: "It is true that if the action for
professional negligence were fought, the
court which tried it would have to assess
what those chances were

STEPHEN MALLOWAH 2016 03/05/2025

319
Scope of immunity

 It does not apply to work done out of court and

which has no connection with work done in court,
for example negligent advice.
 The dividing line is difficult to draw
 It is stated as being ‘where the particular work is
so intimately connected with the conduct of the
cause in Court that it can fairly be said to be a
preliminary decision affecting the way that cause
is to be conducted when it comes to a hearing.’
STEPHEN MALLOWAH 2016 03/05/2025
320

Rationale for no immunity

 Other professionals don’t have immunity

 The danger to advocates as officers of the court
was probably overstated
 The danger to the administration of justice was
probably overstated
 The demand for immunity longer reflects public
policy

STEPHEN MALLOWAH 2016 03/05/2025

321
Evaluation

 Can we now;
1. Make a case for changing culture in the
profession?
2. Explain why the advocate’s conduct is a key
element of a successful adversarial system of
justice?
3. Discuss the primacy of the duty to the justice
system?
4. Explain the nature of the relationship between
an advocate and his client?
STEPHEN MALLOWAH 2016 03/05/2025
322
Firm Tasks

1. Identify the specific provisions of the statues LSK

digest of conduct impacting on the work of an
advocate on the duties of an advocate
2. Read the ABA Model Rules and compare the
model rules with the situation in Kenya.
3. Read any code of conduct and ethics from any
country in the world and compare its provisions
on the duties of an advocate with the situation
in Kenya
4. Find local and more international case law on the
STEPHEN MALLOWAH 2016 03/05/2025
323

STEPHEN MALLOWAH 2016 03/05/2025

 ATP 105 Professional
Ethics - 2016
LECTURE 9 – CONFLICT OF INTEREST
Course Instructor – Stephen Mallowah LLB, LLM, MSc
 Learning Resources

STEPHEN MALLOWAH 2016

03/05/2025 325
 Readings - Statutes
326
 1. Rule 9 Advocates Practice Rules
 2. Rule 47 LSK Digest
 3. Sections 11 12 and 13 Public Officer Ethics Act
 4. Section 9 13 16 and 22 Leadership and Integrity Act
 5. S 52 & 55 Anti-Corruption and Economic Crimes Act
 6. Article 75 (1)(a) and (b) and 232(1)(a) CoK 2010

STEPHEN MALLOWAH 2016 03/05/2025

 ABA Model Rules
327
 1. Rule 1.7 Conflict Of Interest: Current Clients
 2. Rule 1.8 Conflict Of Interest: Current Clients: Specific Rules
 3. Rule 1.10 Imputation Of Conflicts Of Interest: General Rule
 4. Rule 1.11 Special Conflicts Of Interest For Former And
Current Government Officers And Employees
 5. Client-Lawyer Relationship
 6. Rule 1.12 Former Judge, Arbitrator, Mediator Or Other Third-
Party Neutral
STEPHEN MALLOWAH 2016 03/05/2025
 Readings – Local Case Law
328
 1. Trusted Society of Human Rights vs AG & 2 ors exp Mumo
Matemu HC Petition 229/2012
 2. King Woolen Mills Ltd vs Kaplan & Stratton CA 55 1999 UHDL
Ltd vs CBK DPF George Oraro &Joseph Kittony
 3. Imena vs. Ethuro2005 1 KLR 417
 4. Delphis Bank vs. Chatthe 2005 1 KLR 766
 5. East African Foundry Works (K) Ltd vs. KCB 2002 (2) KLR 443

STEPHEN MALLOWAH 2016 03/05/2025

 Readings – Foreign Case Law
329
 1. McLaren v Legal Practitioners Disciplinary Tribunal & Anor
[2010] NTSC 02
 2. Nocton v Lord Ashburton [1914] AC 932
 3. Maguire and Tansey v Makaronis and Makaronis Judgment
of the Supreme Court of Victoria (Appeal Division), 17 August
1995

STEPHEN MALLOWAH 2016 03/05/2025

 Readings
330
1. Michele Hangley ; Fees Disgorgement in Attorney-
Breach-of-Fiduciary-Duty Cases
2. Breach of fiduciary duties by a solicitor - what is an
appropriate equitable remedy? An analysis of
 Maguire and Tansey v Makaronis and Makaronis
Judgment of the Supreme Court of Victoria (Appeal
Division), 17 August 1995 By K L Liew

STEPHEN MALLOWAH 2016 03/05/2025

 Part 1
Definitions

STEPHEN MALLOWAH 2016

03/05/2025 331
 What is Conflict of Interest
332
 • Conflicts of interest can be defined as any
situation in which an advocate is in a position
to exploit a professional capacity in some way
for their personal or corporate benefit.
 • In the legal profession, the duty of loyalty
owed to a client prohibits an advocate (or a
law firm) from representing any other party
with interests adverse to those of a current
client

STEPHEN MALLOWAH 2016 03/05/2025

 What is Conflict of Interest
333
 In most jurisdictions a law firm usually cannot represent a
client if its interests conflict with those of another client,
even if they have separate lawyers within the firm
 In some jurisdictions such representation is possible
subject to the deployment of a ‘Chinese wall’ the lawyer
is segregated from the rest of the firm for the duration of
the conflict.

STEPHEN MALLOWAH 2016 03/05/2025

Fiduciary Aspect of Client- Advocate Relationship
334
 Nocton v Lord Ashburton [1914] AC 932
 Lord Ashburton was buying a property for
£60,000 on Church Street, Kensington,
London.
 His solicitor was Mr. Nocton. Mr. Nocton
advised Lord Ashburton to release part of
the mortgage security.
 This was a bad idea, because as Mr. Nocton
in fact knew, this meant that the security
would become insufficient.
STEPHEN MALLOWAH 2016 03/05/2025


 Part 2
Prohibited Acts

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03/05/2025 335
 Permutations of Conflict of Interest
336
1. Failing or neglecting to give undivided fidelity to
your client
2. Failing or neglecting to perform duties and
obligations unaffected by your own interests
3. Failing or neglecting to perform duties and
obligations unaffected by the interests of persons
other than your client
4. Maintaining the interests of other parties that were
adverse or likely to be in conflict with the interests
of your client.
STEPHEN MALLOWAH 2016 03/05/2025
 Permutations of Conflict of Interest
337
6. Failing or neglecting to fully inform your client of a conflict
situation
7. Continuing to act for your client knowing that the client has not
voluntarily assented to your acting or continuing to act on your
client’s behalf
8. Representing and continuing to represent conflicting interests of
the your client and other clients in circumstances that were
prejudicial to the interests of your client.
9. Failing or neglecting to inform your client of the nature and
implications of such conflict and continuing to act for your client
STEPHEN MALLOWAH 2016 03/05/2025

knowing that the your client has not voluntarily assented to your
 Permutations of Conflict of Interest
338
10. Acting and continuing to act for the other clients after ceasing
to act for the client having failed or neglected to direct both of
your clients to seek other advice
11. Giving and continuing to give legal advice to the client knowing
that the interests of the client are in conflict with the interests of
another existing client or clients other than advice to secure the
services of another practitioner
12. Acting (and or continued to act) for the client without keeping
the client fully informed and withholding information and advice
from the client because of conflicting duty owed to another 03/05/2025
STEPHEN MALLOWAH 2016

client or other clients.

339 Conflict of Interest
 Imena vs. Ethuro2005 1 KLR 417
 An advocate will only be barred from
acting only where it is demonstrated
that real mischief and real prejudice
will in all human probability occur

STEPHEN MALLOWAH 2016 03/05/2025

 Conflict of Interest
340

 Delphis Bank vs. Chatthe 2005 1 KLR 766

 There is no real prejudice or real mischief
when the advocate will not be required to
testify or to testify only as to the formal
aspects of a document he prepared

STEPHEN MALLOWAH 2016 03/05/2025

 Conflict of interest
341

 Rakusen vs. Ellis Munday 1912 1 Ch 831

 Re A firm of Solicitors 1992 1 ALL ER 353

 There must be a demonstration of real

mischief or real prejudice in all human
probability

STEPHEN MALLOWAH 2016 03/05/2025

 Conflict of interest
342

 Kays & anor vs. Boutler & ors 1971 1 ALL

ER289
 Where there is a conflict of interest it is for
the clients involved , not for the court to
decide whether or not a solicitor could act

STEPHEN MALLOWAH 2016 03/05/2025

 Part 3
Exceptions

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03/05/2025 343
344 Exceptions and Remedial Measures

 The few exceptions to this rule require informed

written consent from all affected clients.
 In some circumstances, a conflict of interest
can never be waived by a client e.g. divorce
or child custody cases

STEPHEN MALLOWAH 2016 03/05/2025

Exceptions
345 and Remedial Measures
 Voluntarily diffuse the conflict by
 1. Withdrawing
 2. Recusal in judicial settings
 3. Informing client
 4. Getting the clients written consent
 5. Chinese walls

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 Part 4
Remedies for Breach

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03/05/2025 346
Remedies
347 for Breach
 Can terminate the relationship
 Can sue for breach of fiduciary duty
 Can sue for fees disgorgement
 Can institute disciplinary measures
 Can sue for accounts
 Can sue for secret profits

STEPHEN MALLOWAH 2016 03/05/2025

 Part 5
Recusal by Judicial Officers

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03/05/2025 348
349 Readings
 1. Jasbir Singh Rai vs Talochan Singh Rai SC
Petition 4 of 2012
 2. Caperton V. A.T. Massey Coal Co., Inc.. 2009
<http://www.oyez.org/cases/20002009/2008/2008_08_22
>.
 3. R vs Gough[1993] 2 All E. R 724, [1993] AC 646
 4. In Sellar vs Highland Rly Co
 5. Metropolitan Properties Co. (FGC) Ltd. vs Lannon [1969]
1 QB 577
 6. R vs Liverpool City Justices, ex parte Topping [1983] 1
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WLR 119
350 Readings
 9. Perry v. Schwarzenegger, 671 F. 3d 1052 (9th
Circ. February 7, 2012
 10. In R. v. Bow Street Metropolitan Stipendiary
Magistrate, ex parte Pinochet Ugarte (No.1) [2000]
1 A.C. 6,
 11. Kays & anor vs. Boutler & ors 1971 1 ALL ER 289
 12. Rakusen vs. Ellis Munday 1912 1 Ch 831
 13. Re A firm of Solicitors 1992 1 ALL ER 353
 14. Dimes vs Proprietors of Grand Junction Canal
STEPHEN MALLOWAH 2016 03/05/2025
351 Readings
 15. Caperton V. A.T. Massey Coal Co., Inc.. 2009
<http://www.oyez.org/cases/20002009/2008/2008_08_22
>.
 16. R vs Gough[1993] 2 All E. R 724, [1993] AC 646 17. In
Sellar vs Highland Rly Co
 18. Metropolitan Properties Co. (FGC) Ltd. vs Lannon
[1969] 1 QB 577
 19. R vs Liverpool City Justices, ex parte Topping [1983] 1
WLR 119
 20. Porter –V- Magill (2002) 2 AC 357).
STEPHEN MALLOWAH 2016 03/05/2025

 21. In Laird vs Tatum 409 U.S. 824 (1972

352 Jasbir Singh Rai
 ‘It is evident that the circumstances calling for
recusal, for a Judge, are by no means cast in
stone. Perception of fairness, of conviction, of
moral authority to hear the matter, is the proper
test of whether or not the non-participation of the
judicial officer is called for. The object in view, in
the recusal of a judicial officer, is that justice as
between the parties be uncompromised; that the
due process of law be realized, and be seen to
have had its role; that the profile of the rule of law
STEPHEN MALLOWAH 2016 03/05/2025

in the matter in question, be seen to have

353

STEPHEN MALLOWAH 2016 03/05/2025

 ATP 105 Professional
Ethics - 2016
LECTURE 10 – INTRODUCTION TO DISCIPLINE OF ADVOCATES
Course Instructor – Stephen Mallowah LLB, LLM, MSc
 Lesson Content
355
 Part 1:Preliminary issues
 Part 2:Disciplinary offenses
 Part 3:The multiple disciplinary organs
 Part 4:Survey of comparative jurisdictions

STEPHEN MALLOWAH 2016 03/05/2025

 Part 1
Preliminary Issues

STEPHEN MALLOWAH 2016

03/05/2025 356
 Preliminary Issues
357
 1.
Determine if there is there a problem of discipline i
n the profession
 2. Determine the objects of discipline
 3.Describe the theories of punishment from a beha
viorist perspective
 4. Determine the stakeholders in the disciplinary
process
 5.
Distinguish between structural vs behavioral approa
STEPHEN MALLOWAH 2016 03/05/2025
Is there a problem of discipline in the profession?
358
 1. What is the anecdotal evidence?
 2. What is the perception of the public?
 3 What do text writers have to say?
 4. What is the profession saying
 5. Do we have empirical evidence of the
disciplinary records of the profession?
 6. What do the judges have to say?
 7 What are our personal experiences and
perceptions
STEPHEN MALLOWAH 2016 03/05/2025

 8 What is going on in comparative jurisdictions?

 What is the anecdotal evidence?
359
 Newspaper reports
 Public perceptions
 The declared position of the LSK
 Our own perceptions

STEPHEN MALLOWAH 2016 03/05/2025

 Newspaper Reports
360

Lawyers top the list of corrupt professionals

SHARE BOOKMARK PRINTRATING

STEPHEN MALLOWAH 2016 03/05/2025

 Newspaper Reports
361
 http://www.nation.co.ke/oped/Opinion/-/440808/13
81396/-/view/printVersion/-/k8tjqn/-/index.html
 http://www.standardmedia.co.ke/article/20000514
92/crooked-lawyers-never-hurt
 http://countypress.co.ke/index.php/2016/04/04/cro
oked-lawyers-invade-kajiado-lands/
 http://www.sde.co.ke/thenairobian/article/2000185
552/common-room-kenya-needs-scientists-not-ove
rpriced-lawyers

 http://www.nation.co.ke/news/Advocates-Complain
STEPHEN MALLOWAH 2016 03/05/2025
 Social Media - Twitter
362
#LearnedThieves

STEPHEN MALLOWAH 2016 03/05/2025

Public perceptions
363
 1. Ask any of your non lawyer friends
 2. Ask the religious leaders
 3. Ask other professionals
 4 Ask yourself
 5. Ask the clients
 6. Ask the police
 7. Ask judicial officers
 8. Ask the Complaints Commission
 9 Ask the Disciplinary Tribunal
STEPHEN MALLOWAH 2016 03/05/2025
 What is the Empirical Evidence
364
 Statistics from the Complaints Commission
 Statistics from the Disciplinary Tribunal

STEPHEN MALLOWAH 2016 03/05/2025

 Statistics from the Complaints Commission- 2015
365
 The Advocates Complaints Commission received 225
complaints against lawyers between July 1 and September
30.
 One lawyer struck off the roll of advocates for life while
another 38 were forwarded to the disciplinary committee for
action.
 20 lawyers were accused of withholding clients’ money
while another 10 allegedly failed to represent their clients
adequately.
 3 lawyers were also accused of issuing dud cheques to
clients while another two deliberately failed to keep their
clients informed regarding their cases. Another lawyer was
STEPHEN MALLOWAH 2016 03/05/2025
366 Our Own Perceptions?

What's Your Perception?

What Are Your Experiences?

STEPHEN MALLOWAH 2016 03/05/2025

 Conflict of Interest
367

 As individuals with public responsibilities,

advocates must conduct themselves according
to ethical standards. (International Legal
Assistance Consortium 2010)
 To maintain public confidence ( Sichale 2010)
 Professional ethics and standards in the legal
profession seek to protect the integrity of the
profession, lawyers and the public. The public is
entitled to the highest standards of honesty,
confidentiality and competence. Kimanthi(2010)
STEPHEN MALLOWAH 2016 03/05/2025
368 Structural vs behavioral remedies

 Structural – speaks to the system

 Behavioral- speaks to the individual
within the system

STEPHEN MALLOWAH 2016 03/05/2025

 Behavioral approaches
369

 Behaviourists see punishment as the application

of an aversive / painful stimulus for purposes of
reducing the strength of a response
 Classical conditioning. Pavlov et al
 After a while extinction, then spontaneous
recovery

STEPHEN MALLOWAH 2016 03/05/2025

 Behavioral approaches
370

 Skinner - Operant conditioning.

 Response before reward.
 Connectionism
 Reinforcement of good behaviour by a system of
rewards .
 Reward good behaviour, withhold reward if bad
behaviour

STEPHEN MALLOWAH 2016 03/05/2025

371 Behavioral approaches

 Thorndike(1932 and 1935) Punishment leads to

reduction of undesirable behaviour but does not
necessarily eliminate .
 Prolonged and very severe punishment may lead
to extinction of undesirable behaviour
 But at some stage that is not necessarily so.
They will fear the punishment but retain the
behaviour.
 They require constant policing
STEPHEN MALLOWAH 2016 03/05/2025
Behavioral
372 approaches
 Bandura et al
 Social psychology
 Role modeling

STEPHEN MALLOWAH 2016 03/05/2025

Theories
373 of Punishment
 Deterrence
 Punitive
 Retribution
 Rehabilitation
 Prevention is better than cure

STEPHEN MALLOWAH 2016 03/05/2025

374 Stakeholders in the disciplinary process
 1. The government
 2. The court
 3. Law enforcement agencies
 4. The Law Society
 5 The clients
 6. The public at large

STEPHEN MALLOWAH 2016 03/05/2025

375 Structural Problems
 1. Societal issues
 2. The education of lawyers
 3. The adversarial system
 4. Economic conditions
 5 Working conditions
 6. Remuneration
 7. Multiplicity of inconsistent obligations
 8.
The relationship between the lawyer and the client
STEPHEN MALLOWAH 2016 03/05/2025
376 Behavioral issues

 Lawyers as human beings

 Role modeling
 Value systems

STEPHEN MALLOWAH 2016 03/05/2025

377 Self regulation vs external regulation
 Principle 28 of the UN Basic Principles on the
Role of Lawyers provides that: ‘Disciplinary
proceedings against lawyers shall be brought
before an impartial disciplinary committee
established by the legal profession, before an
independent statutory authority, or before a court,
and shall be subject to an independent judicial
review’.
 However, the independence of the disciplinary
mechanisms available to the LSK under the
STEPHEN MALLOWAH 2016 03/05/2025

Advocates Act is limited

378 Self regulation vs external regulation

 It is one of the characteristics of a profes

sion
 Independence of the bar as an
indispensable
vanguard for the rule of law
 Insider expertise
 Reduces tendencies to lynch
 Reduces tendencies for mob justice
STEPHEN MALLOWAH 2016 03/05/2025
379 Self regulation vs external regulation

 Structure and composition of the CC

 53. (1) Advocates Act There is hereby established
a Complaints Commission (in this Part referred to
as “the Commission”) which shall consist of such
commissioner or commissioners as shall be
appointed by the President for the purpose of
enquiring into complaints against any advocate,
firm of advocates, or any member or employees
thereof. STEPHEN MALLOWAH 2016 03/05/2025
380 Self regulation vs external regulation

 Structure and composition of the CC

 53A. (1) There shall be paid to the Commissioner
such remuneration by way of salary allowance
pension or gratuity as shall be determined by the
President.
 54. (1) There shall be a secretary to the
Commission who shall be appointed by the
Attorney-General.
STEPHEN MALLOWAH 2016 03/05/2025
 381
Self regulation vs external regulation

 57(1) There is established a tribunal to be known as

Structure and composition of the Disciplinary Tribunal

the Disciplinary Tribunal (in this Part referred to as

“the Tribunal”) which shall consist of—
 (a) the Attorney-General;
 (b) the Solicitor-General or a person deputed by the
Attorney-General; and
 (c) six advocates (other than the chairman, vice-
chairman or secretary of the Society), of not less
than ten years standing, one of whom shall be an
advocate who does not ordinarily practise in STEPHEN MALLOWAH 2016 03/05/2025
 382
Self regulation vs external regulation
Structure and composition of the DT

 (1A) The members of the Tribunal shall be paid

such remuneration, fees or allowances for expenses
as the Attorney-General, in consultation with the
Treasury, may authorise out of monies provided by
Parliament for that purpose.
 (2) During the illness, or temporary absence from
Kenya, of any of its elected members, the Tribunal
may nominate any advocate who is qualified for
election as a member of the Tribunal to act as a
temporary member of the Tribunal. STEPHEN MALLOWAH 2016 03/05/2025
 383
Self regulation vs external regulation
Structure and composition of the DC

 (3) In the event of there being any complaint or

matter pending before the Tribunal at the date of
retirement of any member and such member being
a member of a tribunal thereof which had, prior to
such date, entered upon the hearing thereof in
accordance with section 60, that member shall, in
the event of his not being reelected, be deemed to
remain in office for the purpose only of such
complaint or matter and shall so remain until such
complaint or matter has been finally disposed of.
STEPHEN MALLOWAH 2016 03/05/2025
384 Procedures - 58

 (4) For the purposes of any application or

complaint made to it under this Part, the Tribunal
may administer oaths or affirmations, and the
complainant and the advocate to whom a
complaint relates, and an applicant making any
application to the Tribunal, may take out a
summons to give evidence or to produce
documents, but no person shall be compellable
under any such summons to produce any
STEPHEN MALLOWAH 2016 03/05/2025

document which he could not legally be compelled

 Procedures - 58
385

 (5) All proceedings before the Tribunal shall be deemed for

the purposes of Chapter XI of the Penal Code (Cap. 63) to be
judicial proceedings and for the purposes of the Evidence Act
(Cap. 80) to be legal proceedings.
 (6) The Tribunal may make rules for regulating the making to
the Tribunal, and the hearing and determination by the
Tribunal, of applications or complaints under this Part or with
respect to matters incidental to or consequential upon it’s
Orders.

STEPHEN MALLOWAH 2016 03/05/2025

 Regional Disciplinary Committees – 58A
386

 (1) There are hereby established Disciplinary Committees

(in this Part referred to as “Regional Committees”) in
five representative regions, other than Nairobi,
identified by the society.
 (2) Each Regional Disciplinary Committee shall have a
jurisdiction concurrent to that of the Disciplinary Committee
established under section 57 of the Advocates Act in their
respective regions, and shall exercise the same functions
and have the same powers and duties set out under this
Part or under any other written law.
 (3) Each Regional Committee shall consist of five advocates
STEPHEN MALLOWAH 2016 03/05/2025

(other than the Chairman, Vice-Chairman or Secretary of the

 The Solution - PLO Lumumba
387

 It is not in dispute that there is a widespread

breakdown in the fundamental values that
anchor the profession. First, there are areas
in which genuine reform is required to improve
professional performance and raise public
confidence in the profession. At the institutional
level, disciplinary mechanisms and processes;
at the individual level, there must be a
reorientation towards the values of integrity,
honesty, honour, independence, service and
competence. This is at the heart of attaining a
STEPHEN MALLOWAH 2016 03/05/2025
 Part 2
Disciplinary Offences

STEPHEN MALLOWAH 2016

03/05/2025 388
 Disciplinary Offences
389

1. Distinguish between
 Professional misconduct
 Unprofessional conduct
 Unethical conduct; and
 Breach of etiquette
2. Identify the possible disciplinary offences
3. Categories the offenses

STEPHEN MALLOWAH 2016 03/05/2025

 Professional Misconduct vs Unprofessional Conduct
390

 It is important to distinguish between

professionalism and ethics: the ethical rules
(codified in the Rules of Professional Conduct) are
mandatory black letter standards that establish a
minimum level of conduct.
 Failure to abide by the rules may result in
disciplinary sanction. (PLO Lumumba)

STEPHEN MALLOWAH 2016 03/05/2025

 Professional Misconduct vs Unprofessional Conduct
391

 Professionalism, however, is grounded in

aspirational goals and traditions that seek to
encourage the bar and the bench, towards
conduct that preserves and strengthens the
dignity, honour, and integrity of the profession
 Professionalism requires a willingness to
subordinate narrow self-interest in pursuit of the
more fundamental goal of public service ( PLO
Lumumba)
STEPHEN MALLOWAH 2016 03/05/2025
Professional
392 Misconduct vs Unprofessional Conduct

 S 60. (1) Advocates Act

 A complaint against an advocate of professional
misconduct, which expression includes disgraceful
or dishonorable conduct incompatible with the
status of an advocate, may be made to the
Committee by any person.

STEPHEN MALLOWAH 2016 03/05/2025

 Disciplinary Offences
393

The black letter offenses

 1. Withholding funds
 2. Failure to account
 3. Outright theft
 4 Sharing profits with an unqualified person
 5. Failure to operate separate accounts
 6. Mixing funds
 7 Failure to prepare an accountants certificate
STEPHEN MALLOWAH 2016 03/05/2025
 Disciplinary Offences
394

 8. Contempt of court
 9. Perjury
 10. Failing to respond to letters from the LSK
 11.Touting
 12 Conflict of interest
 13.Breach of privilege
 14.Practicing under an unauthorized name
 15.Failure to render services
STEPHEN MALLOWAH 2016 03/05/2025
 Unprofessional Conduct
395

 1. Overcharging
 2. Failure to keep client informed
 3. Disrespect to colleagues
 4. Discourtesy to clients and third parties
 5 Sharp practice
 6. Non compliance with dress code
 7. Unbecoming conduct in a private capacity

STEPHEN MALLOWAH 2016 03/05/2025

 The High Court & Discipline
396
55. Advocates to be officers of Court
 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:
56. Savings of disciplinary powers of Court
 Nothing in this Act shall supersede, lessen or interfere
with the powers vested in the Chief Justice or any of the
judges of the Court to deal with misconduct or offences
STEPHEN MALLOWAH 2016 03/05/2025

by an advocate, or any person entitled to act as such,

397

STEPHEN MALLOWAH 2016 03/05/2025

 ATP 105 Professional
Ethics - 2016
LECTURE 14 – ADVOCATES REMUNERATION
Course Instructor – Stephen Mallowah LLB, LLM, MSc
 Part 1
Lesson Content

STEPHEN MALLOWAH 2016

03/05/2025 399
 Lesson Content – Conceptual Issues
400
• Some conceptual issues: Advocate, Client,
Instructions, Retainer
• The legal nature of the relationship between an
advocate and client and its implication for
determination and recovery of costs
Fiduciary obligations vs contractual obligations
• How to enter into an advocate client relationship
Formal, informal and non-formal
Liability of instructing client
STEPHEN MALLOWAH 2016 03/05/2025

Liability of instructing advocate

 Lesson Content – Regulation of Fees
401
 Regulation of advocates fees
i. Why regulate?
ii. Who regulates?
iii. How is it regulated?
iv. Adequacy of remuneration
v. Regulation and access to legal services
vi. Consumer protection
vii.Competition law issues
STEPHEN MALLOWAH 2016 03/05/2025
 Lesson Content – Liability for Payment
402
 Liability for payment of costs
i. Loser pays subject to discretion of the
court
ii. Each party to bear costs subject to
discretion of the court
iii. Partial vs full recovery
iv. Liability of advocates to pay costs

STEPHEN MALLOWAH 2016 03/05/2025

 Lesson Content – Fixing Fees
403
 Methods of fixing advocates fees
i. Contingency fees
ii. By schedule
iii. As a percentage
iv. Per hour billing
v. Based on complexity and urgency
vi. Fixed or variable fees
vii.By agreement
STEPHEN MALLOWAH 2016 03/05/2025
 Lesson Content – Recovery of Costs
404
 Procedure for recovery of costs
i. Power of the court to tax
ii. Interest on costs
iii. Types of costs
 Party and party
 Advocate client
iv. Process of taxation
v. Security on costs
vi. Appeal and review
STEPHEN MALLOWAH 2016 03/05/2025
 Lesson Content - Miscellaneous
405
 Strategies on cost recovery
 Sharing of profits
 Statutory provisions
 Case Law

STEPHEN MALLOWAH 2016 03/05/2025

 Part 2
Key Statutory Provisions

STEPHEN MALLOWAH 2016

03/05/2025 406
 Regulation of Costs
407

 44. (1) The Council of the Society may make

recommendation to the Chief Justice on all
matters relating to the remuneration of
advocates, and the Chief Justice, having
considered the same, may by order, prescribe
and regulate in such manner as he thinks fit
the remuneration of advocates in respect of
all professional business, whether contentious
or non-contentious
STEPHEN MALLOWAH 2016 03/05/2025
Regulation of Costs
408
 (2) An order made under this section in respect
of non-contentious business may, as regards
the mode of remuneration, prescribe that it shall
be according to a scale of rates of commission
or percentage, varying or not in different classes
of business or by a gross sum, or by a fixed sum
for each document prepared or perused, without
regard to length, or in any other mode, or
partly in one mode or partly in another, and
may regulate the amount of remuneration with
reference to all or any of the following, among
STEPHEN MALLOWAH 2016 03/05/2025
Regulation of Costs
409
 (a) the position of the party for whom the advocate is
concerned in the business, that is, whether as vendor
or purchaser, lessor or lessee, mortgagor or
mortgagee, and the like;
 (b) the place where, and the circumstances in which,
the business or any part thereof is transacted;
 (c) the amount of the capital money or rent to which
the business relates;
 (d) the skill, labour and responsibility involved therein
on the part of the advocate;
 (e) the number and importance of the documents
STEPHEN MALLOWAH 2016 03/05/2025
Regulation of Costs
410
 (3) An order made under this section may authorize
and regulate–
 (a) the taking by an advocate from his client of
security for payment of any remuneration to be
ascertained by taxation or otherwise, which may
become due to him under any such order; and
 (b) the allowance of interest.
 (4) So long as an order made under this section in
respect of non-contentious business is in operation,
taxation of bills of costs of advocates in respect of
non-contentious business shall, subject to section 45,
STEPHEN MALLOWAH 2016 03/05/2025
 Regulation of Costs
411

 LN 159/2006
 RO para 3. No advocate may agree or
accept his remuneration at less than
that provided by this Order.

