Offences conferring monopoly

1. Unqualified persons are not advocates (section 31)

Due to an insignificant rise in the number of unqualified legal practitioners posing as qualified legal
practitioners in the legal profession, it has brought about the need to regulate the legal profession. As such
the Advocate’s act1 has come to zealously protect the entitlement to practice law.
Section 9 contains rules governing the qualification and admission of advocates to the high court of
Kenya. It outlines the three qualifications as; one has to be admitted as an advocated, their name for the
time being is in the roll and has in force a practicing certificate. The Act also goes further ahead to require
that a person must be a Kenyan, Ugandan or Tanzanian citizen for them to be admitted as an advocate. 2
That is subject to the fulfillment of the qualifications in section 13 which lays out the professional and
academic qualifications that a person must possess so as to be admitted as advocate of the High Court.
1
The Advocate’s Act Cap 16
2
Section 12
Section 31 (1) of the Act, subject to section 83, states that no unqualified person shall act as advocate or
cause as such any summons or other process to issue, 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. 3 Breach of this
subsection comes with consequences which are;

 Any person who contravenes this subsection may attract a contempt of court proceedings and an
appropriate punishment
 Any person who breaches this subsection shall be incapable of maintain any suit for any costs in
respect of anything done by him in the course of so acting
 Any such person shall be guilty of an offence punishable under section 85 of the act 4
2. When to practice on own behalf (section 32 – 33)
Getting a practicing certificate, does not on its entirety allow an advocate to engage in practicing on his
own behalf. This is either on a full time or part time basis unless they have practiced in Kenya for not less
than two years on a full time basis continuously. That can either be as an employee in the office of the
attorney general, an organization approved by the council of legal education or of an advocate who has
been engaged in private practice on his own behalf in Kenya for a period of not less than five years. 5
This helps in protection of the public from unqualified personnel and also protecting professional
standards. In Mohammed Ashraf Sadique and another vs. Mohammed Oseko and Company
advocates.6

In this case the applicants filed originating summons for orders instructing the respondents to pay back
the remaining balance from the one million that they had paid. The applicants herein were being
represented by Koceyo and Amadi advocates. The respondents however filed a preliminary objection
questioning the legality of the originating summons; this was because Mr., Eddie Jatianga Amadi was not
qualified. Mr. Amadi had not served as an employee in a firm for a period of 24 months after being
accepted to the bar. This was in contravention of section 32 of the Advocates Act. At the same time he
appeared as an advocate for the applicants in the matter which is also an offence under section 31 and 33
of the advocates act. Mr. Amadi also prepared and filed the summons in court which is contrary to section
44 of the Advocates Act.

Aside from that we have Mr. Koceyo who partnered with Mr. Amadi knowing that he was not really
qualified and is therefore guilty of an offence criminal in nature for aiding and abetting the crime of
representation using the name of the firm. The Consequences of the above crimes include;

- Contempt of court. Where the partners were sentenced to four months imprisonment with Mr.,
Koceyo being sentenced to three months imprisonment/ fine of three thousand.

3
Section 31 (1)
4
Section 31 (2)
5
Section 32 (1)
6
Civil suit 118 of 2010. [2009] eKLR
 - Guilty of criminal offence. Where the officers in Central Police were instructed to investigate on
the offences and charge them accordingly
- Incapacity to maintain any such suit
It is because of the actions of Mr. Koceyo and Mr. Amadi that this matter was struck out and the
applicants had no choice but to start the proceedings afresh.

3. Consequences for acting an advocate when unqualified. (Section 33 – 34)

Unqualified persons who willfully pretend to be or takes or uses any name, title, addition or description
implying that he’s qualified or recognized as qualified to as an advocate shall be guilty of an offence. 7
An unqualified person is prohibited by law from taking instructions or drawing or preparing any
document or instrument and further from accepting, receiving directly or indirectly any fee gain or reward
for taking of any such instructions.8 Contravention of these provision by any person, they shall be guilty
of an offence pursuant section 34 (3). Any money received by an unqualified person shall be recoverable
This sections apply to both qualified and unqualified persons acting as advocates. In regards to qualified
advocates they are disqualified by the fact that they lack a current practicing certificate. However, this
position is quite controversial and it was considered in the case of National Bank of Kenya Limited v
Wilson Ndolo Ayala.9 This case is an appeal from the civil cases no 1723 of 1997. It involved a charge
and a guarantee which was prepared and signed by an advocate, Mrs. V. Nyamodi. In that case a
judgment was passed on the charge and guarantee as they were null and void ab initio. This is because the
document was prepared and signed by Mrs. Nyamodi who was an advocate yes, but had no practicing
certificate. Her actions affected the charge which then became irrecoverable. The learned judges in this
case, E. O. O’Kubasu and others noted that although the action affected the innocent chargor, it is still
illegal and justice has to be served. In that regard the interests of the victim a distinction between an
advocate and a practicing advocate. That by merely concluding studies from The Kenya School of Law
one becomes an advocate. However, in order to be a practicing advocate one must have a practicing
certificate, one which Mrs., Nyamodi did not have. As this was an appeal against a previous decision, the
decision sustained and the appeal was hence dismissed. This case brought out a number of facts;

First: One qualifying as an advocate doesn’t necessarily mean that they are qualified to practice. For one
to qualify an advocate their name must have been entered on the roll. However, this doesn’t mean that the
person can practice as an advocate.

