ATP 105
PROFESSIONAL ETHICS AND PRACTICE
KENYA SCHOOL OF LAW
DR. OMONDI R. OWINO
HISTORY OF THE LEGAL PROFESSION IN KENYA
2
Traces its origin from the Common Law and is
characterized by English tradition;
Received into the Kenya after Kenya attained Protectorate
Status on 1st July 1895;
Two Sets of Regulations
(i) East Africa Legal Practitioners Rules No. 8 of 1901
(ii) Native Courts Practitioners Rules 1899
HISTORY OF THE LEGAL PROFESSION IN KENYA
3
Two branches – i) Colonial legal service and judiciary;
ii) Advocates (fused roles of barristers and solicitors)
1901 – East Africa Legal Practitioners’ Rules -
i. Members of the Bar of England, Scotland and Ireland;
ii. Solicitors of the Supreme Court in England or Ireland;
iii. Writers to the Signet and solicitors in the Supreme Courts of Scotland;
iv. Pleaders who had been admitted to practice before one of the High Courts in India;
Native vakeels (local persons knowledgeable in basic court procedures although possessed of
no legal qualifications), subject to restrictions imposed by the Native Courts Practitioners'
Rules
B. Ojwang and D. R. Salter (1990) Legal Profession in Kenya J.A.L Vol 34 No. 1 p. 14
HISTORY OF THE LEGAL PROFESSION IN KENYA
4
Native Courts Practitioners Rules 1899;
(i) Allowed vakeels to only practice in ‘native courts’ guided by
local customary and religious laws;
(ii) Professionally qualified barristers and solicitors were
prohibited from practicing in ‘native courts’;
(iii) A judicial officer appointed by the colonial government
licensed vakeels to practice for shorter periods of time;
(iv) Vakeel system was founded on convenience [Quotation
Ojwang & Slater p. 11]
HISTORY OF THE LEGAL PROFESSION IN KENYA
5
Non-conformities of Early Legal Profession in Kenya
i. Lack of autonomy;
ii. Absence of norms on professional conduct and etiquette;
iii. A mixed bag of professionals and non-professionals;
iv. Largely regulated by the colonial government;
HISTORY OF THE LEGAL PROFESSION IN KENYA
6
1911 – East Africa Legal Practitioners’ Ordinance - Non-lawyers were forbidden from
practicing law in Kenya except vakeels and lawyers from the Commonwealth were
allowed to practice in Kenya; (Rules of Court (Legal Practitioners) 1911
1911 – Establishment of the first High Court in Mombasa;
Mombasa Law Society established as a voluntary lawyer’s organization;
Formation of the Nairobi Law Society by lawyers practicing in Nairobi;
1920 – Mombasa and Nairobi Law Societies merge to form the Law Society of Kenya;
1926 - Rules of His Majesty’s Supreme Court of Kenya 1926 prescribed designation
“advocate” for barristers, writers to the signet, solicitors, attorneys, law agents
leading to a fused profession.
1949 – Enactment of Advocates Ordinance and Law Society of Kenya Ordinance
THE LEGAL PROFESSION AFTER 1949
7
1949 – Saw dawn of modern type of legal profession
Enactment of Advocates Ordinance No. 55 of 1949 and Law Society
Ordinance No. 10 (1949)
The Law Society of Kenya was formed vide Law Society Ordinance ‘for the
purpose, inter alia, of improving the standards of professional legal services
and of maintaining discipline among practitioners’ - Ghai and McAuslan in J.
B. Ojwang and D. R. Salter (1990) Legal Profession in Kenya J.A.L Vol 34 No.
1 p. 14
Fused Profession – Travaux Preparatoire of the Advocates Ordinance:
THE LEGAL PROFESSION AFTER 1949
8
"The name of the existing Ordinance, the Legal Practitioners' Ordinance,
has been changed and it is proposed that this should be known as the
Advocates Ordinance. The gentlemen concerned cannot be called barristers
or solicitors, as they are called in England, because here the professions are
fused, and it is necessary to find some comprehensive name which will cover
both branches of the profession "
- K. K. O'Connor, Attorney-General and Member for Law and Order, Legislative
Council Debates, Official Report, 2nd series, Vol. 34 (1949), in Ojwang and
Slater Ibid.
THE LEGAL PROFESSION AFTER 1949
9
Law Society Ordinance No. 10 (1949)
Competence of SOciety
(i) maintenance and improvement of standards of
conduct and learning within the profession;
(ii) facilitating the acquisition of knowledge by members
of the profession and others;
(iii) assisting the government and the courts in all matters
affecting legislation and administration and practice
of law;
(iv) assissting, protecting and representing members of
the profession
THE LEGAL PROFESSION AFTER 1949
10
Law Society was governed by a Council consisting of a President and a
six other members elected at an AGM;
Membership of Law Society remained voluntary expelled members
continued practicing law ;
Law Society sought to move regulation of legal profession from public
authorities to a body with corporate status (autonomy)
THE LEGAL PROFESSION AFTER 1949
11
Advocates Ordinance
Advocates Committee - consisted of Attorney-General, the Solicitor-General,
and three advocates from the Law Society with disciplinary competence
discharged by making recommendations to the High Court;
Remuneration Committee - had responsibility of making recommendations on
Advocates remuneration to the Chief Justice;
1952 - amendments effected to both Advocates Ordinance and Law Society
Ordinance; This made membership to Law Society compulsory as a
precondition for legal practice thereby bolstering its regulatory authority; the
amendments also provided much needed funds by allowing society to collect
membership fees;
THE LEGAL PROFESSION AFTER 1949
12
1961 saw enactment of Advocates Ordinance No. 34 of 1961 (implementing
recommendations of the Denning Committee on Legal Education for
Students from Africa);
Establishment of the Faculty of Law at the University of Dar es Salaam in
1961 (legal training was not provided in East Africa until 1961);
Advocates Ordinance 1961 established Council of Lega Education:-
"The functions of the Council of Legal Education shall be to exercise general
supervision and control over legal education in Kenya for the purposes of this
Act and to advise the Government in relation to all aspects thereof.“
(Section 5)
THE LEGAL PROFESSION AFTER 1949
13
1963 Kenya School of Law established in Nairobi as a vocational centre for training
articled clerks seeking to meet requirements for admission to roll of advocates;
Two approved schemes of legal training existed side by side:
i) University education in law, followed by pupillage for one year under a senior
advocate and attendance of classes at KSL culminating into examinations;
(repealed Advocates Act Section 15(3)(a))
ii) Articled Clerkship requiring articled clerk to serve in chambers of an advocate and
acquire at least 7 years experience "employed in the proper business, practice
and employment of an advocate“ (repealed Advocates Act Section 12);
Accompanied by attendance of courses at KSL and taking relevant examinations
Both methods continued until 1989 when a present Advocates Act was enacted;
ROLE OF LAWYERS IN THE SOCIETY
14
Role of Lawyers in Society
a) Duty to his client
b) Duty to the profession
c) Duty to court, and
d) Duty to himself.
Lord Denning in Rondel v. Worseley
15
