Advocates Act

Section 1 Short title Section This Act may be cited as the Advocates Act.

Section 2. Interpretation Section In this Act, unless the context otherwise requires— "advocate" means any person whose name is duly entered upon the Roll of Advocates or upon the Roll of Advocates having the rank of Senior Counsel and, for the purposes of Part IX, includes any person mentioned in section 10 ; "annual licence" deleted by ActNo. 9 of 2000, s. 56 ; "client" includes any person who, as a principal or on behalf of another, or as a trustee or personal representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or employs, or is about to retain or employ an advocate and any person who is or may be liable to pay to an advocate any costs; "contentious business" means any business done by an advocate in any court, civil or military, or relating to proceedings instituted or intended to be instituted in any such court, or any statutory tribunal or before any arbitrator or panel of arbitrators; "costs" includes fees, charges, disbursements, expenses and remuneration; "Court" means the High Court; "Disciplinary Tribunal" means the Disciplinary Tribunal established under section 57 ; "non-contentious business" means any business done...

Section 3.[Repealed by ActNo. 12 of 1995, s. 21.]

Section 4.[Repealed by ActNo. 12 of 1995, s. 21.]

Section 5.[Repealed by ActNo. 12 of 1995, s. 21.]

Section 6.[Repealed by ActNo. 12 of 1995, s. 21.]

Section 7.[Repealed by ActNo. 12 of 1995, s. 21.]

Section 8.[Repealed by ActNo. 12 of 1995, s. 21.]

Section 9. Qualifications for practising as an advocate Section he has been admitted as an advocate; and

Section 10. Certain officers entitled to act as advocates Section an officer in the Office of the Attorney-General or the Office of the Director of Public Prosecutions;

Section 11. Foreign advocates Section 11(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. Section 11(2) No foreign advocate shall be entitled to practise until he has paid to the Registrar the prescribed admission fee. Section 11(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. Section 11(4) Every foreign advocate shall, during and for t...

Section 12. Qualification for admission as advocate Section he is a citizen of Kenya, Rwanda, Burundi, Uganda or Tanzania; and

Section 13. Professional and academic qualifications Section 13(1)(a) having passed the relevant examinations of any recognized university in Kenya he holds, or has become eligible for the conferment of, a degree in law of that university; or Section 13(1)(b) having passed the relevant examinations of such university, university college or other institution as the Council of Legal Education may from time to time approve, he holds, or has become eligible for conferment of, a degree in law in the grant of that university, university college or institution which the Council may in each particular case approve; Section 13(1)(i) he has attended as a pupil and received from an advocate of such class as may be prescribed, instruction in the proper business, practice and employment of an advocate, and has attended such course or tuition as may be prescribed for a period which in the aggregate including such instruction, does not exceed eighteen months; and Section 13(1)(ii) he has passed such examinations as the Council of Legal Education may prescribe; or Section 13(1)(c) he possesses any other qualifications which are acceptable to and recognized by the Council of Legal Education; Sectio...

Section 14. Attorney-General and the Director of Public Prosecutions may take pupils Section The Attorney-General and the Director of Public Prosecutions may take pupils in accordance with section 13 and in this Part and in any regulations "advocate", in the context of pupillage, includes the Attorney-General and the Director of Public Prosecutions. [Act No. 12 of 2012 , Sch.]

Section 15. Admission as an advocate Section 15(1) Every person who is duly qualified in accordance with this Part may apply for admission as an advocate, and the application shall be made by petition in the prescribed form, verified by oath or statutory declaration addressed to the Chief Justice, and filed with the Registrar together with a notice intimating that the petition has been so filed together with such other documents as may be prescribed and the applicant shall also deliver a copy of the petition and of any document delivered therewith to the secretary of the Council of Legal Education and to the secretary of the Society. Section 15(2) The notice referred to in subsection (1) shall be publicly exhibited by the Registrar for one month before any order shall be made on the petition. Section 15(3) Every petition made under this section shall be heard by the Chief Justice in chambers within ninety days of the expiry of the period referred to in subsection (2), 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 adjou...

Section 16. Custody of Roll Section 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.

Section 44. Chief Justice may make orders prescribing remuneration Section 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. Section 44(2)(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; Section 44(2)(b) the place where, and the circumstances in which, the business or any part thereof is transacted; Section 44(2)(c) the amount of the capital money or rent to which the business relates; Section 44(2)(d) the skill, labour and responsibility involved therein on the part of the advocate; Section 44(2)(e) the number and importance of the documents prepared or perused, without regard to length. Section 44(3)(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...

Section 45. Agreements with respect to remuneration Section 45(1)(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; Section 45(1)(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 instruction fee in respect thereof or his fees for appearing in court or both; Section 45(1)(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. Section 45(2)(a) that the agreement be upheld; or Section 45(2)(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 Section 45(2)(c) that the agreement be set aside; or Section 45(2)(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...

