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The Advocates (Disciplinary Committee) Rules

Legal Notice 458 of 1990

This is the latest version of this Legal Notice.
The Advocates (Disciplinary Committee) Rules
Citation
Legal Notice 458 of 1990
Primary work
Advocates Act
Date
2 July 2004
Language
English
Type
Legal Notice
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LAWS OF KENYA

ADVOCATES ACT

THE ADVOCATES (DISCIPLINARY COMMITTEE) RULES

LEGAL NOTICE 458 OF 1990

  • Published in Kenya Gazette Vol. XCII—No. 49 on 16 November 1990
  • Commenced on 16 November 1990
  1. [Amended by Advocates (Disciplinary Committee) (Amendment) Rules, 2004 (Legal Notice 59 of 2004) on 2 July 2004]

Part I – PRELIMINARY

1. These Rules may be cited as the Advocates (Disciplinary Committee) Rules.[L.N. 458/1990.]2. In these Rules—“the Committee” means the Disciplinary Committee;“the Council” means the Council of the Society;“the secretary” means the secretary of the Committee.[L.N. 458/1990.]

Part II – APPLICATION BY ADVOCATE FOR NAME TO BE REMOVED FROM ROLL

3.
(1)An application to the Committee by an advocate under section 59 of the Act to procure his name to be removed from the Roll shall be made by way of affidavit in Form 1 set out in the Schedule.
(2)Such affidavit shall be sent to the secretary and a copy thereof to the Council.[L.N. 458/1990.]
4.
(1)Unless within fifteen days after receipt of the affidavit, written notice of intention to oppose the same has been given to the secretary, the Committee may decide the application without requiring the attendance of the applicant.
(2)In any other case, the Committee shall fix a day for the hearing, and the secretary shall give written notice thereof to the applicant and to the Council not less than twenty-one days before the day fixed for the hearing.
(3)The Committee may, if it thinks fit, require the applicant to give notice of his application and of the day fixed for the hearing, by advertisement or otherwise as it may direct.
[L.N. 458/1990.]5. If any person other than the Council intends to object to the application at the hearing thereof, he shall give written notice of his intention to the applicant, the Council and the secretary at least seven days before the day fixed for the hearing, specifying the grounds of his objection; and if the Council intends to object to the application it shall cause a similar notice to be given to the applicant and to the secretary.[L.N. 458/1990.]6. If, on the hearing of the application, the Committee is of the opinion that grounds exist for a complaint against the applicant under section 60 of the Act, the Committee may refuse the application or adjourn the same sine die pending the making and disposal of a complaint under that section, and may give all such directions with respect thereto as the Committee may deem expedient.[L.N. 458/1990.]7. Part IV shall apply mutatis mutandis to the hearing of an application under this Part.[L.N. 458/1990.]