STEPHEN MALLOWAH 2016 03/05/2025

 Section 52 Charging Orders
412
 52. 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:
STEPHEN MALLOWAH 2016 03/05/2025

 Provided that no order shall be made if the right to

Agreements with respect to remuneration
413
 45. (1) Subject to section 46 and whether or not
an order is in force under section 44, an advocate
and his client may–
 (a) before, after or in the course of any
contentious business, make an agreement
fixing the amount of the advocate’s remuneration
in respect thereof;
 (b) before, after or in the course of any
contentious business in a civil court, make an
agreement fixing the amount of the advocate’s 03/05/2025
STEPHEN MALLOWAH 2016

instruction fee in respect thereof or his fees for

 Agreements with respect to remuneration
414
 (c) before, after or in the course of any
proceedings in a criminal court or a court
martial, make an agreement fixing the amount of
the advocate’s fee for the conduct thereof;
 and such agreement shall be valid and binding on
the parties provided it is in writing and signed
by the client or his agent duly authorized in
that behalf.

STEPHEN MALLOWAH 2016 03/05/2025

 Agreements with respect to remuneration
415
 (2) A client may, apply by chamber summons to the
Court to have the agreement set aside or varied on
the grounds that it is harsh and unconscionable,
exorbitant or unreasonable, and every such
application shall heard before a judge sitting
with two assessors, who shall be advocates of not
less than five years’ standing appointed by the
Registrar after consultation with the chairman of the
Society for each application and on any such
application the Court, whose decision shall be final,
shall have power to order–
STEPHEN MALLOWAH 2016 03/05/2025
416 Agreements with respect to remuneration
 (a) that the agreement be upheld; or
 (b) that the agreement be varied by substituting
for the amount of the remuneration fixed by the
agreement such amount as the Court may deem
just; or
 (c) that the agreement be set aside; or
 (d) that the costs in question be taxed by the
Registrar; and that the costs of the application be
paid by such party as it thinks fit.
STEPHEN MALLOWAH 2016 03/05/2025
 Agreements with respect to remuneration
417

 (2A) An application under subsection (2) may be

made within one year after the making of the
agreement, or within three months after a
demand in writing by the advocate for
payment under the agreement by way of rendering
a fee note or otherwise, whichever is the later.

STEPHEN MALLOWAH 2016 03/05/2025

 Agreements with respect to remuneration
418

 (3) An agreement made by virtue of this section, if

made in respect of contentious business, shall not
affect the amount of, or any rights or remedies for
the recovery of, any costs payable by the client to,
or to the client by, any person other than the
advocate, and that person may, unless he has
otherwise agreed, require any such costs to be
taxed according to the rules for the time being in
force for the taxation thereof:
STEPHEN MALLOWAH 2016 03/05/2025
 Agreements with respect to remuneration
419

 Provided that any such agreement shall be

produced on demand to a taxing officer and the
client shall not be entitled to recover from any
other person, under any order for the payment of
any costs to which the agreement relates, more
than the amount payable by him to his
advocate in respect thereof under the
agreement.

STEPHEN MALLOWAH 2016 03/05/2025

420 Agreements with respect to remuneration

 (4) Where any agreement made by virtue of this section

is made by the client as the guardian or committee
of, or trustee under deed or will for, any person whose
property will be chargeable with the whole or any part of
the amount payable under the agreement, the advocate
shall, before payment thereunder is accepted or
demanded and in any event within six months after its
due date, apply by chamber summons to the Court
for approval of such agreement, and every such
application shall be dealt with in accordance with
subsection (2).
STEPHEN MALLOWAH 2016 03/05/2025
 Agreements with respect to remuneration
421

 (5) If, after an advocate has performed part only of

the business to which any agreement made by
virtue of this section relates, such advocate dies or
becomes incapable of acting, or the client changes
his advocate as, notwithstanding the agreement, he
shall be entitled to do, any party, or the legal
personal representatives of any party, to such
agreement may apply by chamber summons to the
Court to have the agreement set aside or
varied, and every such application shall be dealt
with in accordance with subsection (2):
STEPHEN MALLOWAH 2016 03/05/2025
 Agreements with respect to remuneration
422

 Provided that, in the case of a client changing his

advocate, the Court shall have regard to the
circumstances in which the change has taken place
and, unless of opinion that there has been default,
negligence, improper delay or other conduct on the
part of the advocate affording to the client
reasonable ground for changing his advocate, shall
allow the advocate the full amount of the
remuneration agreed to be paid to him.
 (6) Subject to this section, the costs of an advocate
STEPHEN MALLOWAH 2016 03/05/2025

in any case where an agreement has been made by

 Invalid Agreements
423

 46. Nothing in this Act shall give validity to–

 (a) any purchase by an advocate of the interest, or
any part of the interest, of his client in any suit or
other contentious proceeding; or
 (b) any agreement relieving any advocate from
responsibility for professional negligence or any
other responsibility to which he would otherwise be
subject as an advocate; or

STEPHEN MALLOWAH 2016 03/05/2025

 Invalid Agreements
424

 (c) any agreement by which an advocate retained or

employed to prosecute or defend any suit or other
contentious proceeding stipulates for payment only
in the event of success in such suit or proceeding or
that the advocate shall be remunerated at different
rates according to the success or failure thereof; or

STEPHEN MALLOWAH 2016 03/05/2025

 Invalid Agreements
425

 (d) any agreement by which an advocate agrees to

accept, in respect of professional business, any fee
or other consideration which shall be less than the
remuneration prescribed by any order under section
44 in respect of that business or more than twenty-
five per centum of the general damages recovered
less the party and party costs as taxed or agreed;

STEPHEN MALLOWAH 2016 03/05/2025

 Invalid Agreements
426

 (e) any disposition, contract, settlement,

conveyance, delivery, dealing or transfer which is,
under the law relating to bankruptcy, invalid against
a trustee or creditor in any bankruptcy or
composition

STEPHEN MALLOWAH 2016 03/05/2025

 Part 3
Procedures on Taxation

STEPHEN MALLOWAH 2016

03/05/2025 427
428 Section 51 Procedure on Taxation

 51. (1) Every application for an order for the

taxation of an advocate’s bill or for the
delivery of such a bill and the delivering up of
any deeds, documents and papers by an advocate
shall be made in the matter of that advocate.
 (2) The certificate of the taxing officer by whom
any bill has been taxed shall, unless it is set aside or
altered by the Court, be final as to the amount of the
costs covered thereby, and the Court may make such
order in relation thereto as it thinks fit, including, in a
case where the retainer is not disputed, an
STEPHEN MALLOWAH 2016 03/05/2025
R.O
429 rule 13. (1) Procedure On Taxation
 The taxing officer may tax costs as between
advocate and client without any order for the
purpose upon the application of the advocate
or upon the application of the client, but
where a client applies for taxation of a bill
which has been rendered in summarized or
block form the taxing officer shall give the
advocate an opportunity to submit an
itemized bills of costs before proceeding with
STEPHEN MALLOWAH 2016 03/05/2025

such taxation, and in such event the advocate

Section
430 49 Recovery Suits
 49. Where, in the absence of an agreement
for remuneration made by virtue of section 45,
a suit has been brought by an advocate for
the recovery of any costs and a defence is filed
disputing the reasonableness or quantum thereof–

STEPHEN MALLOWAH 2016 03/05/2025

431 Section 48 Recovery Suits
 48. (1) Subject to this Act 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 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
STEPHEN MALLOWAH 2016 03/05/2025

limits of the Court’s jurisdiction, in which event

432 Section 48 Recovery Suits
 (2) Subject to subsection (1), a suit may be
brought for the recovery of costs due to an
advocate in any court of competent
jurisdiction.
 (3) Notwithstanding any other provisions of this
Act, a bill of costs between an advocate and a
client may be taxed notwithstanding that no
suit for recovery of costs has been filed.

STEPHEN MALLOWAH 2016 03/05/2025

433 Power of court to order advocate to deliver
his bill and to deliver up deed
 47. (1) The jurisdiction of the Court to make orders
for the delivery by an advocate of a bill of costs,
and for the delivery up of or otherwise in relation
to, any 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.

STEPHEN MALLOWAH 2016 03/05/2025

 Taxation
434 on application of third parties

 50. (1) Where a person other than the person

who is the party chargeable with a bill of
costs is liable to pay the bill either to the
advocate or to the party chargeable with the
bill, ……..that person or his administrators,
executors or assignees may apply to the
Court for an order for the taxation of the bill
as if he were the party chargeable therewith,
and the Court, having regard to the extent
STEPHEN MALLOWAH 2016 03/05/2025

and nature of the interest of the person, may

435 Election
 R O 22. (1) In all cases in which any other
Schedule applies an advocate may, before or
contemporaneously with rendering a bill of costs
drawn as between advocate and client, signify to
the client his election that, instead of charging
under such Schedule, his remuneration shall be
according to Schedule V, but if no election is
made his remuneration shall be according to the
scale applicable under the other Schedule.
STEPHEN MALLOWAH 2016 03/05/2025
436 Undercutting
 36. (1) Any advocate who holds himself out or
allows himself to be held out, directly or indirectly
and whether or not by name, as being prepared to
do professional business at less than the
remuneration prescribed, by order, under this Act
shall be guilty of an offence.
 (2) No advocate shall charge or accept, otherwise
than in part payment, any fee or other
consideration in respect of professional business
which is less than the remuneration prescribed, by
STEPHEN MALLOWAH 2016 03/05/2025

order, under this Act.

437 Undercutting
 Invalid agreement
 46 (d) any agreement by which an advocate
agrees to accept, in respect of professional
business, any fee or other consideration which
shall be less than the remuneration
prescribed by any order under section 44 in
respect of that business or more than twenty-
five per centum of the general damages
recovered less the party and party costs as
taxed or agreed;
STEPHEN MALLOWAH 2016 03/05/2025
438 Undercutting

 R O para 22 (2) Subject to paragraph 3, an

advocate who makes an election under
subparagraph (1) may not by reason of his
election charge less than the scale fee under the
appropriate Schedule.

STEPHEN MALLOWAH 2016 03/05/2025

439 Unqualified Persons

• 31. (1) Subject to section 83, no unqualified

person shall act as an advocate, or as such cause
any summons or other process to issue, 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.
• (2) Any person who contravenes subsection (1)
shall–
• (b) be incapable of maintaining any suit for any
STEPHEN MALLOWAH 2016 03/05/2025

costs in respect of anything done by him in the

440 Unqualified Persons

 40. 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.

STEPHEN MALLOWAH 2016 03/05/2025

 441
Sharing Profits

 37. Any advocate who agrees to share his profits in

respect of any professional business, whether
contentious or non-contentious, with any person not
being an advocate or other duly qualified legal
practitioner (by whatever name called) shall be
guilty of an offence:
 Provided that this section shall not apply to the
payment of any bonus to any of his employees by
an advocate, being a bonus based or calculated on
the advocate’s total earnings or profits in respect of
STEPHEN MALLOWAH 2016 03/05/2025

any period.
 442
 46. Nothing in this Act shall give validity to–
Champerty and Contingency Fees

 (a) any purchase by an advocate of the interest, or any

part of the interest, of his client in any suit or other
contentious proceeding; or
 (c) any agreement by which an advocate retained or
employed to prosecute or defend any suit or other
contentious proceeding stipulates for payment only in
the event of success in such suit or proceeding or that
the advocate shall be remunerated at different rates
according to the success or failure thereof; or
 These provisions invalidate any remuneration
STEPHEN MALLOWAH 2016 03/05/2025
 443
The Case for and against Contingency Fees

• For: Creates conflict of interest between lawyer and

client which could result in partiality and lack of
objectivity

• Against: denies the indigent the opportunity to

pursue their legal claims

• USA and some European countries allow

contingency fees in some instances. STEPHEN MALLOWAH 2016 03/05/2025
444 Objection, Reference & Review
 11. (1) Should any party object to the decision of
the taxing officer, he may within fourteen days
after the decision give notice in writing to the
taxing officer of the items of taxation to which he
objects.
 (2) The taxing officer shall forthwith record and
forward to the objector the reasons for his decision
on those items and the objector may within
fourteen days from the receipt of the reasons
apply to a judge by chamber summons, which
STEPHEN MALLOWAH 2016 03/05/2025

shall be served on all the parties concerned,

 Costs improperly incurred
445

 61. (1) If in any case it appears to the Court that costs have
been incurred improperly or without reasonable cause, or that
by reason of any undue delay in proceedings under any
judgement or order, or of any misconduct or default of the
advocate, any costs properly incurred have proved fruitless to
the party on whose behalf the same were incurred, the Court
may call on the advocate by whom such costs have been so
incurred to show cause why such costs should not be
disallowed as between the advocate and his client, and also (if
the circumstances of the case shall require) why the advocate
should not repay to his client any costs which his client may
have been ordered to pay to any other person, and thereupon
may make such order as the justice of the case may require.
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 Discretion of taxing master
446

 16. Notwithstanding anything contained in this

Order, on every taxation the taxing officer may
allow all such costs, charges and expenses as
authorized in this Order as appear to him to have
been necessary or proper for the attainment of
justice or for defending the rights of any party, but,
save as against the party who incurred the same, no
costs shall be allowed which appear to the taxing
officer to have been incurred or increased through
over-caution, negligence or mistake, or by payment
STEPHEN MALLOWAH 2016 03/05/2025

of special charges or expenses to witnesses or other

 Part 4
Jurisprudence

STEPHEN MALLOWAH 2016

03/05/2025 447
 Jurisprudence
448

 Principles governing awarding of costs in civil cases:

East African Court of Appeal in Premchand Raichand
Ltd & Ano. V Quarry Services of EA Ltd & Others
(1972)EA 162
 1) That costs should not be allowed to rise to such level
as to confine access to courts to the wealthy
 2) That a successful litigant ought to be fairly
reimbursed for the costs incurred
 3) That the general level of remuneration of advocates
must be such as to attract recruits to the profession
 4) That so far as practicable there should be
STEPHEN MALLOWAH 2016 03/05/2025
 Mayers & Ano. V Hamilton & Others (1964) All ER
449

 Spry J held that where the case is unfinished, an

advocate is not entitled to the whole of the fee he
may ultimately claim. How much he is entitled to
depends on the tasks he has already discharged.

STEPHEN MALLOWAH 2016 03/05/2025

 Case Law
450

 Owino Okeyo and Co Advocates vs Fuelex Kenya

Ltd NRB HC Misc App No 382 of 2004 ( 2005
EKLR) 13th October 2005 Per Fred Ochieng J
 Effect of a certificate of taxation under s 51(2)
Advocates Act
 What is a retainer?
 Importance of proving retainer
 Procedure for applying for judgment on certified costs
 Proof of retainer
 Disputing a retainer
STEPHEN MALLOWAH 2016 03/05/2025
 Case Law
451

 Gichuki King’ara and Co Advocates VS

Mugoya Construction Co Ltd NRB HC Misc
App No 625 of 2009 2010 EKLR Per Njagi J
29th April 2010
 Legal nature of the relationship between Advocate
and Client
 Recovery of remuneration on quantum meruit

STEPHEN MALLOWAH 2016 03/05/2025

Case
452 Law

 Nderitu and Co Advocates vs Mamuka

Valuers
 NRB HC Misc App No 2006 EKLR 29TH February
2006 Per Waweru J
 Definition of retainer

STEPHEN MALLOWAH 2016 03/05/2025

 Retainer
453

 Ahmednassir Abdikadir and Co Advocates vs

NBK NRB HC Misc App NO 752 of 2004 2006
EKLR 28th March 2006 Per Azangalala J
 Effect of taxation on agreement under s 45
 Proper forum to challenge the right to tax the bill
and the quantum of costs
 Procedure for moving the court for an order of
judgment under s 52
 Rationale for s 52
STEPHEN MALLOWAH 2016 03/05/2025
 Case Law
454

 Ragot and Co Advocates vs West Kenya

Wholesalers Ltd KSM HC Misc App No 244 of
2002 2006 EKLR 24th Jan 2006 Warsame J
 What is a retainer?
 Which court enters judgment under s 52
 Effect of section 52 when there is a pending
application to set aside order of taxation
 When a suit for recovery of costs is necessary
STEPHEN MALLOWAH 2016 03/05/2025
 Case Law
455

 Ochieng , Onyango Kibet and Ohaga

Advocates vs Adopt A Light Ltd NRB HC Misc
App No 654 of 2006 2010 EKLR Per Koome J
 Meaning of retainer
 Effect of order under s 52
 Requirement for an agreement under section 45
 Procedure for moving the court to enter judgment
under s 52
 Rationale for s 52
STEPHEN MALLOWAH 2016 03/05/2025
 Case Law
456
 Shamma v UHDL 2001 2 EA 558 CA
 Procedure for recovery of advocates costs
 Whether to file recovery suit of tax the bills
 Sections 48 and 49 Advocates Act Rule 13 (3)
Advocates Remuneration Order

STEPHEN MALLOWAH 2016 03/05/2025

 Case Law
457
 In the matter of Obaga & Co Advocates Kisii HC
Misc App No 9 OF 2008 2009 EKLR 13th December
2009 Per Musinga J
 What is a retainer
 When is there a retainer
 Who is the client when an advocate is holding brief for
another
 What happens when there is no retainer

STEPHEN MALLOWAH 2016 03/05/2025

 Case Law
458
 Ahmednassir Abdikadir vs NBK NRB HCCC NO 532
of 2004 2007 EKLR per Khamoni J 26TH September
2007
 What is a retainer
 What is the consequence of ‘Service Level Agreements’
 What is the procedure for recovery of advocates costs?

STEPHEN MALLOWAH 2016 03/05/2025

 Case Law – Unqualified Persons
459
 Equity Bank Limited V Capital Construction
Limited & 3 others [2012] EKLR
 Recovery of costs where advocate is not qualified to act

STEPHEN MALLOWAH 2016 03/05/2025

 Case Law – Two Cheque System
460
 KBS vs Susan Muteti CA 15 of 1992
 Two cheque system
 Agnes Nzali Muthoka vs ICEA
 Two cheque system
 No Advocate client costs where matter settled between
the parties

STEPHEN MALLOWAH 2016 03/05/2025

 Jurisprudence
461
 Oseko and Co Advocates vs Occidental Insurance Co Ltd
 Shah & Parekh vs Apollo Insurance Co Ltd
 Ibrahim vs Sheikh Bros Investment Ltd 1973 EA

STEPHEN MALLOWAH 2016 03/05/2025

462

STEPHEN MALLOWAH 2016 03/05/2025

 ATP 105 Professional
Ethics - 2016
LECTURE 15 – RETAINER
Course Instructor – Stephen Mallowah LLB, LLM, MSc
 Lesson Content
464
 Definition  Disabilities
 Types of retainer  Termination
 How created  Change of advocate
 Duty to act  Lack of a practicing
 Authority certificate
 Limits of the retainer  Recovery of fees
 Limitation of Liability
 Advantages of a retainer
STEPHEN MALLOWAH 2016 03/05/2025
 Lesson Content – Readings
465
 S 2 45 Advocates Act
 S 46 Advocates Act
 A.N Ndabiri & Co Advocates vs Mwea Rice Growers
Multipurpose Co-operative Ltd NRB HC Misc. App No 698 of
2004 Hatari Waweru J
 Ahmednassir Abdikadir & co Advocates v National Bank of
Kenya 2006 EKLR
 Nderitu and Co Advocates vs Mamuka Valuers
 NRB HC Misc App No 2006 EKLR 29TH February 2006 Per
Waweru J
 Equity Bank Limited V Capital Construction Limited & 3 others
[2012] EKLR
STEPHEN MALLOWAH 2016 03/05/2025
 Lesson Content – Readings
466
 Gichuki King’ara and Co Advocates VS Mugoya Construction Co
Ltd NRB HC Misc App No 625 of 2009 2010 EKLR Per Njagi J 29th
April 2010
 Ragot and Co Advocates vs West Kenya Wholesalers Ltd KSM HC
Misc App No 244 of 2002 2006 EKLR 24th Jan 2006 Warsame J
 In the matter of Obaga & Co Advocates Kisii HC Misc App No 9
OF 2008 2009 EKLR 13th December 2009 Per Musinga J
 Owino Okeyo and Co Advocates vs Fuelex Kenya Ltd NRB HC
Misc App No 382 of 2004 ( 2005 EKLR) 13th October 2005 Per
Fred Ochieng J
 In the matter of Obaga & Co Advocates Kisii HC Misc App No 9
OF 2008 2009 EKLR 13th December 2009 Per Musinga J
STEPHEN MALLOWAH 2016 03/05/2025
 Lesson Content – Readings
467
 Nocton v Lord Ashburton [1914] AC 932
 Watts vs The Official Solicitor 1936 1 ALL ER 249
 Re Dunn, Simmons v Liberal Opinion Ltd
 Krakane vs. Katz 1954 1 ALL ER 244
 Dannish Mercantile vs. Beaumont 1951 1 ALL ER
925
 Groon vs Croker 1939 1KB
 Kazziha vs. Wiens 2000 KLR 661
STEPHEN MALLOWAH 2016 03/05/2025
 Lesson Content – Readings
468
 Clarke Boyce vs Mouat 1994 1 AC 428
 Boyce vs Rendells 1983
 Warmingtons vs McMurray 1937 1 ALL ER 662
 Marplace (number 512) Ltd v Chaffe Street(a firm) 2006 EWHC
1919 (Ch.D)
 Cawdery Kaye Fireman &Taylor v Minkin 2012EWCA Civ 546
 Credit Lyonnais v Russel Jones & Walker [2002] EWHC 1310(Ch.)
 Mortgage Express Ltd v Bowerman & Partners 1996 2 ALL ER
836
 Blacks Dictionary 6th Edn 1990
 Law Society Gazette/2003/issue 33, September/articles/good
practice: conduct and service-(2003) LS Gaz,4 Sep 33(1)
STEPHEN MALLOWAH 2016 03/05/2025
 Part 1
Definitions and Illustrations

STEPHEN MALLOWAH 2016

03/05/2025 469
 Introduction
470

 A retainer is the very basis on which

the relationship of an advocate and
client comes into being

STEPHEN MALLOWAH 2016 03/05/2025

 Definition
471
 A contract between attorney and client
specifying the nature of the services to be
rendered and the cost of the services.
 Retainer also denotes the fee that the
client pays when employing an attorney
http://legaldictionary.thefreedictionary.com/ret
ainer

STEPHEN MALLOWAH 2016 03/05/2025

 Definition
472
 In Black's Law Dictionary 6th edition 1990,
retainer is defined as:“
 In the practice of law, when a client hires an
attorney to represent him, the client is said
to have retained the Attorney. This act of
employment is called the retainer. The
retainer agreement between the client and
attorney sets forth the nature of services to
be performed, costs, expenses and related
matters."
STEPHEN MALLOWAH 2016 03/05/2025
 Definition Cont.
473
 A retainer agreement is a work for hire
contract. It falls between a one-time contract
and full-time employment.
 Its distinguishing feature is that the
employer pays in advance for work to be
specified later.
 http://en.wikipedia.org/wiki/Retainer_agreem
ent
STEPHEN MALLOWAH 2016 03/05/2025
 Definition
474

 It is common for a person seeking the services

of a lawyer (attorney) to pay a retainer
("retainer fee") to the lawyer, to see a case
through to its conclusion.
 A retainer can be a single advance
payment or a recurring (e.g. monthly)
payment
 http://en.wikipedia.org/wiki/Retainer_agreeme
nt STEPHEN MALLOWAH 2016 03/05/2025
Definition
475
 A retainer fee can be paid on 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.
 The purpose of a retainer fee is to ensure
payment for future services or work to be
rendered.
 Absent an agreement to the contrary, a retainer
fee is refundable if the work is not
performed 03/05/2025
STEPHEN MALLOWAH 2016

 http://en.wikipedia.org/wiki/Retainer_agreement
Illustration
476
 A retainer might work like this: You would pay your
attorney $500 a month for legal services during
that month. If you have a question or need a
matter handled, it comes off the retainer amount.
If you don't use the full amount of the retainer, in
most cases you would not get a refund or a credit
toward the next month. If you use more time than
the retainer amount will cover, you will need to
pay the additional fees.
 http://biztaxlaw.about.com/od/glossaryr/g/retainer_
retain.htm
STEPHEN MALLOWAH 2016 03/05/2025
Illustration
477
 Our services are billed on the basis of the
Advocates Remuneration Order or alternatively at
an agreed hourly rate as determined by the
Advocate-Client agreement reached at the initial
stages when setting out the terms of engagement.
We also encourage a retainer relationship
with several organisations and our corporate
clients.
 http://www.kenyalaw.net/clients.html

STEPHEN MALLOWAH 2016 03/05/2025

 Part 2
Modes of Retainer

STEPHEN MALLOWAH 2016

03/05/2025 478
 Obligations Under the Retainer
479

 Expressly agreed upon when retainer is

constituted or subsequently varied by
mutual consent
 Implied by law even though nothing has
been expressly agreed
 Expressly imposed by law and are applicable
to the retainer

STEPHEN MALLOWAH 2016 03/05/2025

 Modes of Retainer
480
 General retainer-secure the services of advocate
when needed. Runs indefinitely and payment may
be from time to time. Ends when party gives
notice
 Specific retainer –for a specific reason eg a
particular litigation, duration depends on how long
the specific activity takes to be completed
 Refundable retainer
 Non refundable retainer
 Hybrid retainer
STEPHEN MALLOWAH 2016 03/05/2025
 Part 3
How Retainer is Created

STEPHEN MALLOWAH 2016

03/05/2025 481
Formalities
482
 Section 2 definition of advocate and client requires
no formalities
 Section 45 agreements on remuneration must be
in writing and signed by the client
 S 46 invalid agreements

STEPHEN MALLOWAH 2016 03/05/2025

 How Created
483
 Orally
 Inherently risky. Always confirm oral instructions in
writing
 In writing
 Always advisable. Absence of writing will not
invalidate a retainer but could be rendered
unenforceable in some instances where the law
requires a written retainer eg by liquidators and
trustees
STEPHEN MALLOWAH 2016 03/05/2025
 How Created
484
 By conduct
 Client acquiesces to and adopts proceedings. See
Danish Mercantile Co.Ltd V Beaumont (1951
Ch.680)
 Estoppel by conduct where appropriate
circumstances lead to conclusion of retainer
 Client has performed part of contract
 Client is party to proceedings and advocate
represents other parties in similar circumstances
 By operation of law
STEPHEN MALLOWAH 2016 03/05/2025
 Creation
485
 In the matter of Obaga & Co Advocates Kisii
HC Misc App No 9 OF 2008 2009 EKLR 13th
December 2009 Per Musinga J
 What is a retainer?
 When is there a retainer ?
 Who is the client when an advocate is holding brief
for another?
 What happens when there is no retainer ?