Section 46. Invalid agreements Section 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

Section 47. Power of court to order advocate to deliver his bill and to deliver up deed Section 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. Section 47(2) In this section and in sections 48 , 49 and 50 "advocate" includes the executors, administrators and assignees of the advocate in question.

Section 48. Action for recovery of costs Section 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 limits of the Court’s jurisdiction, in which event action may be commenced before expiry of the period of one month. Section 48(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. Section 48(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. [Act No. 2 of 2002 , Sch.]

Section 49. Procedure in action where quantum of costs is challenged by defence Section no judgment shall be entered for the plaintiff, except by consent, until the costs have been taxed and certified by the taxing officer;

Section 50. Taxation on application of third parties, beneficiaries under trust, etc. Section 50(1)(i) the bill has previously been taxed; or Section 50(1)(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. Section 50(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. Section 50(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.

Section 51. General provisions as to taxation Section 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. Section 51(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.

Section 52. Charging orders Section 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.

Section 17. Senior Counsel Section 17(1) The President may grant a letter of conferment to any person of irreproachable professional conduct who has rendered exemplary service to the legal and public service in Kenya conferring upon him the rank and dignity of Senior Counsel. Section 17(2)(a) he is a duly enrolled advocate of the High Court of not less than fifteen years’ standing; or Section 17(2)(b) being a person to whom section 10 applies, he holds, and has held for a continuous period of not less than fifteen years, one or other of the qualifications specified in section 13 (1). Section 17(3) The grant shall be made not later than sixty days upon receipt of a list of names submitted by the Committee on Senior Counsel through the Chief Justice. [Act No. 6 of 2009 , Sch.]

Section 18. Roll of Senior Counsel Section 18(1) Upon the commencement of this Act, the Registrar shall cause to be prepared, and shall thereafter maintain, a Roll of Advocates having the rank of the Senior Counsel (hereinafter called "the Roll of Senior Counsel") in accordance with this Part 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. Section 18(2) There shall be entered in the Roll of Senior Counsel the names of all persons having the rank thereof in accordance with this Part. Section 18(3) Every person upon whom the rank of Senior Counsel has been conferred shall sign the Roll of Senior Counsel in the presence of the Registrar, and the Registrar shall add his signature as a witness. Section 18(4) The Chief Justice shall cause to be published in the Gazette the names of the advocates upon whom the rank of Senior Counsel is conferred. [Act No. 6 of 2009 , Sch.]

Section 19. Application of Part XI Section 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;

Section 20. Precedence Section The Attorney-General, the Director of Public Prosecutions, the Solicitor- General, Senior Counsel or Queen’s Counsel according to the date of their appointment as such, the President and the Vice-president (if not a Senior Counsel) of the Society shall, in that order, take precedence of advocates who, inter se , shall take precedence according to the date upon which they signed their names on the Roll. [Act No. 12 of 2012 , Sch.]

Section 21. Registrar to issue practising certificates Section The Registrar shall issue in accordance with, but subject to, this Part and any rules made under this Act certificates authorizing the advocates named therein to practise as advocates. [Act No. 7 of 1990 , Sch., Act No. 9 of 2000 , ss. 58, 59.]

Section 22. Application for and issue of practising certificate Section 22(1)(a) by delivering to him an application in duplicate, signed by the applicant specifying his name and place of business, and the date of his admission as an advocate; Section 22(1)(b) by producing evidence satisfactory to the Registrar that the applicant has paid to the Society the fee prescribed for a practising certificate and the annual subscriptions payable for the time being to the Society and to the Advocates Benevolent Association; and Section 22(1)(c) by producing a written approval signed by the Chairman of the Society stating that there is no objection to the grant of the certificate. Section 22(2) Subject to section 31 , the Registrar, if satisfied that the name of the applicant is on the Roll and that he is not for the time being suspended from practice, shall within fourteen days of the receipt by him of the application issue to the applicant a practising certificate. Section 22(3) The Registrar shall cause one copy of each declaration delivered to him under this section to be filed in a register kept for that purpose, and any person may inspect the register during office hours without payment...

Section 23. Issue of practising certificate to confer membership of Society Section 23(1) Every advocate to whom a practising certificate is issued under this Part shall thereupon and without payment of any further fee, subscription, election, admission or appointment, and notwithstanding anything contained in the Law Society of Kenya Act (Cap. 18) or in any regulations made thereunder, become a member of the Society and the Advocates Benevolent Association and be subject to any provision of law or rule of the Society and the Advocates Benevolent Association for the time being affecting the members thereof. Section 23(2) Every advocate who has become a member of the Society under this section shall remain a member until the end of one month after expiration of his practising certificate, unless his name, whether at his own request or otherwise, is removed from or struck off the Roll, whereupon he shall cease to be a member of the Society. Section 23(2A) The Society shall issue to every advocate registered with it a stamp or seal bearing the advocate's name, admission number and the year of practice in such form as may be approved by the Council of the Society and prescribed in regu...

