On the history of legal profession in Kenya: the colonial period, pre-

independence and the attack to date.

…Wasiotosheka waitafute Kenya yao…

…La michafuko waende wakaitawale…

…Kwe-Kwekwe shambani mwa Nyayo na zilimwe…

…Wanaocheza na uhuru waangamizwe…

…Heko kwa mpendwa Rais Baba Moi…

(The Voice of Machakos Primary Schools Joint Choirs, 1990s)

Well this paper will approach the history of the legal profession in Kenya by dividing it into
three periods that is the period from 1901 to 1949, 1949 to 1948 and 1990 to date.

The period between; 1901 to 1949

The colonial period marks the beginning of this journey and during this time their existed two
sets of legal framework: the East Africa legal practitioner Rules and the Native Courts
Practitioners rule (1897-1905). In as much as this sounds like some sort of “regulation" they
were not based on strict notion of legal profession. What this means is that barristers and
solicitors were considered professionally qualified Pleaders (for example) represented a purely
pragmatic scheme in the sense that they would serve at the pleasure of the protectorate judge
which meant that they were admitted whenever the judge would deem there is need and this was
done in his discretion. Note, his appointments were based on good character and sufficient
capability to practice in that court.1

Apart from the pleaders, the following were also qualified to practice law (well, this was
ought to be mentioned before and talking about the pleaders first should not in any way be read
to imply that they were more “important”) and perhaps this is the hierarchy of importance:
Member of the Bar of England, Scotland and Ireland , Solicitor of supreme Court in
England ,Writer to the signet, Pleaders admitted to practice before one of the high Court in India
1
J.B. Ojwang and D.R Salter, The legal profession in Kenya, (1990) available at
https://www.jstor.org/stable/745597?seq=1#metadata_info_tab_contents accessed on 10/9/2021
and Native Vakeels subject to restrictions imposed by Native Courts Partitioned Rules (herein
NCPR).2

It would be obvious to wonder first, “who Vakeels were” well, as the name suggests they
were a set of inferior, locally based tribunals whose powers were confined to tribal or other local
matter which fell to be resolved under local customary or religious law. This Vakeels system was
not founded on professional merit it was just founded on convenience. They had no competence
in respect of non-contentious legal work and were sometimes admitted to practise on
consideration of blood relations. This was for example seen in section 4 of the NCPR, which
indicated that their function owed much to the principal of agency/nominee-ship rather than to
the notions of professional expertise.3

So far one can see that the legal profession in Kenya at the time did not show the normal
feature of the legal profession and this is why: it lacked autonomy, it did not have its on
controlling basis of norms and professional etiquette, it was disintegrated and made up of
practitioners of differing orientations and vocational commitment and lastly it was a sheer
pragmatic device with its principle regulatory machinery resting with the colonial bureaucracy.

Ojwang and Salter remark that such a profession in its form was not truly a social device
for the resolution of the broader society’s legal conflicts rather it appeared as a skewed edifice
whose character was dictated by the social and political apprehensions of the colonial authorities,
the demand of the fledgling, commercial economy and sectional and personal interest of the
those who had formal training in the procedure of law and the dominant Court.4

It was in 1911 that the rules of Court all practitioners not professionally qualified were
excluded from legal practice save for Vakeels, and this was later reaffirmed in the Rules of his
majesty‘s supreme Court of Kenya 1926. 5

The above Legislation marked an important step in the legal history, well this is what it
did it prescribed the designation advocate for all persons qualified to practice and being in
2
J.B. Ojwang and D.R Salter, The legal profession in Kenya, (1990) available at
https://www.jstor.org/stable/745597?seq=1#metadata_info_tab_contents accessed on 10/9/2021
3
The vakeel system existed since it was feared that participation of lawyers in the lower stratum would cause
confusion with its many technicalities.
4
J.B. Ojwang and D.R Salter, The legal profession in Kenya, (1990) available at
https://www.jstor.org/stable/745597?seq=1#metadata_info_tab_contents accessed on 10/9/2021
5
practice that is barristers, writers to the signet, solicitors, attorney and law agents. This therefore
re represented a definite step towards a fused profession as distinct from the then divided
profession of England and the city and distinct from the uncategorised condition which had until
then prevailed in Kenya.6

This move towards fusion appeared to be for their own good and in the interests of the
judiciary which was calling for standard practices. The State role in the legal regulation remain
the same superintendence of the profession rested with the court irrespective of whether a
particular advocate had qualified as a solicitor or barrister or under other nomenclature.

