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Post Reply: High Court Rejects LSK's Petition to Protect Advocates from Arrest and Prosecution

<blockquote><div class="quotetitle">Quote from <a class="profile-link highlight-moderator" href="https://lawguide.co.ke/understanding-law/legal-forum/profile/lawyer/">Lawyer</a> on August 15, 2025, 9:03 am</div><div id="pl-7577"  class="panel-layout" ><div id="pg-7577-0"  class="panel-grid panel-no-style" ><div id="pgc-7577-0-0"  class="panel-grid-cell"  data-weight="1" ><div id="panel-7577-0-0-0" class="so-panel widget widget_sow-editor panel-first-child panel-last-child" data-index="0" data-style="{&quot;background_image_attachment&quot;:false,&quot;background_display&quot;:&quot;tile&quot;,&quot;background_image_size&quot;:&quot;full&quot;,&quot;background_image_opacity&quot;:&quot;100&quot;,&quot;border_thickness&quot;:&quot;1px&quot;}" ><div
			
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	<p dir="ltr" data-pm-slice="0 0 []">On Thursday, August 14, 2025, the High Court in Kenya delivered a significant ruling against the Law Society of Kenya (LSK), dismissing its petition to grant advocates broad protections from arrest, prosecution, or harassment while representing clients. The decision, handed down by Justice Lawrence Mugambi, marked a setback for LSK's efforts to shield lawyers from legal repercussions in the course of their professional duties. The court deemed the petition "fatally defective" due to its lack of specificity and precision, failing to meet the standards required for a constitutional petition.</p>
<p dir="ltr">The LSK, led by President Faith Odhiambo, filed the case in 2019, alleging that state agencies, including the Director of Public Prosecutions (DPP), the Inspector-General of Police, and others, were intimidating lawyers. The society claimed that advocates faced arrests, prosecutions, and harassment, including being coerced into revealing confidential client information and being detained beyond the 24-hour constitutional limit. LSK sought court orders to prevent such actions, compel police to release advocates on free bond, and ensure that disciplinary mechanisms under the Advocates Act were exhausted before pursuing criminal charges against lawyers.</p>
<p dir="ltr">Justice Mugambi, in his ruling, acknowledged LSK's legal standing to file the petition but emphasized that the claims lacked concrete evidence. He noted that the society failed to name specific advocates whose rights had been violated or provide detailed incidents to substantiate its allegations. Instead, the petition relied on broad and generic claims, which the court found insufficient to warrant the sweeping protections sought. Mugambi underscored that the advocate-client privilege is not absolute, stating that advocates, like all citizens, are subject to criminal investigation and prosecution when evidence of wrongdoing exists.</p>
<p dir="ltr">The judge further clarified that under the Evidence Act, privilege does not apply when communications between advocates and clients are made to further an illegal purpose or when an advocate becomes aware of a crime or fraud. He stressed that any interference with an advocate's professional role must be assessed on a case-by-case basis, rather than through the blanket orders LSK requested. This approach, Mugambi argued, ensures that allegations of misconduct are evaluated individually, balancing the rights of advocates with the need for accountability.</p>
<p dir="ltr">The LSK's petition aimed to address what it described as systemic issues affecting the legal profession. The society argued that state actions were undermining advocates' ability to represent clients effectively, particularly in cases involving sensitive or high-profile matters. By seeking court intervention, LSK hoped to establish legal safeguards that would protect lawyers from undue pressure and allow them to perform their duties without fear of reprisal. The dismissal of the petition, however, leaves these concerns unaddressed, potentially exposing advocates to continued scrutiny and legal risks.</p>
<p dir="ltr">This ruling has sparked discussions within the legal community about the balance between professional protections and accountability. While LSK's intentions were to safeguard the independence of the legal profession, the court's decision highlights the importance of presenting precise and evidence-based claims in constitutional litigation. The lack of specific examples or named individuals weakened the petition, underscoring the judiciary's expectation for detailed and substantiated arguments.</p>
<p dir="ltr">The High Court's decision also reinforces the principle that no profession, including the legal one, is above the law. Advocates, while entitled to protections in their professional roles, must operate within the boundaries of legal and ethical standards. The ruling serves as a reminder that claims of privilege or immunity must be carefully justified and cannot be used to shield potential misconduct.</p>
<p dir="ltr">For the LSK, this outcome may prompt a reevaluation of its legal strategy. The society could choose to file a new petition with more specific evidence or pursue alternative avenues to address the concerns raised in the original case. Meanwhile, the ruling leaves open questions about how advocates can navigate the challenges of representing clients in contentious cases without facing undue pressure from state authorities.</p>
<p dir="ltr">The case has drawn attention to the broader issue of the relationship between the legal profession and state institutions in Kenya. As the LSK continues to advocate for its members, the High Court's decision underscores the need for clear, evidence-based arguments to achieve meaningful legal reforms. The ruling also highlights the judiciary's role in upholding accountability while protecting the rights of professionals to carry out their duties.</p>
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