Advocates Act

This Act may be cited as the Advocates Act.

This section provides definitions of terms used in the Act (for example "advocate", "client", "contentious business", "costs", "Court", "Disciplinary Tribunal", "non-contentious business", "practising certificate", "Registrar", "Roll", "Senior Counsel", "the Council of Legal Education", "the Council of the Society", "the Society", and "unqualified person").

Section 3 has been repealed by Act No. 12 of 1995, s. 21.

Section 4 has been repealed.

Section 5 has been repealed.

Section 6 was repealed by ActNo. 12 of 1995, s. 21.

Section 7 has been repealed by ActNo. 12 of 1995, s. 21.

Section 8 was repealed.

An officer in the Office of the Attorney-General or the Office of the Director of Public Prosecutions is entitled to act as an advocate.

The Attorney-General may admit a qualified foreign practitioner to appear in a specified Kenyan suit or matter; such a foreign advocate must pay the prescribed admission fee to the Registrar before being entitled to practise, must be instructed by (and if appearing, appear with) an advocate or person mentioned in section 10, may not sign or file pleadings, is deemed an advocate for certain Parts during admission, and the Chief Justice has power to suspend a foreign advocate pending disciplinary proceedings.

To practise as an advocate, the person must have been admitted as an advocate.

Qualification for admission as advocate requires being a citizen of Kenya, Rwanda, Burundi, Uganda or Tanzania.

Lists qualifications and requirements (examinations, degrees, practical pupillage, prescribed courses, passing Council exams, recognized alternative qualifications, certain foreign Advocates with practice experience and professional standing) for admission as an Advocate; the Council may exempt persons from the pupillage or examination requirements on conditions.

The Attorney-General and the Director of Public Prosecutions may take pupils, subject to section 13, this Part and any regulations.

Qualified persons may apply to be admitted as advocates by petition; the petition must follow prescribed procedures, be filed with the Registrar, a notice must be publicly exhibited for one month, the Chief Justice must hear petitions within ninety days (excluding vacations), and on order and payment of the prescribed fee the petitioner must take an oath and sign the Roll.

The Registrar must keep the Roll of Advocates and must allow any person to inspect the Roll during office hours free of charge.

The Chief Justice may, after considering recommendations from the Council of the Society, make orders prescribing and regulating advocates' remuneration for all professional business.

Agreements fixing an advocate’s remuneration are valid and binding on the parties if in writing and signed by the client or an authorized agent; certain court applications about such agreements may be made and the advocate must seek court approval in limited guardian/trustee situations within six months after due date.

Section addresses any purchase by an advocate of the interest, or any part of the interest, of his client in any suit or other contentious proceeding.

The Court has the power to order an advocate to produce a bill of costs and to deliver up deeds, documents or papers in the advocate's possession, and that power applies even where the advocate has done no business in the Court.

A suit to recover advocate's costs cannot be started until one month after a signed bill has been delivered or sent by registered post to the client, unless an affidavit verifies reasonable cause to believe the charged party is about to quit Kenya or abscond, in which case action may start earlier; suits for such costs may be brought in any competent court; a bill may be taxed even if no suit has been filed.

No judgment may be entered for the plaintiff, except by consent, until the costs have been taxed and certified by the taxing officer.

Applicants who have paid an advocate out of trust property are entitled to be repaid by the trustee, and the Court may order the advocate to give a copy of the bill to the applicant if it taxes the bill and the applicant pays the copy costs.

The Court may make orders in relation to the taxing officer's certificate, including entering judgment for the certified sum with costs where the retainer is not disputed.

A court that employed an advocate may declare the advocate entitled to a charge on property recovered or preserved for his taxed costs and may order taxation and payment from that property; conveyances to defeat that charge are void except against bona fide purchasers for value without notice, and no order if the right is barred by limitation.

The President may grant a letter of conferment making a person Senior Counsel if the person is of irreproachable professional conduct and has rendered exemplary service; the grant must be made within sixty days after receipt of a list from the Committee on Senior Counsel through the Chief Justice.