It is important to note that the regulation of the legal profession in Kenya by an organised
group Within the legal profession started with the Mombasa Law Society which was founded is
those early years and when Nairobi was established as a centre of Commerce and administration
and the second high court apart from the one in Mombasa was established the lawyers practicing
in Nairobi formed the Nairobi Law Society which like the Mombasa Law Society was a
voluntary organisation and therefore membership was not mandatory.

In the 1920s the two societies merged to form the Law Society of Kenya however the
characteristics of voluntary membership still remained for this reason there were shortcomings
which were quite apparent to the Law Society and this led to strong representation to the
Colonial government especially from the 1930s calling for legislation to organise the profession
on the same line as the solicitors organisation in England. Although the government was
receptive to such representation it was unable to respond until after the World War 2.7

Additionally, the legal profession in Kenya during the Colonial period was divided into
two the public legal profession and the private legal profession. Those who comprise the public
legal profession were judiciary members of the colonial legal service mainly those trained in
England and employed by the crown and were mostly British citizens. On the other hand the
private legal profession mainly comprised of the advocates of Asian origin who qualified as
advocates in private practice and who together formed the bar. Also, legal profession was subject
to public control through the judiciary and the basic Justice and at this time discipline against

7
J.B. Ojwang and D.R Salter, The legal profession in Kenya, (1990) available at
https://www.jstor.org/stable/745597?seq=1#metadata_info_tab_contents accessed on 10/9/2021
solicitors and barristers and Indian advocates was made to the High Court Judge for
determination and any appeal at that time on disciplinary ruling was made to the High Court at
Zanzibar.8

The period between 1949 to 1989 (Self-Regulation)

This period ushered the legal profession into self-governing, in the year 1949 the Advocates
Ordinance and the Law Society ordinance were passed the latter legislation formally
established the Law Society of Kenya for the purpose inter Alia of improving the standard of the
professional legal services and of maintaining discipline among practitioners. The former
legislation which is the advocates ordinance was a definite measure to decentralize the regulation
of the legal profession from public authorities to a body of corporate status with such qualities as
perpetual succession common seal power to Sue and be sued in the corporate name well its
functions included maintenance and improvement of standards of conduct and learning within
the legal profession (2) facilitating the acquisition of knowledge by members of the profession
and others (3) assisting the government and court in all matters affecting legal administration
practice of law (4) assisting, protecting and representing members of the profession.9

The LSK at this time had a scheme of governance it provided for a council with the
president and six other person elected at the annual general meeting. The Council had other rule-
making powers on various questions for example expanding the membership of the society. One
of its main weaknesses lay in the fact that membership remained voluntary and expelled
members could continue practicing law.

On the other hand the Advocates’ Ordinance 1949 created two committees the advocate
committee which had the responsibility for displinary even though it just made recommendations
to the court which alone could make binding decision. The other is the remuneration committee
which had the responsibility for making recommendations to the chief justice in respect of
advocates’ remuneration. 10
8
J.B. Ojwang and D.R Salter, The legal profession in Kenya, (1990) available at
https://www.jstor.org/stable/745597?seq=1#metadata_info_tab_contents accessed on 10/9/2021
9
Yash Pal Ghai & Jill Cottrell Ghai, The Legal Profession And The New Constitutional Order In Kenya (Strathmore
University Press; Nairobi, 2014) 39
10
J.B. Ojwang and D.R Salter, The legal profession in Kenya, (1990) available at
https://www.jstor.org/stable/745597?seq=1#metadata_info_tab_contents accessed on 10/9/2021
 The advocates committee was presided over by the Attorney General the solicitor
general and three advocates from the society, its mandate was to hear complaints on advocates
conduct. The committee also would screen the complaint before forwarding it to the High Court
which would then be heard by two judges. The consequences would be either to be admonished
suspended and or struck off the roll of advocates should a prima facie case be established.

