Advocates Disciplinary Advocates Disciplinary Committee: Jurisdiction & Committee: Jurisdiction & ProcedureProcedure

Advocates Disciplinary Committee04/12/23

Composition:Composition:

the AG;

the Solicitor General or a person deputed by the AG;

and six advocates of not less than 10 years of practice.

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Jurisdiction:Jurisdiction: (personal (personal jurisdiction)jurisdiction) Section 55, Advocates Act All advocates are subject to the

jurisdiction of the Committee. Excludes:

o an officer in the AG’s office;o the Principal Registrar of Titles and

Registrar of Titles and;o such other public officers as the AG

may gazette.

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JurisdictionJurisdiction (subject (subject matter)matter)

Section 60:

Complaints against advocates for ‘professional

misconduct’.

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DefinitionDefinition

Professional misconduct includes:

“. . . disgraceful or dishonourable conduct incompatible with the

status of an advocate. . .” - Section 60(1), Advocates

Act

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ProcedureProcedure

A. Application by advocate for name to be removed from roll (Pt II, Committee Rules)• By Affidavit (Form 1) (Rule 3);• May be decided without applicant if

unopposed (Rule 4);• Objector shall give written notice to the

applicant 7 days before hearing (Rule 5).• The Committee may refuse the

application or adjourn sine die on grounds of likely complaint under Section 60.

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Procedure (contd…)Procedure (contd…)

B. Complaints against Advocates (Part III)• Under Section 60 or Section 72

Advocates Act;• By way of Affidavit (Form 2 or 3);• Complaint on behalf of Council shall be

made by the secretary of the Society;• The council may appoint an Advocate to

represent the complainant or applicant;

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Procedure (contd…)Procedure (contd…)

• In respect of an advocate’s clerk:• the clerk shall not be represented by an advocate

who employed him at the time of the matter forming the subject matter;

• The Committee shall give notice of hearing to the parties not less than 21 days to the hearing;

• Notice of hearing shall be in Form 4 and requires the parties to furnish a list of documents they will rely on 14 days before hearing (Rule 14);

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Procedure (contd…)Procedure (contd…)

• The Notice of hearing shall set out, in general terms, the charge(s) of professional misconduct against the advocate or the grounds of the application against an advocate’s clerk.

• Any party may inspect the list of documents provided by any party.

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Miscellaneous Provisions Miscellaneous Provisions (Pt IV)(Pt IV) The Committee may, in its discretion, hear

an application in the absence of a party who fails to appear;

The Committee may, partly or entirely, in its discretion, rely on Affidavit evidence;

The Committee may, at any stage, refer a case to the Council which may cause a complaint or further complaint to be lodged;

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Miscellaneous Provisions Miscellaneous Provisions (contd…)(contd…) Withdrawal of complaint or application

only with leave of the Committee;

The Committee may order consolidation of any proceedings before it (Rule 22);

The Committee may require to be amended or permit such amendment or further Affidavit as it deems fit (Rule 23);

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Miscellaneous Provisions Miscellaneous Provisions (contd…)(contd…) The Committee may make orders as to

costs and require any party to pay as it thinks fit after dismissing a complaint (Rule 24);

Service of Notice or any document shall be effected as permitted by law (Rule 27);

Rules of procedure and evidence are relaxed (Rule 28)

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Orders (Section 60(4)Orders (Section 60(4)

– Dismissal of the complaint;– Admonish;– Suspension from practice for not

more than 5 years;– Struck of the roll;– Fine not exceeding Kshs. 1m;– Payment to the aggrieved person not

exceeding Kshs. 5m

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Appeal (Section 62)Appeal (Section 62)

• To the High Court within 14 days;

• The court shall give to the Council of the Society and to the Advocate not less than 21 days of notice of hearing;

• An appeal shall not suspend or stay the execution of the order appealed against (Section 62(3)).

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Appeal (contd…)Appeal (contd…)

The court, sitting as a bench of not less than two, may:– refer the report back to the Committee with

directions for its findings on any specified point; or

– confirm, set aside, substitute or vary any order made by the Committee; and

– May make orders as to costs.

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Second Appeal (Section 67)Second Appeal (Section 67)

Any person aggrieved by order of the court under Section 64 may appeal to the Court of Appeal in accordance with prescribed rules of appeal in civil matters;

An appeal under this section shall not suspend the effect or stay execution of the decision or order appealed against.

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Enforcement of ordersEnforcement of orders

If no memorandum of appeal is filed in accordance with Section 62(1) the party in favour of whom the order is made may apply ex parte by summons for leave to enforce such order as a decree;

The order may be executed in the same manner as an order of the court and in accordance with the Civil Procedure Rules if it is an order for recovery of money (Sec 60(12)

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ConclusionConclusion

The Committee sits largely as a court but with a bit of relaxation regarding the strict rules of evidence.

Proceedings before the committee deemed judicial for purposes of Chapter XI of the Penal Code and for the purposes of the Evidence Act to be legal proceedings. (S. 58(5))

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Thank you for your attention.

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