STEPHEN MALLOWAH 2016 03/05/2025

486 Duration
 Generally until the conclusion of the matter for
which an advocate is retained
 On a several retainer a client is liable for his
portion of costs
 Joint retainer, a client is liable for the whole costs

STEPHEN MALLOWAH 2016 03/05/2025

 Retainers by Special Persons
487

 Minors- cannot contract(lack of capacity) A minor

cannot file a suit unless through a next of friend,
responsible for costs. A minor can only defend a suit
through a guardian ad litem
 Unsound mind- cannot contract
 Poor persons- through pro bono publico services
 Companies- depends of Memorandum and Articles
of Association
 Unincorporated bodies- act through trustees or
committeesSTEPHEN MALLOWAH 2016 03/05/2025
 Part 4
Duty to Act

STEPHEN MALLOWAH 2016

03/05/2025 488
 Duty to Act
489

 Kazziha vs. Wiens 2000 KLR 661

 Where an advocate actively pushed for an
order of custody of a child and the child was
subsequently removed from jurisdiction and
the client absconded, such advocate will not
be allowed to withdraw from the
proceedings and he has a duty to assist the
court locate his client. He cannot be heard
to say he no longer has instructions and
there is no unfairness in requiring him to
STEPHEN MALLOWAH 2016 03/05/2025

continue acting
 Implications of Duty to Act
490

 Get clear instructions

 Draft agreement with precision
 Understand the client’s objectives
 Communicate in writing
 Document all your services to client
 Get client to sign where necessary
 Keep client informed
 When in doubt seek explicit instructions
STEPHEN MALLOWAH 2016 03/05/2025
 Part 4
Authority of an Advocate

STEPHEN MALLOWAH 2016

03/05/2025 491
492 Authority of an Advocate

 Retainer is the basis of authority for an advocate.

It limits authority ie no general relationship for all
time purposes.
 Advocate may only transact business specified in
retainer
 General retainer will authorize all such matters as
flows from the retainer but those that require
special authority will not be implied.
STEPHEN MALLOWAH 2016 03/05/2025
493 Authority of an Advocate

 Express
 Implied
 Apparent
 Usual
.

STEPHEN MALLOWAH 2016 03/05/2025

 Ostensible Authority of an Advocate – Contentious Business
494
 Litigation-advocate authorized to accept service of
proceedings that do not require personal service on behalf
of client
 Civil Litigation- make admissions in accordance with facts in
order to dispense with proof bind the client
 Make arrangement as to trial eg test case, abide by
decision of the test case.
 Compromise proceedings-Waugh V HB Clifford &
Sons(1982) All ER 1095
 Receive payments
 Produce documents
STEPHEN MALLOWAH 2016 03/05/2025


 Non-contentious
495

 To hold or have custody of deeds

 To receive consideration on sale
.

STEPHEN MALLOWAH 2016 03/05/2025

 Authority to Act
496

 Watts vs The Official Solicitor 1936 1 ALL ER

249
 The official solicitor substituted himself as a party
to a suit involving the estate of a deceased in his
capacity as a statutory administrator
 He was allowed to act in the matter in his capacity
as a professional solicitor as he had the freedom
to retain himself

STEPHEN MALLOWAH 2016 03/05/2025

 Authority
497

 Re Dunn, Simmons v Liberal Opinion Ltd

 The solicitor on record warrants he is properly
instructed and that he has a real client.
 He is liable in costs if the contrary is proved

STEPHEN MALLOWAH 2016 03/05/2025

 Authority
498

 Krakane vs. Katz 1954 1 ALL ER 244

 RSC Order 7 Rule two provided that a notice of
change of solicitors takes effect only upon service
of the opposite party
 It was held that non compliance with this rule is
an irregularity that can be waived and is curable

STEPHEN MALLOWAH 2016 03/05/2025

 Authority
499

 Dannish Mercantile vs. Beaumont 1951 1 ALL

ER 925
 A solicitor who acts without instructions does so at
his own peril
 The client can adopt the proceedings and ratify
the instructions at any time before the same are
dismissed

STEPHEN MALLOWAH 2016 03/05/2025

500 Authority

 Groon vs Croker 1939 1KB

 A solicitor instructed by an insurance company
pursuant to a right of subrogation has a duty
both to the instructing client and the nominal
client

STEPHEN MALLOWAH 2016 03/05/2025

Ostensible
501 Authority
 Solicitors have ostensible authority to act
 The opposing solicitor has no right or duty to
put his counterpart to proof of the
counterparts instructions
 The solicitor also has ostensible authority to
compromise the suit

STEPHEN MALLOWAH 2016 03/05/2025

 Part 4
Limits of the Retainer

STEPHEN MALLOWAH 2016

03/05/2025 502
Limits
503 of the Retainer
 Kazziha vs. Wiens 2000 KLR 661
 Clarke Boyce vs Mouat 1994 1 AC 428
 Boyce vs Rendells 1983
 Warmingtons vs McMurray 1937 1 ALL ER 662
 Marplace (number 512) Ltd v Chaffe Street(a firm) 2006 EWHC
1919 (Ch.D)
 Cawdery Kaye Fireman &Taylor v Minkin 2012EWCA Civ 546
 Credit Lyonnais v Russel Jones & Walker [2002] EWHC
1310(Ch.)
 Mortgage Express Ltd v Bowerman & Partners 1996 2 ALL ER
836 STEPHEN MALLOWAH 2016 03/05/2025
504 Limits to Liability
 S 46 advocates act
 Kazziha vs. Wiens 2000 KLR 661
 Clarke Boyce vs Mouat 1994 1 AC 428
 Boyce vs Rendells 1983
 Warmingtons vs McMurray 1937 1 ALL ER 662
 Marplace (number 512) Ltd v Chaffe Street(a firm) 2006
EWHC 1919 (Ch.D)
 Cawdery Kaye Fireman &Taylor v Minkin 2012EWCA Civ
546
 Credit Lyonnais v Russel Jones & Walker [2002] EWHC
STEPHEN MALLOWAH 2016 03/05/2025
505 Limits to Liability
 Kettlemen vs. Hansal Properties Ltd 1988 1 ALLER
38 at 62
 Munster v Lamb
 Rondel vs Worsely
 Allen -v- Alfred MacAlpine and Sons Ltd [1968] 2
QB 259; [1968] 1 All ER 543 1968 CA Arthur Hall
vs Simmons
 Hedley Byrne & Co Ltd v Heller & Partners Ltd
[1964] AC 465
STEPHEN MALLOWAH 2016 03/05/2025

 White v Jones [1995] 2 AC 207

 Part 5
Advantages of Retainer

STEPHEN MALLOWAH 2016

03/05/2025 506
507 Advantages
To the client:
 Prevents a lawyer from representing the client’s
competitor
 Client has services of advocate any time they
want
 They usually get a discount and have some idea
what they're going to spend every month.
 Assists with budgeting for unpredictable levels of
legal services
STEPHEN MALLOWAH 2016 03/05/2025

To the advocate :
 Part 6
Disabilities in a Retainer Situation

STEPHEN MALLOWAH 2016

03/05/2025 508
 Disabilities
509

 Avoid conflict of interest situations

 Avoid ‘improper’ relationships with clients
 Avoid being a witness for your clients
 Avoid vouching for your clients
 Do not stand surety for your clients
 Do not borrow
 Do not accept gifts
STEPHEN MALLOWAH 2016 03/05/2025
510 Do not be a witness in your Client’s Case
 East African Foundry Works (K) Ltd vs. KCB
2002 (2) KLR 443
 Advocates must avoid swearing affidavits based
on contested facts on behalf of the client

STEPHEN MALLOWAH 2016 03/05/2025

511 Conflict of Interest in a Retainer Situation
 Imena vs. Ethuro 2005 1 KLR 417
 An advocate will only be barred from acting where it is
demonstrated that real mischief and real prejudice will
in all human probability occur
 Delphis Bank vs. Chatthe 2005 1 KLR 766
 There is no real prejudice or real mischief when the
advocate will not be required to testify or to testify only
as to the formal aspects of a document he prepared
 Rakusen vs. Ellis Munday 1912 1 Ch 831
 Re A firm of Solicitors 1992 1 ALL ER 353
STEPHEN MALLOWAH 2016 03/05/2025

 There must be a demonstration of real mischief or real

512 Conflict of Interest
 Kays & anor vs. Boutler & ors 1971 1 ALL ER
289
 Where there is a conflict of interest it is for
the clients involved , not for the court to
decide whether or not a solicitor could act

STEPHEN MALLOWAH 2016 03/05/2025

 Part 7
Termination

STEPHEN MALLOWAH 2016

03/05/2025 513
514 How to Terminate
 By Notice from client
 Upon performance of activity specified in retainer
 Upon court order
 By effluxion of time- when retainer is for a fixed
period
 Death of the client operation of law
 Contract becomes illegal
 Loss of capacity to act
 Insanity or bankruptcy of either party –operates as
STEPHEN MALLOWAH 2016 03/05/2025
515 How to Terminate
 By breach by client. eg payment, adequate
instructions
 Fraudulent activity by client
 By frustration of retainer
 On withdrawal of instructions by client- Watts V
Official Solicitor(1936)1AllER, 249
 By Advocate for a clear, definite and express
reason withdraw from acting
STEPHEN MALLOWAH 2016 03/05/2025
516 Effects of Termination
 In litigation the duty to act continues for as long as
the advocate remains on record until he is
removed from record
 The personal representatives of the client remain
liable for payment to the advocate for work done
upon death of client
 Should client discharge retainer for no just cause,
advocate can retain documents until his lien is
satisfied
 File, documents properties and any funds held by
STEPHEN MALLOWAH 2016 03/05/2025
 Part 8
Change of Advocate

STEPHEN MALLOWAH 2016

03/05/2025 517
518 Change of Advocate

 General rule- client may change advocate

whenever he chooses but this must be done within
set rules eg Civil Procedure Rules
 O.9 Rule 5 liberty to change advocate without
order but the notice of change must be filed and
served on the previous advocate. If not the
previous advocate continues to be on record.
 A nominal litigant may not change advocate to the
detriment of the real litigant who is often carrying
STEPHEN MALLOWAH 2016 03/05/2025

the burden of the proceedings eg insurance

 Part 8
Lack of a Practicing Certificate

STEPHEN MALLOWAH 2016

03/05/2025 519
 520
Lack of practising Certificate

 Kajwang vs. LSK 2002 1 KLR 846

 Khanji v Khanji [1992] LLR 597 (HCK)
 Kilimani Leasing v Morris Catering [1994] LLR 190 (HCK)
 Malindi Air v Prestige Air [1997] LLR 842 (HCK)
 Professor Huq v Islamic University [1995] LLR 44 (SCU)
 Khalid Butt v Kanjabi [1992] LLR 975 (HCK)
 Kazungu v K.P.A. [1998] LLR 993 (HCK)
 Mwalia v KEBS [2000] LLR 993 (CCK)
 Geoffrey Obura v Martha Koome [2000] LLR 3251 (CAK)
STEPHEN MALLOWAH 2016 03/05/2025

 Wilson Ndolo Ayah vs NBK

 521
Provisions of Ss 9-13 Advocates Act are absolute
Consequences

 There is the educational, professional and other qualifications like

citizenship.
 S 31 Advocates Act- no unqualified person shall
 act as an advocate
 Cause summons or other process to issue
 Institute, carry on or defend any suit or proceeding in the name of
any other person in court
 Contravention of this sections means one
 is in contempt of court,
 cannot maintain a suit for costs for work done
 is guilty of an offence
STEPHEN MALLOWAH 2016 03/05/2025

 S 33 Any unqualified person who willfully pretends to be or takes out

 522
 S 34- No unqualified person shall take instructions
Consequences

or draw or prepare any document or instrument in

relation to:
 Convincing
 Formation of a company
 Agreement for formation or dissolution of
partnership
 Filing or opposing grant of probate or letters of
administration
 A matter where a fee is prescribed under S 44
STEPHEN MALLOWAH 2016 03/05/2025
523 NBK V Wilson Ndolo Ayah (2009)eKLR
 Respondent executed charge over proerty to
secure loan of 10m to Bungu Investments Limited.
Charge drawn by V. Nyamodi who did not have a
PC. Trial court agreed with the mortgagor that the
mortgage was null and void and money secured
were irrecoverable
 Lack of PC affects the validity of documents
prepared and processed by the advocate.

STEPHEN MALLOWAH 2016 03/05/2025

 Geoffrey Orao Obura V Koome (2001)eKLR
524

 COA held that Memorandum of Appeal signed and

filed by an advocate without a PC was
incompetent. Contention that the common law of
England did not invalidate the documents was
rejected because the provisions of s9 was clear on
the matter.

STEPHEN MALLOWAH 2016 03/05/2025

 Consequences
525
 S 40 no costs are recoverable for anything done by an
unqualified person
 S 31(1)(b) The unqualified person cannot maintain a suit for
recovery of costs.
 Advocate can be fined maximum of Kshs 100,000/= or jailed
for 2 years for contempt
 Advocate liable to disciplinary proceedings (DC or CC)
 Money received by unqualified person is recoverable
summarily by the one who paid as a civil debt
 If striking out of pleadings leads to injury of an innocent
party, suit can be started afresh
STEPHEN MALLOWAH 2016 03/05/2025
 Equity Bank Limited V Capital Construction Limited & 3
526
others [2012] EKLR
 Recovery of costs where advocate is not qualified
to act
 “As regards the provisions of Section 40 of the
Advocates Act, the court stated that Watta was qualified
to act as an advocate in terms of Section 34 of the
Advocates Act but he was not qualified to practice on
his own. There is a difference between the two. Section
40 falls under Part VIII of the Act which relates to
provisions with respect to unqualified persons acting as
advocates. If Watta had not taken out a practicing
certificate for the year 2009 he would not have been
qualified to practice as an advocate but that is not the
STEPHEN MALLOWAH 2016 03/05/2025
 Part 9
Recovery of Fees on Retainer

STEPHEN MALLOWAH 2016

03/05/2025 527
 Recovery of fees on retainer
528

 S 45 46 47 48 49 50 51 52 60 61 62 A 65 Advocates Act
 Schedule V part 1 and 2 Advocates Act
 Rule 6 7 8 13 22 49A 61 62A 68A Advocates Remuneration Order
 A.N Ndabiri & Co Advocates vs Mwea Rice Growers Multipurpose
Co-operative Ltd NRB HC Misc. App No 698 of 2004 Hatari Waweru J
 Ahmednassir Abdikadir & co Advocates v National Bank of Kenya
2006 EKLR
 Owino Okeyo and Co Advocates vs Fuelex Kenya Ltd NRB HC Misc
App No 382 of 2004 ( 2005 EKLR) 13th October 2005 Per Fred
Ochieng J
 Gichuki King’ara and Co Advocates VS Mugoya Construction Co Ltd
NRB HC Misc App No 625 of 2009 2010 EKLR Per Njagi J 29th April
STEPHEN MALLOWAH 2016 03/05/2025

2010
 Recovery of fees on retainer
529

 Gichuki King’ara and Co Advocates VS Mugoya

Construction Co Ltd NRB HC Misc App No 625 of
2009 2010 EKLR Per Njagi J 29th April 2010
 Ragot and Co Advocates vs West Kenya
Wholesalers Ltd KSM HC Misc App No 244 of 2002
2006 EKLR 24th Jan 2006 Warsame J
 In the matter of Obaga & Co Advocates Kisii HC
Misc App No 9 OF 2008 2009 EKLR 13th December
2009 Per Musinga J
STEPHEN MALLOWAH 2016 03/05/2025
 Recovery of fees on retainer
530

 Owino Okeyo and Co Advocates vs Fuelex Kenya Ltd

NRB HC Misc App No 382 of 2004 ( 2005 EKLR) 13th
October 2005 Per Fred Ochieng J
 Effect of a certificate of taxation under s 51(2)
Advocates Act
 What is a retainer?
 Importance of proving retainer
 Procedure for applying for judgment on certified costs
 Proof of retainer
 Disputing a retainer
STEPHEN MALLOWAH 2016 03/05/2025

 What happens if there is no proof of a retainer

Recovery
531 of fees on retainer

 Gichuki King’ara and Co Advocates VS

Mugoya Construction Co Ltd NRB HC Misc
App No 625 of 2009 2010 EKLR Per Njagi J
29th April 2010
 Legal nature of the relationship between Advocate
and Client
 Recovery of remuneration on quantum meruit

STEPHEN MALLOWAH 2016 03/05/2025

 Recovery of fees on retainer
532

 Definition of retainer
 Nderitu and Co Advocates vs Mamuka
Valuers
 NRB HC Misc App No 2006 EKLR 29TH February
2006 Per Waweru J

STEPHEN MALLOWAH 2016 03/05/2025

 Recovery of fees on retainer
533

 Ragot and Co Advocates vs West Kenya

Wholesalers Ltd KSM HC Misc App No 244 of
2002 2006 EKLR 24th Jan 2006 Warsame J
 What is a retainer?
 Which court enters judgment under s 52
 Effect of section 52 when there is a pending
application to set aside order of taxation
 When a suit for recovery of costs is necessary
STEPHEN MALLOWAH 2016 03/05/2025
 Recovery of fees on retainer
534

 Ochieng , Onyango Kibet and Ohaga

Advocates vs Adopt A Light Ltd NRB HC Misc
App No 654 of 2006 2010 EKLR Per Koome J
 Meaning of retainer
 Effect of order under s 52
 Requirement for an agreement under section 45
 Procedure for moving the court to enter judgment
under s 52
 Rationale for s 52
STEPHEN MALLOWAH 2016 03/05/2025
 Recovery of fees on retainer
535
 Shamma v UHDL 2001 2 EA 558 CA
 Procedure for recovery of advocates costs
 Whether to file recovery suit of tax the bills
 Sections 48 and 49 Advocates Act Rule 13 (3)
Advocates Remuneration Order

STEPHEN MALLOWAH 2016 03/05/2025

 Recovery of fees on retainer
536
 In the matter of Obaga & Co Advocates Kisii HC
Misc App No 9 OF 2008 2009 EKLR 13th December
2009 Per Musinga J
 What is a retainer
 When is there a retainer
 Who is the client when an advocate is holding brief for
another
 What happens when there is no retainer

STEPHEN MALLOWAH 2016 03/05/2025

 Recovery of fees on retainer
537
 Ahmednassir Abdikadir vs NBK NRB HCCC NO 532
of 2004 2007 EKLR per Khamoni J 26TH September
2007
 What is a retainer
 What is the consequence of ‘Service Level Agreements’
 What is the procedure for recovery of advocates costs?

STEPHEN MALLOWAH 2016 03/05/2025

538

STEPHEN MALLOWAH 2016 03/05/2025

 ATP 105 Professional
Ethics - 2016
LECTURE 16 – ADVOCATES LIEN
Course Instructor – Stephen Mallowah LLB, LLM, MSc
 Lesson
540
Objectives

 At the conclusion of this lesson the participant should

 1. Cite the relevant statutory provisions and case law
 2. Define the term lien
 3. Describe the nature of the advocates lien
 4. Distinguish between the different types of lien
 5. Explain when the advocates lien arises
 6. Identify the subject matter of an advocates lien

03/05/2025
 Lesson
541
Objectives

 7. Determine the limitations on a lawyers lien

 8. Explain how an advocates lien is discharged
 9. Discuss the arguments for and against the advocate
 10. Compare approaches in different jurisdictions
 11. Describe the procedures for enforcement and
discharge
 12. Propose a way forward

03/05/2025
542 Readings

1. S 47 48 52 80 Advocates Act
2. Rule 7 advocates practice rules
3. Hasham Jiva vs. Esmail Service Station 1977 KLR 17
4. Barrat v. Clough Thomas 1951 2 ALL ER 1048
5. White Resource Management Ltd. v. Durish 1997 1 158
6. Metrin Mechanical Contractors Ltd. v. Big H. Constr [2001]
O.J. No. 1319 (Ontario. S.C.J. Canada)
7. Acad. of Cal. Optometrists, Inc. v. Superior Court, 1 Rptr.
668, 672 (Ct. App. 1975).
8. Dr Saxena’s case AIR 2000 SC 3049 03/05/2025
543 Readings
1. Priyasha Corrie : Advocate’s Lien: A Critica of the
stance in India
2. Jacqueline Morris and Felicia S. Folk Gett
Asserting and Defending a Solicitor's Lien
3. Felicia S. Folk : Charging Liens 2005 update
4. John Leubsdorf : Against Lawyer Retaining L
5. Jacqueline Morris Felicia Fox & anor : Who it
anyway
6. Thomas Hurley: Solicitors Lien 03/05/2025
 Part 1
Definitions of the term “Lien”

STEPHEN MALLOWAH 2016

03/05/2025 544
 What is a Lien?
545

 “Lien is in its primary sense a right in one man to

retain that which is in his possession belonging to
another until certain demands of the person in
possession are satisfied. In this primary sense it is
given by law and not by contract
 Halsbury’s Laws of England

STEPHEN MALLOWAH 2016 03/05/2025

 What is the Advocates Lien?
546
 An extraordinary right granted to lawyers
and attorneys, to retain a client’s property
deposited with them, including crucial and original
documents, until his/her bill for services and
expenses has been paid.
 Barrat v. Clough Thomas 1951 2 ALL ER 1048
 White Resource Management Ltd. v. Durish 1997
154 DLR 4th 158,

STEPHEN MALLOWAH 2016 03/05/2025

 What is the Advocates Lien?
547
 • An advocate’s (a solicitors ) lien is thus the right
of a lawyer to hold a client's property or money
until payment has been made for legal aid, advice
and representation given.
 This constitutes one of the remedies of a
lawyer to which he/she can resort to when the
client’s fee remained unpaid

STEPHEN MALLOWAH 2016 03/05/2025

 Part 2
The nature of the Advocates “Lien”

STEPHEN MALLOWAH 2016

03/05/2025 548
 The Nature of the Advocates Lien
549

1. It is a concurrent right
2. It is based on an implied agreement
3. It is passive
4. It is a possessory right
5. It accrues at the termination of a retainer
6. It is a security for payement of fees and expenses
7. There are various types of liens
8. It can be subordinated to the overriding interests
of justice
STEPHEN MALLOWAH 2016 03/05/2025
 The Nature of the Advocates Lien
550

1. This lien gives the lawyer the right to retain

and restrict access to the client’s
documents and personal property in the
lawyer’s possession until all of his or her
outstanding accounts due for professional
services are paid.

STEPHEN MALLOWAH 2016 03/05/2025

 The Nature of the Advocates Lien
551

2. The lien is ‘general’ in the sense that it may be

used to enforce all accounts due on all matters,
including the lawyer’s costs incurred in recovering
payment of outstanding amounts.
3. The lien is also passive. The lawyer’s right is only to
withhold property and documents. The lawyer has
no right to sell the property in his or her possession.
4. The lien is subordinate to the overriding interests of
justice .Courts can also order the release of
documents held pursuant to a lien.
STEPHEN MALLOWAH 2016 03/05/2025
Barratt v. Gough-Thomas, 1951 2 All ER 1048,

 It is a right at common law depending, it has

been said, on implied agreement.
 "It has not the character of an encumbrance or
equitable charge. It is merely passive and
possessory, that is to say, the solicitor has
no right of actively enforcing his demand. It
confers on him merely the right to withhold
possession of the documents or other
personal property of his client or former
Hasham Jiva vs. Esmail Service Station 1977 KLR
176

 The right of an action for debt and the right

of lien held over goods are concurrent
rights and the mere assertion of a claim for
the debt in legal proceedings does not
constitute a waiver of the lien
 Part 3
The different types of Advocates “Lien”

STEPHEN MALLOWAH 2016

03/05/2025 554
Three Types of Lien

 Under common law, there exist three types

of lien
 1. A general passive or retaining lien;
 2. A specific/particular common law lien on
property recovered or preserved by the
advocates efforts
 3. A statutory lien enforceable by a charging
order.
The retaining lien

 • This is termed as a general lien.

 • It is passive
 • This right is a right to retain property
already in his possession until he is paid
costs due to him in his professional capacity.
 • In the context of file transfers, the lawyer is
asserting his or her right to a general retaining
lien.
The retaining lien

 • The general rule is that the retaining lien

extends to any deed, paper or personal chattel
which has come into the advocate’s possession in
the course of his employment and in his capacity
as solicitor with the client’s sanction and which is
the client’s property
The retaining lien

 The following may thus be subject to a retaining

lien;
 bill of exchanges, cheques, policy of insurance,
share certificates, application for shares, letters
patent, letters of administration, money, including
money in a client account, although only the
amount due to the advocate ;
 Or documents in a drawer of which the
solicitor is given the key
The retaining lien

 • The general retaining lien is the solicitor’s

right to retain client property already in the
solicitor’s possession until he or she is paid costs
due to him or her in a professional capacity.
 • In the context of file transfers, the lawyer is
asserting his or her right to a general retaining
lien
The Particular Lien

 • The ‘particular lien’ or ‘special lien on the fruits

of the action’, is the solicitor’s right to ask the
court to direct that personal property recovered
under a judgment and obtained through the
solicitor’s exertions stand as security for the
solicitor’s costs
The Particular Lien

 • The common law lien is a particular lien and

not a general lien and is therefore not available
for the general balance of account between the
attorney and his client, but extends only to the
costs of recovering or preserving the
property in suit.
The Particular Lien

 The right is the right to ask the court to direct

that personal property recovered under a
judgment obtained by his exertions stand as
security for his costs of such recovery
The Statutory Lien

 A solicitor has by statute a right to apply to the

court for a charging order on property recovered
or preserved through his instrumentality in respect
of his taxed costs of the suit, matter or proceeding
prosecuted or defended by him
 See section 52 Advocates Act for the
statutory equivalent in Kenya
 Part 4
When the Advocates Lien Arises

STEPHEN MALLOWAH 2016

03/05/2025 564
When Does the Lien Arise?