The remuneration committee was presided over by five advocates nominated by the
Law Society. It had powers to enforce, set aside a remuneration agreement and recommend to
the Chief Justice appropriate rates of remuneration to be charged by advocates. It is important to
note that in an effort to bring the legal profession into self-governing the Law Society brought
in the 1952 amendments, the advocates committee had the disciplinary power over Clerks and
further had power to determine a complaint in absence of the advocate. It was also during this
time that the society's membership was made compulsory and payment of subscription fee
introduce annual practising certificate and any advocate struck off the roll could not be a member
of the Law Society, further amendments in 1961 replaced the advocates committee with a
disciplinary committee11

The period between 1990 to date (the attack and towards State Regulation)

During this time the legal profession through the1989 act ushered in the establishment of the
advocates Complaints Commission act these act established their advocates Complaints
Commission which was mandated to receive investigate and prosecute advocates Farm of
advocates and any other member or employee they are off before the disciplinary tribunal this
amendment changed the regulatory disciplinary from self-regulatory to call regulatory system
this was seen as a measure to control the Law Society of Kenya who was seen as supporting the
multi-party system in Kenya it was during this time that the attack occur hence

The attack

While starting us off this paper quoted a song sang by primary school children in the 1990s.
Well, there was a time in this country when such a song was sung with so much vigour and
confidence, today one would risk being trolled everywhere (across the universe!) on social media
11
J.B. Ojwang and D.R Salter, The legal profession in Kenya, (1990) available at
https://www.jstor.org/stable/745597?seq=1#metadata_info_tab_contents accessed on 10/9/2021
platforms, including Gmail. Anyway the moral underpinning of the song has nothing to do with
this paper what is of relevance is that “part of the weeds that were meant to be uprooted” (Ha!
This is deep) were those criticizing Moi’s leadership and the legal practioners were not left out.
As the song implies if you did not agree with his governance you ought to have looked for your
own “Kenya” and take ‘’your dirty ideologies there’’ and “rule it.”

The assault on the legal profession did not start with the Moi’s Regime but with the
Kenyatta Regime which mainly did it through two procedures that is the constitution and the
legal profession. This was done by using the two to establish political dominance and eliminate
political opponents and opposition. This led to moving the country from multiparty system to
one party one man rule. This was what was continued by the Moi regime. During this period the
Law Society of Kenya (herein referred to as LSK) was divided in the early 1990s between those
who were pro government and those who opposed it. This was seen through the cases brought to
court.12

This period also ushered in the establishment of Advocates Complaints Commission

through the 1989 Advocates Act this Commission was run by the government and it was used to
reign in lawyers. There was increase in government-bar tensions at this time. The government
was complaining against lawyers. The Law Society of Kenya at the time were not supported by
the public regardless lawyers started involving themselves in the issues of public interest.13

The Moi regime found that it was not gaining central control over the legal profession
and it attacked the Law Society itself it made funds and government assistance available to
candidates within the society during an election so as to take over and control the independence
of the bar. It also had individual LSK members bring legal suits against the Law Society of
Kenya and obtain injunctions to gag the Law Society of Kenya statements. 14

Aaron Ringera & Others v Law Society of Kenya: In this case the plaintiffs moved to
stop the statements of the Law Society which spoke of government violations of the rule of law.

12
Yash Pal Ghai & Jill Cottrell Ghai, The Legal Profession And The New Constitutional Order In Kenya (Strathmore
University Press; Nairobi, 2014) 39
13
Yash Pal Ghai & Jill Cottrell Ghai, The Legal Profession And The New Constitutional Order In Kenya (Strathmore
University Press; Nairobi, 2014) 40
14
Yash Pal Ghai & Jill Cottrell Ghai, The Legal Profession And The New Constitutional Order In Kenya (Strathmore
University Press; Nairobi, 2014) 40
An injunction was granted against the Law Society, its officers and council members stopping
them from issuing public statements on political events. The chair and officers of the LSK
refused to be gagged. Contempt proceedings were initiated. Eventually, these faded away. 15

Kenneth Kiplagat v Law Society of Kenya: In this case a Moi sympathizer, sought to
declare the statements of the Law Society against certain Government steps, as not representative
of his views as a member, and ultra vires the Law Society of Kenya Act. This application was
commenced by chamber summons, a form long held not to be able lawfully to constitute an
originating process. Upon a preliminary objection, it was struck out. 16

Kenneth Kiplagat v Law Society of Kenya (No.2): The same applicant then brought a
fresh action through a proper originating process. The issue was whether s.4 (e) of the Law
Society of Kenya Act, was valid law or whether statements made under it were ultra vires. This
was argued at great length. This second attempt was also dismissed. Joyce Aluoch J. and Ransley
J. held that the section was valid and that the statements were lawfully made.17

All this cases failed. The Moi regime then introduced a new complaints mechanism
against advocates, the Complaints Commission. Its members would be appointed by the State,
thus enabling the Moi government to control outcomes. It was to evade the difficulty that Moi
could not easily control outcomes in the statutory Disciplinary Committee (the disciplinary body
already in existence), because its members were elected by the LSK members under statute.

