MOUNT KENYA UNIVERSITY

PARKLANDS LAW CAMUS

LEGAL PROFESSIONAL ETHICS

Unit Code: BLW 4111

GROUP II: EVENING CLASS

31ST OCTOBER 2019

Lecturer: Margaret Mounde.

TOPIC: Disciplinary Mechanisms under Leal profession in Kenya

 MEMBER DETAILS

Names Registration Numbers Sign

1. George Onyango Blaw/54899/2016

2. Mohammed Deck Moulid Blaw/55321/2016
3. Travine Kwamboka Blaw/56104/2016
4. Wambua Joel Mutua Blaw/55892/2016
5. Sharon Kerubo Blaw/34248/2015
6. Everlyne Kaii Blaw/48912/2016
7. Ezekiel Mwonga Blaw/54486/2016
8. Matilda Bosibori Blaw/53938/2016
9. Nalianya A.N Joyce Blaw/31098/2015
10. Abdihakim Hajir Borow Blaw/49703/2016
11. Victor David irungu Blaw/53831/2016
12. Peter Njuguna Blaw/56929/2016
13. Onyango Derricks Brian Blaw/54949/2016
14. Michael Aol Ouma Blaw/56114/2016

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 THE DISCIPLINARY MECHANISM IN THE ROLL OF ADVOCATES IN KENYA

This work examines the current state of the disciplinary procedures for advocates in Kenya.
As a profession at the heart of society the legal profession must adhere to high ethical
standards. International best practice provides guidance as to how this might be archived,
although there are no prescriptive requirements. This process does not make any assumptions
as to whether the state of legal profession in Kenya is more or less corrupt or prone to
malpractice than what might be deemed as the international norm.

Regarding this matter, we need to appreciate the difference between a lawyer and an
advocate. A lawyer holds a law degree from a recognized institution whereas an advocate is
one who has undergone the advocates training program at the Kenya School of Law and has
qualified to be admitted into the legal profession.

The Black’s Law Dictionary defines discipline as instructions comprehending the

communication of knowledge and training to observe and act in accordance with rules and
orders. Profession is defined under the same as a vocation requiring advanced education and
training.1

Professional discipline is important to maintain the reputation and the integrity of the
advocates and promotes public confidence. In the case of Bolton vs Law Society (1994)2 All
ER 486, the court stated that “a profession’s most valuable asset is its collectivity to inspire.
Reputation is more important than the fortunes of any individual member.”

Complaints Against Advocates.

Besides 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 of the public. The breach of this code amounts to professional misconduct of which an
aggrieved person may lodge a complaint with the Law Society of Kenya, the Advocates
Complaints tribunal (alias the Disciplinary Tribunal). Advocates are under a duty to report to
the law society immediately where a judgement debt against an advocate has not been
satisfied within 7 days. Rule 38 of LSK, provides for recovery of money due from advocates.

The bodies that deal with the discipline and conduct of advocates are the Disciplinary
committee and Complaints Commission.

1
Bryan A Garner, Black’s Law Dictionary.
3
Advocates Complaints Commission: -

Complaints against advocates may be made to the advocates Complaints Commission, which
is a department within the Attorney General’s chambers. The complaint should be in writing
and supported by relevant documentary or other evidence. Complaints may also be addressed
to the Disciplinary Committee, or the Law Society of Kenya. In practice, most complaints are
dealt with by the Advocates Complaints Commission and the matter will normally be taken to
the Disciplinary Tribunal if it is of a serious nature or if it involves professional misconduct
on the part of the advocate. Section 60 deals with complaints against advocates 2 .These
complaints are filed by any person by a way of affidavit detailing the alleged misconduct.
Where the complaints lack merit then it can be dismissed preliminarily but if it has merit, the
disciplinary committee should fix the matter for hearing. Upon receipt of the complaint, the
advocate in question will be adequately served with the same and accorded an opportunity to
appear before the disciplinary committee.

Disciplinary Tribunal

The Advocates Disciplinary Tribunal consists of the Attorney General as its chairperson, the
Solicitor-General or person appointed by the Attorney-General to hold such capacity together
with six advocates of not less than 20years standing in practice. The committee may act as a
tribunal of either three or five members. The tribunal sits largely as a court but a bit of
relaxation regarding the strict rules of evidence. Every advocate is subject to the jurisdiction
of this tribunal. A complaint against an advocate of professional misconduct, which
expression includes disgraceful or dishonorable conduct incompatible with the status of an
advocate maybe be made to the tribunal by any person. The complaint is made by an affidavit
by the complainant setting out the allegations of professional misconduct.