Section 34 helps in protecting the public from unqualified persons acting as advocates. It also protects the
legal profession and the course of justice. Accordingly courts will always strike out documents prepared
7
Section 33, Advocates Act
8
Section 34, Advocates Act
9
Civil appeal 119 of 2002 [2002]
by unqualified people although this depends on construction of the relevant statute. In Shaw v Groom10
the landlord unlawfully failed to supply a rent book, and the tenant denied a liability to pay rent because
of the illegality. The court held that where one party carries out a lawful contract in an unlawful manner,
the lawful contract remains enforceable. The absence of a rent book did not prevent the enforcement of a
contract for the payment of the rent as the court said that the provision of a rent book, though required by
law, was a collateral matter which did not affect the enforceability of the contract. The purpose behind the
legislation was to punish the conduct and not to invalidate the tenancy agreement. The Court of Appeal in
England held that where an illegality is committed in the course of performing a legal contract, the test as
to the enforceability of the contract is whether on a true consideration of the relevant legislation as a
whole parliament had intended to preclude the plaintiff from enforcing the contract.

An analysis of the Advocates Act and the cases above seems to reveal that Parliament had intended to
preclude the plaintiff from enforcing the documents prepared in contravention of this provision. There are
two arguments for this. First, such advocates are punished and a fine not exceeding Kshs.100, 000 is
provided for acting as an advocate while not holding a practicing Certificate pursuant to section 85 of the
Advocates Act. The Advocate is also liable to disciplinary proceedings. Besides, any money received by
an unqualified person in contravention of section 34 is recoverable summarily by the person by whom the
same was paid, as a civil debt.

Second if on invalidating or striking out of an unqualified advocates documents or suits lead to injury to
an innocent party, the injured party has a remedy in either starting the suit afresh or seeking leave to file
the process out of time or even seeking exemption from the Limitation of Actions Act to start the suit
afresh or as a last resort, the injured party can sue for damages for professional negligence.

As such documents signed by unqualified advocates are incompetent and cannot be relied upon in
evidence. This was seen in the case of Geoffrey Orao Obura v Koome 11 where the court of appeal held
that a memorandum of appeal signed and filed by an advocate who did not hold a current practicing
certificate was incompetent because the advocate was not entitled to sign and file that document. This was
also well explained in the case of National Bank of Kenya v Wilson Ndolo Ayah.

NB; circumstances where an unqualified person may prepare these documents

 Any public officer may draw or prepare such documents or instruments in the course of his duty.
 Any person employed by an advocate and acting within the scope of employment may draw or
prepare them

10
[1970] QB CA
11
(2001) KLR 109
  Any person may be employed to engross such documents or instruments.
4. The name and address of the drawer of a document or an instrument

Section 35(1) every advocate who prepares a document must have their name and address entered on
that document for record purposes. This provision raises two noteworthy points;

1. It is an offence punishable by a payment of a fine if an advocate does not endorse his name on the
document
2. Its punishable for unqualified persons to draw documents under section 34 of the act

Pursuant to section 35(2), registrar is empowered to refuse to accept or recognize any document or
instrument referred to in section 34(1) unless such document is endorsed in accordance with section.

Documents or instruments that are drawn in accordance with section 34 and 35 are not valid and
unrecognizable by law. This position is clearly seen in the case of Travel Shoppe limited v indigo
garments EPZ limited and others the plaintiff filed a suit against the defendants thereafter it filed the
present application seeking to stop the defendants from transferring assets of the first defendant. Ground
for application was that it had a judgment against the first defendant which remained unsatisfied. It
subsequently filed a winding up petition but the second defendant was appointed by the third defendant
pursuant to a debenture. The applicant argued that the debenture was unlawful as it did not show the
advocate who drew it contrary to section 34 and 35 of the advocate’s act.

In dismissing the application the court held that under section 34, any person who draws or prepares a
document must indicate that they are drawers. Failure to do so makes the document invalid.

OFFENCES AGAINST COMPETITION.

