Pro Bono Practice and Opportunities in Kenya

Lawyers in Kenya are primarily regulated by the Law Society of Kenya which is established by the Law Society of Kenya Act, Cap 18 of the Laws of Kenya and the Advocates Act, Cap 16 of the Laws of Kenya and the regulations issued thereunder.

The Advocates Act sets out the qualifications required for practicing as an advocate (including foreign advocates and in-house advocates), the issue of practicing certificates, remuneration of advocates, and establishes and regulates a Complaints Commission for the purpose of enquiring into complaints against advocates.

Lawyers in Kenya must be licensed and qualified to practice as Advocates of the High Court of Kenya in order to provide legal services (including pro bono services).

Whilst there are no specific rules that regulate the provision of pro bono services in Kenya, the Legal Aid Act, Cap 16A of the Laws of Kenya and the Regulations made thereunder (the “Act”) regulates the provision of legal aid services in Kenya and requires legal aid service providers (which includes in-house lawyers operating under the pro bono programme of the Law Society of Kenya or other civil society organization or public benefit organization registered in Kenya) to be accredited by the National Legal Aid Service (“NLAS”) established under the Act.

A legal aid provider is defined under the Act to include an advocate operating under the pro bono programme of the Law Society of Kenya or any other civil society organization or public benefit organization and legal aid is defined to include:

• legal advice;
• legal representation;
• assistance in:
  (i) resolving disputes by alternative dispute resolution;
  (ii) drafting of relevant documents and effecting service incidental to any legal proceedings; and
  (iii) reaching or giving effect to any out-of-court settlement;
• creating awareness through the provision of legal information and law-related education; and
• recommending law reform and undertaking advocacy work on behalf of the community.

In addition to the Act, the Practice Directions Relating to Pauper Briefs Scheme and Pro Bono Services of 20 January 2016 provide guidance on pro bono services in Kenya and require such services to be offered in capital cases and cases involving children in conflict with the law in the Magistrates Court.

No, lawyers do not need a license to provide pro bono legal services beyond the usual qualification to practice law.

Yes, foreign-qualified lawyers are required to be admitted to practice in Kenya in order to provide pro bono services.

The Advocates Act, Cap 16 of the Laws of Kenya sets out the following requirements for admission of foreign advocates to practice in Kenya:

Foreign-qualified lawyers qualified in Commonwealth countries:

• must be admitted by the Attorney General, for which they must pay the prescribed admission fee;
• must be qualified to appear before the superior courts of any Commonwealth country;
• must be instructed/assisted by either the Attorney General or an Advocate qualified to practice in Kenya; and
• if they intend to appear before a court in Kenya, they must appear with an advocate qualified to practice in Kenya.

Foreign-qualified lawyers qualified in non-Commonwealth countries are required to qualify as advocates of the High Court of Kenya in order to provide pro bono services.

To be qualified for admission as an advocate of the High Court of Kenya, a person must be a citizen of Kenya, Rwanda, Burundi, Uganda or Tanzania.

Additionally, the person must be academically and professionally qualified as follows:

• A person must have passed the relevant examinations of any recognized university in Kenya and he or she holds, or has become eligible for the conferment of, a degree in law of that university; or
• The person must have passed the relevant examinations of such university, university college or other institution as the Council of Legal Education (“Council”) may from time to time approve, and he or she holds, or has become eligible for conferment of, a degree in law in the grant of that university, university college or institution which the Council may in each particular case approve.

Thereafter, the person:

• must have attended as a pupil and received from an advocate of not less than five years standing, instruction in the proper business, practice and employment of an advocate and attended the Advocates Training Programme for a period which in the aggregate including such instruction, does not exceed 18 months; and
• must have passed the examinations prescribed by the Council.

Alternatively, a person may be admitted to practice if:

• he or she possesses any other qualifications which are acceptable to and recognized by the Council;
• he or she is an Advocate for the time being of the High Court of Uganda, the High Court of Rwanda, the High Court of Burundi or the High Court of Tanzania; or
• he or she is for the time being admitted as an advocate of the superior court of a country within the Commonwealth; and
  (i) has practised as such in that country for a period of not less than five years; and
  (ii) is a member in good standing of the relevant professional body in that country.
• The Council may, in addition to the requirements above, require that person to undergo training for a period not exceeding three months, as the Council may prescribe for the purpose of adapting to the practice of law in Kenya.
• The Council is empowered to exempt any person from any or all of the requirements prescribed above in lieu of such conditions, if any, as the Council may impose.

No, there are no rules requiring lawyers to work a minimum number of pro bono hours in Kenya.

No, there are no rules requiring aspiring lawyers to complete a minimum number of hours of pro bono legal services in order to become licensed lawyers in Kenya.