 Generally, the lawyer’s authority to hold client

documents terminates with the retainer.
 The lawyer’s authority to claim a solicitor’s lien his
authority to hold back client documents –arises
when, at the termination of the retainer,
some or all of the lawyer’s accounts remain
unpaid.
Who is entitled to claim the lien?

 The right to the lien depends not only on the

status of the account, but on who terminated the
retainer and why.
 A lawyer will be entitled to the lien if the
following conditions are met:
 1. The retainer is terminated, either by the client
or by the
 lawyer for just cause; and
 2. The lawyer’s accounts for legal services or costs
When is a lawyer entitled to claim the lien?

 Note that the client has an absolute right to

terminate the retainer, the lawyer does not.
 If the lawyer terminates the retainer without just
cause, the lawyer will not be entitled to claim the
lien.
 Part 5
The Subject Matter of an Advocates Lien

STEPHEN MALLOWAH 2016

03/05/2025 568
What property is covered by the lien?

 The general/retaining lien attaches to all

deeds, papers and other personal property that,
with the client’s approval, is received by the
solicitor in his or her capacity as solicitor during
the course of the professional relationship.
 The particular lien attaches to all deeds,
papers and other personal property that, with
the client’s approval, is received by the solicitor in
his or her capacity as solicitor during the course of
What property is covered by the lien?

 Some jurisdictions exclude certain types of

properties or documents
 No lien attaches to original court records nor
to money that the solicitor holds in the capacity of
stakeholder.
 •E.g India on Litigation documents see Dr
Saxena’s Case
 Wills at common law ( but Canada has taken a
different position)
 Part 6
Limitations on the Advocates Lien

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Limitations on the passive or retaining lien

 Where ;
 1. documents are delivered to a lawyer for a
particular purpose under a special
agreement which does not make express
provision for a lien in favour of the solicitor
 2. money is paid to the lawyer for a particular
purpose so that he becomes trustee of the
money,. See s 80 advocates act
 •No lien arises over those documents or that
Superior Rights to Lien’ed Documents or property

 The lawyer’s right to retain the liened documents

is no greater than the client’s.
 If, therefore, a third party has an interest or right
superior to that of the client, the lawyer’s ability to
retain the documents is subject to those superior
rights or interests
 Part 7
Arguments for and against the
advocates lien
STEPHEN MALLOWAH 2016
03/05/2025 574
Arguments For

 The right of lien is the best solution for

remitting a lawyer
 The argument that advocate can institute a suit
for his unpaid fee proves impractical in that suing
a client is liable to damage the reputation of the
advocate.
Arguments For

 • Who wants to be known as the attorney who

sues their clients?
 • Instead of suing a client for fees, the attorney
may assert a lien for attorney’s fees
Arguments For

 Metrin Mechanical Contractors Ltd. v. Big

H.Construction Inc. [2001] O.J. No. 1319 (Ontario.
S.C.J. Canada)
 Master Haberman analysed the rationale behind a
solicitor’s lien, concluding it is often a
mechanism intended to prevent a client from
“lawyer shopping” after running up an
account with a prior lawyer
Arguments For

 Metrin Mechanical Contractors Ltd. v. Big H.

Construction Inc. [2001] O.J. No. 1319 (Ontario.
S.C.J. Canada)
 Given such a rationale, the lien mechanism should
only be available in circumstances where the
client not only initiated the lawyer shopping
process voluntarily, but also unjustifiably.
Arguments For

 Metrin Mechanical Contractors Ltd. v. Big H.

Construction Inc. [2001] O.J. No. 1319 (Ontario.
S.C.J. Canada)
 In the result, Master Haberman held the firm was
not entitled to a solicitor’s lien since the process
was not initiated by the client whose files were
being detained, but rather by another party to the
action.
 Since “the mischief that a solicitor’s lien is
Arguments For

 Some courts in the US have been strikingly

candid, if not gleeful, in explaining that
inconveniencing clients is "the essence-the
power and the bite-of the attorney's
retaining lien" and that reducing the harm
"would emasculate the retaining lien
Arguments Against

 Acad. of Cal. Optometrists, Inc. v. Superior Court,

124 Cal. Rptr. 668, 672 (Ct. App. 1975).
 The lien enforces a lawyer's "right to damage
his client's cause.., unless the client pays
him the disputed fees in full and foregoes his right
to honestly litigate the dispute."
Arguments Against

 It inflicts a disproportionate harm to the client

when less harmful remedies are available
 Inflicting disproportionate harm on the client is
not an unwanted by-product of the lien-it is
precisely the way the lien is meant to work
Arguments Against

 The lawyer usually has no use for impounded

documents, and is forbidden to use
impounded funds during the fee dispute.
 The benefit the lawyer obtains from the lien is the
ability to harm the client until the client
settles the fee dispute.
 And settlement is most likely to occur when the
client faces harm from the lien that is greater than
the fee in dispute.
Arguments Against

 With all its obnoxious features, the retaining lien is

not even very useful in enforcing valid fee
claims
 Better methods of collecting fees are
available.
 "Success of legal fee collection litigation most
often carries with it the fallout of lost clients,
additional costs, decreased income, lost
opportunities, bad reputation, and misplaced
Arguments Against

 A reputation for grabbing clients' property in order

to get them to pay whatever fee you claim rather
than lose the very matter in which they came to
you for help just does not fit into this approach.
 In the long run, it is no more good business
than it is good ethics
Arguments Against

 • Those who discuss lawyering as a business find

the keys to success in effective marketing, good
client relations, efficient firm management,
creative fee arrangements, and quality services,
not a ruthless pursuit of disputed fees
Arguments Against

 A reputation for grabbing clients' property in order

to get them to pay whatever fee you claim rather
than lose the very matter in which they came to
you for help just does not fit into this approach.
 In the long run, it is no more good business
than it is good ethics
 Part 8
When the lien is discharged or lost

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When is the lien is discharged or lost?

 The solicitor’s lien is discharged when all

accounts or costs due to the solicitor are
paid.
 A lawyer loses his or her lien when he or she
loses possession.
 The general retaining lien, like other possessory
liens, depends on the lawyer properly obtaining
and retaining the documents or property in
question.
When is the lien is discharged or lost?

 The transferring lawyer may not lose

possession if, when the file is transferred,
the lawyer asserts a unilateral reservation of
lien even though the recipient does not accept
the documents ‘subject to the lien’.
 The basis for justifying a reservation of the
lien is that the lawyer has no intention of
abandoning the lien or parting with legal
possession of the liened documents or property
 Lastly, the lawyer may lose possession by waiver
 Part 9
Approaches in Other Jurisdictions

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 Canada
592
 • Rule 2.09 of the Rules of Professional Conduct
for lawyers, provides that where upon the
discharge or withdrawal of the lawyer, the
question of a right of lien for unpaid fees and
disbursements arises, the lawyer should have
due regard to the effect of its enforcement
upon the client's position

STEPHEN MALLOWAH 2016 03/05/2025

 Canada
593
 The lawyer must assess the prejudice to the
client, particularly in uncompleted matters.
 If the prejudice to the client is “material”, then the
lawyer should take steps to ensure the client’s
interests are not compromised

STEPHEN MALLOWAH 2016 03/05/2025

 India – Dr. Saxena’s Case
594
 AIR 2000 SC 3049
 No lien on litigation files!
 1. Files are not goods
 2. The action contravenes the constitutional right
to counsel
 3. It is not specifically provided for by the relevant
act
 4. There are other remedies
 5. It can lead to misconduct
STEPHEN MALLOWAH 2016 03/05/2025
 Part 10
Some Statutory Provisions

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03/05/2025 595
Power to order advocate to deliver bill and deliver up deeds documents
or
596papers
 47. (1) The jurisdiction of the Court to make
orders for the delivery by an advocate of a
bill of costs, and for the delivery up of or
otherwise in relation to, any 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.
 (2) In this section and in sections 48, 49 and 50
“advocate” includes the executors, administrators
and assignees of the advocate in question.
STEPHEN MALLOWAH 2016 03/05/2025
 Action for recovery of costs.
597
 • 48. Advocates Act (1) Subject to this Act 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 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
STEPHEN MALLOWAH 2016 03/05/2025
Taking over a brief from an advocate
598
 7. Practice Rules(1) An advocate may act for a
client in a matter in which he knows or has reason
to believe that another advocate is then acting for
that client only with the consent of that other
advocate.
 (2) An advocate may act for a client in a matter in
which he knows or has reason to believe that
another advocate was acting for that client, if
either-
(a) that other advocate has refused to act further; or
STEPHEN MALLOWAH 2016 03/05/2025

(b) the client has withdrawn instructions from that

 Charging Orders
599
 S52 advocates Act. 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:
STEPHEN MALLOWAH 2016 03/05/2025

 Provided that no order shall be made if the right to

 Betrayal of Trust
600
 • S 80 Advocates Act. 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
under this section shall be instituted unless a
STEPHEN MALLOWAH 2016 03/05/2025
 Part 11
Procedures for enforcement and discharge
of liens
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03/05/2025 601
Procedures for enforcement and discharge of liens
602
 At the instance of the advocate if to enforce and
at the instance of the client if to discharge
 By originating summons
 Section 47, 52 Advocates Act , Order 52 CPR
 By normal suit?

STEPHEN MALLOWAH 2016 03/05/2025

 Part 11
Suggested Way Forward

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03/05/2025 603
 How to avoid disputes on fees
604
 • Insist on written retainer
 • Insist on fee agreements
 • Demand fees in advance
 • Docket all time and money spent on clients files
 • Render accounts promptly
 • Clarify that no fees could mean no services
 • Have the disbursements settled as and when
they
 arise and preferably in advance
STEPHEN MALLOWAH 2016 03/05/2025
605

STEPHEN MALLOWAH 2016 03/05/2025

 ATP 105 Professional
Ethics - 2016
LECTURE 16 – REMUNERATION OF ADVOCATES - CASE REVIEW
Course Instructor – Stephen Mallowah LLB, LLM, MSc
 607
Retainer
 Owino Okeyo and Co Advocates vs Fuelex Kenya Ltd NRB
HC Misc App No 382 of 2004 ( 2005 EKLR) 13th October 2005
Per Fred Ochieng J
 Effect of a certificate of taxation under s 51(2) Advocates Act
 What is a retainer?
 Importance of proving retainer
 Procedure for applying for judgment on certified costs
 Proof of retainer
 Disputing a retainer
 What happens if there is no proof of a retainer?
03/05/2025
608 Retainer
 Gichuki King’ara and Co Advocates VS
Mugoya Construction Co Ltd NRB HC Misc
App No 625 of 2009 2010 EKLR Per Njagi J
29th April 2010
 Legal nature of the relationship between Advocate
and Client
 Recovery of remuneration on quantum meruit

03/05/2025
 Retainer
609

 Nderitu and Co Advocates vs Mamuka

Valuers
 NRB HC Misc App No 2006 EKLR 29TH February
2006 Per Waweru J
 Definition of retainer

03/05/2025
610 Retainer

 Ahmednassir Abdikadir and Co Advocates vs

NBK NRB HC Misc App NO 752 of 2004 2006
EKLR 28th March 2006 Per Azangalala J
 Effect of taxation on agreement under s 45
 Proper forum to challenge the right to tax the bill
and the quantum of costs
 Procedure for moving the court for an order of
judgment under s 52 03/05/2025

 Rationale for s 52
611 Retainer

 Ragot and Co Advocates vs West Kenya

Wholesalers Ltd KSM HC Misc App No 244 of
2002 2006 EKLR 24th Jan 2006 Warsame J
 What is a retainer?
 Which court enters judgment under s 52
 Effect of section 52 when there is a pending
application to set aside order of taxation
 When a suit for recovery of costs is necessary
03/05/2025
612 Retainer

 Ochieng , Onyango Kibet and Ohaga Advocates vs

Adopt A Light Ltd NRB HC Misc App No 654 of 2006
2010 EKLR Per Koome J
 Meaning of retainer
 Effect of order under s 52
 Requirement for an agreement under section 45
 Procedure for moving the court to enter judgment under s
52
 Rationale for s 52 03/05/2025
613 Retainer

 Shamma v UHDL 2001 2 EA 558 CA

 Procedure for recovery of advocates costs
 Whether to file recovery suit of tax the bills
 Sections 48 and 49 Advocates Act Rule 13 (3)
Advocates Remuneration Order

CHARLES B G OUMA ADJUNCT FACULTY 03/05/2025

614 Retainer

 In the matter of Obaga & Co Advocates Kisii

HC Misc App No 9 OF 2008 2009 EKLR 13th
December 2009 Per Musinga J
 What is a retainer
 When is there a retainer
 Who is the client when an advocate is holding brief
for another
 What happens when there is no retainer
03/05/2025
615 Retainer

 Ahmednassir Abdikadir vs NBK NRB HCCC

NO 532 of 2004 2007 EKLR per Khamoni J
26TH September 2007
 What is a retainer
 What is the consequence of ‘Service Level
Agreements’
 What is the procedure for recovery of
advocates costs? 03/05/2025
616 Unqualified persons

 Equity Bank Limited V Capital

Construction Limited & 3 others [2012]
EKLR
 Recovery of costs where advocate is not
qualified to act

03/05/2025
617

STEPHEN MALLOWAH 2016 03/05/2025

 ATP 105 Professional
Ethics - 2016
LECTURE 17 – PROHIBITED ACTS
Course Instructor – Stephen Mallowah LLB, LLM, MSc
PROHIBITED ACTS

1. PROFESSIONAL MISCONDUCT
2. UNPROFESSIONAL CONDUCT
3. DISABILITIES OF AN ADVOCATE
 TOPIC OBJECTIVES
 At the end of our discussion on his topic the participant should
be able to:
1. Distinguish between professional conduct and unprofessional conduct
2. Locate cite and analyze the applicable statutory provisions and
ethical codes
3. Use local and comparable foreign case law to interpret the
prohibitions and the consequences thereof
4. List the prohibited acts
5. Identify the disabilities of an advocate
6. Illustrate the disabilities prohibitions by giving examples
7. Use common law to fill the gap left by local legislation ,local codes of
conduct, and local case law
8. Explain the consequences of engaging in prohibited conduct
9. Compare our jurisdiction with similar jurisdictions
 Part 1
Prohibited Acts - The Fundamental
Distinction
STEPHEN MALLOWAH 2016
03/05/2025 621
 Part Objective

 At the conclusion of this part the participant

must be able to
 Identify the multiple categories of
prohibited conduct
 Recognise the fundamental distinctions
between various forms of prohibited
conduct
 Rationalize the distinction
 Justify the distinction
Readings

 PLO Lumumba (Dr.) :The Legal

Profession in Kenya: Towards a New
Ethos
 Unsatisfactory conduct- unknown author
http://www.justice.govt.nz/tribunals/legal
-complaints-review-officer/forms-practic
e-notes-and-guides/documents/unsatisfa
ctory-conduct.pdf
Regulation of conduct

 More than any other profession, the

legal profession is self regulating mainly
through Statute, Regulations, Code of
ethics & etiquette and any other
applicable standard
 Some violations amount to professional
misconduct and attract disciplinary
proceedings
 Other violations do not amount to
 Regulation of conduct
 Most ethical codes and statutes define
professional misconduct loosely and inclusively
 The distinction between the different categories of
conduct can be elusive and one needs to tread
carefully and follow the interpretations of conduct
by the disciplinary organs keenly to appreciate the
difference
 But the fundamental difference appears to lie in
the consequences of behaviour, in other words in
the sanctions for breach
 Part 2
Prohibited Acts - Professional conduct
and unprofessional conduct
STEPHEN MALLOWAH 2016
03/05/2025 626
 Part Objectives
 At the end of this part the participant should be able to
distinguish between:
1. Professional misconduct and unprofessional conduct or
unsatisfactory conduct
2. Lack of professionalism and unethical behaviour
3. Etiquette and ethics
4. Conduct prohibited by statute and conduct prohibited by
codes of conduct( and common law)
5. The legal consequences of each class of prohibited
conduct
Readings

 Section 60 (1)(2)(3) &(4) Advocates Act

 Rule 14 24 34 Part 111 Disciplinary
Committee Rules
 Rule 4(2)(a) advocates Accountants
Certificate Rules
 Rule I(b)(vi) LSK Digest Rule 6(b) Rule 7
10 11 (b) & (c ) Rule 12 15 (b) 19(b)
23 29 30 31 35 38 39(d) 41 42 43 44 45
 Professional conduct and unprofessional conduct - Definition

 S 60(1) A complaint against an advocate of

professional misconduct, which expression
includes disgraceful or dishonourable conduct
incompatible with the status of an advocate, may
be made to the Committee by any person
Professional conduct and
unprofessional-Consequences
 S 60(3)
 Provided that, where in the opinion of the
Committee the complaint does not disclose any
prima facie case of professional misconduct, the
Committee may, at any stage of the proceedings,
dismiss such complaint without requiring the
advocate to whom the complaint relates to answer
any allegations made against him and without
hearing the complaint
Professional Misconduct Defined

 Loosely defined in the Advocates Act. See section 60

 Instances of misconduct given in the Digest
 Professional conduct is behaviour in accordance with the
professional standards which are often codified
 Professional misconduct behaviour that is in breach of
professional standards provided in statute, regulations
and Code of Ethics and Etiquette and any other applicable
standards
 Professional misconduct attracts discipline of an advocate
Unprofessional Conduct

 Black’s Law Dictionary 4th Ed- that which in the general

opinion is considered to be grossly unprofessional
because it is immoral or dishonourable Includes
offences of moral turpitude e.g. adultery, corruption,
etc. Also includes breach of etiquette . There is no
direct connection to his/her practice of law.
 A lawyer as a citizen of Kenya is answerable to the entire
criminal law system. He/she is however answerable to
offences that are relevant to his/her practice of law
 Unprofessional conduct may not lead to discipline of an
advocate but is prohibited.
Per Lumumba PLO

 It is important to distinguish between professionalism and

ethics:
 The ethical rules (codified in the Rules of Professional
Conduct) are mandatory, black letter standards that establish
a minimum level of conduct. Failure to abide by the rules
may result in disciplinary sanction.
 Professionalism, however, is grounded in aspirational goals
and traditions that seek to encourage the bar and the bench,
towards conduct that preserves and strengthens the dignity,
honour, and integrity of the profession. Professionalism
requires a willingness to subordinate narrow self-interest in
pursuit of the more fundamental goal of public service
Frequent examples of misconduct

 Withholding of clients funds certificate

 Failure to account  Breach of undertaking
 Failure to correspond  Conflict of interest
 Rendering inadequate or  Charging excessive fees
any professional services  Discourteous, uncivil
 Issuing dishonoured conduct
cheques  Sexual harassment
 Failure to update client  Withholding client’s
 Lack of practicing documents
 Part 3
Prohibited Acts - Disabilities of an
Advocate
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03/05/2025 635
Part Objectives

 At the end of this part the participant should be

able to
 Explain the link between disabilities and the
fiduciary duties of an advocate
 List the disabilities
 Cite analyze and apply applicable statutes
codes of conduct local and foreign case law
 List the sanctions/remedies for breach
 The Fiduciary relationship

 Many disabilities arise from the fiduciary nature of

the relationship between an advocate and his
client
 Fiduciary relationship brings with it certain
disabilities on the part of the fiduciary
 An advocate as a fiduciary is under a disability
whenever there is a conflict of interest situation
The Fiduciary relationship

 An advocate must
1. exercise utmost good faith in the performance of his
duties.
2. Must not make secret profits from his clients affairs
 He must at all times during the relationship be in a
position to give and must give advice that is
1. impartial,
2. disinterested and
3. dispassionate
Disabilities

 Personal relationships-the relations between advocate

and client should be formal and based on mutual respect.
 Purchase from client- subject to Section 46(a) of the
Advocates Act, an advocate may purchase an interest of
his client as long as the bargain is as good as any other
bargain
 Advocate selling to his client- An advocate should not
make a gain for himself at his client’s expense. Client can
set aside sale on this ground
Disabilities continued

 An advocate as a creditor- An advocate should not give

financial advances to his client. He may take security for
costs already due or to become due. This security can be
set aside if there is undue gain to the advocate.
 Gifts- advocates should contend with remuneration and not
accept gifts from clients
 Bequests- An advocate who prepares a will where a
testator intends to bequeath a substantial benefit to him
must insist that his client gets independent legal advise ,the
will is prepared by another advocate and it is read and
approved by the testator
Disabilities continued

 Representing a trustee in bankruptcy-An

advocate cannot buy from a trustee in bankruptcy
without full disclosure
 Agent in a sale-an advocate who is an agent
cannot purchase himself or gain beyond
remuneration. He cannot also buy and resell to his
client
 Affidavits-affidavits must be sworn before an
advocate not involved in the proceedings
Disabilities continued

 Surety-An advocate should never stand surety for

his client in criminal proceedings
 Security for costs- An advocate should never
give an undertaking in security for costs
 Vouching for a client : An advocate should
never vouch for a client
Disabilities continued

 Rule 9 of the Advocates(Practice) Rules- An

advocate should not act in a case where he is to
appear as a witness (Ahmednassir Abdikadir & Co
Advocates V National Bank of Kenya Limited[2006]
KLR, HCCC 532/2004(unreported)
 Receiverships-An advocate should not be appointed
receiver if he is acting for one of the clients unless
with the other party’s consent
 Disabilities: Sanctions/Remedies for breach

 The aggrieved client can: 5. Sue for accounts

1. Terminate the relationship
2. Sue for breach of fiduciary 6. Sue for secret profits
duty 7. Seek disqualification
3. Sue for fees disgorgement from acting
4. Institute disciplinary 8. Seek setting aside of A
measures if breach sale
amounts to professional 9. Seek damages
misconduct
10.Seek costs
 Part 4
Prohibited Acts - Professional
Misconduct
STEPHEN MALLOWAH 2016
03/05/2025 645
Part Objectives

 At the end of this part the participant should be

able to
1. List acts amounting to professional misconduct
2. Cite case law or proceedings of the Disciplinary
committee in respect of the listed acts of
misconduct
3. List the possible sanctions for breach
Readings

 Ss35-43 Advocates Act

 Parts X and XI of the Advocates Act
 The LSK Digest of Professional Conduct and Etiquette
 LSK (Practice) Rules
 LSK Act
 Advocates (Disciplinary Committee) Rules
 Advocates (Accounts)Rules
 Advocates (Deposit Interest)Rules
 Advocates(Accountant Certificate) Rules
 Advocates(Continuing Legal Education) Regulations,2004
 Advocates (Professional Indemnity) Regulations, 2004
Readings
1. Bates v State Bar of Arizona 433 US 350
2. In the matter of Ababu P.T. Namwamba Misc No DCC 207/2004
3. Ahmednasir Abdikadir & Co Advocates V National Bank of Kenya
Limited[2006] eKLR, HCCC 532/2004(unreported)
4. Ahmednasir Abdikadir & Co Advocates V National Bank of Kenya
Limited[2006] eKLR, HCCC 2EA 1(CCK)
5. Wild V Simpson (1918-19)All E.R 682.
6. Okenyo Omwansa George & another v Attorney General & 2 others
[2012] eKLR
7. Daniel Ndungu V Director Of Public Prosecutions & Ano. [2013]
eKLR
8. Jambo Biscuits K Ltd & 2 Others V BBK Ltd HCCC no. 1833 of 2001
Professional Misconduct

1. Undercutting (s36) Rule 3 of RO- Rule 39(d) Digest

charging at scale lower than Rem Order. Attract work not
because of low charges but because of the quality of
work. Ahmednassir Abdikadir & Co Advocates V
National Bank of Kenya Limited[2006] eKLR, HCCC
2EA 1(CCK)
2. Champerty-Advocate agrees to finance lawsuit or
matter in return for a percentage of the fees. Illegal in
common law, S 46 ©, Wild V Simpson (1918-19)All
E.R 682. Bankers L.J Held that a champertous
agreement was unenforceable.
Professional Misconduct

4. Sharing Profits S 37, Rule 4-I Rule 42 Digest t is an

offence to share profits with an unqualified person.
Sharing of bonus with employees is excepted
5. touting(sell by pestering people)- Rule 2 practice rules
and S38 respectively. S 38 prohibits unqualified persons
from touting.
6. Agent of an unqualified person S 39-40 is an offence
7. Employment of persons struck off the Roll of Advocates
ss41-42 You can employ only with the written permission
of the Council.
8. Breach of an undertaking Rule 46 Digest
Professional Misconduct

9. Advertising soliciting and attracting business

unfairly: Rule 2 Practice Rules Rule 3 of the Digest
prohibits advocates from advertising. The case of
Okenyo Omwansa George & another v Attorney
General & 2 others [2012] eKLR declared rule 2
unconstitutional. The Advocates(Marketing &
Advertising) Rules of 2012 are yet to be promulgated,
advocates are yet to get administrative clearance to
advertise. Advertisements in form of websites, social
media etc is ongoing.
Professional Misconduct

10.Failing to attend court Rule 1(b)(6) of the Digest

11.Practicing without a practicing certificate Rule 35 Digest
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
Professional Misconduct - sanctions

 Criminal Law
 Civil Law
 Disciplinary Proceedings by the court s 56. See
Mohammed Sadique vs Mathew Oseko T/A Oseko
& Co Advocates
 Disciplinary action by the DC
Professional Misconduct-sanctions
 The DC can order
 that such advocate be admonished; or
 that such advocate be suspended from practice for a specified
period not exceeding five years; or
 that the name of such advocate be struck off the Roll; or
 that such advocate do pay a fine not exceeding one million
shillings;
 that such advocate pays to the aggrieved person compensation
or reimbursement not exceeding five million shillings,
 or such combination of the above orders as the Committee
thinks fit.
 Part 5
Prohibited Acts - Unprofessional or
Unsatisfactory Conduct
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Part Objectives

 At the end of this part the participant should be

able to
1. List several examples of unprofessional conduct
2. Cite the applicable provisions of the ethical codes
3. Propose sanctions for breach short of disciplinary
proceedings
 Readings

 LSK Digest NB.The digest does not purport to be

objective
 Unsatisfactory conduct –By unknown author
http://www.justice.govt.nz/tribunals/legal-complain
ts-review-officer/forms-practice-notes-and-guides/
documents/unsatisfactory-conduct.pdf
Unprofessional or Unsatisfactory Conduct

 Rule 3(b) Digest :Some levels of appearance on press or

television not amounting to advertising soliciting or
attracting business unfairly
 Administering oaths to an official of an employer in
respect of the official duties of the employer Rule 4(i)
Digest
 Rule 8(b) Digest Sharing offices
 Rule 21 Digest Some claims against partners upon
dissolution
 Rule 23 Some extraneous activities
Unprofessional or Unsatisfactory Conduct