Registrar must prepare and maintain a Roll of Senior Counsel; newly appointed Senior Counsel must sign the Roll in the Registrar's presence; the Chief Justice must publish names in the Gazette; any person may inspect the Roll during office hours without payment.

References to the Disciplinary Committee are to be read as a Committee of three appointed by the Chief Justice, made up of the Attorney-General or Solicitor-General and two Senior Counsel, with the Attorney-General or Solicitor-General serving as chairman.

Specifies the order of precedence among senior legal office-holders and that advocates rank among themselves by the date they signed the Roll.

The Registrar must issue certificates authorizing the named advocates to practise, subject to this Part and rules made under this Act.

Sets the application requirements for a practising certificate and requires the Registrar to issue the certificate within fourteen days if the applicant is on the Roll and not suspended; registers declarations which may be inspected during office hours without payment.

Issuing a practising certificate automatically makes the advocate a member of the Society and the Advocates Benevolent Association; membership continues for one month after certificate expiry unless removed; the Society must issue a prescribed stamp to registered advocates and advocates must affix it to documents; suspended advocates lose membership rights during suspension.

Certificates must show their issue date and take effect from that day; the practising year runs from 1 January to 31 December (subject to change by the Council with the Chief Justice's approval); practising certificates expire at year-end (and immediately if an advocate is struck off); the Registrar must record the issue date on the Roll.

Applicants must notify the Registrar and the Society secretary at least six weeks before applying; the Council must make representations to the Registrar; the Registrar has discretion to grant or refuse applications or issue certificates on terms.

If the Registrar refuses or neglects to issue a practising certificate (except where section 25 applies) the applicant may apply to the Chief Justice, who has power to make various orders including affirming the Registrar's decision, directing issue (with or without conditions), directing non-issue, suspending an issued certificate, or making other orders.

When the Disciplinary Committee or the Court makes an order suspending an advocate from practice, that order operates to suspend any practising certificate of that advocate while it is in force.

Advocates may apply to the Registrar to terminate suspension before the certificate expires; the Council may make representations to the Registrar, and such representations are absolutely privileged.

Section 29 concerns publication of suspension or termination of suspension of a practising certificate in certain cases.

Lists published by the Registrar that show advocates holding practising certificates before 1st February are evidence that the named persons hold such certificates; absence from such a list is evidence that a person is not qualified to practise for the current year unless a certified extract from the Roll shows otherwise.

Section 30A was repealed by Act No. 9 of 2000, s. 60.

Section 30B was repealed by Act No. 9 of 2000, s. 61.

Section 30C has been repealed.

Unqualified persons must not act as advocates or perform related court processes and proceedings, subject to section 83.

Section 32 was repealed by ActNo. 27 of 2012, s. 50.

A person qualified to act as an advocate under this Act may be employed as an in-house advocate.

Employers must set in-house advocates' pay according to prescribed criteria; they may pay more, and breaching the rule is an offence. Standards of work and remuneration criteria are prescribed.

Any unqualified person must not wilfully pretend to be qualified to act as an advocate or use titles or descriptions implying they are so qualified.

Unqualified persons are prohibited from preparing certain legal documents; payments made to such persons can be recovered and contravention is an offence, with specific exemptions for public officers and certain employees.

Advocates with a current practising certificate must not file or issue legal documents required to be filed by an advocate unless each document bears the Society's stamp or seal issued under section 23 (2A).

Practising advocates who are not exempt under section 10 must take out a practising certificate each year; failure to do so is professional misconduct. Documents prepared by advocates without a valid practising certificate remain valid. "Legal document" is defined to include pleadings, affidavits, depositions, applications, deeds and related instruments filed in any registry.

Persons who draw or prepare documents referred to in section 34(1) must endorse them with their name and address (or firm name/address); registrars must refuse to accept such documents unless so endorsed; omission is an offence punishable by fines (up to 5,000 shillings for unqualified persons, up to 500 shillings for advocates).

Advocates are prohibited from offering or performing professional work for fees below the remuneration prescribed by order under this Act; doing so may constitute an offence.