Part III – COMPLAINTS AGAINST ADVOCATES AND APPLICATIONS CONCERNING ADVOCATE’S CLERKS

8. A complaint to the Committee under section 60, or an application to the Committee under section 72, of the Act shall be made by way of affidavit in Form 2 or Form 3 in the Schedule, as the case requires:Provided that, where a complaint or application is instigated by the Council, such complaint or application may be made on behalf of the Council by the secretary of the Society or by such other person as may be appointed by the Council.[L.N. 458/1990.]9. An affidavit referring a complaint to the Committee under section 60(2) of the Act shall be accompanied by a fee of one hundred shillings.[L.N. 458/1990.]10. The Council may, if of the opinion that the circumstances of a complainant or applicant or the nature of a complaint or application so warrant, appoint an advocate to represent the complainant or applicant; and the disbursements of such advocate, so far as not recoverable from the advocate or advocate’s clerk in respect of whom the complaint or application is made, shall be paid out of the funds of the Society.[L.N. 458/1990.]11. If a complaint made to the Committee is dismissed under the proviso to section 60(3) of the Act, the Committee shall, if so required by the complainant or the advocate to whom the complaint relates, make a formal order dismissing the complaint.[L.N. 458/1990.]12. In the case of an application in respect of an advocate’s clerk, the clerk shall not be represented before the Committee by any advocate by whom he was employed at the time of the matters which form the subject matter of the application, or by any employee of such an employer.[L.N. 458/1990.]13. In the case of a complaint against an advocate, and in the case of an application in respect of an advocate’s clerk, the Committee shall fix a day for the hearing, and the secretary shall give notice thereof to each party to the proceedings not less than twenty-one days before the day fixed for the hearing, and shall at the same time furnish each party, other than the complainant or the applicant, with a copy of the affidavit of complaint or application and of any affidavit in support thereof.[L.N. 458/1990.]14. The notice of hearing—
(a)shall be in Form 4 in the Schedule, and shall, unless the Committee otherwise directs, require the party to whom it is addressed to furnish to the secretary and to every other party, at least fourteen days before the day fixed for the hearing, a list of all documents on which he intends to rely at the hearing; and
(b)shall set out, in general terms, the charge or charges of professional misconduct made against the advocate, or the grounds of the application in respect of an advocate’s clerk, as the case may be:
Provided that the Committee shall not be precluded from taking into consideration, subject to rule 23, any other charge or ground which may become apparent at the hearing and which fairly arises from the matters set out in the complaint or application.[L.N. 458/1990.]15. Any party may inspect and take copies of the documents included in the list furnished by any other party.[L.N. 458/1990.]16. Deleted by L.N. 59/2004, s. 2.17. If any party fails to appear at the hearing, the Committee may, in its discretion, upon proof of service on such party of the notice of hearing, proceed to hear and determine the complaint or application in his absence.[L.N. 458/1990.]18. The Committee may, in its discretion either as to the whole case or as to any particular fact or facts, proceed and act upon evidence given by affidavit.[L.N. 458/1990.]19. The Committee may, at any stage of any proceedings refer the case to the Council, which may cause a complaint or a further complaint to be lodged against an advocate or, in case of an application under Part II, may make representations to the committee.[L.N. 458/1990.]20. No complaint or application made under Part II or Part III shall be withdrawn after it has been sent to the secretary, except with the leave of the Committee, which may be granted, or refused, upon such terms as to costs or otherwise as the Committee thinks fit.[L.N. 458/1990.]21. The Committee may of its own motion, or upon the application of any party, adjourn the hearing upon such terms as to costs or otherwise as it thinks fit.[L.N. 458/1990.]22. The Committee may, in its discretion and after giving the parties concerned an opportunity to be heard, order the consolidation of the hearing of any proceedings before it.[L.N. 458/1990.]23. If, in the course of a hearing, it appears to the Committee that the charges of which notice has been given, or the grounds of an application under section 72 of the Act, require to be amended or added to, the Committee may make or permit such amendment or addition, and the filing of such further affidavit, as it thinks fit, or, if in the opinion of the Committee such amendment or addition is not within the scope of the complaint or application, may require the same to be embodied in a further complaint or application:Provided that if such amendment or addition is, in the opinion of the Committee such as to take any party by surprise, or prejudice the conduct of his case, the Committee shall grant an adjournment of the hearing upon such terms as to costs or otherwise as the Committee thinks fit.[L.N. 458/1990.]24. Upon the hearing or determination of any complaint or application, the Committee may, in the case of a complaint against an advocate, without finding any professional misconduct proved against the advocate, or, in the case of an application in respect of an advocate’s clerk, without making any order under section 72 of the Act, nevertheless order any party to pay the costs of proceedings if, having regard to his conduct and to all the circumstances of the case, the Committee so thinks fit.[L.N. 458/1990.]25. The Chairman of the Committee shall take or cause to be taken a note of all proceedings before the Committee, or may order that the record of any proceedings before it shall be taken by shorthand note.[L.N. 458/1990.]26. Any party to proceedings before the Committee shall be entitled to inspect the record or transcript thereof, and any party entitled to be heard in any appeal filed from any such proceedings shall be entitled to be supplied with a copy of a transcript of such proceedings against payment, if so ordered by the Committee, of copying charges at such rate, not exceeding two shillings per folio of one hundred words, as the Committee may from time to time direct.[L.N. 458/1990.]27. Service of any notice or document may be effected under these Rules by any method authorized by law or by registered post, addressed to the last known postal address or abode in Kenya of the person to be served, and such service shall be deemed to have been effected seventy-two hours after posting.[L.N. 458/1990.]28. The Committee may dispense with any requirements of these Rules respecting notices, affidavits, documents, service or time, in any case where it appears to the Committee to be just or expedient so to do.[L.N. 458/1990.]29. The Committee may extend the time for doing anything under these Rules on such terms as to costs or otherwise as the Committee thinks fit.[L.N. 458/1990.]30.
(1)Any party may by notice in writing, at any time not later than nine days before the day fixed for the hearing, call upon any other party to admit any document and if such other party desires to challenge the authenticity of the document he shall within six days after service of such notice, give notice that he does not admit the document and requires it to be proved at the hearing.
(2)If such other party refuses or neglects to give notice of non-admission within the time prescribed in paragraph (1), he shall be deemed to have admitted the document unless the Committee otherwise directs.
(3)Where a party gives notice of non-admission within the time prescribed by paragraph (1), and the document is proved at the hearing, the costs of proving the document shall be paid by the party who has challenged the document, whatever the order of the Committee may be, unless in its report or order the Committee finds that there were reasonable grounds for not admitting the authenticity of the documents.
[L.N. 458/1990.]31. Where a party proves a document without having given notice to admit under rule 30(1), the Committee may disallow the costs of proving the document.[L.N. 458/1990.]32. A witness summons issued under section 60(4) of the Act shall be in Form 5 in the Schedule.[L.N. 458/1990.]33. The Advocates Committee (Disciplinary Proceedings) Rules, 1952, are revoked.33. The Advocates (Disciplinary Committee) Rules (L.N. 315/1964) are revoked.[L.N. 458/1990.]