 Rule 29 Loans to government officials and

members of the judiciary
 Rule 31: Some firm names
 Rule 34 Digest Receiving fees in poor persons
litigation
 Rule 36 Digest Refusing to help a reporter with
necessary information
 Rule 36 Digest Encouraging ones publicity in the press
 Rule 41 Digest Smoking in court
 Part 6
Prohibited Acts - Compare Contrast and
Recommend
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Part Objectives

1. Analyze the trends on disciplinary

matters
2. Identify causes of declining standards
3. Propose interventions to restore
standards
Status Of Disciplinary Causes: Statistics
YEAR CAUSES CAUSES OUTSTANDING
OPENED CONCLUDED
2001 199 185 14
2002 191 135 56
2003 167 143 24
2004 242 216 26
2005 67 53 14
2006 164 160 4
2007 358 358 0
2008 190 165 25
2009 211 179 32
2010 209 157 52
2011 207 99 108
2012 184 17 144
TOTALS 2,389 1,867 499
Summary of Decisions
Case Category Number.
Struck off the Roll of Advocates 0
Suspended from the Roll of 2
Advocates
Fined 27
Withdrawn 20
Terminated/Abated 4
Acquitted/Dismissed 9
Settled 27
Matters outstanding 499
 Statistics

 48 cases pending execution with an

equivalent of Kshs 8 million as fines and
costs and 140 million as client’s monies
 Reasons for lack of attachment is because
advocates cannot be traced or they lack
attachable assets
 Why misconduct

 Decline in ethos
 Codified standards are inadequate, misunderstood or
ignored either by enforcers or those expected to comply
 Inevitability of professional misconduct given the
framework of regulation
 Adversarial system
 Practice environment
 Decline in professionalism at the expense of
commercialization of the profession
Kenyan standards
 Are the adequate?
 Are they understood?
 Why is there lack of compliance?
 Is there an increase in advocate misconduct?
 Are the discipline mechanisms effective?
 Is the misconduct hullaballoo just about the historical
contempt for lawyers ?ie ‘lawyer bashing’ quoting
shakespeare character who said”the first thing we do, let’s kill
all the lawyers.” (2nd part of King Henry the 6th Act 4 sc 2)
 Do lawyers in Kenya take their role as officers of the court
seriously?
667

STEPHEN MALLOWAH 2016 03/05/2025

 ATP 105 Professional
Ethics - 2016
LECTURE 18 PROFESSIONAL UNDERTAKINGS
Course Instructor – Stephen Mallowah LLB, LLM, MSc
 Lesson Content
 1. Definition of terms and concepts
 2. Basic character of an undertaking
 3. 13 Basic principles
 4. Types of undertaking
 5. Capacity to give undertaking
 6. Rationale, purpose and value
 7. Obligations created
 8. Consequences of breach
 9. Enforcement of undertakings
 10. Indemnity issues
 11. Best Practice
 12. Sample Forms
 Reading List
 Ellyn, Nadine and Barmaria Undertakings in and out
of court
www.ellynlaw.com/.../undertakings in and out of court
 Solicitors undertakings ; dangers and safeguards -
Television Education Network March 2011
http://www.olsc.nsw.gov.au/Documents/ten_110311.pdf
 Is It Time to Review the Professional Undertaking
Rules? Anne Kiunuhe - Business Daily (Nairobi)
Kenya 30 November 2010
 Case Law - Local
 KCB vs Adala 1983 KLR 467
 Walker Kontos Advocates vs S M Mwirigi and Co Advocates CACA No
20 of 1997
 Kenya Reinsurance Corporation vs V E Muguku Muriu T/ A Muguku
Muriu & Co Advocates CACA No 48 of 1994
 Mavlin Investment vs Chepleting Mitei HCC Misc 2254 of 1997 OS
 Official Receiver vs Mugo Mukunya Advocate CACA No 20 of 2001
 Harit Seth T/A Harit Seth Avocates vs H Osmond Advocates CACA
276 of 2001
 Case Law - Local
 NRB (MLM) HCCC 172 OF 2009 Johnson Dedan Murimi t/a Murimi &
Company Advocates vs John Thongori t/a J. Thongori & Company
Advocates.
 NRB (MLM) HCC 231 of 2009 Kenya Roads Services Limited vs
Kimandu Gichohi & Company Advocates
 NRB (MLM) HCC 2009 of 2008 David Karanja Thuo t/a (practising as
D.K. Thuo & Co. Advocates) v Njagi Wanjeru (practising as Njagi
Wanjeru & Co. Advocates) [2010] eKLR
 NRB (MLM) HCC 411 of 2009 Philip S. Kisaka T/a P.S. Kisaka & Co.
Advocates v Thomas Agimba T/a Agimba & Associates [2010] eKLR
 Case Law - Local
 Joseph Kimani Waweru t/a Kimani Waweru Co Advocates vs Peter
Onalo t/a Onalo & Co Advocates 2006 eKLR
 Order 52 Rule 7(2)-Enforcement Orders
 KCB vs Adala 1983 KLR 467 The courts have jurisdiction to punish
an advocate as an officer of the court. This enforcement remedy
is separate and distinct from the clients’ cause of action
 Case Law - Foreign
 Re Hilliard (1845) 2 Dowl. & L. 919 at 920-921
 The Law Society of British Columbia v. Heringa 2004 BCCA
97
 Twinsectra vs Yardley [2002] UKHL 12, [2002] 2 AC 164 ,
[2002] 2 All ER 377
 Halliwells LLP v NES Solicitors and Quinn Insurance
[2011] EWHC 947
 Statutory Provisions

 Order 52 Rule 7 Civil procedure rules 2010

 Rule 46 LSK Digest
 Part 1
Definitions of Terms and Concepts

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 Definitions of Terms and
Concepts
 An undertaking is a promise made by a
solicitor upon which the recipient is entitled to rely
and depending on the circumstances, which binds

the solicitor or solicitor’s client or both.
 Undertakings are obligations that lawyers pledge
themselves or their clients to honour (Ellyn, Nadine
and Barmaria )
 Definitions of Terms and
Concepts
 a statement, given orally or in writing, whether
or not it includes the word ‘undertake’ or
‘undertaking’, made by or on behalf of you or your
firm, in the course of practice, or by you outside the
course of practice but as a solicitor or [Registered
European Lawyer], to someone who reasonably
places reliance on it, that you or your firm will do
something or cause something to be done, or refrain
from doing something.”
 Definitions of Terms and
Concepts
 Review the decision of Justice H P G Waweru in NP
Radier vs DK Njogu & Co Advocates 2006 EKLR citing
various definitions with approval
 Part 2
Basic Character of An Undertaking

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 Basic Character

 An obligation which must be observed at the

risk of civil, disciplinary, cost or even penal
consequences.
(Ellyn, Nadine and Barmaria )
 Basic Character

 Kenya Reinsurance Corporation vs V E

Muguku Muriu T/ A Muguku Muriu & Co
Advocates CACA No 48 of 1994
 Once made it cannot be qualified or diluted on basis of
some accounting dispute between the parties
 A defence available to the client against the beneficiary
of a lawyers undertaking cannot be used to defeat
the undertaking
 Basic Character

 NRB (MLM) HCC 231 of 2009 Kenya

Roads Services Limited vs Kimandu
Gichohi & Company Advocates
 Basic Character

 NRB (MLM) HCC 2009 of 2008 David Karanja

Thuo t/a (practising as D.K. Thuo &
Co. Advocates) v Njagi Wanjeru
(practising as Njagi Wanjeru & Co.
Advocates) [2010] eKLR
 Basic Character

 NRB (MLM) HCC 411 of 2009 Philip S. Kisaka

T/a P.S . Kisaka & Co. Advocates v
Thomas Agimba T/a Agimba & Associates
[2010] eKLR
 Basic Character

 The Law Society of British Columbia v. Heringa 2004

BCCA 97
 Undertakings are not a matter of convenience to be fulfilled
when the time or circumstances suit the person providing
the undertaking; on the contrary, undertakings are the
most solemn of promises provided by one lawyer to
another and must be accorded the most urgent and
diligent attention possible in all of the circumstances
 Basic Character
 NP Radier vs D K Njogu & Co Advocates NRB HCC
582 of 2003 2006 eKLR

Definition of ‘professional undertaking’

Ø‘Solicitorial’ capacity
ØBasic character
ØForm of undertaking
ØRationale, purpose and value
ØEnforcement jurisdiction
 Basic Character

 Can be express or implied

 Twinsectra vs Yardley [2002] UKHL 12,
[2002] 2 AC 164 , [2002] 2 All ER 377
 Implied undertaking in a conveyancing contract
 Dishonest practice in conveyancing transactions
involving undertakings
 Basic Character

 It places both a legal and ethical obligation on the giver

 In the UK- Advocates cannot give uninsured
undertakings. In Kenya advocates are faced with the dilemma of
losing a client or issue a non-funded PU
 Is enforceable notwithstanding the undertaking not constituting
a legal contract
 See HPG Waweru J in NP Radier vs HP Njogu & Co Advocates
 See Definition in Encyclopedia of forms and
precedents
 Basic Character
 In Peter Ng’ang’a Muiruri V Credit Bank
& Charles Nyachae t/a Nyachae & Co.
Advocates (Civil Appeal No. 263 of 1998 -
Court of Appeal Nairobi) - the Court held that
an undertaking is a solemn thing, in enforcing it
the Court is not guided by considerations of
contract but the Court aims at securing the
honesty of its officers
 Part 3
Basic Principles

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 13 Principles

1. An undertaking is any unequivocal declaration of

intention addressed to someone who reasonably places
reliance on it and made by a Advocate in the course of
his practice, either personally or by a member of the
Advocate’s staff whereby the Advocate (or in the case a
member of his staff, his employer) becomes personally
bound.
2. Failure by a Advocate to honour the terms of a
professional undertaking is a prima facie evidence of
professional misconduct. Consequently, the Society will
require its implementation as a matter of conduct.
 13 Principles

3. An undertaking will normally be required to be honoured

only as between the giver and the recipient.
4. An ambiguous undertaking is generally construed in
favour of the recipient.
5. An undertaking does not have to constitute a legal
contract to be enforceable in conduct.
6. An undertaking is still binding even if it is to do
something outside the Advocate’s control.
 13 Principles

7. An Advocate is responsible for honoring an

undertaking given by a member of the Advocate’s staff,
whether admitted to the Roll of Advocates or not.
8. Where an Advocate in partnership gives an
undertaking as an Advocate in the course of
practice, all partners are responsible for its
performance.
9. An Advocate cannot avoid liability on an
undertaking by pleading that to honour it would be a
breach of duty owed to the client.
 13 Principles

10.An Advocate who gives an undertaking which is

expressed to be dependent upon the happening of a
future event must notify the recipient
immediately if it becomes clear that the event will not
occur.
11.In addition to the Society’s power to enforce
undertakings as a matter of conduct, the court, by virtue
of its inherent jurisdiction over its own officers, has
power of enforcement in respect of undertakings.
 13 Principles

12.An undertaking should not be given by an Advocate

as an inducement to a client to secure that client’s
business.
13. The seeking by an Advocate of an undertaking from
another Advocate which the first Advocate knows, or
ought to know, should not be given, may be deemed
to be professional misconduct.
 Part 3
Types of Undertaking

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Types of Undertakings

 By form
1. Express and implied ( deemed undertaking)

 By Obligation
1. By lawyer to honour ( personal undertaking)
2. By client to honour ( client Undertaking) See Harit
Sheth t/a Harit Sheth Advocates vs K.H.Osmond t/a
Osmond Advocates Civil Appeal No. 276 of 2001 CA
NBI)
Types of Undertakings

 Undertakings in and out of court

 1. Conveyancing undertakings
 2. Litigation undertakings
 3. Discovery undertakings
 4. Undertaking as to damages
Form of Undertakings

 Can be oral
 Can be express of implied (Deemed Undertaking)
 The concept of implied undertakings as known in
common law also applies e.g. to return documents held
should registration fail
 Are usually written, in some cases writing is a must
 Should be unambiguous but if ambiguous ambiguity
resolved in favour of the recipient
 Qualifications must be stated
Form of Undertakings

 No particular formalities or wording are

required – for example, there is no need for the
word “undertake” or “undertaking” to be used for
a statement to be construed as an undertaking. A
simple oral promise can in appropriate
circumstances suffice
Form of Undertakings

 Law Society of Kenya Digest of Professional

Conduct and Etiquette provides that an
undertaking shall be in a form which is clear and
once accepted by an Advocate shall bind him or
his firm to the undertaking and any breach
thereof shall constitute professional
misconduct
Form of Undertakings

 Further, where it is ambiguous whether an

undertaking is or is not being given, that
ambiguity is generally resolved in favour of the
recipient of the undertaking.
 The court has emphasised that in cases of
uncertainty it is for the solicitor to make it clear
that he is not intending to give an undertaking
(Reddy v Lachlan (2000).
 Part 4
Capacity to give Undertaking

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Solicitorial Capacity

 With regard to undertakings the giving of an

undertaking in a ‘Solicitorial’ capacity requires
substantive legal advice to have been given or a legal
service provided.
 Undertakings have to be given in connection with
legitimate legal work and not merely in order to
receive remuneration
 But see H P G Waweru J in NP Radier vs DK Njogu& Co
Advocates 2006 EKLR
Solicitorial Capacity

 The giver and recipient don’t have to be in an

advocate/ client relationship (See Bridge up
Containers Services V Gichana
Bw’omwando t/a Gichana Bw’omwando &
Co. Advocates,Misc. Civ. App. 386 of 2006)
 Part 5
Rationale, Purpose and Value

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Rationale, Purpose and Value

 Undertakings are a necessary part of the

practice of law. They are promises which keep the
transaction or the process moving forward to a
just conclusion. These promises must be based on
the trust that solicitors and clients have in the
integrity of all members of the profession
(Ellyn, Nadine and Barmaria )
Rationale, Purpose and Value

 Re Hilliard (1845) 2 Dowl. & L. 919 at 920-921

 “undertakings generally benefit both parties [to a
transaction or lawsuit] and there would be a great
injustice in letting the attorney loose from them after
the [other] party has forgone the advantage or paid
the consideration. While there is no hardship on the
attorney in enforcing them, he is never compelled to
enter into them. If he does, he should secure himself
by his arrangement with his client, and he must be
taken to know the legal consequences of his own act’.
Rationale, Purpose and Value

 The Law Society of British Columbia v. Heringa 2004

BCCA 97
 The trust and confidence vested in lawyers’
undertakings will be eroded in circumstances where a
cavalier approach to the fulfilment of undertaking
obligations is permitted to endure. Reliance on
undertakings is fundamental to the practice of law
and it follows that serious and diligent efforts to
meet all undertakings will be an essential
ingredient in maintaining the public credibility and
trust in lawyers.
Rationale, Purpose and Value

 1. A tool used in the course of the practice of law

 2. Demonstrates the integrity which is the
foundation of the legal profession
 3. Can create a framework to enable transactions
to proceed which might otherwise be stalled
 4. Permits a lawyers solemn promise to perform to
temporarily take the place of a document,
information, signature, payment or other act of
performance
Rationale, Purpose and Value

 Can be used to facilitate file transfers

 Can be used before courts especially to facilitate
discovery and compliance with court orders
 Can be used to facilitate conveyancing
transactions
 Part 6
Obligations Created

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Obligations Created

 Depends on the type

 If by lawyer to honour the lawyer must honour.
 After a lawyer accepts an undertaking, it is not open to
the lawyer to pick and choose which elements of
the undertaking will be performed or to improperly
delay the performance of the undertaking.
 If by client to honour, lawyer must take all steps
to ensure that the client honours his undertaking
Obligations Created

 Even in the case where the lawyer does not accept

personal liability, it is the lawyer’s duty to take all
steps to ensure that the client honours
the undertaking.
 Thus, even the most carefully worded undertaking,
designed by the advocate to avoid personal
responsibility, does not necessarily relieve the
advocate of the obligation to take steps to see
that it is fulfilled
 Part 7
Consequences of Breach

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Consequences of Breach

1. Action for contempt if given in court proceedings

2. Disciplinary action see NP Radier vs DK Njogu & Co
advocates. Failure to honour an undertaking is prima
facie evidence of professional misconduct . See Rule
46 Digest
3. Action for damages. (If it constitutes a legal contract)
4. Reputational loss: destroys the honour of the
profession see NP Radier vs DK Njogu& Co
 Part 8
Enforcement of Undertakings

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Enforcement

 Soft sell- Enforcement by co-operation eg

extending time for fulfilment of obligation
 Tough approach- by disciplinary proceedings or
court action
 Undertakings can be enforced even if one is not the
recipient-KCB V Mohammed Muigai Adv (HCC757 of
2003)
Enforcement Strategies

1. Co-operation with the undertaking party;

2. Demanding compliance in writing;
3. Taking the matter to court through
enforcement or contempt proceedings;
4. Initiating an action for damages; Reporting the
matter to the Law Society for disciplinary action.
Enforcement Jurisdiction

 The Court has an inherent jurisdiction in matters concerning the

conduct of advocates, being officers of the court, including
but not confined to compliance with their undertakings.
 It is both a punitive and compensatory
jurisdiction.
 In its exercise, the Court is concerned to uphold the integrity of
the system, and the highest standards of honourable behaviour
by its officers
Enforcement Jurisdiction

 The Court may order compliance with the undertaking,

though late, where there remains a reasonable
possibility of so doing.
 Even where the undertaking may still be complied with,
the Court may nevertheless order the advocate to make good
any loss actually occasioned by the breach of
undertaking
Enforcement Jurisdiction

 Where compliance is not possible to achieve by

the time the Court is deciding what order to make,
if any, it may order the advocate to make good
any loss actually occasioned by the breach of
undertaking.
Enforcement Jurisdiction

 The court has jurisdiction under section 57 of the

Advocates Act to punish for breach
 KCB vs Adala 1983 KLR 467
Enforcement Jurisdiction

 Harit Sheth t/a Harit Sheth Advocate V K. H. Osmond t/a K H

Osmond & Co Advocates 2003 eKLR
 Order under Order 52 rule 7 is appealable as of right but the
Rules Committee should take it up and make it express
Enforcement Procedure

Depends on remedy sought

 1. Only in the High court (Order 52 rule 1(b)
 2. By originating summons to get an order for specific
performance Order 52 rule 1(a)
 3. By chamber summons Order 52 rule 1(b)
 4. Action for damages
 5. Action for contempt ( see effect of order 52 rule 2
 6. Disciplinary action under s 60 (see effect Rule 46
digest)
Enforcement Procedure

 7. (1) An application for an order for the

enforcement of an undertaking given by an
advocate shall be made—
 (a) if the undertaking was given in a suit in the
High Court, by summons in chambers in that suit;
or
 (b) in any other case, by originating summons
in the High Court.
Enforcement Procedure

 (2) Save for special reasons to be recorded

by the judge, the order shall in the first instance
be that the advocate shall honour his
undertaking within a time fixed by the order, and
only thereafter may an order in
enforcement be made.
 Part 9
Indemnity Issues

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Halliwells LLP v NES Solicitors and Quinn Insurance
[2011] EWHC 947
 NES was approached by a new, apparently
wealthy, client and asked to provide an
undertaking to pay Halliwells £1.5 million as part of a
share purchase agreement.
 The client provided a “gold delivery certificate” purported
to be worth £10 million.
 The partners of NES, in reliance on the
certificate, but knowing the funds had not
cleared, provided the undertaking.
 The certificate was later found to be worthless.
Halliwells LLP v NES Solicitors and Quinn Insurance
[2011] EWHC 947

 NES failed to honour the undertaking and was

sued by Halliwells. Halliwells obtained summary
judgment. The professional negligence insurers of
NES, Quinn, refused to pay the claim made by NES
on the basis that the partners of NES were
dishonest or condoned dishonesty
 It was held that NES had acted dishonestly and as
such Quinn was not required to provide an
indemnity.
 Part 10
Best Practice

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Best Practice - Uganda

 Rule 14 Statutory instrument No 267- 2.

Advocates (professional conduct)
regulations. Undertakings by an advocate.
 An advocate shall not—
 (a) give any undertaking to another advocate or
any other person knowing that he or she has
no authority or means of satisfying the
undertaking; and
 (b) knowingly breach the terms of an undertaking.
Best Practice - Canada

 Rule 14, Commentary 6 provides:

 The lawyer should give no undertaking that cannot be fulfilled
and the lawyer should fulfill every undertaking given. Undertakings
should be written or be confirmed in writing and should be
absolutely unambiguous in their terms. If the lawyer giving
the undertaking does not intend to accept personal
responsibility, this should be stated clearly in the
undertaking itself. In the absence of such a statement, the person
to whom the undertaking is given is entitled to expect that the
lawyer giving it will honour it personally. The use of such words as
“on behalf of my client” or “ on behalf of the vendor” does not
relieve the lawyer giving the undertaking of personal responsibility.
Best Practice - Canada

 Rule 1 of the Rules of Professional Conduct

provides:
 A lawyer must discharge with integrity all duties
owed to clients, the public and other members of the
profession.
 Rule 14 provides:
 A lawyer’s conduct toward other lawyers
should be characterized by courtesy and good faith.
Best Practice - Canada

 (Rule 10, comment 8)

 An undertaking given by a lawyer to the Court or
to another lawyer in the course of litigation must
be strictly and scrupulously carried out. Unless
clearly qualified, the lawyer’s undertaking is a
personal promise and responsibility.
Best Practice - Canada

 Ferguson v. Swedish Canadian (1912), 41

N.B.R. 217 at 220 (N.B./C.A.).
 Lawyers must take the fulfilment of
undertakings very seriously... courts have
repeatedly demonstrated that they are not
sympathetic to lawyers who “choose to
practice upon loose undertakings” and who cannot
fulfill their obligations
Important Issues to Consider

 Accept Undertakings with care, fulfil without

exception
 Give undertakings only if the means of
fulfilling them are directly within your control
 It is unwise to give a personal undertaking to
do something that is partly dependent upon a
third party’s actions or omissions
 Never give undertakings on payment unless
the funds are in you custody
Important Issues to Consider

 Breach of an undertaking is equal to breach of a

trust condition.
 Lawyers should always carry out the requisite
due diligence checks and consistently be on the
look out for unusual transactions.
Important Issues to Consider

 Ensure that undertakings are given only when

intended, and that compliance with them is
monitored and enforced.
 Undertakings given without care can expose
solicitors and their firms to significant consequences.
Because of the risk of giving an undertaking
inadvertently, and because of the sanctions that can
result from a breach, particular care should be taken
in relation to the giving of undertakings
 Part 11
Sample Forms and Guidance

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Guidance
1.Make sure you know whether you can give an undertaking
yourself or in the firms name (bearing in mind you may be
personally liable.
2.Understand the firm’s policy: Are they forbidden entirely?
Must you get permission? If they are given, must they be
in standard form? How are they to be recorded? How are
they monitored and chased up?
3. Be aware of the risk that the other side may see
something as an undertaking, so be sure to expressly
state that it isn’t in writing.
 If you do have to give an undertaking, the SRA says make
them “SMART” - Specified, Measurable, Agreed, Realistic,
Guidance
3. Put every undertaking in writing. Make them specific, not
general. i.e. Exactly who is to do what, by when?
4. For example, avoid saying ‚we will pay X‛, instead say ‚we
will give instructions to our bank to pay X‛ – if bank does
not pay you are responsible for any losses.
5. Where the undertaking relates to costs, make sure to
express they are payable ‚in any event‛, or the
undertaking may be void if the case does not proceed.
6. Try to avoid ‘best endeavours‛ or ‘reasonable
endeavours‛. It opens up the risk of a dispute about what
that means.
7.Specify when the thing must be done, or else it will be
Guidance
8. Make it clear who is giving the undertaking, you or your
client. Where possible, make it the client. If so say ‘our
client undertakes to do x‛ not ‘we undertake to you on
behalf of our client to do x‛
9. Agree the exact form with the recipient in writing.
10. Only agree things that are realistic and within your
control. Be wary of undertaking to do something that
requires a third party to do something first. In that case,
make it clear that the occurrence of that event is a
precondition to performance of the undertaking.
Guidance
11. Mark the file clearly and tell the right people.
12. Diarise the dates (including the dates the undertaking is
dependent on).
13. Ask for formal release from the undertaking in writing
once it is completed.
14. If there is a breach, make sure it can be recorded and
reported to the LSK as required.
15.Most importantly, protect your client’s position, and
protect your own!
746

STEPHEN MALLOWAH 2016 03/05/2025

 ATP 105 Professional
Ethics - 2016
LECTURE 19 – PROFESSIONAL NEGLIGENCE
Course Instructor – Stephen Mallowah LLB, LLM, MSc
 TOPIC CONTENT
1. Definition
2. Topic Content
3. Requirements
4. Constitutional basis
5. Source of the obligation
6. Standard of care
7. Mistake
8. The case for Immunity
9. Professional Indemnity
 Statutory Provisions

 Section 46 invalid agreements

 Advocates (Professional indemnity) Regulations

2004
 Case Law
 1. Heaven v Pender (1883) 11 QBD 503
 2. Derry v Peek (1889) LR 14 App Cas 337
 3. Nocton v Lord Ashburton [1914] AC 932
 4. Hedley Byrne & Co Ltd v Heller & Partners Ltd
[1964] AC 465
 5. Henderson v Merrett Syndicates Ltd [1994] 2
AC 145
 6. Mbogo V Shah (1967)EA 116
 7. White v Jones [1995] 2 AC 207
 Case Law
 1. Munster v Lamb. said ([1881–85] All ER Rep
 2. Fletcher & Son -v- Jubb, Booth & Helliwel [1920] 1 KB
275
 3. Myers -v- Elman [1940] AC 282; [1939] 4 All ER 484
1939 HL
 4. Allen -v- Alfred MacAlpine and Sons Ltd [1968] 2 QB
259; [1968] 1 All ER 543 1968 CA
 5. Rondel vs Worsely 1969 HL)
 6. Polk County v. Dodson, 454 U.S. 312
(1981) 454 U.S. 312
 7. Arthur J.S Hall and Co. v Simons (2000) 3 AER 673
 Case Law
 • Air Alfaraj Ltd VS Raytheon Aircraft Credit
Corporation & anor 2000 KLR 315
 • Champion Auto Spares vs Phadke & ors 1969 EA
42
 • East African Foundry Works (K) Ltd vs. KCB 2002
(2) KLR 443
 • Omwoyo vs. AH & P Co Ltd 2002 1 KLR 68
 • Kogo vs Nyamogo & Nyamogo CA CA 53 OF
2003 2003 EKLR
 • Flavio Rodriguez vs Apollo Insurance Co Ltd
 Part 1
Definition

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 Definition

 In the English law of tort,

professional negligence is a subset of the
general rules on negligence to cover the
situation in which the defendant has
represented him or herself as having more
than average skills and abilities

 From Wikipedia
 Definition
 Negligence may be defined as an act or omission
which constitutes a breach of a duty of care owed
to another person by the person who acts or fails
to act and which causes that other person to suffer
harm.
 There are three elements which the client
(plaintiff) must establish if he wants to succeed.
 – that there was a duty of care owed by an Advocate.
 – that there was a breach of that duty by an Advocate
(the defendant).

