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Published online by Cambridge University Press: 28 July 2009
The legal profession, and legal education (which is the subject of an earlier article), in operational terms form one continuum. On the earlier occasion we depicted legal education as, in essence, referring to “experiences and training which help different kinds of people to understand and use law in society”. In more specific terms, legal education is concerned with the formal or approved stages of education and training, in preparation for service in such legal roles as: representing parties in judicial or related proceedings; giving legal advice and preparing legal documents or instruments in non-contentious matters; presiding over or participating in tribunals of a legal or quasi-legal character; representing the state in matters of a legal or quasi-legal nature; etc.
The often large body of professionals, who are the product of such a system of education, invariably necessitates the establishment of governing bodies; the enactment of regulatory legislation; the adoption of controlling practices; the fostering of certain norms and mores of professional culture; etc.
1 (1989) J.A.L. 78.Google Scholar
2 International Legal Centre, Legal Education in a Changing World: Report of the Committee on Legal Education in the Developing Countries, New York, 1975, para. 18.Google Scholar
3 Traditional African society rested mainly on mediation of conflict through the intervention of the elders, and legal counsel was much less developed, especially in view of the fact that the contemporary subsistence economy did not make for a multiplicity of discrete private interests amenable to modern-type dispute settlement. See Muriuki, G., A History of the Kikuyu 1500–1900, Nairobi: Oxford U.P., 1974, 130–135;Google ScholarRanda, H., Problems of Interaction between English imposed System of Law and Luo Customary Law in Kenya, doctoral dissertation, University of Lund, Sweden, 1987, 61–87.Google Scholar
4 It should be remembered that Kenya, from 1895 (year of proclamation of Protectorate status) to 1920 (year of formal annexation), was known as the East Africa Protectorate. From the date of annexation it became known as the Colony and Protectorate of Kenya, as “Protectorate” status remained over the ten-mile coastal strip where the Sultan of Zanzibar was claiming sovereignty.
5 No. 8 of 1901, published in (1897–1905) E.A.Prot.L.R. 121–125.Google Scholar
6 The Native Courts Practitioners' Rules 1899, published in (1897–1905) E.A.Prot.L.R. 126–128.Google Scholar
7 As no established institution enforcing professional ethics, etiquette and standards was then in existence, the Protectorate Judge, under the rules, was empowered to exercise necessary control on the basis of the condition that no qualified person could be admitted to legal practice unless he provided acceptable “testimonials as to character”.
8 East Africa Legal Practitioners' Rules 1901, s.IV.
9 Ghai, Y. P. and McAuslan, J. P. W. B., Public Law and Political Change in Kenya, Nairobi: Oxford U.P., 1970, 130–131.Google Scholar
10 They could, however, appear in the Chief Native Court (an appellate court from the native courts), or in the Court of the Sheikh-Ul-Islam (the principal Islamic Court); in both of these courts, a government-appointed judicial officer presided.
11 s.IV.
12 Rwelamira, M. R. K., “The Tanzania Legal Profession,” in Dias, C. J., Luckham, R., Lynch, D. O. and Paul, J. C. N. (eds.), Lawyers in the Third World: Comparative and Developmental Perspectives, Uppsala & New York: Scandinavian Institute of African Studies & International Centre for Law in Development, 1981, 204–225.Google Scholar
13 Ibid., p. 207
14 Ibid., p. 208.
15 East African Legal Practitioners' Rules 1901, s.VI.
16 Rwelamira, , loc. cit., p. 208 (emphasis added).Google Scholar
17 See Sir Fletcher-Cooke, John, “Parliament, Executive and Civil Service” in Sir Burns, Alan (ed.), Parliament as an Export, London, George Allen & Unwin, 1966, 142 at 144.Google Scholar
18 Rwelamira, , loc. cit., p. 210.Google Scholar
19 This is frequently, if controversially, considered as a question in the difference of status and privileges between barristers and solicitors.
20 This was a clear departure from the traditional English practice in which contentious business in superior courts was the exclusive domain of the barristers, and solicitors mainly performed non-contentious business, as well as petty contentious business: see Cordery's Law relating to Solicitors, 8th ed. (1988), p. 45;Google ScholarJackson, R. M. and Powell, J. L., Professional Negligence (1987), s. 4.01, p. 192.Google Scholar
21 Ghai, and McAuslan, , op. cit., pp. 385et seq.Google Scholar
22 Ordinance No.55 of 1949.
23 Ordinance No. 10 of 1949.
24 Ghai, and McAuslan, , op. cit., pp. 386–387.Google Scholar
25 I.e., the Legal Practitioners' Ordinance, No.19 of 1906, which represented an early attempt by the state to regulate legal practice.
26 O'Connor, K. K., Attorney-General and Member for Law and Order, Legislative Council Debates, Official Report, 2nd series, Vol. 34 (1949), cols. 73–74.Google Scholar
27 Ibid.
28 Cap. 16, Laws of Kenya.
29 Cap. 18, Laws of Kenya.
30 Ibid., s.3.
31 Ghai, and McAuslan, , op. cit., pp. 386–387.Google Scholar
32 Ibid., p. 386.
33 No. 55 of 1952.
34 No. 56 of 1952.
35 Ghai, and McAuslan, , op. cit., pp. 388–389.Google Scholar
36 No. 34 of 1961.
37 Ghai, and McAuslan, , op. cit., pp. 390–393.Google Scholar
38 Rwelamira, , op. cit., pp. 207–208.Google Scholar
39 See Ghai, and McAuslan, , op. cit., pp. 359–366.Google Scholar
40 Op. cit. (n. 1).
41 Cap. 16.
42 s. 3.