Schedule

FORM 1 (Section 59 and Rule 3.)

AFFIDAVIT BY APPLICANT BEING AN ADVOCATE

BEFORE THE DISCIPLINARY COMMITTEE ESTABLISHED UNDER THE ADVOCATES ACT (CAP. 16)

[Cap. 16.]

MISCELLANEOUS CAUSE No ....................... OF 20 ...In: the Matter of ......................................., an AdvocateandIn the Matter of the Advocates Act (Cap. 16)I, .......................................... of .....................make oath and say as follows:1. I was admitted an Advocaite of the High Court of Kenya on the ...................... day of ........., 20 .....2. I desire that my name be removed from the Roll of Advocates for the following reasons:(here state reasons)3. I am not aware of, and I do not know of any cause for, any application or complainlt to the Court or to the Disciplinary Committee concerninig me.4. I do not aware this application for the purpose of evading any adverse application, or complaint, or of defeating or delaying any claim upon me as an Advocate.5. I have accounted to all clients for all moneys held or received by me on their behalf and have no outstanding liability to any client in respect of client's money as defined by the Advocates (Accounts) Rules.ORI have retired from partnership in the firm of Messrs............ with effect from the .................... day of ................, 20 ... The continuing partners of that firm accept lialbility to account to the clients of the firm and myself for all moneys held or received on behalf of such clients and have agreed to indemnify me against all actions, proceedings, costs, claims and demands in respect thereof, as is evidenced by the document annexed hereto annd marked .................................OR(here state what arrangement have been made with regard to any moneys held or received by applicant on behalf of clients and not accounted for where applicant is unable to complete either of the above alternatives).SWORN by the said........................at ........................ this.......................... day of............................., 20 .......Before me,...............................Commissioner of Oaths or Magistrate

____________________________

FORM 2 (Section 60 and Rule 8.)

COMPLAINT AGAINST AN ADVOCATE

BEFORE THE DISCIPLINARY COMMIITEE ESTABLISHED UNDER THE ADVOCATES ACT (CAP. 16)

[Cap. 16]

MISCELLANEOUS CAUSE No .................. OF 20 .............In the Matter of ................... an AdvocateandIn the Matter of the Advocate Act (Cap. 16)To the Secretary to the Disciplinary Comittee.I, (i) .......................... of .............. make oath and say as follows:1. I make a complaint, on the ground set out below, against the conduct of (ii) ............ of ................ an Advocate of the High Court of Kenya.2. (Here state the facts of the matter and concise details of the complain in numbered paragraphs and show deponen's means of knowledge. Annex the originals (where possible of any documents necessary as exhibits).SWORN by the said...............................at ............................ this..................................... day of................................, 20 ...................Before me,..................................Commissioner of Oaths or Magistrate(i) insert full name; address and description.(ii) insert full name and last known postal address.

____________________________

FORM 3 (Section 72 and Rule 8.)