Advocates must not agree to share their professional profits with persons who are not advocates or other duly qualified legal practitioners.

An unqualified person who, for payment or other advantage, procures or attempts to procure an advocate's employment or solicits such payment is deemed to be a tout; the Chief Justice may, if satisfied that a person has acted as a tout, order that person excluded from employment by an advocate in the advocate's practice.

Advocates must not act as agent for unqualified persons in suits or bankruptcy, permit their name to be used, enable them to appear or assist them; doing so is an offence.

Costs arising from anything done by an unqualified person in contravention of this Part cannot be recovered by any person in any suit or matter.

Advocates must not employ or pay persons they know are struck off or suspended unless they have written permission from the Council of the Society; the Council may grant permission subject to conditions, an advocate may appeal Council refusals to the Chief Justice, and contraventions attract proceedings under section 60.

A person disqualified (struck off or suspended) who seeks or accepts employment with an advocate without informing the advocate is guilty of an offence and faces a fine up to fifty thousand shillings, imprisonment up to two years, or both.

A body corporate that does acts implying it is qualified to act as an advocate is guilty of an offence and liable to a fine up to fifty thousand shillings; if a director, officer or servant does such an act they are also guilty and liable to a fine up to twenty-five thousand shillings.

Section 53 establishes a Complaints Commission appointed by the President to enquire into complaints about advocates; the Commission has powers to require assistance, investigate (including summoning witnesses and requiring documents), award compensation up to one hundred thousand shillings, register and enforce orders with the Court, and publish quarterly reports; failing to assist when required is an offence and aggrieved parties may appeal to the High Court.

The Commissioner is to be paid remuneration (salary, allowance, pension or gratuity) determined by the President and paid from moneys provided by Parliament.

The Attorney-General must appoint a secretary to the Commission, must provide necessary public officers for the Commission, and may make rules about the Commission's structure and operation.

Every advocate and every person entitled to act as an advocate must be an officer of the Court and is subject to the Court's jurisdiction and, subject to the Act, to the Disciplinary Tribunal; persons mentioned in section 10 (except those in paragraph (c)) are not subject to the Disciplinary Tribunal.

Judges (the Chief Justice or any judge of the Court) keep their authority to deal with misconduct or offences by an advocate or person entitled to act as such in relation to proceedings; this Act does not override those powers.

Section 57 establishes a Disciplinary Tribunal composed of specified members, sets terms and re-election, allows temporary nominations during illness or absence, requires certain members to remain for pending matters after retirement, and empowers the Attorney-General (with National Treasury) to authorise payments to Tribunal members.

Section 58 sets membership, chairing, secretarial arrangements, powers to administer oaths and issue summonses, and rule-making powers for the Tribunal; it also limits compellability of documents under summons.

Regional Disciplinary Committees are created in five representative regions (excluding Nairobi); each Regional Committee must consist of five advocates of at least ten years standing elected by the various chapters or regional representatives, who hold office for two years and are eligible for re-election; Regional Committees have jurisdiction concurrent with the Disciplinary Committee under section 57 and exercise the same functions, powers and duties.

An advocate may apply to the Tribunal to have their name removed from the Roll; on hearing such an application the Tribunal may order removal and any other order it thinks fit.

Any person may complain to the Tribunal about an advocate's professional misconduct; complaints must be by affidavit with any prescribed fee, the Tribunal must give the advocate notice and documents and may impose sanctions including admonition, suspension (up to five years), striking off, fines (up to one million shillings) and compensation (up to five million shillings).

The Committee may determine and limit the amounts advocates or firms may be entitled to and may order advocates to refund, remit, waive, rectify errors, or take actions at their own expense; taxed bills affect the Committee's directions; "client" is defined broadly.

When a complaint hearing ends and the Tribunal does not dismiss it, the Tribunal must put its findings and orders into a report for the Court delivered to the Registrar; the Registrar must notify specified parties and the report is open for inspection by those parties; the Tribunal may report to the Attorney‑General if evidence of an offence appears.