 Part 2
Requirements

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 Requirements

1. Duty of care situation

2. Foreseeability
3. Proof that defendant’s conduct was careless
4. Causal connection between defendant’s
carelessness and damage
5. Extent of damage attributable to defendant
6. Monetary estimate of that damage
 Part 3
Constitutional Basis

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 Constitutional Basis

 Consumer protection- Article 46 of the

Constitution
 State to ensure access to justice- Article 48
 Right of accused persons to choose their
advocates-Article 50 (g)
 State to appoint advocate for accused if
substantial injustice would occur otherwise-
Article 50 (h)
 Part 4
Source of the Obligation

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 Source of the Obligation

 1. Duties in contract- the client is purchasing legal

services, it’s a consumer protection issue. The advocate
warrants that he possesses the competence to offer the
services
 2. Duties in tort- the law has placed the client in the
hands of the lawyer and the client is totally dependent
on the expertise of the lawyer
 3. Duties of a fiduciary- an element of tort. A fiduciary
is depended on by another.
 4. Statutory obligation- eg Advocate practice rules
provide minimum service standards
 Part 4 – Section 1
Liability in Tort

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Hedley Byrne & Co Ltd v Heller & Partners Ltd
(1964) AC 465
 Where a person is so placed that others could
reasonably rely upon his judgment or his skill
or upon his ability to make careful inquiry, and a
person takes it upon himself to give information or
advice to, or allows his information or advice to be
passed on to, another person who, as he knows or
should know, will place reliance upon it, then a
duty of care will arise."
Caparo Industries plc. v Dickman (1990) 2 AC
605
 The criteria for a duty of care in giving advice were
stated in more restricted terms "What can be
deduced from the Hedley Byrne case,
therefore, is that the necessary relationship
between the maker of a statement or giver
of advice (the adviser) and the recipient
who acts in reliance on it (the
advisee) may typically be held to exist
where four conditions exist
Caparo Industries: Conditions 1 and 2

 The advice is required for a purpose,

whether particularly specified or generally
described, which is made known, either actually or
inferentially, to the adviser at the time when the
advice is given
 the adviser knows, either actually or
inferentially, that his advice will be communicated
to the advisee, either specifically or as a member of
an ascertainable class, in order that it should be
used by the advisee for that purpose
Caparo Industries: Conditions 3 and 4

 It is known, either actually or inferentially, that the

advice so communicated is likely to be acted
on by the advisee for that purpose without
independent inquiry and
 It is so acted on by the advisee to his
detriment.
White v Jones [1995] 2 AC 207

 In this case, which was only carried by a 3:2

majority, a solicitor was told to draw up a
new will, splitting the testator's estate
between the two plaintiffs, his daughters. He
negligently failed to do this by the time of
the testator's death, and the estate passed
in accordance with the testator's wishes
expressed in a previous will.
White v Jones [1995] 2 AC 207

 The daughters sued the solicitor in

negligence. It was held that the solicitor had
assumed a special relationship towards
them, creating a duty of care which he had
carried out negligently, and therefore had
to indemnify them for their loss. Once again
this extended Hedley Byrne liability to a
proximate third party.
 Part 4 – Section 2
Liability in Contract

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Contractual Liability

 In principle, the tortious liability runs in parallel to

liability in contract. Subject to the rules of privity
of contract, one who has entered into a contract
can sue or be sued on the contract which will set
out the terms of the service to be provided by the
professional person, and if there is no express
term to this effect, there will be an implied term
that the service will be performed with reasonable
care and skill
Henderson v Merrett Syndicates Ltd [1994] 2
AC 145
 This case concerned the near collapse of
Lloyd's of London when hurricanes in
America devastated its property holdings. It
called upon its "Names" (the shareholders)
to indemnify them for its losses.
 The Names sued the shareholding company
for mismanagement and negligence
Henderson v Merrett Syndicates Ltd [1994] 2
AC 145
 It was held that Merrett Syndicates was liable
to both types of shareholders, as there was
enough foreseeability to extend pure economic
loss liability to "un-proximate" third parties.
 The major significance here was, however, the
allowance of claims in both contract and tort,
which blurred the divide between the two.
 Some of the first party Names claimedin
contract to overcome the three-year limit
in which an action must be taken in tort.
 Part 4 – Section 3
Liability to Proximate Third Parties

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White v Jones [1995] 2 AC 207

 The daughters sued the solicitor in

negligence. It was held that the solicitor had
assumed a special relationship towards them,
creating a duty of care which he had carried out
negligently, and therefore had to indemnify
them for their loss. Once again this extended
Hedley Byrne liability to a proximate third party.
Prospective vs Actual Client

 Togstad v. Vesely, Otto, Miller & Keefe, 291

NW 2d 686 - Minn: Supreme

 The duties to a prospective client are no less than

the duties to an actual client
 Part 4 – Section 4
Liability of a Fiduciary

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Nocton v Lord Ashburton [1914] AC 932

 Lord Ashburton was buying a property for

£60,000 on Church Street, Kensington, London.
 His solicitor was Mr. Nocton. Mr. Nocton
advised Lord Ashburton to release part of the
mortgage security.
 This was a bad idea, because as Mr. Nocton in fact
knew, this meant that the security would become
insufficient.
 Lord Ashburton alleged the advice was not given in
good faith, but rather in Mr. Nocton's self
Hendry vs Pelland US Court of Appeal for the
DC 1996
 An action for a breach of a fiduciary duty should
be a more frightening proposition to an advocate
than a typical malpractice action which require
proof of harm ‘Recognizing this barrier to
legal malpractice claims, more and more plaintiffs
are pursuing claims for breach of a lawyer’s
fiduciary duties along with, or instead of, legal
malpractice claims. A breach of fiduciary duty
claim carries a distinct advantage for a plaintiff:
Often, the plaintiff need not show that the breach
of duty harmed him in any way’
 Part 4 – Section 5
A Statutory Obligation

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Section 46(b) Illegal Agreements

 S 46 (b) any agreement relieving any advocate

from responsibility for professional negligence or
any other responsibility to which he would
otherwise be subject as an advocate; or
The Advocates Act

 S46 of the advocates act outlaws

agreements absolving advocates from liability for
negligence. By necessary implication the statute
presupposes the existence of a duty not to be
negligent
 Advocates (Professional indemnity)
Regulations 2004 require advocates to take out
mandatory professional indemnity insurance cover.
The object of this requirement is to guarantee clients
protection against negligent conduct by advocates
 Part 5
The Standard of Care

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Fletcher & Son Fletcher & Son -v- Jubb, Booth &
Helliwel [1920] 1 KB 275
 Scrutton LJ said: "it would be extremely difficult to
define the exact limit by which the skill and diligence
which a solicitor undertakes to furnish in the conduct of
a case is bounded, or to trace precisely the dividing line
between that reasonable skill and diligence which
appears to satisfy his undertaking, and that crassa
negligentia, or lata culpa mentioned in some of the
cases, for which he is undoubtedly responsible. It is a
question of degree and there is a borderland within
which it is difficult to say whether a breach of duty has
or has not been committed."
Champion Auto Spares vs Phadke & ors 1969 EA
42

 No Liability for reasonable error of judgment or for

ignorance of some obscure point of law but for an
act of gross negligence or ignorance of some
elementary matters of law constantly arising in
practice
Kogo vs Nyamogo & Nyamogo C.A C.A 53 OF
2003 2003 EKLR

 It is not the duty of the advocate to help the

appellant in gathering evidence with which to
prove his case
 Part 6
Mistake

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Mistakes of Advocates

 Generally will not be visited on the client if he is if the

mistake is in good faith , the client is blameless and no
prejudice that cannot be compensated in costs will be
occasioned
 But clients should not over rely on the mistakes of their
advocates
 The courts consider whether the mistake was
genuine or excusable.
 Ger vs Marmannet Forest Coop & Credit Society Ltd
1987 KLR 543
 Kiarie vs Njoroge 1986 KLR 202
Mistakes of Advocates

 Kettlemen vs. Hansal Properties Ltd 1988 1

ALLER 38 at 62
 Litigation must be conducted efficiently
 That includes allowing the consequences of
negligence to fall on the head of solicitors
Mistakes of Advocates

 Omwoyo vs. AH & P Co Ltd 2002 1 KLR 68

 The courts cannot afford the luxury of
entertaining the negligence of advocates in
litigation
 The time has come when advocates must
bear the consequences of their mistakes
Trust Bank V Portway Stores (1997)LLR 1197 (CCK)

 Ringera J “If acts or omissions of other

agents with actual or ostensible authority in
other spheres of life are not without
consequence on their principals, why should
it be different in the legal profession?”
 Part 7
Professional Indemnity

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Requirement of professional indemnity insurance
• 2. (1) Every advocate practising on his own
behalf shall purchase a policy of insurance (in these
Regulations referred to as “the professional
indemnity cover”) the value of which shall be not
less than three million shillings

• 4. No practising certificate shall be issued

to an advocate to whom these regulations apply,
unless the requirements in paragraph (2) are
complied with.
Purpose of indemnity insurance

 3. The professional indemnity cover shall be used in

the compensation of clients for loss or damage from
claims in respect of any civil liability or breach
of trust by the advocate or his employees
 5. Nothing in these Regulations shall be taken
to preclude any agreement between an advocate or
a firm of advocates and a client in respect of any
insurance cover as may be deemed appropriate.
 Part 8 - 1
The Case For Immunity

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The case for immunity

 The first relates to the special role of the advocate and

the potential impact on the administration of
justice. Advocates duties as an officer of the court
would be impaired the threat of law suits by disgruntled
clients
 The second relates to the negative effect on the
administration of justice if issues were re-litigated and
court decisions subject to collateral attack
 The third relates to the cab rank rule. It is unfair to
compel to act if there is a potential for being sued by
the client
Munster v Lamb ([1881–85] All ER Rep

 A solicitor was sued for defamatory words

which he had spoken while defending an
accused person
 Held; an absolute immunity applies
Munster v Lamb ([1881–85] All ER Rep

 Sir Baliol Brett MR at p 792, letter c; (1883), 11 QBD at

p 599
 ‘To my mind it is illogical to argue that the protection
of privilege ought not to exist for a counsel, who
deliberately and maliciously slanders another person.
The reason of the rule is, that a counsel who is not
malicious and who is acting bona fide may not be in
danger of having actions brought against him.’
Munster v Lamb ([1881–85] All ER Rep

 Fry LJ dealing with the analogous cases of judges and

witnesses said ((1883), 11 QBD at p 607, [1881– 85] All ER
Rep at p 797):
 ‘The rule of law exists, not because the conduct of those
persons ought not of itself to be actionable, but because if
their conduct was actionable, actions would be brought
against judges and witnesses in cases in which they had
not spoken with malice, in cases in which they had not
spoken with falsehood
Munster v Lamb ([1881–85] All ER Rep

 ‘ It is not a desire to prevent actions from

being brought in cases where they ought to be
maintained that has led to the adoption of the
present rule of law: but it is the fear that if the rule
were otherwise numerous actions would be brought
against persons who were merely discharging their
duty.’ Fry LJ ibid
Munster v Lamb ([1881–85] All ER Rep

 It must always be borne in mind that it is not intended

to protect malicious and untruthful persons, but that it
is intended to protect persons acting bona fide
who under a different rule would be liable, not
perhaps to verdicts and judgments against them but
to the vexation of defending actions. Per Fry J Ibid
SALMON LJ: in Rondel vs. Worsely in the Court of
Appeal

 The Bar has traditionally carried out these

duties, and the confidence which the Bench is able
to repose in the Bar fearlessly to do so is vital to
the efficient and speedy administration of justice.
SALMON LJ: in Rondel vs. Worsely in the Court of
Appeal

 Otherwise the high standard of our courts

would be jeopardised. This is the real reason why
public policy demands that there should be no
risk of counsel being deflected from their duty
by the fear of being harassed in the courts by
every litigant or, criminal who has lost his case or
been convicted.
Lord Reid in Rondel vs. Worsely 1969 House of
Lords

 The argument before your lordship has been directed

to the general question of barrister’s liability and has
ranged widely. For the appellant it was said that all
other professional men, including solicitors, are liable
to be sued for damages if loss is caused to their
clients by their lack of professional skill or by their
failure to exercise due care; so why should not
barristers be under the same liability.
Lord Reid in Rondel vs. Worsely 1969 House of
Lords

 For the respondent it has been shown that for at

least two hundred years no judge or text writer
has questioned the fact that barristers cannot be
so sued, and a variety of reasons have been
adduced why the present position should continue
Lord Reid in Rondel vs. Worsely 1969 House of
Lords

 It is, I think, clear that the existing rule was

based on considerations of public policy; but
public policy is not immutable and doubts appear
to have arisen in many quarters
whether that rule is justifiable in present day
conditions in this country. So it appears to me to
be proper to re-examine the whole matter
Should advocates be granted immunity?

 Lord Morris Of Borth-Y-Gest: in Rondel vs.

Worsely:
 … The quality of an advocate’s work would suffer if,
when deciding as a matter of discretion how best to
conduct a case, he was made to feel that divergence
from any expressed wish of the client might
become the basis for a future suggestion that the
success of the cause had thereby been frustrated
Per Lord Pearce Rondel vs Worsely (1969) HL
 Is one, then, to compel counsel to advise or to
defend or conduct an action for such a person who, as
anybody can see, is wholly unreasonable, has a very
poor case, will assuredly blame some one other than
himself for his defeat and who will, if it be open to
him, sue his counsel in order to ventilate his
grievance by a second hearing, either issuing a writ
immediately after his defeat or brooding over his
wrongs until they grow greater with the passing
years and then issuing the writ nearly six years later
(as in the present case.
Per Lord Pearce Rondel vs Worsely (1969) HL
 I think it is right to say that the barrister’s
immunity from liability for professional
negligence in the conduct of litigation is an
exception from a general rule of
professional liability. It is based on public
policy. On order to show the recognised basis and
scope of the exception, I will cite some passages
from authoritative judgments.
Giannarelli v Wraith (1988) 165 CLR 543

 Giannarelli confirmed by a 4:3 majority the

existence of the advocate’s immunity from suit
for in-court work.
 Not surprisingly, this decision has been
criticised, particularly by those professionals who
‘contrast the imposition upon them of
ever more stringent obligations of care with
the immunity accorded by the law to its own
 Allen -v- Alfred MacAlpine and Sons Ltd [1968] 2
QB 259; [1968] 1 All ER 543 1968 CA

 The court described the peculiarly difficult

position of a solicitor sued for the negligence of
losing litigation for his client by reason of having
his client's claim struck out: "It is true that if the
action for professional negligence were fought,
the court which tried it would have to assess
what those chances were
Unprofessional or Unsatisfactory Conduct

 Rule 3(b) Digest :Some levels of appearance on press or

television not amounting to advertising soliciting or
attracting business unfairly
 Administering oaths to an official of an employer in
respect of the official duties of the employer Rule 4(i)
Digest
 Rule 8(b) Digest Sharing offices
 Rule 21 Digest Some claims against partners upon
dissolution
 Rule 23 Some extraneous activities
Unprofessional or Unsatisfactory Conduct

 Rule 29 Loans to government officials and

members of the judiciary
 Rule 31: Some firm names
 Rule 34 Digest Receiving fees in poor persons
litigation
 Rule 36 Digest Refusing to help a reporter with
necessary information
 Rule 36 Digest Encouraging ones publicity in the press
 Rule 41 Digest Smoking in court
 Part 8 - 2
The Case Against Immunity

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Arthur J.S Hall and Co. v Simons
(2000) 3 AER 673
 The lords re-evaluated the public policy
issues. The critical factor was the duty of
a barrister to the court under ss27(2a)
and 28(2A) courts and legal services act
1990 (inserted by s42 access to justice
act 1999).
 The question was whether the
immunity is needed to ensure that
barristers will respect their duty to
Arthur J.S Hall and Co. v Simons
(2000) 3 AER 673
 In 1967, the answer was that
assertions of negligence would tend to
erode this duty and accorded a
special status to barristers.
 Nowadays a comparison with
other professionals demonstrated that
barristers‘ immunity against
being sued in negligence was
anomalous
Arthur J.S Hall and Co. v Simons
(2000) 3 AER 673
 Allowing civil action as unlikely to
produce a flood of claims and, even if
some claims did emerge, a claimant
alleging that poor advocacy resulted in
an unfavorable outcome would face
the very great difficulty of
showing that a better standard of
advocacy would have resulted in a
more favorable outcome.
Arthur J.S Hall and Co. v Simons
(2000) 3 AER 673
 Thus, it was no longer in the public
interest that the immunity in favour
of barristers should remain in either
civil or criminal cases.
 This did not imply that Rondel v
Worsley was wrongly decided.
 But in today's world, that decision
no longer correctly reflected public
policy. The basis of the immunity of
 Rationale for no immunity

 Other professionals don’t have immunity

 The danger to advocates as officers of the court
was probably overstated
 The danger to the administration of justice
was probably overstated
 The demand for immunity longer reflects
public policy
819

STEPHEN MALLOWAH 2016 03/05/2025

ADVOCATE-CLIENT
RELATIONSHIP PART
2(DUTIES TO CLIENT)
DUTY OF LOYALTY
(1) CONFIDENTIALITY
Duty of confidentiality
Structure

 Confidentiality as a common law and fiduciary obligation

 Rationale
 Exceptions
 Advocate-client privilege
 Statutory underpinnings
 Scope
 Exceptions
 Remedies for breach/strategies for law firms
Objectives

 Define confidentiality
 Differentiate between the duty of confidentiality and privilege
 Define the scope of protection
 Justify the need for the duty of confidentiality and privilege
 Describe the exceptions to the duty of confidentiality and privilege
 Prescribe remedies for breach
 Advance suggestions for reform.
What is confidentiality?

 Duty of an advocate not to disclose communication

undertaken between the client and the advocate.
Broadly speaking the advocate is obligated to respect
the confidentiality of his client’s affairs.
 It is an ethical concept
 It is of essence of a lawyer’s function that the lawyer
should be told by his or her client information that the
client would not tell to a third party and the lawyer
should be the recipient of the information on the basis
of confidence. Without the certainty of confidentiality
there cannot be trust. Confidentiality is therefore a
primary and fundamental right and duty of the
What is confidentiality?

 Broadly speaking- you represent a

client in a divorce matter and
discover information about the
client’s relationship with the client’s
wife while talking to a neighbour, you
have a duty to keep that information
confidential.
Source

1. Common Law
2. Duty stems from fiduciary relationship that is established between
the advocate and client
3. Contract law- implied or expressed in the retainer
4. Equity- prohibits unauthorised use or disclosure of confidential
information
5. Agency law- advocate is agent of client and must work within the
scope of his authority
6. Professional rules eg Rule 20 of the Law Society Digest of Conduct
and Etiquette 2000
ABA 1.6

 “A lawyer shall not reveal information relating to the representation of a

client unless the client gives informed consent, or the disclosure is
impliedly authorised in order to carry out the representation…..”
Justification

 Enables full and frank disclosure

 Promotes the Advocate’s work as an officer of the court
 Promotes public confidence in advocates and their
work
 A constant reminder of the loyalty advocates owe to
their client
 Protects the human dignity of the client
 In criminal cases it is used to prevent the use of
tricked confessions and admissions
Full and frank disclosure

 Century Oil Trading Company Limited V Kenya Shell Limited

(2008 eKLR)
 Warsame J “ In my understanding and in its usual form an advocate-
client privilege is that a client is entitled to prevent an advocate from
using, in a manner adverse to a client’s case any knowledge or
information which the advocate has gained while acting on behalf of the
client. The purpose of such privilege is to promote openness
between lawyers and clients. Clients tend to believe that nothing
they say will be used against then to the advantage of their adversary.”
Officer of the Court

 Section 55 of Advocates Act

 Upjohn V United States, 449 U.S 383 (1981)- the court extended
privilege and reasoned that the doctrine was to encourage full and frank
communication between attorneys and clients and thereby promote
broader public interests in the administration of justice.
Public confidence in advocates

 Grant V Downs (1976) 135 CLR 674

 “the rationale for this head of privilege, according to the traditional
doctrine is that it promotes the public interest because it assists and
enhances the administration of justice by facilitating the representation
of clients by legal advisers, the law being a complex and complicated
discipline. This it does by keeping secret their communication , thereby
inducing the client to retain the solicitor and seek his advice and
encouraging the client to make a full and frank disclosure”
Duty of loyalty

 Duty of loyalty also includes effective representation: United States V

Hodge and Zweig Am 548 F 2d 1347
“….the client should make a full disclosure so that the advice given is
sound, so that the attorney can give all appropriate protection to the
client’s interest, and so that proper defenses are raised if litigation
results…”
Others

 Protects human dignity:

 Article 28 CoK
 Prevent tricked confessions:
 Eg if client discloses guilt to advocate, the disclosure cannot be divulged
by the advocate in furtherance of a confession or admission. See Digest
Rule 20
EXCEPTIONS

 Client authorization
 Disclosure compelled by law
 Disclosure ostensibly to support advocate’s interest
 Disclosure of information that is not confidential
 Disclosure for purposes of probate
 Client authorization
 As lawyer-client confidentiality exists for the benefit of the
client, the confidence is the client's to waive or modify. Hence,
the lawyer can reveal confidential information to third parties
where the client allows such an action. However, consent to allow
the disclosure of confidential information does not entitle the
lawyer to disclose or use the information for other purposes than
those specified by the client.
 The authorization does not necessarily have to be explicit. It can
be inferred from the terms or nature of the retainer agreement.
The idea that all information imparted within a retainer is
confidential is impracticable. Often, much of that information is
communicated so that it can be disclosed to dispose of a matter,
claim, or legal issue. Hence, where information is incidental to the
conduct of a retainer, client authorisation can be generally taken
as given. Nonetheless, where there is uncertainty, express
authority should be sought from the client.
 For the lawyer’s benefit
 Lawyers may disclose confidential information
relating to the retainer where they are reasonably
seeking to collect payment for services
rendered. This is justified on policy grounds. If
lawyers were unable to disclose such information,
many would undertake legal work only where
payment is made in advance. This would arguably
adversely affect the public's access to justice.
 Lawyers may also breach the duty where they are
defending themselves against disciplinary or
legal proceedings. A client who initiates
proceedings against a lawyer effectively waives
rights to confidentiality. This is justified on grounds
of procedural fairness - a lawyer unable to reveal
information relating to the retainer would be unable
 Compelled by law
 Where expressly provided for in statute, lawyers must comply with
any parliamentary requirement necessitating breach of the duty to
confidentiality.
 See section 17 of the Proceeds of Crime and Anti-Money
Laundering Act Cap 59B( “..provisions of the Act overrid e
obligations of secrecy or any restriction to disclosure of
information imposed by law or otherwise. No liability arises from
such disclosure)
 Lord Denning in Parry-Jones v Law Society said at 6-7:
 "the solicitor must obey the law, and, in particular, he must
comply with the rules made under the authority of statute for the
conduct of the profession. If the rules require him to disclose his
client's affairs, then he must do so." Statutory abrogation of the
duty is limited in scope and purpose however. Requirements are
never blanket decrees for the revelation of confidential
information. Rather they are based on upholding the public
interest, where such interests override client interests in
maintaining confidentiality”
Information is not confidential

 Clearly, information that is not confidential does not fall under the duty
of confidentiality. Disclosure of information that is already in the public
domain does not breach the duty. Further, information that was not in
the public knowledge at the time of the retainer agreement, is not
subject to the duty if it subsequently enters the public domain. The
purpose served by maintaining the confidence - the protection of the
client - is arguably extinguished.
 Nonetheless, the lawyer still owes a duty of loyalty, and clients may feel
betrayed if such information is disclosed, even if it becomes public
knowledge. Though there are no legal ramifications for disclosure,
discretion on part of the lawyer may be in the long term interests of
maintaining the propriety of the legal profession.
Probate

 Another case is for the probate of a last will and testament. Previously
confidential communications between the lawyer and testator are no
longer secret for the purpose of proving the Will is the intent of the now
deceased decedent. In many instances, the will, codicil, etc require
explanation or interpretation through other proof (extrinsic evidence),
such as the attorney's file notes or correspondence from the client.
 In certain cases, the client may desire or consent to revelation of
personal or family secrets only after his or her death; for example, the
Will may leave a legacy to a a child born outside wedlock.
Generally

 Duty continues even after representation ends

 Duty not only prohibits revealing of information but proscribes a
lawyer’s use of the information to the disadvantage of the client.
Statutory/evidentiary
privilege
Definition

 It is the evidentiary principle that confidential communications between

advocates and the representatives and clients that are made for the
purpose of obtaining or rendering legal advise or representation and not
in furtherance of a crime or fraud cannot be the subject of
compelled disclosure. The privilege belongs to the client
 An advocate may have a duty of confidentiality with regard to
information he has about his client but because the information is not
privileged he can be compelled to disclose it.
Advocate-client privilege

 United States V. United Shoe Machinery Corp. Civ A. United States

District Court D. Massachusetts.
 The Asserted holder of the privilege is or has sought to become a client
 The person to whom the communication is made is an advocate or his
representative
 The communication is a fact the advocate was informed by his client without
the presence of strangers and was for securing legal opinion, services or
assistance and not for committing a crime
 Privilege has been claimed and not waived by client.
Advocate privilege

 Evidence Act cap 80

134. (1) 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
Client privilege

 S137 No one shall be compelled to disclose to the court any confidential

communication which has taken place between him and his advocate
unless he offers himself as a witness, in which case he may be
compelled to disclose any such communications as may appear to the
court necessary to be known in order to explain any evidence which he
has given, but no others
Basics

 There must be an advocate, client

 A relationship of advocate client must exists
 Communication must be in the course of his employment as an
advocate
 Mentions communication privilege
 Litigation privilege
 Work product privilege
 Legal advise privilege
Scope

 S134 (2) The protection given by subsection (1) shall continue after
the employment of the advocate has ceased. The general rule is
“once privileged, always privileged”
 S135 Extends to interpreters, clerks and servants of advocates
 Exceptions
1. Client express consent (S 134)
134 (1) Provided that nothing in this section shall protect from
disclosure–
2. (a) any communication made in furtherance of any illegal
purpose;
3. (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.
4. S136(2) If any party to a suit or proceeding calls any
advocate, interpreter, clerk or servant as a witness, he shall
be deemed to have consented to such disclosure as is mentioned
in section 134 (1) only if he questions such witness on matters
which, but for such question, the witness would not be at liberty to
disclose.
Digest Rule 20

 Income Tax officials:

 Advocates not to disclose address of clients without authority or client
consent
 Not to disclose details of transactions without client’s consent or waiver
of privilege
 Commissioner of Income Tax agreed that S 61 of Income Tax(returns on
income received on behalf of another) will not apply to advocates
 If client is abroad then if asked for address, test is if it was a secret.
Digest Rule 20

 Police:
 Privilege is of client not advocate
 Object is to ensure client gives full and frank disclosure
 Advocate’s privilege not greater that client’s right eg if client cannot
forestall discovery then no privilege.
 No privilege in communications made in furtherance of a crime or fraud.
Communications made for purposes of a defence in criminal
proceedings is privileged.
 If in doubt, claim privilege
Constitution

 Article 2- limitation of rights

 Article 31-right to privacy
 Article 36- right to access information
Generally

 Information must be intended to be confidential-if given in presence of

unnecessary third parties then it is not privileged
 If advocate represents several clients jointly then privilege applies to
communication between clients and advocate. A joint client cannot
assert privilege to the detriment of others
 Inadvertent disclosure may or may not waive privilege.
Jurisprudence

