Point in Time
Act No: CAP. 16
Act Title: ADVOCATES
[ Date of commencement: Section 32— 1st January, 2000. ]
[ Date of assent:13th December, 1989. ]
[ Rest:15th December, 1989. ]
Arrangement of Sections
PART I – PRELIMINARY
1.
Short title

This Act may be cited as the Advocates Act.

PART II – THE COUNCIL OF LEGAL EDUCATION
PART III – PROVISIONS RELATING TO THE RIGHT TO PRACTISE AS AN ADVOCATE
11.
Foreign advocates
(1)

The Attorney-General may, in his absolute discretion, admit to practise as an advocate, for the purpose of any specified suit or matter in or in regard to which the person so admitted has been instructed by the Attorney-General or an advocate, a practitioner who is entitled to appear before superior courts of a Commonwealth country, if such person has come or intends to come to Kenya for the purpose of appearing, acting or advising in that suit or matter and is not disqualified or suspended by virtue of this Act, and a person so admitted (hereinafter in this section referred to as a “foreign advocate”) shall not, for the purpose of that suit or matter, be deemed to be an unqualified person.

(2)

No foreign advocate shall be entitled to practise until he has paid to the Registrar the prescribed admission fee.

(3)

No foreign advocate shall be entitled to practise unless he is instructed by, and if appearing in court appears with, an advocate or any person mentioned in section 10, nor shall any foreign advocate be entitled to sign or file any pleadings in court.

(4)

Every foreign advocate shall, during and for the purposes of his admission, be deemed to be an advocate for the purposes of Parts VIII, IX, X, and XI:

Provided that in respect of a foreign advocate references in Part XI, or in any rules made under this Act, to the Disciplinary Committee shall be construed as references to the Chief Justice and references to striking the name of an advocate off the Roll shall be construed as references to disqualifying a foreign advocate from practice in Kenya.

(5)

Where a complaint under Part XI has been made in respect of a foreign advocate, the Chief Justice, in addition to the powers conferred upon him by that Part as modified by subsection (4), shall have power, in his discretion at the instance of the complainant or of the Council of the Society, to suspend immediately such foreign advocate from practice in Kenya pending the dismissal of the complaint or the making of a final order in respect thereof.

PART IV – ADMISSION AS ADVOCATE
16.
Custody of Roll

The Registrar shall keep the Roll of Advocates in accordance with this Act and any directions as to its form and the information to be recorded as the Chief Justice may give, and shall allow any person to inspect the Roll during office hours without payment.

PART V – SENIOR COUNSEL
19.
Application of Part XI

In the application of Part XI to Senior Counsel—

(a)

all references therein to the Disciplinary Committee shall be construed as references to a Committee of three, to be appointed in each case by the Chief Justice, consisting of the Attorney-General or the Solicitor-General and two Senior Counsel and the Attorney-General or Solicitor-General shall be chairman of the Committee;

(b)

the secretary to the Disciplinary Committee shall perform the duties of secretary to any such committee; and

(c)

subsections (2) and (3) of section 57 shall not have effect.

PART VI – PRECEDENCE
PART VII – PRACTISING CERTIFICATE
24.
Date and validity of practising certificate
(1)

Every practising certificate shall bear the date of the day on which it is issued and shall have effect from the beginning of that day:

Provided that a practising certificate which is issued during the first month of any practising year shall have effect for all purposes from the beginning of that month.

(2)

The practising year shall be from the 1st January to 31st December:

Provided that the Council of the Society, with the approval of the Chief Justice, may by order alter the practising year, and the order may make such transitional provision in regard to incidental matters as may be expedient.

(3)

Every practising certificate shall expire at the end of the practising year in which it was issued:

Provided that, where the name of an advocate is removed from or struck off the Roll, the practising certificate (if any) of that advocate shall expire forthwith.

(4)

The Registrar shall enter upon the Roll a note of the date of the issue of every practising certificate.

26.
Appeals in connection with issue of practising certificate
(1)

If in any case, not being a case to which section 25 applies, the Registrar on an application duly made to him refuses or neglects to issue a practising certificate the applicant may apply to the Chief Justice who may make such an order in the matter as is just.

(2)

Where under section 25 the Registrar either refuses to grant a practising certificate or decides to issue that certificate subject to terms and conditions, the applicant may by petition presented within one month after being notified of the decision of the Registrar, and in such manner and subject to such regulations as the Chief Justice may from time to time direct, appeal against that decision to the Chief Justice, who may—

(a)

affirm the decision of the Registrar; or

(b)

direct the Registrar to issue a certificate to the applicant free from terms and conditions or upon such terms and conditions as the Chief Justice may think fit; or

(c)

direct the Registrar not to issue a certificate; or

(d)

if a certificate has been issued, by order suspend that certificate; or

(e)

make such other order as he may think fit.

