Lawyer versus Advocate: What Linus Kaikai's new status actually means

Veteran journalist Linus Kaikai is among those set to be admitted to the Bar, a step that formally transitions him from holding a law degree to becoming an Advocate of the High Court.

Already a lawyer

This path was built on a qualification Kaikai has held for years.

Prior to this, he had earned a Bachelor of Laws (LLB) degree from the University of Nairobi.

This degree is the foundational requirement for any person seeking to eventually practise law.

The distinction between a lawyer and an advocate is crucial and is captured in the legal maxim: 'All advocates are lawyers, but not all lawyers are advocates.'

Who's in the bar? And who's not?

In Kenya, a 'lawyer' is an individual who has obtained the LLB degree.

They possess foundational legal knowledge but are not qualified to practise law in court.

An 'advocate' is a lawyer who has additionally completed the Advocates Training Programme (ATP) at the Kenya School of Law, undertaken pupillage (legal apprenticeship), passed the Bar examinations, and has been formally admitted to the Bar by the Chief Justice.

Their name is entered into the Roll of Advocates.

This admission is not ceremonial.

It grants specific, legally protected powers and responsibilities.

Here is what admission to the Bar allows an individual to do.

Advocates Act simplified

The primary change that marks the shift from lawyer to advocate is the acquisition of the right to practise law, which is a monopoly reserved for advocates and governed by the Advocates Act (Cap. 16).

An individual who is not an advocate is considered an 'unqualified person' and is barred from performing these functions.

1. The Right of Audience

This is the most significant power.

An advocate gains the exclusive authority to appear and represent a client before any court or tribunal in Kenya.

This includes:

• Making oral submissions before a judge or magistrate.

• Conducting examinations-in-chief and cross-examinations of witnesses.

• Arguing applications and defending clients in civil or criminal proceedings.

Section 31 of the Advocates Act makes it an offence for any unqualified person to 'act as an advocate' or 'institute, carry on or defend any suit' in any court if not an advocate.

Violation of this law carries a fine not exceeding Sh500,000, imprisonment for a term not exceeding two years, or both.

2. Drafting & signing legal documents

While a person with a law degree may draft a commercial contract, only an advocate can prepare, sign, and file specific legal instruments.

These include:

• Pleadings: Official court documents that initiate or respond to a lawsuit, such as a Plaint, Defence, or Petition.

• Affidavits: Sworn written statements of fact used as evidence in court.

• Conveyancing Instruments: Documents that legally transfer an interest in property.
  This includes Sale Agreements, Leases, Charges (mortgages), and Transfers.
  An unqualified person drafting such a document for a fee commits an offence.

3. Commissioning of oaths

Once admitted, an advocate is eligible to apply to the Chief Justice to be appointed a Commissioner for Oaths.

This grants them the authority to:

• Administer oaths.

• Witness signatures on affidavits.

• Verify and certify statutory declarations.

4. Eligibility for a Practising Certificate

Admission to the Bar is the prerequisite for obtaining an annual Practising Certificate (PC) from the Law Society of Kenya (LSK).

This certificate is the mandatory licence, renewable each year, that authorises an advocate to offer legal services to the public for a fee.

Practising without a valid PC is professional misconduct, subjecting the advocate to proceedings before the Advocates Disciplinary Tribunal.

This offence is punishable by penalties ranging from a fine up to Sh1 million and suspension, to being struck off the Roll of Advocates.

The transition from lawyer to advocate moves an individual from a person who knows the law to a person legally empowered to practise it.

This admission formally qualifies them as an officer of the court, bound by its rules and professional ethics.