Moi then sought to punish the lawyers by making the legal profession subject to heavy
control the result was that the profession was subject to five disciplinary regimes. Moi’s
government also imposed to value-added tax on legal services while exempting other professions
so that it will become more expensive to the public it also threatened to deregister the Law
Society if it criticized the president's but this couldn't be done since it was a Statutory body.

15
Yash Pal Ghai & Jill Cottrell Ghai, The Legal Profession And The New Constitutional Order In Kenya (Strathmore
University Press; Nairobi, 2014) 40
16
Ringera & 3 Others v Paul Muite & 10 Others, Nairobi High Court Civil Suit No. 1330 of 1991
17
Kenneth Kiplagat v Law Society of Kenya, High Court, Nairobi. Civil Case no 542 of 1996 (decided 2000).
 State Regulation of the Legal Profession in Kenya

Law, as a profession, is as old as the society itself and has always been regarded as one of the
best professions, perhaps because of the opportunities associated with it. 18 It is as a result of the
nature of the legal profession that its members are expected to conduct themselves in a manner
that befit the profession and raises public admiration.19 The criticism of the legal profession have
made it necessary for the profession to be regulated with the intention of instilling into its
members the required morals as well as punishing the offending members in order to protect the
public.20

The regulation is done in two ways, first, by regulating entry into the profession and second, by
regulating the conduct of legal professionals once they have been admitted. 21 The relevant Acts
under which the legal profession is regulated in Kenya are the Advocates Act 22, the Law Society
of Kenya Act23 and the Council of Legal Education Act24. The Advocates Act deals with many
issues including admission to the bar, the conduct of advocates, remuneration, matters of
complaints against advocates as well as discipline of advocates. 25 The Council of Legal
Education Act deals with matters regarding bar examinations and pupilage. 26 The Law Society of
Kenya Act on the other hand establishes the Law Society of Kenya and its regulation.27

The machineries concerned with the regulation of the Kenyan Legal Profession are three: the
Council of Legal Education, the Law Society of Kenya and the Judiciary. 28 The Council of Legal
Education regulates the entry requirements into the legal profession while the Law Society of
Kenya and the Judiciary regulate the conduct of lawyers once they have been admitted to the
legal profession.

18
Kenneth Kiplagat v Law Society of Kenya, High Court, Nairobi. Civil Case no 542 of 1996 (decided 2000).
19
Tom Ojienda & Katarina Juma, Professional Ethics (Law Africa: Nairobi, 2011)20
20
Tom Ojienda & Katarina Juma, Professional Ethics (Law Africa: Nairobi, 2011)20
21
Tom Ojienda & Katarina Juma, Professional Ethics (Law Africa: Nairobi, 2011)20
22
Cap 16, Laws of Kenya
23
Cap 18, Laws of Kenya
24
Cap 16A, Laws of Kenya
25
Tom Ojienda & Katarina Juma, Professional Ethics (Law Africa: Nairobi, 2011)21
26
Tom Ojienda & Katarina Juma, Professional Ethics (Law Africa: Nairobi, 2011)21
27
Tom Ojienda & Katarina Juma, Professional Ethics (Law Africa: Nairobi, 2011)21
28
Tom Ojienda & Katarina Juma, Professional Ethics (Law Africa: Nairobi, 2011)21
 The Council of Legal Education and the Kenya School of Law

There is no clear distinction between the Kenya School of Law and the Council of Legal
Education for the two are merged. It is the Council of Legal Education which regulates the
admission of advocates into the bar. This is done through the Kenya School of Law, which was
established by the council pursuant to the provision of Section 6 of the Council of Legal
Education Act.29 The school offers a post-graduate training for those who would like to join the
bar as advocates. In this regard, the school, through the Council of Legal Education supervises
and controls the quality of legal education in Kenya and may advice the government on
appropriate measures to take as far as legal education is concerned.30