APPLICATION IN RESPECT OF AN ADVOCATE'S CLERK

BEFORE THE DISCIPLINARY COMMITTEE ESTABLISHED UNDER THE ADVOCATES ACT (CAP. 16)

[Cap. 16]

DISCIPLINARY CAUSE No ............................. OF 20 ..........In the Matter of ............................ (i) an Advocate's ClerkandIn the Matter of the Advocates Act (Cap. 16)To the Secretary to the Disciplinary Committee:I, the undersigned (i)...................... of ................. make oath and say as follows;1. That I am instructed by the Council of the Law Society of Kenya to make this applicaition on the grounds herein deponed to for an order under section 72 of the Act in respect of E.F. (ii) .................. of (iii) .......................... anAdvocate's Clerk now/formerly in the employment of (iv) .......................................................................................................................................................2. (Here state the facts of the matter concisely in numbered paragraphs and show deponet's means of knowledge. Annex the originals (where possible) of any documents necessary as exhibits).SWORN by the said..................................at ............................. this..................... day of ................ 20 .......Before me,.....................................Commissioner of Oaths or Magistsrate(i) insert full names.(ii) insert full names, address and capacity, i.e. "member of the Council" or secretary of the Law Society of Kenya" or as the case may be.(iii) isert last known postal address of the advocate's clerk.(iv) insert full names and postal address of the advocate or firm of advocaite.

____________________________

FORM 4 [Section 60 and 72 Rule 13 and 14.]

NOTICE OF HEARING

BEFORE THE DISCIPLINARY COMMI1TEE ESTABLISHED UNDER THE ADVOCATES ACT (CAP. 16)

[Cap. 16.]

DISCIPLINARY CAUSE No .............................. OF 20 ............................In the Matter of (i) .............................................andIn the Matter of the Advocates Act (Cap. 16)To: .................................................................of ....................................................NOTICE is hereby given THAT-1. (a) (ii) A complaint against you under section 60 of the Advocates Act (Cap. 16) has been made by ...................... of .................... to the Disciplinary Committee.2. (b) (ii) An application in repect of you under section 72 of the Advocates Act (Cap. 16) has been made by ..................... of ....................... to the Disciplinary Committie for an order directing that, as from a date to be specified in such order, no advocate shall in connection with his practiceice as an advocate take you into or retain you in his employment or remuneraite you without the written permission of the Council of the Law Society of Kenya, or that such other order be made as the Committee shall think right.2. The hearing of the said complaint/application will take place on the ................................. day of ..................., 20 ........ at .................... o'clock in the [...............] noon at .................. if you fail to appear the Committee may proceed with the hearing in your absence.3. A copy of the affidavit of the complainant/applicant is attached hereto.The allegations against you are, in suibstance, as set out below but these are intended merely as a guide and the Committee may take into consideration any other allegation against you which may become apparent to the hearing and which fairly arises from 1he facts set out in the said affidavit.4. The powers and procedures of tthe Committee are regulated by the Advocates Act (Cap. 16) and the Advocaites (Discplinary Committee) Rules, 1990 and to which your attention is directed in particular your attention is drawn to:(a) the necessity of supplying fo me and to all parties noted hereon, at least fourteen days before the hearing date, a list of all documents on which it is proposed to rely at the hearing; and(b) the right of any party ito these proceedings to inspect and take copies of documenits so listed.Dated the ..............................., 20 ........In the name of the Disciplinary Committee.SecretaryCopy to:........................... Complaint/ApplicantYour attention is directed to paragraph 4 of the foregoing Notice for your compliance as may be necessary.In the name of the Disciplinary Committee.......................................Secretary(i) insert the full names of the advocate.(ii) delete paragraph 1(a) or 1(b) as necessary.

____________________________

FORM 5 [Section 58 and Rule 32.]

WITNESS SUMMONS

BEFORE THE DISCIPLINARY COMMITTEE ESTABLISHED UNDER THE ADVOCATES ACT (CAP. 16)

[Cap. 16.]

DISCIPLINARY CAUSE No .............................. OF 20 ...In the Matter of C.D., an Advocate (or E.F. an Advocate's Clerk)andIn the Matter of the Advocates Act (Cap. 16)You are required to attend before the Disciplinary Committee at .................... on ..................... day of ...................., 20 ........ hour of ................ in the .................. noon, and so from day to day until the above matter is disposed of, to give evidence on behalf of ....................... and also to bring with you and to produce at the time and place aforesaid ................................. (specify documents to be produced) ......................................AND herein fail not.Given under my haind at Nairoibi this ....................... day of ..............................., 20 ...................In the name of the Disciplinary Commit-tee................................Secretary

____________________________

To: .............................................................................................

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History of this document

02 July 2004 this version
16 November 1990
Published in Kenya Gazette 49
Commenced

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Act 1
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