27.
Suspension of practising certificate in certain circumstances

The making by the Disciplinary Committee or the Court of an order suspending an advocate from practice shall operate, and the adjudication in bankruptcy of an advocate shall operate immediately, to suspend any practising certificate of that advocate for the time being in force.

28.
Duration of suspension of practising certificate
(1)

Subject to this section, where a practising certificate has become suspended by an order under section 26(2) or by virtue of section 27, that suspension shall continue until the certificate expires.

(2)

The suspension of a practising certificate by virtue of section 27 by reason of an adjudication in bankruptcy shall terminate if the adjudication is annulled and a certified copy of the order annulling the adjudication has been served on the Registrar.

(3)

Where an advocate’s practising certificate has become suspended—

(a)

by an order under section 26(2); or

(b)

by virtue of section 27 by reason of his adjudication in bankruptcy,

the advocate may at any time before the certificate expires (and, in the case of adjudication in bankruptcy, while the adjudication remains unannulled) apply to the Registrar to terminate the suspension of the practising certificate, giving at the same time notice to the secretary of the Society that the application has been made.

(4)

The Council of the Society may make representations or submit recommendations to the Registrar with respect to any application made under this section, and the representations or recommendations shall be absolutely privileged.

(5)

The Registrar may in his discretion—

(i) by order terminate the suspension either unconditionally or upon such terms and conditions as he may think fit; or
(ii) refuse the application.
(6)

If, on an application by an advocate under subsection (3), the Registrar refuses the application or terminates the suspension subject to terms or conditions, the advocate may, by petition presented in such manner and subject to such regulations as the Chief Justice may from time to time direct, appeal against the decision of the Registrar to the Chief Justice, who may—

(a)

affirm the decision of the Registrar; or

(b)

terminate the suspension either unconditionally or upon such terms and conditions as he may think fit.

(7)

Where an advocate’s practising certificate has become suspended by virtue of section 27 by reason of his suspension from practice and the suspension of his practising certificate is terminated unconditionally under subsection (5) or subsection (6), then, notwithstanding paragraph (c) of subsection (1) of section 25, subsections (2), (3) and (4) of section 25 shall not thereafter have effect in relation to that advocate by virtue of that suspension from practice and the expiry of the period thereof.

29.
Publication of suspension or termination of suspension of practising certificate in certain cases

Where an advocate’s practising certificate has become suspended—

(a)

by an order under section 26(2); or

(b)

by virtue of section 27 by reason of his adjudication in bankruptcy,

the Registrar shall forthwith cause notice of that suspension to be published in the Gazette and a note thereof to be entered against the name of the advocate in the Roll; and where that suspension is terminated under subsection (2), subsection (3) or subsection (4) of section 28, the Registrar shall forthwith cause a note of that termination to be entered against the name of the advocate in the Roll and, if so requested in writing by the advocate, a note thereof to be published in the Gazette.

30.
Evidence as to holding of practising certificate
(1)

Any list purporting to be published by authority of the Registrar and to contain the names of advocates who have obtained practising certificates for the current year before the 1st February in that year shall, until the contrary is proved, be evidence that the persons named therein as advocates holding such certificates as aforesaid for the current year are advocates holding such certificates.

(2)

The absence from any such list of the name of any person shall, until the contrary is proved, be evidence that that person is not qualified to practise as an advocate under a certificate for the current year, but in the case of any such person an extract from the Roll certified as correct by the Registrar shall be evidence of the facts appearing in the extract.

PART VIII – PROVISIONS WITH RESPECT TO UNQUALIFIED PERSONS ACTING AS ADVOCATES AND OFFENCES BY ADVOCATES
35.
Instruments to be endorsed with name and address of drawer
(1)

Every person who draws or prepares, or causes to be drawn or prepared, any document or instrument referred to in section 34(1) shall at the same time endorse or cause to be endorsed thereon his name and address, or the name and address of the firm of which he is a partner and any person omitting so to do shall be guilty of an offence and liable to a fine not exceeding five thousand shillings in the case of an unqualified person or a fine not exceeding five hundred shillings in the case of an advocate:

Provided that, in the case of any document or instrument drawn, prepared or engrossed by a person employed, and whilst acting within the scope of his employment, by an advocate or by a firm of advocates, the name and address to be endorsed thereon shall be the name and address of such advocate or firm.