The Law Society of Kenya

In regulating the legal profession, Section 4 of the Law Society of Kenya Act (LSK Act) outlines
the objectives of the LSK, some of which includes the following: to maintain and improve the
standards of conduct and learning of the legal profession in Kenya; to facilitate the acquisition of
legal knowledge by members of the legal profession and others; to assist the Government and the
courts in all matters affecting legislation and the administration and practice of the law in Kenya;
to represent, protect and assist members of the legal profession in Kenya in respect of conditions
of practice and otherwise; to protect and assist the public in Kenya in all matters touching,
ancillary or incidental to the law;31

The implication of Section 4 of the Act is that the LSK is bound to stay within the objects
set out in the Act, because going outside these objects would be ultra vires its powers. This
means that LSK must be totally independent from the executive, the legislature and the judiciary
or otherwise. In the case of Republic v George Benedict Maina Karikuki32, the court held that the
LSK is primarily meant to regulate the affairs and conduct of its members in their practice and
provision of law and that it has no power under its objects clause to intervene in any proceedings
before any court whether or not the parties to those proceedings agree to its intervention.33

29
Section 6 of the Council of Legal Education Act
30
Section 6 of the Council of Legal Education Act
31
Section 4, the Law Society of Kenya Act
32
Criminal Application Number 6 of 1994
33
Ibid
 LSK also plays a major role in the discipline of the members of the legal profession who
engage in professional misconduct and other offences. Such as was the case of Mohammed
Ashraf Sadique and another v Mathew Oseko t/a Oseko & Company Advocates 34 in which the
court explained that the LSK, as the major institution entrusted with the enforcement of the code
of discipline of advocates in the country, has the obligation to carry out that mandate with the
seriousness the duty deserves without fear or favour.35 The LSK must remain in the forefront in
earnestly enforcing and maintaining a high professional and ethical standard among its members
in order to protect the wide interests of the society.36

The Judiciary

The courts have played a big role in disciplining advocates who engage in unprofessional and
criminal or tortious conducts in their day-to-day practice. This has been the situation especially
where the cases of professional misconduct have been raised by clients and the advocates have
been found guilty. Section 31 of the Advocates Act authorises the court to deem and deal with
the unlawful practice of unqualified person before it as contempt. 37 Section 31(2)(a) of the Act
gives the court jurisdiction to take cognizance of such contempt and deal with it as if it were any
other act of disrespect to the court committed before it inclusive of pronouncing a fair
punishment. Further, Section 56 of the Act expressly saves and preserves the court’s jurisdiction
to deal with the breach of any provision of the Advocates Act.

Disciplinary Machinery/Institutions for lawyers in Kenya

The regulation of the legal profession through punishing the offending advocates is not adequate
because of the nature of the profession itself. There comes a time in the practice of law where a
lawyer is faced with two equally challenging options which can only be determined based on the
individual lawyer’s concept of professional and moral obligation. 38 But lawyers are also mortal
and fallible; they sometimes make wrong ethical decisions.

34
Misc. Application No. 901/07
35
Ibid
36
Ibid
37
Section 31 of the Advocates Act
38
John F. Sutton, Jr and John S. Dzienkowski, Cases and Materials on Professional Responsibility of Lawyers (2nd
Edition 2002) at 2
 The Advocates Complaint Commission

The Advocates Complaints Commission is established under Section 53 of the Advocates Act,
Chapter 16 of the laws of Kenya and therefore derives its mandate from the said Act. It is
constituted for the purposes of inquiring into complaints against any advocate, firm of advocates
or any member or employee thereof.39 This Commission was instituted as a result of the concerns
over the LSK perceived inability to discipline its errant members. Its primary duties are ensuring
that advocates conduct themselves both professionally and ethically and further ensuring that the
standard legal practice are improved.

Disciplinary Tribunal

The Disciplinary Tribunal is established under Section 57 of the Advocates Act which shall
consists of; The Attorney General, the Director of Public Prosecutions, the Solicitor General or a
person deputed by the Attorney General, six advocates (other than the Chairman, vice chairman
or secretary of the society) of not less than ten years standing whom shall be an advocate who
doesn’t ordinarily practice in Nairobi, all of whom shall be elected and shall hold office for three
years and be eligible for re-election. 40A complaint against an advocate of professional
misconduct, which expression includes disgraceful or dishonorable conduct, incompatible with
the status of the person may be made to the tribunal by way of an affidavit whereby the
complainant sets out the allegations of professional misconduct.

39
Section 53, Advocates Act, Chapter 16 Laws of Kenya.
40
Section 57 Advocates Act Kenya