The legal profession has to have healthy competition amongst the different practicing advocates. Conduct
that hinders this is considered professional misconduct and advocates have an obligation to act in ways
that foster healthy competition. Matters that result in offences to competition include;
I) Failure to endorse the name of an advocate on an instrument.
Where a document has been drawn or has been caused to be drawn by an advocate their name and address
should be endorsed. It is a requirement that emanates from due diligence as is required of anyone
especially in the legal profession. This can be connected to competition as one advocate not endorsing
and crediting another for their work would be an infringement on their right to be recognized for that
work. It could even be cited as malicious intent by the said advocate for them to solely benefit even for
another’s work.
The act penalizes failure to endorse with a fine not exceeding five hundred shillings in the case of an
advocate according to Section 35(1) of the Advocates act.
ii) Undercutting.
The Advocates Remuneration Order prescribes a scale for advocates to use in coming up with the amount
to charge for legal services. Undercutting therefore refers to charging for legal services at a scale lower
than the prescribed scale.
Advocates are supposed to attract work because of the quality of the legal services they provide. It should
not be a case where one attracts clients because they offer low charges.
In the case of Ahmednasir Abdikadir &Co Advocates v National Bank of Kenya these matters were
cited. It was stated that the standards of practice would then become the sole measure of the fees which
any particular advocate could charge. No one would then be able to attract work on the basis of
undercutting. This discussion is evidence that undercutting is an offence against competition and its
illegality is aimed at making competition healthy between advocates offering legal services
Section 36(1) of the Advocates Act outlaws undercutting and any agreement between a client and an
advocate where the advocate agrees to undercut is illegal ab initio.
Section 46 of the Advocates Act outlines invalid agreements. Among these is an agreement where an
advocate agrees to accept in respect of professional business any amount lower than the remuneration
prescribed.
iii) Advertising and Touting.
Directly or indirectly advertising services or fees and soliciting for clients’ amounts to professional
misconduct. Advertising and solicitation are prohibited because of the evils they present to the society.
For instance, they tend to commercialize the profession leading to unnecessary and unhealthy
competition, which is in the long run, affects the quality of legal services. It should be emphasized that
when advocates solicit for clients it is possible for them to engage in false promises as long as they get
clients so that it is the final consumer of the legal services who is likely to suffer. When this happens, the
professional dignity is likely to suffer.12

Many reasons are advanced for regulating advertising and solicitation of clients. Some of the reasons
given are that the prohibition is aimed at achieving the following: 13

 Protection of the public against being misled by the unscrupulous advocates

 Protection of the clients and prospective clients against overarching by advocates
 Protection of profession dignity
 Protection of the public against lay interference that is common with solicitation of clients by
advocates
 Prohibition also aims at minimizing frivolous or vexatious litigation.

12
Ibid
13
Ojienda Tom and Karatina Juma, Professional Ethics A Kenyan Perspective. (LawAfrica publishers) 2011. Pg. 99
Advocates are not allowed to communicate offers of representation to laymen. This kind of behavior
tends to commercialize the profession this in turn leads to unhealthy and unnecessary competition. Such
offences against healthy competition in the long run would affect the quality of legal services being
offered to the public.

The professional dignity would suffer a blow from such conduct. Rule 2 of the Advocates (Practice)
Rules clearly outlines. This rule provides that "No advocates may directly or indirectly apply for or seek
instructions for profession business or do or permit in the carrying on of his practice any act or thing
which can be reasonably regarded as touting or advertising or as calculated to attract business unfairly."
As regards what amounts to advertising is a question of fact and may include very wide acts. For instance,
an advocate are only allowed to nameplates of reasonable size on their doors only and such names should
not have slogans as it is commonly found in the other commercial advertisements.

As regards touting for clients, the advocates act prohibits such misconduct. Accordingly, pursuant to
section 38 of the act, an unqualified person who procures or attempts to procure the employment of an
advocate in consideration of a benefit to himself, in any suit or matter or solicit from an advocate any
payment or advantage in consideration of such employment shall be deemed to be a tout.it should be
noted that this provision does not aim at individual advocates but aims at individual who are employed by
advocates to tout and solicit for clients.

It is uncommon to find lawyers advertising on television, newspapers and billboard. Offences against
competition are particularly about prohibition against advertising by the legal profession and about
qualifications required by advocates to set up an independent legal practice.

Jurisdiction that have lifted the ban on advertising by lawyers have adopted a regulatory approach that
attempts to maintain public confidence in the legal profession by allowing lawyers freedom to inform the
public of their nature of their services to rules that prevent false, misleading or deceptive representation
practices and conduct that undermines the administrative justice.

Article 46 of the Constitution guarantees that: consumers requires sufficient and accurate information to
enable them access the nature and quality of service necessary to enable them gain full benefit of legal
service in order to generate efficient market outcomes, consumers must know what is available to in order
to make informed choices.