(2)

The Registrar, the Registrar of Titles, the Principal Registrar of Government Lands, the Registrar-General, the Registrar of Companies and any other registering authority shall refuse to accept or recognize any document or instrument referred to in section 34(1) unless such document or instrument is endorsed in accordance with this section.

36.
Undercutting
(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 order, under this Act.

37.
Sharing profits

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 any period.

38.
Touts
(1)

Any unqualified person who, in consideration of any payment or other advantage to himself or any other person, procures or attempts to procure the employment of an advocate as such in any suit or matter or solicits from an advocate any such payment or advantage in consideration of such employment shall be deemed to be a tout for the purposes of this section.

(2)

The Chief Justice may, if satisfied that any person has acted as a tout, by order exclude such person from the employment by an advocate in his practice as such.

39.
Advocate not to act as agent for unqualified person

Any advocate who acts as agent in any suit, or in any matter in bankruptcy, for any unqualified person, or permits his name, or that of any firm of which he is a partner, to be made use of in any such suit or matter, upon the account or for the profit of any unqualified person or who does any other act enabling an unqualified person to appear, act or practise in any respect as an advocate in such suit or matter, or who in any way assists any unqualified person in any cause or matter in which he knows that such person is contravening or intends to contravene this Act, shall be guilty of an offence.

40.
No costs recoverable where unqualified person acts as advocate

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.

41.
Employment by advocate of persons struck-off the Roll or suspended
(1)

No advocate shall, in connection with his practice as an advocate, without the written permission of the Council of the Society, which may be given for such period and subject to such conditions as the Council thinks fit, employ or remunerate any person who to his knowledge is disqualified from practising as an advocate by reason of the fact that his name has been struck off the Roll, otherwise than at his own request, or is suspended from practising as an advocate.

(2)

An advocate aggrieved by the refusal of the Council of the Society to grant any permission referred to in subsection (1), or by conditions attached by the Council to the grant thereof, may appeal to the Chief Justice, who may confirm the refusal or the conditions, as the case may be, or may, in lieu of the Council, grant such permission for such period and subject to such conditions as he thinks fit.

(3)

If any advocate acts in contravention of this section or of the conditions subject to which any permission has been given thereunder he shall be liable to proceedings under section 60.

43.
Offences by bodies corporate
(1)

If any act is done by a body corporate or by any director, officer or servant thereof, of such a nature or in such a manner as to be calculated to imply that the body corporate is qualified, or recognized by law as qualified, to act as an advocate, the body corporate shall be guilty of an offence and liable to a fine not exceeding fifty thousand shillings for each such offence, and, in the case of an act done by any director, officer or servant of the corporation, he shall, without prejudice to the liability of the corporation, be guilty of an offence and liable to a fine not exceeding twenty-five thousand shillings for each such offence.

(2)

In this Part, references to unqualified persons and to persons include references to bodies corporate.

PART IX – REMUNERATION OF ADVOCATES
44.
Chief Justice may make orders prescribing remuneration
(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.

(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 other, considerations, that is to say—

(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 prepared or perused, without regard to length.

(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, be regulated by that order.

47.
Power of court to order advocate to deliver his bill and to deliver up deed
(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.

49.
Procedure in action where quantum of costs is challenged by defence

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—

(a)

no judgment shall be entered for the plaintiff, except by consent, until the costs have been taxed and certified by the taxing officer;

(b)

unless the bill of costs on which the suit is based is fully itemised, the plaintiff shall file a fully itemized bill of the costs within fourteen days from the date of service of the defence, or such further period as may be allowed by the court, and shall serve a copy thereof on the defendant, and, if the total amount of such bill exceeds the amount sued for, the prayer of the plaintiff shall, subject to the court’s pecuniary jurisdiction, be deemed to be increased accordingly and all consequential amendments to the pleadings may be made;

(c)

no court or filing fee shall be payable on filing a bill of costs required by this section, but, if thereby the amount for which judgment is prayed in the plaint is deemed to be increased under paragraph (b), the plaintiff shall pay to the court such court or filing fee as may be appropriate to the increase; and

(d)

at any time after the bill of costs has been filed, and before the suit has been set down for hearing, any party to the action may take out a summons for directions as to whether such bill should be taxed by the taxing officer before the suit is heard.