1. R v Derby Magistrates' Court, ex p B [1996] AC 487

2. Minter -v- Priest [1930] AC 558 HL
3. Three Rivers District Council v Bank of England (No 5) [2004] 3 WLR 1274
4. United States of America, Appellant, v. Louis Leventhal et al., Appellees.
316 F.2d 341 No. 17107. United States Court of Appeals District of
Columbia Circuit Argued December 12, 1962. Decided January 24, 1963
5. United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358–59 (D.
Mass. 1950).
6. Privacy Commissioner of Canada vs Blood Tribe Health Department 2008
SCC 44
Jurisprudence
7. Esso Australia Resources Ltd v Commissioner of Taxation (1999) 168
ALR 123.
8. Republic v Minister for Finance & Commissioner of domestic taxes
Exparte LSK[2006] eKLR NRB HC MISC APP 644 of 2005 Nyamu J
9. Clark v. United States, 289 U.S. 1, 15 (1933)
10. Upjohn Co. v. United States, 449 U. S. 383, 389 (1981)
11. United States v. Bauer 132 F.3d 504 (9th Cir. 1997) vs. In re Grand Jury
Proceedings (1996) (9th Cir. 1996)
12. United States v. Hodge and Zweig a M 548 F. 2d 1347
Jurisprudence
13. Ogden v. London Electric Railway Co. (1933) 49 T.L.R. 542,
14. Campbell v United Kingdom [1992] 15 EHRR 137
15. R vs Peterborough Justices ex parte Wicks 1977 1 WLR 1371 1978 1
ALL ER 225
16. Alfred Crompton Amusement Machines v. Customs and Excise
Commissioners (No. 2) [1974] A.C. 405;
17. Birmingham Omnibus Co. Ltd. v. L.N.W.R. Co. [1913] 3 K.B. 850
18. Re Sarah C Getty Trust, Getty v Getty [1985] QB 956
Remedies for
breach
BREACH

•The case for immunity

•Burden and standard of proof
•Possibility of multiple and parallel proceedings
 Termination of the relationship
 Action in contract
 Action in tort
 Action in Equity
 Action in criminal law
 Professional remedies
 Fees disgorgement/forfeiture: giving up of fees
Remedies for breach

 Multiple options which can proceed simultaneously (see John

Kinyanjui vs R)
S 55 56 53 60 85 advocates act, s 193A CPC
1. Civil action for damages
2. A prayer for accounts
3. Taxation of costs
4. Criminal action
5. Professional sanctions at the Complaints Commission/Disciplinary
Committee and The Court
FORA

Civil proceedings’
Criminal proceedings
Complaints Commission
Disciplinary Tribunal
KNCHR
CAJ
Non formal or informal redress mechanisms
860

03/05/2025
ATP 105 Professional Ethics
- 2016
LECTURE 23 – HANDLING CLIENT MONEY
Course Instructor – Stephen Mallowah LLB, LLM, MSc
 Part 1
Introduction to Handling Client Funds

STEPHEN MALLOWAH 2016

03/05/2025 862
Introduction

 All lawyers know that it is wrong to convert client funds. And most
understand the importance of managing clients’ funds to avoid
commingling those funds with their own. Although proper
recordkeeping will not prevent theft by lawyers, and a dishonest
lawyer will find a way to take the money regardless of what
recordkeeping obligations they may have, these rare, but
scandalous cases, illustrate why the rules exist and why the
Disciplinary Committee may be strictly enforcing these rules.
 Lawyers must keep good records to trace the path of funds into
their accounts and out of their accounts so that defalcations can be
detected, and so that lawyers do not inadvertently co-mingle funds
or lose track of funds. Moreover, an effective recordkeeping system
will allow an advocate to monitor the conduct of employees and to
OTHER PEOPLE’S MONEY: A LAWYER’S OBLIGATION
TO SAFEGUARD PROPERTY BELONGING TO OTHERS

 In most common law jurisdictions, ethical rules require that funds

belonging to clients or third parties that are entrusted to a lawyer
be placed in a separate trust account to avoid commingling those
funds with the lawyer’s own money. Like the model rule, most
states’ rules describe what kinds of fees must be held in a client
trust account.
 Most require that a lawyer is required to “promptly deliver to the
client or third person any funds or other property that the client or
third person is entitled to receive and, upon request by the client or
third person, shall promptly render a full accounting regarding such
property.” Most also require that lawyers maintain specific kinds of
records related to the handling of such funds and that such records
are kept for a certain number of years.
Commingling of Funds

 Commingling occurs when a lawyer holds his or her own funds in

the same account that is holding client or third party funds.
Commingling is, itself, a violation of the ethics rules and may
subject a lawyer to discipline. Importantly, this commingling is
almost always a disciplinary offense even if none of the other
person’s money is stolen.
 It is not always clear, however, whether certain funds belong to the
lawyer or to their clients. For example, some fees are earned by the
lawyer as soon as they are paid, such as a non-refundable flat fee,
assuming this fee arrangement is allowed by local rules. Other fees
are merely advances on fees that the lawyer will earn as he or she
works on the matter.
 Commingling and Withdrawal

 Some jurisdictions, address this issue by specifying that no funds

belonging to the lawyer shall be deposited in a client trust account,
except for funds reasonably sufficient to pay account charges
imposed by the bank, or funds belonging in part to a client and in
part presently or potentially to the lawyer, such as advanced legal
fees and expenses. A lawyer may properly withdraw these funds
from a client trust account only as fees and expenses are earned,
unless the right to receive the funds is disputed by the client, in
which event the disputed portion shall not be withdrawn until the
dispute is finally resolved.
 Ethics rules also frequently address how client funds may be
withdrawn. Some jurisdictions prohibit withdrawals from client trust
accounts except to a named payee; payments in or to cash are
forbidden. Because these rules prevent lawyers from disbursing
money in cash form, it is inappropriate and in violation of the rules
Record Keeping

 In order to protect clients and others who give funds to a lawyer

for safekeeping, some jurisdictions impose rules on how client
trust account records are to be maintained. Some mandate that
lawyers retain contemporaneous records of each trust account
transaction necessary to document a transaction. Lawyers
commonly use one general ledger for all transfers for all clients.
 Some jurisdictions require that lawyers maintain a separate record
for each client for whom trust funds are received that documents
each receipt and disbursement, the identity of the matter for
which funds were deposited or disbursed, including a subsidiary
ledger for each client matter that documents each receipt and
disbursement of the funds of the client with respect to such
matter.
Good Recordkeeping

 While rules requiring lawyers to separately track in one ledger or

sub-account all financial transactions as to each client and
transaction are seemingly in the minority, practical considerations
warrant maintaining trust accounts in this manner.
 Certainly, maintaining records in this manner will require additional
bookkeeping at the front end. But doing so will make it easier for
lawyers and their staff to determine where the problem lies if there
is some type of discrepancy in the trust account later on.
Importance

 Understanding the requirements of the ethics rules applicable in

your jurisdiction. Knowing what your bar requires, as well as,
adopting practices and procedures designed to assure compliance,
is essential to avoiding legal malpractice or other civil liability and
disciplinary actions.
 Part 2
Advocates (Accounts) Rules, 1966

STEPHEN MALLOWAH 2016

03/05/2025 870
 Definitions

 “advocate” includes a firm of advocates;

 “client” means any person on whose account an advocate holds or
receives client’s money;
 “client account” means a current or deposit account at a bank or
with a building society or a financial institution (as defined in the
Banking Act (Cap. 488)) in the name of the advocate but in the title
of which either the word “client” or the word “trust” appears;
Client’s Money

 “client’s money” means money held or received by an advocate on account of a

person for whom he is acting in relation to the holding or receipt of such money
either as an advocate or, in connexion with his practice as an advocate as agent,
bailee, trustee, stakeholder or in any other capacity, and includes—
 (a) money held or received by an advocate by way of deposit against fees to
be earned or disbursements to be incurred; and
 (b) money held or received as or on account of a trustee, whether or not the
advocate is sole trustee or trustee with others,
 but does not include—
 (i) money to which the only person entitled is the advocate himself, or in the
case of a firm of advocates, one or more of the partners in the firm; nor
 (ii) money held or received by an advocate in payment of or on account of an
agreed fee in any matter;
 “money” includes banknotes, currency notes, bank drafts, cheques and any
Number of Accounts

 Rule 3. An advocate may keep one client account or

several client accounts as he thinks necessary.
 (Some jurisdictions insist on a separate account for each
client – good practice, but could be expensive)
Money to be paid into Client Account r.5

 (a) trust money;

 (b) such money belonging to the advocate as may be necessary
for the purpose of maintaining the account;
 (c) money to replace any sum drawn from the account in
contravention of these Rules; and
 (d) a cheque or draft received by the advocate which under rule
6 he is entitled to split but which he does not split.
Treatment of commingled payment r.6
 (1) Where an advocate holds or receives a cheque or draft which
includes client’s money—
 (a) he may where practicable split such cheque or draft and, if he
does so, he shall deal with each part thereof as if he had received a
separate cheque or draft in respect of that part; or
 (b) if he does not split the cheque or draft, he shall pay the
cheque or draft into a client account.
 (2) Money which is not client’s money but which is paid into a client
account other than under rule 5(b) shall be paid out as soon as
reasonably possible.
Money not necessarily payable into Client Account
r.8
 An advocate need not pay into a client account client’s money held
or received by him which—
 (a) is received by him in the form of cash, and is without delay
paid in cash in the ordinary course of business to the client or to a
third party; or
 (b) he pays in, without delay, to the credit of a separate account
opened or to be opened in the name of a client, trust or estate or of
some person nominated by the client; or
 (c) is received by him in the form of a cheque or draft and is,
without delay, endorsed over and delivered in the ordinary course
of business to the client or to a third party for or on behalf of or to
the use of the client and is not cashed or passed through a bank
account by the advocate.
Withdrawal from Client Account r.9

 (1) Subject to rules 10 and 12, an advocate may withdraw from a

client account—
 (a) money properly required for payment to the client;
 (b) money properly required for or towards a payment authorized
by the client; (c) money properly required for or towards a
payment on behalf of the client within the mandate of the advocate
in the matter or any of the matters in which he is acting for or on
behalf of the client;
 (d) money which he is transferring to a separate account opened
or to be opened in the name of the client;
 (e) money properly required for or towards payment of a debt
Withdrawal from Client Account r.9

 (f) money properly required for or towards payment of the

advocate’s costs where a bill of costs or other written intimation of
the amount of the costs incurred has been delivered to the client;
 (g) money paid into the account in contravention of these Rules;
(h) money paid into the account under rule 5(b); and
 (i) money not being client’s money paid into the account under
rule 6(1)(b).
 (2) Every cheque drawn upon a client account shall bear on its face
the words “client account” or “trust account”.
Prohibition against Overdrawing Client Account

 Rule10. In no circumstances may an advocate withdraw from a

client account any sum in excess of the amount held for the time
being in such account for the credit of the client in respect of whom
the drawing is proposed to be made.

 Also note that no other withdrawal can be made that is not set out
in r.9 unless the advocate applies to the LSK for authorization
Record keeping r.12

 (1) Every advocate shall at all times keep, properly written up, such
books of account as may be necessary to show—
 (a) every receipt by him of client’s money, for each separate
client; and
 (b) every payment or application by him of or from client’s
money, for each separate client; and
 (c) the amount held by him for the time being in a client account,
for each separate client; and
 (d) the moneys expended by him for, and the costs charged by
him to, each separate client.
 Books of Account

 (2) The books of account referred to in paragraph (1) shall

include—
 (a) either—
 (i) a cash book in which to record every transaction
involving client’s money or other money dealt with by the
advocate through a client account, and a separate cash
book in which to record every transaction involving the
advocate’s own money and relating to the affairs of his
clients; or
 (ii) a cash book ruled with two separate principal money
columns on each side, one such column for recording every
 Books of Account

 (b) either—
 (i) a ledger in which to record every transaction involving
client’s money or other money dealt with by the advocate
through a client account, and a separate ledger in which to
record every transaction involving the advocate’s own
money and relating to the affairs of his clients; or
 (ii) a ledger ruled with two separate principal money
columns on each side, one such column for recording every
transaction involving client’s money or other money dealt
with by the advocate through a client account and the other
recording every transaction involving the advocate’s own
 Manual or Computer?

 (3) A cash book or ledger required to be kept under this

rule may be a loose-leaf book.
 (4) In this rule, “cash book” and “ledger” include such
cards or other permanent records as are necessary for the
operation of a mechanical system of book-keeping.
Destruction Schedule r.14 and 15

 14. Every advocate shall preserve for at least six years

from the date of the last entry therein all books of account
required to be kept by him under rule 13.

 15. Every advocate shall take reasonable precautions to

ensure the safety of all books of account which he is
required by rule 14 to preserve, and in the event of any
such books being lost, destroyed or materially damaged,
shall forthwith give notice thereof to the Council, together
with a written report on the circumstances.
 Part 2
Advocates (Deposit Interest) Rules,
1967
STEPHEN MALLOWAH 2016
03/05/2025 885
Liability for Interest to Client

 Except as provided by these Rules an advocate is not

liable by virtue of the relation between advocate and
client to account to any client for interest received by the
advocate on moneys deposited in a client account being
moneys received or held for or on account of his clients
generally.
Investment of Client Funds

 3. When an advocate holds or receives for or on account

of a client money on which, having regard to all the
circumstances (including the amount and the length of
time for which the money is likely to be held), interest
ought in fairness to the client to be earned for him, the
advocate shall take instructions from the client
concerning the investment of that money.
 4. An advocate is liable to account to a client for interest
received on moneys deposited in a client account where
the moneys are deposited in a separate designated
account.
Separate designated account
 5. In these Rules “Separate designated account”
means a deposit account in the name of the
advocate or his firm in the title of which the word
“client” appears and which is designated by
reference to the identity of the client or matter
concerned.
 Part 2
Advocates (Accountant’s Certificate) Rules,
1967
STEPHEN MALLOWAH 2016
03/05/2025 889
Definitions

 “accountant’s certificate” means the certificate provided for by rule

3;
 “advocate” means any person whose name is duly entered upon
the roll of advocates but does not mean any person whose name is
duly entered upon the roll of advocates having the rank of Queen’s
Counsel;
 “the Council” means the Council of the Law Society of Kenya;
 “the secretary” means the Secretary of the Law Society of Kenya
and includes any person appointed temporarily to perform the
duties of the office;
 the expressions “client”, “client account”, and “client money”, have
Delivery of Accountant’s Certificate

 Every advocate shall once in every practice year deliver

to the Council a certificate signed by an accountant and
complying with these Rules.
 (1) An accountant is qualified to give an accountant’s
certificate if—
 (a) he has neither been at any time during the
accounting period, nor subsequently, before giving the
certificate, become a partner, clerk or servant of such
advocate or any partner of his; and
 (b) he is not subject to notice of disqualification under
Disqualification of Accountant

 (a) the accountant has been found guilty by the Disciplinary

Tribunal of his professional body of professional misconduct or
discreditable conduct; or
 (b) the Council is satisfied that an advocate has not complied
with the provisions of the Advocates (Accounts) Rules in respect of
matters not specified in an accountant’s certificate and that the
accountant was negligent in giving such certificate,
 the Council may at its discretion notify the accountant concerned,
that he is not qualified to give an accountant’s certificate, and it
may give notice of that fact to any advocate on whose behalf he
has given an accountant’s certificate, and after the accountant has
been so notified, unless and until the notice is withdrawn by the
Duties of Accountant

 (1) With a view to the signing of an accountant’s certificate an

accountant is not required to do more than—
 (a) make a general test examination of the books of account of the
advocate; (b) ascertain whether a client account is kept;
 (c) make a general test examination of the bank pass books and
statements kept in relation to the advocate’s practice;
 (d) make a comparison, as at not fewer than two dates
selected by the accountant, between—
(i) the liabilities of the advocate to his clients as shown by his
books of account;
(ii) the balance standing to the credit of the client account; and
 (e) ask for such information and explanations as he may require
arising out of (a) to (d) above.
Compliance with Advocates (Accounts) Rules

 (2) If after making the investigation prescribed by

paragraph (1), it appears to the accountant that there is
evidence that the Advocates (Accounts) Rules have not
been complied with, he shall make such further
investigations as may be necessary to enable him to sign
the accountant’s certificate.
Exempted Advocates

 (a) holds his first current practising certificate; or

 (b) after having for twelve months or more ceased to hold a
current practising certificate, holds his next current practising
certificate; or
 (c) delivers to the Council a statutory declaration stating that the
Advocates (Accounts) Rules did not apply to him because he had
not, during the period to which the declaration refers, practised on
his own account either alone or in partnership or held or received
client’s money; or
 (d) has ceased to hold a current practising certificate and, if he
has at any time after the 31st December 1967 held or received
client’s money, has delivered an accountant’s certificate covering
an accounting period ending on the date upon which he ceased to
 Case Law

 OTIENO-OMUGA & OUMA ADVOCATES VS CFC STANBIC BANK

LIMITED HCCC CIVIL SUIT NO. 75 Of 2012
 DCF ENGINEERING LIMITED v JOHARI LIMITED & MARYANNE NJERI
NJOROGE T/A NJOROGE NYAGAH & COMPANY ADVOCATES HCCC
CIVIL CASE NO. 376 OF 2013
 PROF. TOM OJIENDA SC T/A PROF. TOM OJIENDA & ASSOCIATES
ADVOCATES VS ETHICS AND ANTI-CORRUPTION COMMISSION& 5
OTHERS CONSTITUTIONAL PETITION NO. 122 OF 2015
897

STEPHEN MALLOWAH 2016 03/05/2025

 ATP 105 Professional
Ethics - 2016
LECTURE 20 – STATUTES THAT IMPACT THE LEGAL PROFESSION
Course Instructor – Stephen Mallowah LLB, LLM, MSc
 LESSON CONTENTS
 Over view of the legal profession
 Stakeholders in the legal profession
 The Constitution of Kenya, 2010 Chapters 10, 6, 13, 50
 Statutes that impact the legal profession
 IBA Code of Conduct
 LSK Act
 Advocates Act
 Legal Education Act
 Kenya School of Law Act
 LSK Digest of Professional Conduct and Etiquette (2000)
 Judicial Services Act
 Contents
 UN Principles of Judicial Independence
 Bangalore Principles of Judicial Conduct
 Common wealth Latimer House Principles
 Public Officers Ethics Act
 Anti-corruption and Economic Crimes Act
 Leadership and Integrity Act
 Director of Public Prosecutions Act
 Prosecutors Code of Conduct and Ethics
 National Prosecution Policy
 Effect of the impact
 Proposals for reform
 Part 1
Overview of the Profession

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 Legal Profession

 Legal profession is made of practising and non-practising lawyers.

Current no of practicing lawyers are about 7,000(LSK Website) We do
not have formal numbers of non-practising lawyers
 The career paths in legal profession include:
 Private practice- Advocates who represent clients in legal matters.
Need PCs
 Public Service- Judiciary, AG (State Councils),Judges, Magistrate,
Registrars, corporation/company secretaries, Legal Officers, town
clerks, NA clerks and staff, legal tribunals etc. Those working under
AG and the bench need not take PC. Public Servants are bound by
Public Officer Ethics Act
 Civil Society- eg Kituo Cha Sheria, FIDA(K), COVAW
 Commerce and Industry- Insurance companies, banks, etc
 Part 2
Stakeholders

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03/05/2025 903
 Stakeholders

 Advocates
 Clients
 Public
 Public Servants
 Judiciary
 Attorney General
 Prosecution
 Law schools
 Part 2 - 1
Advocates

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 Advocates (In private Practice)
 Constitution, Article 46 (consumer rights)
 LSK Act
 Advocates Act
 LSK Digest of Professional Conduct ad Etiquette(2000)
 Advocates Remuneration Order
 Advocates Disciplinary Committee Rules
 Advocates (Practice) Rules
 Advocates (Accountant Certificate) Rules
 Advocates (Accounts) Rules
 Advocates (Practising Certificate Fees) Rules
 Advocates Continuing Legal education Regulations
 Part 2 - 2

Public Servants
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03/05/2025 907
 Public Servants
 Chapter 6 of Constitution
 Leadership and Integrity Act
 Public Officers Ethics Act
 Organizational code of Ethics
 Anti-corruption and Economic Crimes Act
 Certified Public Secretaries Act
 Public Officers Ethics Act

 S 2 :Definition of Public Officer- Any employee of:the

Government or any department, service or undertaking of
the Government; the National Assembly or the
Parliamentary Service;a local authority;any corporation,
council, board, committee ,undertakings of public utility
or otherwise to administer funds belonging to or granted
by the Government or money raised by rates, taxes or
charges in pursuance of any such law; a co-operative
society established under the Co-operative Societies
Act;a public university; any other body prescribed by
regulation
 Guiding Principles part III
 Professionalism, confidentiality
 Rule of law
 No improper enrichment gifts given in official capacity of certain value to be
surrendered to the state.
 Conflict of interest
 Not use office for collection of harambee
 No acting for foreigners
 Care for property
 Political neutrality
 Nepotism
 Give honest and impartial advise
 No misleading the public
 Conduct private affairs away from office
 No sexual harrassment
 Public servants
 Wealth declaration
 Reporting improper orders
Anti-corruption and Economic Crimes Act
 Corruption offences
 Bribery of agents, secret inducement for advice, deceiving
principle, conflict of interest, inducement to trustees for
appointment, bid rigging, mismanages property, pays for
substandard goods, dealing with suspect property
 bribery; fraud; embezzlement or misappropriation of public
funds; abuse of office; breach of trust; or an offence involving
dishonesty —(i) in connection with any tax, rate or impost
levied under any Act; or (ii) under any written law relating to
the elections of persons to public office
 Part 2 - 3

Prosecution
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 OFFICE OF THE DIRECTOR OF PUBLIC
PROSECUTIONS
 Articles 157 & 158 of the Constitution establishes the office and gives
mandate-S4 of The office of the Director of Public Prosecutions Act no 2 of
2013
 Institute and undertake criminal proceedings against any person in
any court
 Take over and continue criminal proceedings
 Discontinue criminal proceedings before judgement with leave of court
 DPP has tenure of 8 years
 DPP has powers to order IG to carry out investigations
 S 6 of ODPP Act- Independence of prosecutor
 S15-protection from personal liability for work done in good faith
 DPP may delegate to prosecution counsel and other prosecutors in his
office or advocates in private practice appointed under s 30
 NATIONAL PROSECUTION POLICY
 Provides guidelines for all public prosecutors
 Duties of prosecutor
 Independent, fair, effective
 Prosecutions based on merit and in accordance with the law
 Decisions to be professional and impartial
 Prosecution on adequate evidence and justified in public
interest
 Timely, effective and efficient prosecutions
 Consistency of decisions to prosecute
 Conduct of prosecutions with impartiality
 Treat all persons including accused fairly

Prosecutorial Discretion/ Independence

 In deciding whether or not to prosecute a

prosecutor should bear in mind that:
 “ he or she is an officer of the court and has
a duty to be fair, independent and objective.
A prosecutor must not allow his or her
decision to prosecute or conduct of a
prosecution to be influenced by improper or
undue influence from whatever source”
 Non-discrimination

 A prosecutor must ensure that

 “ he or she performs his/her duty professionally and
on a non-discriminatory basis. Personal prejudices
and/or opinions regarding a person’s colour, race,
ethnic background, gender, religious beliefs,
political views or any other analogous matter or
traits are illegal, unconstitutional, ultra vires the
authority to prosecute and professionally
inappropriate.”
 Coercion

 A prosecutor should not proceed with more

charges to encourage the accused to plead guilty
to a few or proceed with serious charges to
encourage the accused to plead guilty to a lesser
charge
 It is not their duty to obtain a guilty plea at all
costs but to prosecute the case diligently.
 APPOINTMENT/REMOVAL FROM
OFFICE
 Nomination by selection panel nomination

 President forwards National Assembly

Approves President appoints
Removal from office- Art 158 of the Const.- inability to perform,
non-compliance with chapter 6, incompetence, gross misconduct
or misbehavior through a petition to PSC. PSC will appoint a
tribunal to hear the matter
 Prosecution
 Chapter 6 of Constitution, Article 157(exercise
prosecutorial powers of the state).
 Leadership and Integrity Act
 The Office of the Director of Public Prosecutions Act
 National Prosecution Policy
 Prosecutor’s Code of Conduct and Ethics
 Article 50- rights of arrested persons
 Public Officers Ethics Act
 Anti-corruption and Economic Crimes Act
 Part 2 - 4
Judiciary

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 Judiciary
 Constitution Article 159-173
 Independence-Article 160
 Judicial Service Act
 Code of Conduct for Judges and Magistrates
 UN Principles of Judicial Independence
 Bangalore Principles of Judicial Conduct
 Common wealth Latimer House Principles
 Bangalore Principles
 An informal group of Chief Justices and Superior
Court Judges from around the world (later known
as the Judicial Integrity Group), which led to the
adoption of the famous Bangalore Principles of
Judicial Conduct (2002)
 Has several values adopted by various nations
including Kenya
Principles

 Value 1: INDEPENDENCE
 Principle:
 Judicial independence is a pre-requisite to
the rule of law and a fundamental
guarantee of a fair trial. A judge shall
therefore uphold and exemplify judicial
independence in both its individual and
institutional aspects
 Principles

 Value 2:
 IMPARTIALITY
 Principle:
 Impartiality is essential to the proper discharge of
the judicial office. It applies not only to the
decision itself but also to the process by which the
decision is made.
 Principles
 Value 3:
 INTEGRITY
 Principle:
 Integrity is essential to the proper discharge of the
judicial office.
Principles

 Value 4:
 PROPRIETY
 Principle:
 Propriety, and the appearance of propriety,
are essential to the performance of all of
the activities of a judge.
 Principles

 Value 5:
 EQUALITY
 Principle:
 Ensuring equality of treatment to all before the
courts is essential to the due performance of the
judicial office.
Principles

 Value 6
 COMPETENCE AND DILIGENCE
 Principle:
 Competence and diligence are prerequisites to the
due performance of judicial office.
THE CONSTITUTION, THE STATUTE LAW, AND
THE FRAMEWORK FOR JUDICIAL ETHICS
 The foundation is the Constitution of Kenya, 2010, a document of the
primary character which I had the occasion, judicially, to thus typify [in
Joseph Kimani Gathungu v. The Attorney-General & The
International Criminal Court, Mombasa H.C.Const.Ref.Appl.No.12 of
2010]:

"A scrutiny of the several Constitutions Kenya has had since
Independence shows that, whereas the earlier ones were designed
as little more than a regulatory formula for State affairs, the
Constitution of 2010 is dominated by a ‘social orientation', and as
its main theme, ‘rights, welfare, empowerment', and the
Constitution offers these values as the reference-point in
governance functions. Such a public-values orientation, in my
opinion, readily interfaces with the objectives of international law…."
 CONSTITUTIONAL BASIS
 Art. 159-173
 Independence guaranteed by Art. 160
 Protection from liability for work done in good faith (Art.
160(5))
 President appoints CJ, DCJ in accordance with
recommendations of JSC and approval of NA
 Judges in accordance with JSC recommendations
 CJ & Supreme Court judges qualifications 15 years
experience, 10 years for CA and HC
 CJ in office for 10 years
 Framework
 The relevant provisions are set out in Chapter 6 of the Constitution, bearing the rubric,
"Leadership and Integrity". Judges and Magistrates are named as "State officers" (Art.
260). The mandate of all State officers "is a public trust" (Art.73(1)(a)); and all such
officers carry "the responsibility to serve the people, rather than the power to
rule them" (Art.73(1)(b)). The most basic principles to guide such officers are expressly
stated (Art.73(2)):

"The guiding principles of leadership and integrity include -

 a) ……
 b) objectivity and impartiality in decision-making, and in ensuring that decisions
are not influenced by nepotism, favoritism, other improper motives or corrupt
practices;
 c) selfless service based solely on the public interest, demonstrated by -
 d) honesty in the execution of public duties; and
 e) the declaration of any personal interest that may conflict with public duties;
 f) accountability to the public for decisions and actions;
 g) discipline and commitment in service to the people."
Avoidance
 The Constitution (Art.75) makes specific provisions
regarding "conduct of state officers"; it
provides that "a State officer shall behave,
whether in public and official life, in private
life, or in association with other persons, in
a manner that avoids -
 1. any conflict between personal interests
and public or official duties;
 2. compromising any public or official
interest in favour of a personal interest; or
Discipline

 In cases of breach, Art. 75 provides for the application of

appropriate disciplinary procedures as laid down by law,
in respect of the relevant category of State officer.
Article 75(2) of the Constitution is cast in general terms,
regarding disciplinary measures to be taken against
State officers who are in breach of the rules of ethics; and,
as regards the Judiciary, this leaves it to other provisions of
the Constitution and to statute law, to provide for specific
measures of "discipline". But an initial examination of such
other provisions gives the impression that "discipline,"
as opposed to "removal," is not contemplated for Judges.
 Removal
 Article 168 of the Constitution provides for the removal of
Judges:

"(1) A judge of a superior court may be removed from

office only on the grounds of -
 1. inability to perform the functions of office arising
from mental or physical incapacity;
 2. a breach of a code of conduct prescribed for judges
of the superior courts by an Act of Parliament;
 3. bankruptcy;
 4. incompetence; or
 5. gross misconduct or misbehavior."
Discipline
 The Judicial Service Act, 2011 (Act No. 1 of 2011) carries detailed
provisions on "Appointment and Removal of Judges and
Discipline of Other Judicial Officers and Staff" (Part.V), and this
signifies that whereas the Judicial Service Commission is empowered
(s.32) to subject "judicial officers" to disciplinary procedure,
"judges" are only subject to investigation by a tribunal appointed by
the president, in relation to the sanction of removal (Art.168(5) of the
Constitution; s.31 of the Judicial Service Act). The Act defines "judge"
as "the presiding officer of a superior court" (s.2); and "judicial
officer" as follows:
 "'judicial officer' includes a registrar, deputy registrar,
magistrate, Kadhi or the presiding officer of any other court or
local tribunal as may be established by an Act of Parliament,
other than the courts established to hear and determine
disputes relating to employment and labour relations and the
Judicial Service Code of Conduct and Ethics,
2003 (Legal Notice No 50 of 2003).