Where a case of professional misconduct on the part of an advocate has been made out, the
disciplinary tribunal may order:

• That such advocate be admonished; or

• That such advocate be suspended from practice for a specified period not exceeding
5years: or

• That the name of such advocate be struck off the roll of advocates: or

2
Cap 16 Laws of Kenya.
4
 • That such advocate does pay a fine not exceeding 1million shillings, or such
combination of the above orders as the committee thinks fit.
• That such advocate pays to the aggrieved person compensation or reimbursement not
exceeding 5 million shillings.

Forms of Professional Misconduct

The codes of conduct are stipulated in the Law Society of Kenya Act3 (Law Society of
Kenya Practice regulations) and the Advocates Act 4 . The Law Society of Kenya
L.S.K) plays a major role in the discipline of its members in the legal profession who
engage in professional misconduct and offences. In the case of Mohammed Ashraaf
Sadique and another v Mathew Oseko t/a Oseko & CO. Advocates5Court explained
that the LSK, has the obligation to carry out that mandate with seriousness and
discharge that duty without fear or favor. There are many forms of professional
misconduct, and a few most serious among them are discussed below;
Breach of confidentially:-this is a highly punishable offense as the legal profession
hinged on the duty of confidentiality. The advocate owes his client the duty of
confidentiality for all the information that he is given. The only time an advocate can
reveal this information is when he has obtained the consent from the client and it’s
advisable that the consent be in writing. An advocate can also reveal information with
the permit of the court.
Undercutting/Undercharging; -The Advocates Remuneration Order provides the
minimum amount that an advocate can charge. Charging a fee below the stipulated
amount constitutes an offence6. The reprieve is that one can offer his legal services
free of charge in what is referred to as ‘pro bono services’. Overcharging is also an
offense but it is a controversial one since the order does not stipulate the maximum
amount one can charge. The legal profession is not a business entity but a profession
dedicated to public service. In light of this, advocates are not to advertise the legal
services. Advocates should be creative in terms of promoting their work without
breaking the law. The Advocates marketing and advertising rules of 2012 were made
following the ruling made in the Omwansa’s case.

3
Cap 18, Laws of Kenya.
4
Cap 16, Laws of Kenya.
5
Misc. Application no.901/07.
6
Section 36, Advocates Act Cap 16.
5
 Failure to run two separate accounts constitutes an offence; -A qualified advocate
should have separate account for their client’s money and their own personal account.
A separate client’s account ensures that their money is not embezzled and the money
has been used for the proper purposes. At the end of each financial year the account
must be audited before one can renew their practicing certificate. Client’s accounts
rules, advocates accountant certificate rules and advocates deposit rules provide
guidelines on how the advocates should run these accounts.
Sharing of offices with non-advocates constitutes an offence;-This is meant to
prevent undue influence on the professional work of an advocate due to the attraction
of business and also to safeguard the issue of confidentiality.
Coaching of witness is highly prohibited- Coaching of witness denies court ability
to get credible evidence in dispensing justice

The Kenya legal system is adversarial in nature. One distinctive factor in adversarial system
is that lawyers always go for a win-lose basis. The implication is that a lawyer will do
everything possible to win the case even if it may include engaging in conducts that are
otherwise unprofessional such as hiding useful/crucial information which they are otherwise
obliged to disclose to the court. In the society today, a lawyer to whose favor the court finds a
judgement is viewed as victorious and is widely respected by the society and this puts lawyers
in a very difficult situation to an extent that it creates conflict between moral probity and legal
expectations of a lawyer.
The society gauges the competence of a lawyer by the number of cases they have tackled and
won. This has led to shift from professionalism to commercialism since practitioners tend to
focus on profits, while they give up their professional independence and employ unprincipled
tactics to achieve client’s end. we can therefore conclude that the Kenyan system is not keen
in punishing advocates engaging in professional misconduct since the sanctions that available
for breaching professional ethics rules are inadequate to deter lawyers from these
malpractices.