Advertising enables the consumer to have information regarding where, when, from whom and how to get
legal service of an advocate. Prohibition of these advertisements constrains the consumer of legal service
to such information as is necessary for them to make informed choices.
Bates vs. state Bar of Arizona (1977) 433 US 35A

The Supreme Court of the United State recognized that advertising does not provide a complete
foundation on which to select an attorney, it does enable a consumer make an informed choice.it also
noted that a state may not prohibition advertisement. It’s also added that advertising has become a fact of
life for the legal profession in the United States of America.

The right of access to justice is protected by article 48 of the Constitution which provides as follows:14

The states shall ensure access to justice for all persons and if any fee is required it shall be reasonable and
shall not impede access to justice.

In the case of Dry associates limited v capital Markets Authority and another. 15 The court stated access
to justice is a broad concept that defies easy definition. It includes the enshrinement of rights in the law;
awareness of and understanding of the law; easy availability of information pertinent to ones rights; equal
rights by the law enforcement agencies; easy access to the justice system particularly the formal
adjudicator processes: availability of physical legal services; provision of a conducive environment within
the judicial system: expeditious disposal of cases and enforcement of judicial decisions without delay.

Advocates play a key role in the provision of justice. They act as intermediaries between the citizen and
the law. They perform task which enable individuals meet their legal obligation and facilitate not only
business but also personal relations .Access the legal service in an indispensable element of access to
justice.

Any law or regulations prevents an advocate from imparting information necessary for increased
awareness of law, legal rights and obligation does not limit access to justice.

Consequences of the ban on advertising of legal service are that consumers are left in the dark about the
nature and extend of legal service that can be offered by an advocate thereby undermining the right of
access to justice.

Article 35(1) b provides as follows;16

Every person has the right of access to; information held by any other person and required for the exercise
or protection of any right or fundamental freedom.

Rule 2 on the basis of article 35(1) b is rather strained and tortured. The ban on advertising includes what
may fairly be said to be dispensation of information. It restricts access to information in the manner
14
Constitution of Kenya 2010, article 48
15
Petition no 358 of 2011
16
Supra 14
contemplated by article 35(1)b irrespective of the ban on advertising any citizen can assert the right to
seek information and rule 2 cannot be used as a shield to avoid the obligation of article 35(1)b17

Section 38 of the Advocates Act provides for the prohibition against advertising and touting. As regards
touting for clients, the Advocates Act prohibits such conduct. According to this section, an unqualified
person who procures or attempts to procure the employment of an advocate in consideration of a benefit
to himself/ herself, in any suit or matter or solicit from an advocate in consideration of such employment
such will be deemed to be a tout. This provision aims at individuals who are employed by advocates to
tout and solicit for clients.

The Advocates Practice Rules (subsidiary legislation under the Advocates Act), thus governs the
advocates’ practice in general and breach of these rules constitutes professional misconduct. Rule 2 of the
Advocates Practice Rules deals with touting and advertising- advocates should not advertise their services
but look at the Article 46(3) of the Constitution which applies to goods and services offered by public or
private persons. Therefore, this rule is considered as inconsistent with the Constitution hence, not
applicable.

In the petition case no. 126 of 2011, George Owansa & Another v A.G and 2 others,18 the case
challenges the qualification required by advocates to set up an independent legal practice. It also
challenges the prohibition against advertising by the legal profession. According to judge Majanja’s
disposition, section 32 of the Act is not inconsistent with or in violation of Articles 25(b), 27 and 30 of
the Constitution. He declared rule 2 of the Advocates Rules made under the Advocates Act as constituting
a complete ban of advertising by advocates is unconstitutional and inconsistent with Articles 46(1) and 48
of the constitution.

In the Civil case No. 532 of 2004, Re Trepca Mines Ltd (1962), the defendant was seeking to strike out
the plaint on the ground that the same was an abuse of the court process. Section 45(1) of the Advocates
Act provides for the Remuneration of Fees, that an advocate has the right to enter into agreement with his
client with respect to remuneration. According to Lord Denning," when a solicitor makes an agreement
with his client (the parties were not in park delicto), the solicitor is guiltier for he ought to know better
than to stipulate a percentage to him. If he recovers a fund which belongs to his client, he ought to hand it
all over to his client, and not to deduct anything for his costs. He cannot sue for his costs directly,
therefore, there's no reason to recover his costs indirectly by deductions out of the client's money."

17
Constitution of Kenya 2010, article 31
18
Petition 126 of 2011
The rationale is that not only the advocate is deemed to know the law, but more so because the person
who is expressly stipulated to have committed an offence is the advocate. That the dignity of the
profession would be upheld if held if advocates comply with provisions of the Advocates Act which
prohibits undercutting of legal fees.