The Bangalore Principles, constitute the

contemporary international standard.
The Kenyan Code was established in 2003 by the
Judicial Service Commission in terms of section 5(1)
of the Public Officer Ethics Act 2003. That section
requires each commission responsible for a public
service sector to establish a specific code of conduct
and ethics for the public officers for which it is
responsible.
 Challenges in judicial ethics
 On the question of the range of disciplinary measures that may be
taken against a Judge, the Ouko Report (2010) stated (p.28):

"Disciplinary action should generally follow complaints that do

not warrant the removal of a Judge from office. Such grounds
include less serious misconduct, misdemeanor or unprofessional
conduct. Under the current legal framework, the Constitution
provides for the procedures for removal of Judges only, and there
are no equivalent procedures for disciplinary action against a
Judge for misconduct not warranting removal…The effect is that
disciplinary control over Judges is the responsibility of the Chief
Justice as the head of the Judiciary. However, this role is exercised
in a limited manner, and is discretionary, for instance, through
transfers, withdrawal of official work, refusal to grant permission
to attend conferences or workshops or refusal to grant leave."
 Recommedation

 Ouko Task Force is recommended (p.29):

"A Complaints Sub-Commission of the JSC be

created to continuously receive, investigate,
evaluate and act upon complaints against
Judges, other judicial officers and staff."
EMERGING JUDICIAL-ETHICS ISSUES

 Against the background of the main principles on

judicial ethics - independence, impartiality,
integrity, propriety, competence and diligence -
the reality which causes the public's lack of
confidence in the Judiciary takes the following
forms: unfair decisions; bias; conflict of
interest; repulsive judicial conduct;
corruption; collusion; disreputable
associations; unwarranted exclusion from
the seat of justice.
 Emerging issues

 A quality-quantity conflict, and personal

commitment
 Personal attitude, and goals of ethics
 Institutional arrangements, and judicial ethics
 Peer-review and preliminary issues of ethics
Judicial Ethics and Judges’ Conduct: The
Complaints Mechanism
By The Hon. Justice (Prof.) Jackton B. Ojwang Judge
of the Supreme Court of Kenya 2011.
941

STEPHEN MALLOWAH 2016 03/05/2025

ATP 105 Professional Ethics -
2016
LECTURE 21 – THE ADVOCATES FIRM
Course Instructor – Stephen Mallowah LLB, LLM, MSc
ORGANIZATION

▪ Sole proprietorships
▪ General partnerships
▪ Limited liability partnerships
PARTNERSHIPS ACT

▪ “partnership” means the relationship which exists

between persons who carry on business in common with a
view to making a profit;
▪ “partnership agreement” means an agreement between,
persons carrying on business in common with a view to
making a profit;
▪ Liability of partners
▪ (1) Each partner in a partnership has unlimited liability.
▪ (2) To be a limited partnership, a partnership shall have—
▪ (a) one or more general partners, each with unlimited
liability; and
▪ (b) one or more registered limited partners, each with
limited liability
 GENERAL PARTNERSHIPS
▪ 7. The carrying on of partnership business
▪ (1) Each partner in a partnership shall have responsibility for the business of
the partnership.
▪ (2) A partnership shall be capable of—
▪ (a) suing and being sued in its own name;
▪ (b) entering into contracts and owning or holding property for the purposes of
the business of the partnership; and
▪ (e) subject to the partnership agreement, providing continuity for the
▪ partnership business despite a change in the partners.
▪ (3) Each partner shall be an agent of the partnership for the purpose of the
▪ business of the partnership.
▪ 8. Partnership to have unlimited capacity
▪ (1) Subject to section 9, the capacity of a partnership as a legal
person is
▪ unlimited.
▪ (2) A partnership shall not employ a partner as an employee of the
firm.
▪ 9. Incapacity to commit offences
▪ A partnership is not capable of committing an offence except so far
as is
▪ provided under any written law.
LIMITED LIABILITY PARTNERSHIPS ACT OF 2011 AND LAW
FIRMS

▪ S 6(2) On being registered the LLP becomes a body

corporate with perpetual succession with a legal
personality separate from that of its partners
▪ S10 a person is not personally liable directly or indirectly
for an obligation referred in subsection one only because
they are limited partners
▪ A partner is not solely liable for the wrongful act or
omission of another partner of the LLP
▪ Liabilities of an LLP are payable out of the properties of
the LLP
▪ LLP has a legal personality separate from the
individual partners and liability of the LLP is limited
to its property
ISSUES WITH LLPS

▪ S 2 Advocates Act- Who is an advocate?

▪ S 9- qualifications to act as an advocate
▪ S 31- no unqualified person shall act as an advocates
▪ S 34- no unqualified person shall take instructions or draw up
certain documents
Can a firm registered as an LLP do these things?
Partnerships under the Partnerships Act enable the partners to carry
out their work as advocates, the LLP Act separates the legal entity of
the LLP from the partners
S 46(b) of the Advocates Act condemns agreements limiting liability
for negligence by advocates as invalid
▪ There is an advantage to members to limit liability of the
firm but the legal framework must be changed to
accommodate this
NAMES OF FIRMS

▪ Trend of registering initials of partners. Is this proper?

▪ Rule 12 of the Advocates practice rules- a firm should be
named after its present or past members
▪ Council has power to waive this condition under rule 14
but leave must be sought before registration of the same.
 PRESENTATION
ON THE
MECHANISMS
OF THE law
society of
KENYA SCHOOL OF LAW kenya
DISCIPLINARY
COMMITTEE
PROFESSIONAL CONDUCT:

 Professionalconduct refers to the conduct, character

and behaviour befitting members of the profession i.e.
conduct which reflects the very dignity and integrity of
the profession. Most of the rules of conduct are based
on common sense and elementary principles of
honesty and decency. Conduct which goes against
these rules is either professional misconduct or
unprofessional conduct.
 BosireJ. on professional conduct likened an advocate
to a High Priest of the Old Testament. It stated that it’s
noteworthy that a person had to be morally upright to
serve in the Temple and that is what is expected of an
advocate, a person without blemish morally or
personally. They are expected to maintain this moral
uprightness throughout in their dealings with their
clients.
 Professional misconduct amounts to a disciplinary
offence and is the more serious of the two and amounts
into drastic action being taken against the offending
advocate. Conduct such as embezzling client’s money or
failing to file court papers after being instructed. Offences
which are likely to lead to the advocate being struck from
the roll, suspended from the roll or fined. Professional
misconduct includes professional incompetence which is
detrimental to the administration of justice and which
tends to bring the profession into disrepute.
 Both in law and in ordinary speech the term “misconduct”
usually implies an act done willfully with a wrong intention
and as applied to professional people. It includes
unprofessional acts even though such acts are not
inherently wrongful.
 If its shown that an Advocate in the pursuit of his profession
has done something with regard to it which would be
reasonable regarded as disgraceful or dishonorable by his
professional brethren of good repute and competency, then
it is open to say that he’s guilty of professional misconduct.
 Unprofessional conduct is of a lesser effect and does not
amount to a disciplinary offence yet it is conduct which is
not approved and which is considered reprehensible.
 It also covers conduct outside the profession for example
it is reprehensible for advocates to keep the company of
prostitutes for example or to engage in business which
are not considered to be morally acceptable. The
argument or rationale is that the profession must be
manned by people whose integrity is beyond reproach.
A distinction is therefore made between unprofessional
conduct and professional misconduct.
 Professional misconduct amounts to a disciplinary
offence and is dealt with by the disciplinary
Committee.
 Unprofessional conduct is a breach of etiquette and its
of a less serious mature and is dealt with by the
Advocates Complaints Commission
 There are rights of the clients which an advocate must
strive to protect. There are rights of the opposite party
which the advocate is expected to respect and
therefore not trample upon. The advocate is expected
to have the appropriate training law degree etc and at
the same time to possess essential qualities and
professional techniques of dealing with a wide
spectrum of legal problems that he is asked to handle
from time to time.
Complaints against Advocates
 Advocates and lawyers are subject to the laws of the
land just like any other citizen. Accordingly, they are
liable for any breach of the law in the same manner as
any other person. Besides the law, advocates and
lawyers have a higher calling to observe a strict code
of professional conduct and etiquette in their dealings
with clients, colleagues and members of the public.
 Breach of the code amounts to professional
misconduct for which an aggrieved person may lodge a
complaint.
 The complaint should be in writing and supported by
relevant documentary or other evidence.
 Where the Disciplinary Committee is of the opinion
that the facts do not disclose any prima facie case of
professional misconduct it may dismiss the complaint
before hearing the complainant.
 The Disciplinary Committee was established under Section
57 of the Advocates Act and have powers to discipline any
Advocate.
 It consists of the Attorney General as its Chairman, the
Solicitor General or some other person deputed by the
Attorney General, and six advocates of not less than
ten(10) years standing. The Committee may act as a
tribunal of either three or five members. The Committee
sits largely as a court but with a bit of relaxation regarding
the strict rules of evidence.
 Section 60 provides for the procedure for dealing with
complaints against advocates.
 The complaint should take the form of an affidavit on
oath setting out the allegation of professional
misconduct and may be made directly to the
committee or through the LSK or the Advocates
Complaints Commission.
 Every advocate is subject to the jurisdiction of this
Committee. The Secretary of the Law Society of Kenya
servers as the secretary to the Committee. The
Secretariat is housed by the LSK and serves as the
administrative arm of the Committee. Its receives the
framed charges from the Advocates Complaints
Commission, sets them down for plea and undertakes
service of the process upon advocates. It is also in
charge of ensuring compliance with orders of the
Committee.
FUNCTIONS OF THE TRIBUNAL
 The tribunal hears and determines disciplinary charges
against the legal and conveyancing profession.
 These charges are referred to it by Advocates
Complaints Commission, which is a department within
the Attorney General’s Chambers or the Law Society of
Kenya.
 Inpractice, most complaints are dealt with by the
Advocates Complaints Commission and the matter will
normally be taken to the Disciplinary Committee if it is
of a serious nature or if it involves professional
misconduct on the part of the advocate.
Hearing Procedures

 Where the Tribunal is to hear an application or

disciplinary matter, it will convene with a panel
comprising a Chair and two practitioner members.
 The Tribunal normally hears matters in Nairobi.
 Hearings are normally open to the public and the
Tribunal's decisions are published as part of its
website.
 Atthe hearing itself, the Tribunal acts in the
same way as a court, under the control and
direction of the Chair. Parties to the proceedings
are usually represented by counsel, although
sometimes practitioners represent themselves.
 Evidence, which is usually filed in advance by affidavit,
will be considered at the hearing. The affidavit
evidence and general submissions on the key issues
are normally made by or on behalf of the parties
involved.
 Atthe conclusion of the hearing the Tribunal will either
deliver its decision or, and more usually, will reserve its
judgment and issue a written decision in due course.
Decisions will normally be issued within a few weeks,
but complex cases can take a little longer.
POWERS OF THE TRIBUNAL
 After considering the evidence adduced before it, the
Committee, if it considers that a case of professional
misconduct has been made against an advocate, may
impose a combination of the following orders against
the Advocate;
Penalties under the Advocates Act
 Where a complaint is established against an advocate
the penalty or punishment may consist of:
 Admonishment: This is also known as private
reprimand. This declares the conduct of the advocate
improper but does not limit the advocate’s right to
practice.
 The Disciplinary Committee can follow the doctrine of
“progressive discipline” when dealing with charges less
serious than those warranting immediate suspension
or striking out.
 Thisdoctrine provides for successively harsher
penalties for repeated disciplinary problems involving
the same advocate. First offences which routinely
result in relatively minor penalties can eventually
result in suspension or striking out where the advocate
does not correct her or his behaviour or performance
and is charged numerous times for repeated offences.
 Suspension: This is the removal of an advocate from
the practice of law for a specified minimum period of
time. It should be for a period of time not greater than
five years.

 Theadvocate having completed serving his suspension

should not be permitted to return to practice until he
has completed a restoration process demonstrating
rehabilitation and fitness to practice law.
 Striking off the Roll: This terminates the individual’s
status as an advocate. This isn’t permanent and an
advocate who has been struck off may apply for
restoration, provided that:

 Noapplication should be considered for five years from

the effective date of striking off the roll.
 Theadvocate has complied with or fulfilled all
sanctions imposed and

 Thepetitioner must show by clear and

convincing evidence, rehabilitation and fitness to
practice law.
Other Sanctions and Remedies

 This
includes:
Assessment of Costs:

 Costs,witness expenses and expenses of the

Disciplinary Committee or its member may also be
awarded against the accused advocate.
 Thesentencing in the Disciplinary Tribunal is governed
by Section 60 (4) and (5) of the Advocates Act.

 Disciplinary violations must either be admitted or

proven by clear and convincing evidence. In most
instances, advocates do not dispute the factual basis
of the complaint and are more concerned with what
discipline is warranted.
 After misconduct is established, the first determination
is what levels of discipline is appropriate for that
conduct and then apply any aggravating and mitigating
circumstances to rise or lower the level of discipline.

 While imposing a sentence the tribunal ensures that

the penalties and sanctions are fair and consistent with
discipline imposed upon other advocates who
committed similar offences.
 The practice record of the advocate may be considered
in fixing the sanction, but those facts constituting the
relevant history should either be introduced in
evidence in the disciplinary proceeding on the
understanding that they will be considered regarding
penalty only or may be introduced in mitigation after
the judgment on notice to the advocate.
 The prior record and offences of the Advocate are considered
as factors in aggravation and mitigation of sentence.

 The most common aggravating factor in advocate

discipline cases is:

 an advocate’s prior discipline history, especially if that

conduct is similar or recent.

 Non-co-operation with the disciplinary process

 Dishonest or selfish motive;

 A pattern of misconduct;

 Multiple offences;

 Bad faith, obstruction of the disciplinary proceeding by intentionally

failing to comply with rules or orders of the disciplinary tribunal;

 Submissions of false evidence, false statements or other deceptive

practices during the disciplinary process;
 Refusal to acknowledge wrongful nature of conduct;

 Vulnerability of victim

 Substantial experience in the practice of law;

 Indifference to making restitution;

 Illegal conduct, including that involving the use of controlled

substance.
 Mitigating considerations or factors that may justify a reduction
in the degree of discipline to be imposed are:

 Absence of prior disciplinary record;

 Absence of a dishonest or selfish motive;

 Personal or emotional problems;

 Civic or pro bono activities

 Timely good and faithful effort to make restitution or to rectify consequences
of misconduct;

 Character and reputation;

 Physical disability;

 Mental disability or chemical dependency including alcoholism or drug abuse

 Remorse

 Inexperience in the practice of law;

DCC NO. 61 OF 2000
 Facts
 This
was a complaint for the recovery of funds
from the Accused Advocate. The Accused
Advocate failed to file a response. The complaint
proceeded for hearing exparte. The Advocate was
found guilty of the charge on 6th September 2004.
 Charge
 Failure to account to the claimant for Kshs. 157,200/-
amounts recovered in Thika case amount received on
behalf of the complainant.
 In mitigation, the Advocate request for leniency he
apologized and averred that he was obligated to pay
the money and would do so.
 Sentence
 He was Suspended as it was a serious case.
 Ordered to pay Kshs. 242,650/- to the complainant
with interest.
 Reinstated to the Roll of advocates upon satisfaction of
the terms of repayment.
DCC NO. 66 OF 03

 Charge
 Failure to render professional services to the complainant in Nairobi
case.

 Failed to release the file relating to the suit to the complainant society
or its new Advocate hence delaying the suit.

 The accused Advocate failed to file a Replying Affidavit.

 The accused Advocate failed to file a Replying Affidavit. He was found

guilty of the charges.
 Sentence
 Considering the facts of the matter, we believe that
the accused is not discharging his professional duties
with the seriousness it deserves. Also that his history
as stated attests to his behaviour. Accordingly we find
that he should be suspended for 24 months.
 Accused was to return the file to the client.
DCC NO. 235 OF 2004

 Facts

 Claimant engaged the services of the accused Advocate in a

conveyance.

 Accused Advocate paid Kshs. 3,285,000/- to retain as a

stakeholder to hold in trust for the benefit of the claimant on
a strict professional undertaking not to release the said sum
to the claimant or appropriate for any purpose or meddle with
the same until completion of the registration of the transfer.
 Oncompletion of the registration of the transfer
unlawfully failed to release the entire balance of the
purchase price.

 HerReplying Affidavit confirmed that she owed the

entire sum and prayed to settle the sum in
instalments.
 Charge

 Accused utilised and appropriated for herself and for her own
benefit the sum of Kshs. 1,185,000/- tendered to her on
behalf of the complainant her client.

 The accused had fraudulently breached a trust by utilizing

and appropriating for herself the balance of the purchase
price she was holding for the benefit and on behalf of the
complainant.
 Shehad abused her position as trustee by so utilising
and appropriating the sum.

 Theaccused unjustifiable failure to pay over to the

complainant the sum of Kshs. 1,185,000/-
notwithstanding the claimant demanded for it and
legal proceedings instituted to recover the same
amounts to dishonourable behaviour and professional
misconduct.
 Shehad abused her position as trustee by so utilising
and appropriating the sum.

 Theaccused unjustifiable failure to pay over to the

complainant the sum of Kshs. 1,185,000/-
notwithstanding the claimant demanded for it and
legal proceedings instituted to recover the same
amounts to dishonourable behaviour and professional
misconduct.
DCC NO. 144 OF 1998

 Facts

 Purportedto execute on behalf of the complainant's

daughter, without authority a discharge voucher for
Kshs. 218,600 in respect of the settlement of an
accident claim of RMCC of 6993/95
 Collected
from United Insurance Company the sum of
Kshs. 218,600 on behalf of the complainant's daughter
without authority of the complainant.

 Failedto account to the complainant or his daughter

for the sum in damages and the interest thereof
received by the advocates from the settlement of the
accident claim in RMCC NO. 6993/95.
 Charge
 Purporting
to execute the Discharge Voucher on behalf
of the complainant's daughter.

 Collectedfrom United Insurance Company the sum of

Kshs. 218,600 on behalf of the complainant's daughter
without the Complainant’s knowledge or authority .
 Failed to account to the complainant properly or at all for the
damages, interest and costs of Kshs. 218,600/- received by
the Advocate on behalf of the claimant’s daughter.

 Issued to the claimant’s wife cheques which were

dishonoured.

 Failed to comply with Rule 9(2) Advocate Accounts rules by

omitting the words ''Client Account'' or ''Trust Account'' from
the face of the two cheques.
 Sentence
 1st charge - Refund the sum of Kshs. 218,600/- with
interest at the rate of 12% per annum;
 2nd charge-fined Kshs. 10,000/-
 3rd charge -fined Kshs. 10,000/-
 Under all the counts struck off the Roll of
Advocates.
 Cost of Kshs. 5,000/-
 He further affirmed that once the plot is identified not
later than 30th June 2012, the complainant will have
the potion of taking up the alternative plot or taking up
his refund. There is no evidence in this complainant to
prove that the Respondent either honoured the said
promise or refunded the amount that he was holding
as a stakeholder.
DT NO. 6 OF 2013- UNDERTAKINGS

 Facts:
 theRespondent Advocate was furnished with
instructions to act for Y the vendors whilst the
Complainant acted for Z the purchasers in the
purchase of a property. In furtherance of these
instructions the Complainant’s clients deposited with
the Respondent the sum of Kshs.950,000/- which was
the 10% deposit of the purchase price.
 Subsequent to this deposit the Respondent avers in
per paragraph 5 of his Replying Affidavit, the
Complainant authorized him “to use part of the 10%
deposit that he was holding to defray the accrued
rates of the Municipal Council of Kiambu”.
 the
complainant he confirms that he did authorize the
Respondent to “use part of the deposit”, however this
was limited to the sum of Kshs. 450,000/- towards the
payment of Land Rent and Rates.
 The authorisation letter” states;
 “ My client would be prepared to authorise release of a
sum not exceeding Kshs. 450,000/- to be utilized
exclusively for the purpose of paying Land Rent
and Rates arrears subject to your depositing
with me the duly executed completion
documents ( excluding the clearance
certificates) and the titled deed which I would
hold as stakeholder pending completion”.
 Paragraph 6 of the Replying Affidavit of the Respondent
and the receipts attached confirms that the sum due in
respect of the Land Rent and Rates arrears was Kshs.
57,880/- only. The Respondent alleges at paragraph 7 of
the Replying Affidavit that the Complainant further
authorized him in writing to release Kshs. 450,000/- to
the Vendors, however the said letter of authorization was
not annexed to the Respondent’s Replying Affidavit to
substantiate the averment.
 Charges:
 breach of professional undertaking and
 dishonourable conduct
 Judgement:
 An undertaking is an unequivocal declaration of
intention addressed to someone who reasonably
places reliance on it and made by an Advocate. An
undertaking is personally binding on the Advocate. An
undertaking may be given orally or in writing and need
not be necessarily include the word ‘undertake’.
 An Advocate may be subject to professional obligations
even though he or she has not given an undertaking: -

 Ifa person sends documents or money to an Advocate

subject to an express condition, the recipient is subject
to a professional obligation to return the documents or
money if unwilling or unable to comply with the
conditions.
 Ifdocuments or money are sent to an Advocate on
condition that they should be held to the sender’s
order, the recipient has a professional obligation to
return the documents or money to the sender on
demand.
 Anundertaking is binding even if it’s to do something
outside the Advocate’s control. An Advocate should
consider whether they will be able to implement an
undertaking before giving it and they should have
regard to all eventualities which might affect their
ability to perform the undertaking.
 An Advocate, who gives an undertaking involving the
payment of money can be required in conduct to
discharge this out of their own and their partners’
resources. In particular, it should be noted that the
client’s bankruptcy will not discharge the undertaking.

 An Advocate who fails to honour an undertaking is “prime
facie” guilty of professional misconduct. If a complaint is
lodged in the Disciplinary Tribunal, disciplinary action will
be taken for failure to honour the undertaking.
 The giver can’t unilaterally withdraw from undertaking
once the recipient has placed reliance on it and he can’t
be released form the terms of an undertaking. This is a
matter for the court or the person entitled to the benefit
of the undertaking.
 Rule6(2) the Advocate Account Rules “Money which is
not client’s money but which is paid into a client
account other than under Rule 5(b) shall be paid out as
soon as reasonably possible”.
In Radier ~vs~ Njogu & Co.
Advocates (2006) eKLR
 The court observed that an undertaking given by an
Advocate is personally binding on him and failure to
honour such an undertaking is evidence of professional
misconduct.
 Its incumbent upon the defendant/respondent herein
to honour the undertaking if he is to be exonerated
from some punitive disciplinary action.
 It’snot in dispute that the Respondent received Kshs.
950,000/- from the Complainant being the 10% deposit
of the purchase price of the property and was
subsequently instructed to release the sum to the limit
of Kshs. 450,000/- towards the payment of Land Rent
and Rates. The Respondent spent in respect of the
Land Rent and Rates arrears was Kshs. 57,880/- only.
 In
Paragraph 5 of the Respondent’s Affidavit he admits
that he owes the Complainant money. From the
documents presented before the Tribunal the money
the Respondent avers to owe is the deposit made to
him for the conveyance of the property less the
amount disbursed towards.
 Where an advocate withdraws certain amounts and
applies it to his own use without their clients
permission, though always acknowledging his liability
it constitutes a lapse from that standard of absolute
integrity to which professional conduct of an Advocate
must always conform and from which no inducement
or pressure of circumstances must ever be allowed to
deflect him.
 We therefore find that, in the circumstances of this
case, the complainant has established that the
respondent is guilty of professional misconduct or
conduct unbecoming of an advocate. We therefore find
the Respondent guilty of this charge.
APPEAL
 There’s a right of Appeal under Section 62 of the Act to
the High Court and further Appeal to the Court of
Appeal.
 Note under Section 56 of the Act, Courts have the
general power to deal with misconduct and offences
committed by advocates committed during or in
process of proceedings in court.
 Restoration of Advocates to the Roll of
Advocates
 The process of reinstatement of an Advocate of the
High Court of Kenya to the Roll of Advocates is
provided under the Advocates Act. According to the
Section 71 of the Act, The Chief Justice has powers to
order the Registrar to restore on the Roll the name of
any advocate,”