No, there are no aspirational pro bono hours targets for lawyers that have been set by the Law Society of Kenya or any other regulatory body.

Yes, subject to the determination of the Continuous Professional Development Committee established under the Advocates (Continuing Professional Development Rules, 2014), advocates may receive credit for pro bono hours worked.^[3]

Yes, the Advocates (Professional Indemnity) Regulations, 2004 requires advocates (including in-house lawyers) to have a professional indemnity legal insurance cover in place to compensate clients for loss or damage resulting from claims in respect of any civil liability or breach of trust by the advocate or his employees.

The Regulations are not clear as to:

(i) whether in-house lawyers can be covered by insurance cover provided by their employers; and
(ii) whether the mandatory insurance cover relates to both paying and pro bono clients. As such, it is assumed that pro bono clients are also covered by such insurance.

In addition, lawyers are not prohibited from working under the cover of another pro bono provider. If that pro bono provider is a private law firm, such firm is required to have a professional indemnity legal insurance cover of not less than one million Kenyan shillings.^[4]

No, there are no rules in Kenya specifically prohibiting advertising of pro bono successes or soliciting of new pro bono clients.

However, there are general limitations on advertising by advocates as provided in the Advocates (Marketing and Advertising) Rules, 201. For example, an advocate may not do or permit to be done in the advocate’s name anything that may reasonably be considered as calculated to unfairly attract professional business.

Typically, criminal law and civil law cases present opportunities for provision of pro bono legal services in Kenya. Other opportunities are in matters related to children, constitutional matters and matters of public interest.

In most criminal cases, defendants/accused persons are unable to afford legal services and therefore require legal aid.

As regards civil cases, section 37 of the Act provides that the NLAS may not provide legal aid services in respect of civil proceedings:

• to a company corporation, trust, public institution, civil society, NGO or other artificial person;
• in matters relating to tax;
• in matters relating to the recovery of debts;
• in bankruptcy and insolvency proceedings; and
• in defamation proceedings.

Currently, the majority of pro bono legal services in Kenya are provided by non-governmental organizations (“NGOs”) which offer assistance to marginalized groups. The NGOs are located mainly in large cities and lack the resources and capacity to represent the large number of Kenyans in need of legal advice.

Notable NGOs in Kenya providing pro bono legal services include the Federation of Women Lawyers, The CRADLE, the International Commission of Jurists in Kenya, Kituo Cha Sheria, the Public Law Institute, Christian Legal Education Aid and Research and KELIN Kenya.

There are no noteworthy examples of innovative technology or artificial intelligence being used in pro bono matters in Kenya.

The Pro Bono Institute of Kenya (PBIK) which launched in 2023, acts as an intermediary between Kenyan civil society organizations in need of legal advice and support, and advocates who wish to dedicate their expertise and time to provide pro bono legal services.^[5]

The Law Society of Kenya, in conjunction with the judiciary of Kenya, offers annual legal aid and pro bono legal services over a number of days at its branches throughout Kenya. In Nairobi, lawyers advise pro bono clients at the grounds in the High Court of Kenya and Milimani Law Courts.

Section 57 of the Act provides that the NLAS shall through regulation, develop and adopt criteria for accreditation of persons and institutions to provide legal aid services. Such criteria is set out in the Legal Aid (General) Regulations, 2022 and includes institutions such as universities, state agencies, public benefit organisations, non-governmental organisations or faith-based organisations, legal firms and individuals such as paralegals and advocates as persons eligible for accreditation.

Local attorneys who are registered with the Law Society of Kenya usually receive frequent updates on pro bono opportunities. Lawyers may also apply to join the pauper brief or pro bono schemes established by the Judiciary in accordance with the Practice Directions Relating to Pauper Briefs Scheme and Pro Bono Services.

The NLAS is also mandated to maintain a register of accredited legal aid providers following an accreditation process.

Organisations such as Kituo Cha Sheria have legal aid and education programs managed through in-house lawyers and volunteer advocates.

More specifically, Kituo Cha Sheria runs a Volunteer Advocates Scheme through which volunteer advocates can sign up.^[6] For foreign lawyers to take up pro bono opportunities in Kenya, they must meet the qualification criteria provided under the Advocates Act.

There have been some recognition of persons and entities involved in pro bono work in Kenya, most of which have been on an ad hoc basis.

One notable award, however, is the 2024 Jurist of the Year Award issued by the International Commission of Jurists, Kenya Section, to the current Law Society of Kenya President, Faith Odhiambo, for her instrumental role in defending the rights of protesters during the nationwide anti-finance bill protests and securing the release of those arrested by providing pro-bono legal services.^[7]