50.
Taxation on application of third parties, beneficiaries under trust, etc.
(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, or where a person is interested in any property in the hands or under the control of a trustee, executor or administrator, out of which property the trustee, executor or administrator has paid or is liable to pay 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 and nature of the interest of the person, may make any order thereon which it would have been competent to make if the application had been made by that party:

Provided that no order for taxation of a bill shall be made under this section in any case where—

(i) the bill has previously been taxed; or
(ii) the application is made more than six months after the date on which the bill was rendered to the party chargeable therewith or three months after the date on which the bill was paid, or the date when the party making the application became entitled to do so, whichever is the earliest.
(2)

If an applicant under subsection (1) pays or has paid any money to the advocate in respect of a bill of costs payable out of property in the hands or under the control, of a trustee, executor or administrator he shall have the same right to be paid that money by the trustee, executor or administrator chargeable with the bill as the advocate had.

(3)

The Court may, if it orders taxation of the bill under this section, order the advocate to deliver to the applicant a copy of the bill upon payment of the costs of that copy.

51.
General provisions as to taxation
(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 order that judgment be entered for the sum certified to be due with costs.

52.
Charging orders

Any court in which an advocate has been employed to prosecute or defend any suit or matter may at any time declare the advocate entitled to a charge on the property recovered or preserved through his instrumentality for his taxed costs in reference to that suit or matter, and may make orders for the taxation of the costs and for raising money to pay or for paying the costs out of the property so charged as it thinks fit, and all conveyances and acts done to defeat, or operating to defeat, that charge shall, except in the case of a conveyance to a bona fide purchaser for value without notice, be void as against the advocate:

Provided that no order shall be made if the right to recover the costs is barred by limitation.

PART X – COMPLAINTS COMMISSION
54.
Secretary and staff of Commission and rules relating thereto
(1)

There shall be a secretary to the Commission who shall be appointed by the Attorney-General.

(2)

The Attorney-General shall provide such public officers as are necessary for the proper and efficient exercise of the duties and functions of the Commission.

(3)

The Attorney-General may make rules regulating the structure and operation of the Commission and for the carrying into effect its functions under this Part.

PART XI – DISCIPLINE
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 by an advocate, or any person entitled to act as such, committed during, or in the course of, or relating to, proceedings before the Chief Justice or any judge.

63.
Registrar to furnish copy of the report and record

When notifying the Council of the Society and the advocate to whom a complaint relates of the date fixed for the hearing of the appeal, the Registrar shall also forward to the Council and the advocate a copy of the report of the evidence, a list of any documents put in evidence and the memorandum of appeal.

65.
Powers of Court under section 64 to be exercised by two judges
(1)

The powers conferred upon the Court by section 64 shall be exercised by not less than two of the judges of the Court.

(2)

If such powers are exercised by two judges and the opinion of the Court is equally divided, the matter shall be reheard by three judges.

(3)

If such powers are exercised by three judges and they do not agree in their opinion, the decision of the majority shall be taken to be the decision of the Court.

66.
Registrar to draw up orders

Where an order has been made by the Court under section 64, the Registrar shall, within one week from the date of the making thereof, cause the order to be drawn up.

67.
Right of appeal to Court of Appeal
(1)

Any advocate aggrieved by a decision or order of the Court made under section 64 may appeal therefrom to the Court of Appeal in the manner and within the time prescribed by the rules made from time to time by the Court relating to second appeals in civil matters.

(2)

An appeal under this section shall not suspend the effect or stay the execution of the decision or order appealed against notwithstanding that the order concerned is not a final order.

68.
Orders to be noted on the Roll
(1)

The Registrar shall cause a note of the effect of a final order to be entered in the Roll against the name of the advocate concerned, and where the order so directs shall remove or strike off his name from the Roll.

(2)

The Registrar shall send to the secretary of the Society a certified copy of every final order made under this Part removing or striking off the name of an advocate from the Roll or suspending an advocate from practice.

(3)

Where an advocate is a member of a professional body outside Kenya, or is subject to the jurisdiction for the purposes of discipline of a professional body outside Kenya, the Registrar shall also send to the professional body a certified copy of every final order made under this Part suspending or striking off the name of the advocate from the Roll.

70.
Limitation of time for certain applications to strike names off the Roll

Subject as hereinafter provided, no advocate shall be liable to have his name struck off the Roll on account of any defect in his admission and enrolment, unless the application to strike his name off the Roll is made within twelve months after the date of his enrolment:

Provided that this section shall not apply to any case where fraud is proved to have been committed in connection with the admission or enrolment.