43 s. 5.
44 s. 3.
45 The Advocates Act, s. 12.
46 Ibid., s. 15(3)(a).
47 The Advocates (Admission) Regulations, Part II.
48 The Advocates Act, s. 13.
49 This position may change in the future, if the Advocates Bill 1989 (Kenya Gazette Supplement No. 35 (Bills No. 5), of 19 05, 1989 is brought before Parliament and passed.Google Scholar The Attorney-General, in the Memorandum of Objects and Reasons, states that “The main object of this Bill is to amend and consolidate the law relating to advocates”. The main changes that would be introduced by the proposed legislation are thus stated by the Attorney-General:
“clause 12 introduces a new requirement whereby only Kenyan citizens can be admitted as advocates. Formerly, any person who was a citizen of Kenya or ordinarily resident in Kenya could be admitted as an advocate.
“clause 13 introduces a new requirement whereby a law graduate will [be required] to undergo a two-year period of pupillage before admission as an advocate. …
“Part V introduces a new provision enabling the President to appoint a person who has rendered exemplary service to the legal and public service of Kenya as a Senior Counsel. For a person to be eligible for that honour he must have not less than fifteen years' experience as an advocate either in private or public service. …
“Part X introduces provisions for the establishment of a Commission of Complaints which will be charged with the duty of receiving and considering complaints regarding the conduct of any advocate or firm of advocates. The Commission of Complaints will consist of a Commissioner or Commissioners appointed by the President.”
The provision for articled clerkship no longer appears and the bill would require every applicant for admission to the roll of advocates to hold or he entitled to hold a law degree.
50 The Advocates Act, s. 27. (For example, under s. 10, foreign practitioners may not practice before the Kenyan courts unless they have been permitted by the Attorney-General, and even then, they must have received instructions from a Kenyan practitioner, and they must appear in court only in the presence of a Kenyan practitioner.)
51 The Advocates Act, s. 12.
52 Ibid., s. 9.
53 Ibid.
54 Ibid.
55 Ibid.
56 Cap. 265
57 s. 57.
58 s 60.
59 s. 60(6) states: “All proceedings before the Disciplinary Committee shall be deemed, for the purpose of Chapter XI of the Penal Code, to be judicial proceedings and, for the purposes of Chapter VII of the Evidence Act, to be legal proceedings.”
60 s. 60(4).
61 s. 60(5).
62 s. 62(2).
63 s. 62.
64 s. 67.
65 s. 70.
66 s. 81.
67 r.10.
68 Salter, D. R. and Ojwang, J. B., “The Advocate-Client Relationship: A Kenyan Study in Comparative Context”, (1984) 33 I.C.L.Q. 913–941.CrossRefGoogle Scholar
69 r.11.
70 r.3.
71 rr.4,6.
72 See n. 49.
73 The Advocates Bill 1989, cl.53(l).
74 Ibid., cl.53(2).
75 Ibid., cl.53(5).
76 Appendix to the Minutes of the Council of the Law Society of 19 05, 1989.Google Scholar
77 E.g., in cases DCC/13/83 and DCC/14/83, appendix to the Council of the Law Society Minutes of 13 05, 1985.Google Scholar
78 DCC/7/78, appendix to the Council of the Law Society Minutes of 13 05, 1985.Google Scholar
79 This appeal was heard while an earlier application (DCC/28/84) was still pending before the Disciplinary Committee. The Committee subsequently merely took note of the court decision and proceeded to other business (Appendix to the Council of the Law Society Minutes of 13 05, 1985).Google Scholar
80 See n. 49.
81 Ross, S. D., “A Comparative Study of the Legal Profession in East Africa”, [1973] J.A.L. 279.CrossRefGoogle Scholar
82 Twining, W., “Legal Education within East Africa”, in British Institute of International and Comparative Law, East African Law Today, London, 1966, 122.Google Scholar
83 Kamau, G. K., “Current Problems of Legal Education in Kenya”, (unpublished paper, Faculty of Law, University of Nairobi, 1976), 9.Google Scholar
84 Minutes of the Meeting of the Council of the Law Society of Kenya, held on 14 09, 1987.Google Scholar The same minutes show that there were 36 pending applications for admission to the roll of advocates.
85 Minutes of the Meeting of the Council of the Law Society of Kenya, held on 11 11, 1988.Google Scholar
86 Definite figures on these aspects cannot be given here, as that requires a separate, empirical study on problems of access to legal services. Such a study is planned, at a later stage.
87 It is after common training in law at university and subsequently at the Kenya School of Law that the two classes part ways. Those identified for the magistracy become junior magistrates (Grade Two), and subsequently work their way up the ladder. Those in the other class proceed to the Bar. Sometimes members of the two classes change career and enter the “public” or the “private” sector as the case may be.
88 Act No. 5 of 1969, as amended.
89 At twelve—s. 60 (2).
90 At three—s. 64(2).
91 Cap. 8.
92 s. 7(1).
93 s. 7(2).
94 Cap. 10.
95 These are further subdivided into classes'. First Glass District Magistrates; Second Class District Magistrates; and Third Class District Magistrates.
96 This position is likely to have been dictated mainly by the shortage of practising advocates, with the right qualifications and of good standing, who are prepared to take up judicial appointments.
97 There are two vacancies.