Section 24. Date and validity of practising certificate Section 24(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. Section 24(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. Section 24(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. Section 24(4) The Registrar shall enter upon the Roll a note of the date of the issue of every practising certificate.

Section 25. Discretion of Registrar to issue practising certificate in special cases Section 25(1)(a) when for twelve months or more he has ceased to hold a practising certificate in force; or Section 25(1)(b) whilst he is an undischarged bankrupt or a receiving order in bankruptcy is in force against him; or Section 25(1)(c) when, having been suspended from practice or having had his name removed from or struck off the Roll, the period of his suspension has expired or his name has been restored to the Roll, as the case may be; or Section 25(1)(d) not having held a practising certificate in force within twelve months next following the date of his admission as an advocate; or Section 25(1)(e) whilst he is a person to whom the powers and provisions of the Mental Health Act ( Cap. 248 ) relating to management and administration apply; or Section 25(1)(f) without having paid a penalty or costs ordered by the Disciplinary Committee to be paid by him; or Section 25(1)(g) after having been adjudicated a bankrupt and obtained his discharge or after having entered into a composition with his creditors or a deed of arrangement for the benefit of his creditors; or Section 25(1)(h) limited to...

Section 26. Appeals in connection with issue of practising certificate Section 26(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. Section 26(2)(a) affirm the decision of the Registrar; or Section 26(2)(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 Section 26(2)(c) direct the Registrar not to issue a certificate; or Section 26(2)(d) if a certificate has been issued, by order suspend that certificate; or Section 26(2)(e) make such other order as he may think fit.

Section 27. Suspension of practising certificate in certain circumstances Section 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.

Section 28. Duration of suspension of practising certificate Section 28(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. Section 28(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. Section 28(3)(a) by an order under section 26 (2); or Section 28(3)(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. Section 28(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 representa...

Section 29. Publication of suspension or termination of suspension of practising certificate in certain cases Section by an order under section 26 (2); or

Section 30. Evidence as to holding of practising certificate Section 30(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. Section 30(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.

Section 30A.[Repealed by ActNo. 9 of 2000, s. 60.]

Section 30B.[Repealed by ActNo. 9 of 2000, s. 61.]

Section 30C.[Repealed by ActNo. 9 of 2000, s. 62.]

Section 31. Unqualified person not to act as advocate Section 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. Section 31(2)(a) be deemed to be in contempt of the court in which he so acts or in which the suit or matter in relation to which he so acts is brought or taken, and may be punished accordingly; and Section 31(2)(b) be incapable of maintaining any suit for any costs in respect of anything done by him in the course of so acting; and Section 31(2)(c) in addition be guilty of an offence.

Section 32.[Repealed by ActNo. 27 of 2012, s. 50.]

Section 33. Penalty for pretending to be advocate Section Any unqualified person who wilfully pretends to be, or takes or uses any name, title, addition or description implying that he is, qualified or recognized by law as qualified to act as an advocate shall be guilty of an offence. [Act No. 2 of 2002 , Sch.]

Section 34. Unqualified person not to prepare certain documents or instruments Section 34(1)(a) relating to the conveyancing of property; or Section 34(1)(b) for, or in relation to, the formation of any limited liability company, whether private or public; or Section 34(1)(c) for, or in relation to, an agreement of partnership or the dissolution thereof; or Section 34(1)(d) for the purpose of filing or opposing a grant of probate or letters of administration; or Section 34(1)(e) for which a fee is prescribed by any order made by the Chief Justice under section 44 ; or Section 34(1)(f) relating to any other legal proceedings; Section 34(1)(i) any public officer drawing or preparing documents or instruments in the course of his duty; or Section 34(1)(ii) any person employed by an advocate and acting within the scope of that employment; or Section 34(1)(iii) any person employed merely to engross any document or instrument. Section 34(2) Any money received by an unqualified person in contravention of this section may be recovered by the person by whom the same was paid as a civil debt recoverable summarily. Section 34(3) Any person who contravenes subsection (1) shall be guilty of an o...

Section 35. Instruments to be endorsed with name and address of drawer Section 35(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. Section 35(2) The Registrar, the Chief Land Registrar, Deputy Chief Land Registrar, County Land Registrar, Land Registrars, 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)...

Section 36. Undercutting Section 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. Section 36(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.

Section 37. Sharing profits Section 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.

Section 38. Touts Section 38(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. Section 38(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.