An advocate aggrieved by a Tribunal order may appeal to the Court within 14 days by notifying the Registrar and must file a memorandum of grounds within 30 days; the Court must set the appeal down for hearing and give at least 21 days' notice to the Society Council and the advocate.

When the Registrar notifies the Council and the advocate of the hearing date, the Registrar must also send them the evidence report, any documents put in evidence, and the memorandum of appeal.

Refer the report back to the Tribunal with directions for its findings on any specified point

Powers under section 64 must be exercised by at least two judges; if two judges sit and are equally divided the matter must be reheard by three judges; if three judges sit and disagree the majority decision is the Court's decision.

The Registrar must cause an order made by the Court under section 64 to be drawn up within one week from the date it was made.

An advocate who is aggrieved by a decision or order of the Court made under section 64 may appeal to the Court of Appeal in the manner and within the time prescribed by the Court's rules on second appeals in civil matters.

The Registrar must note final orders on the Roll (and remove or strike off names where directed) and must send certified copies of such final orders to the Society's secretary, and, in cases involving professional bodies outside Kenya, to that professional body.

The Registrar must inform the Law Society secretary of entries on or removals/striking off the Roll; the Registrar must publish a Gazette notice of any final order suspending or striking off an advocate; the Society may publish a similar notice in at least one national daily newspaper.

An advocate cannot have their name struck off for defects in admission except if the application to strike the name is made within twelve months of enrolment; fraud is an exception.

The Chief Justice must, on recommendation of the Tribunal and with written approval of the Chairman of the Society, order the Registrar to restore an advocate's name removed from the Roll; the Registrar must restore the name upon payment of the prescribed fee.

The secretary to the Tribunal must file every order made under this section and send a certified copy to the person concerned (or forward it by registered post); any advocate may inspect the file during office hours without payment.

A person against whom the Tribunal orders may appeal to the Court: they must give notice of appeal to the Registrar within 14 days and file a memorandum of grounds within 30 days; the Court must list the appeal for hearing and give at least 21 days' notice to the Society Council and appellant; sections 64, 65 and 79 apply mutatis mutandis; the Court's decision is final.

Persons subject to an order under section 72 must not seek or accept employment or remuneration from an advocate without first informing the advocate; advocates must not knowingly act in contravention of such an order or any related permission condition.

Reports and orders made by the Tribunal under this Part must be signed by the chairman of the Tribunal; documents so signed are to be received in evidence and deemed to be such reports or orders unless the contrary is shown.

Subject to section 75, rules, certificates, notices and other documents of the Tribunal may be signed on behalf of the Tribunal by the secretary or by a member or other person the Tribunal appoints for that purpose.

Any person must not, without good and lawful excuse, contravene or fail to comply with any order, notice or direction of the Tribunal or the Complaints Commission; doing so will make them guilty of an offence and advocates may be liable to proceedings under section 60.

Members, former members and the secretary of the Tribunal are immune from being sued in civil court for acts or omissions done in good faith while exercising powers, duties or functions under this Act.

An advocate who is the subject of a complaint, or any complainant under Part X or this Part, may be represented by an advocate.

An advocate entrusted with money, securities or other property who, after completing the purpose for which they were given, fails to pay, apply or account for them shall be guilty of an offence.

Provides for rules to be made on a list of specified matters relating to advocates, and sets who may complain and an exemption for certain office-holders from continuing legal education.

Banks are not required to make inquiries or be treated as having knowledge of rights to money in advocates' accounts; banks holding advocates' client money may not exercise recourse against those client funds for the advocate's other liabilities.

This Act and any rules made under it do not affect provisions of other written laws that empower an unqualified person to conduct, defend, or otherwise act in legal proceedings.

The Registrar must pay specified admission and replacement fees to the Society; the Society must collect fees for practising certificates and annual subscriptions and apply these fees to the Society’s objects.

If a person commits an offence under the Act for which no penalty is provided, they are liable to a fine up to one hundred thousand shillings, or imprisonment up to two years, or both; an advocate guilty of an offence is liable to proceedings under section 60.

Section 86 repeals the Advocates Act, 1949 and provides that the transitional provisions in the Second Schedule shall have effect on that repeal.