Presentation on behalf of the Law Society of Kenya on the prospects and challenges on the legal practice

• July 20, 2022
• Kevin Dermot McCourt

Good morning, my name is Kevin D. McCourt, I am an Advocate, a member of the Law Society of Kenya and have practiced for approximately 28 years.

I have been asked to talk today on Legal practice: Prospects and Challenges. I asked myself why me?

I don’t have a crystal ball like Professor Makau wa Mutua, and cannot predict the future.

Do my years of practice qualify me to speak on the issues? I don’t think so.

Instead I came up with the answer that this topic is continuous and that all of us are involved in the debate and that no one has the answer, as practice will evolve as it is driven by forces not always in our control.

So please do not expect the definitive answer from me today, but please listen to my ramblings and try to stay awake.

Let us now consider the prospects arising for the Legal profession in Kenya. In my view we must initially consider the MARKET PLACE. We are after all providers of a service to a market.

Has the market changed? I believe it has, but not substantially in terms of the buyers therein.

Let us now consider the elements of our Market place.

Government

Consider the National Government a major customer for services in terms of its various component parts.

1. There are more tenders for Government work that lawyers can apply for, as now that process is allegedly more transparent.
2. These have been and may continue to be numerous Commissions, whether Constitutional or not that have been created, for which legal services are required whether internally as part of the administration of the Commission or externally as consultants and legal advisors (Article 248(2) sets out the Constitutional Commissions).
3. There ought to be more requirement for legal services for clients summoned before Parliamentary Select Committees.
4. Employment massive recruitment for Lawyers in the Judiciary, the DPP and the AG’s office.
5. There have been and will continue to be created sporadic Tribunals formed to investigate the conduct and administration of various public officers and their offices. There will still be the existing bodies such as NEMA, TAX APPEALS TRIBUNALS, THE PROCUREMENT TRIBUNAL, RENT TRIBUNALS and the WATER TRIBUNAL.

My list is not exhaustive.

1. Then there are their Courts. Some suggest that we have new Courts, other than the Supreme Court, I respectfully disagree. What has occurred is the creation of divisions within the High Court, which are concentrating on specialization.

What has occurred is the exponential growth in Judicial officers. We have more Court of Appeal Judges, more High Court Judges and an explosion of Magistrates. However the fundamental structure of the Courts has remained the same. The work output ought to increase, with the new number of Judicial officers available. Unfortunately, we as a profession have yet to see that result, but we must be patient and support the Judiciary to enable them to increase that output. We must as far as possible apply the Civil Procedure Act and Rules of 2010 to achieve the result of more hearings being determined.

1. The newest client to the market are the County Governments 47 in total. It could be argued that they merely replace the Councils that existed before, and that they will not add much new demand to the market. I tend to disagree, maybe my view is optimistic and for sure speculative. I say that on the basis, that County Governments and the issue of devolution is still uncertain and difficult to predict, as the County Governments are still in infancy and their constitutionally defined role, is yet to be fully implemented. However there will be demand for legal services both as employees and as practitioners in the future. I would reiterate some of the issues touched on above, for example, tenders for services without going into detail. It would be interesting to compare this point five years from now.
2. Lastly the National Land Commission ought to provide some rational restructuring of our Land Laws. Hopefully this will lead to greater certainty in conveyancing and in the sanctity of Title issued whether previously or in the future. This would also free up commercial transactions mainly driven by the lending institution. Once again it is too early to predict the result, but we must hope the result will be beneficial to the profession.

CHALLENGES OF THE GOVERNMENT AS A CLIENT

1. Tenders – are the Tenders truly transparent or are they merely window dressing for purposes of the new Constitutional dispensation? I will not answer this question, but will leave it to you present to arrive at your own answer to the same.

Do we as a profession have the necessary specialist legal skill to fulfill all of the potential tenders that will arise? Are we skilled enough on oil, gas and Mineral legal practice? Have we enough skill in Environmental Law to address the issues that will arise? Are we prepared to merge or create alliances with others who have the necessary skills, and by doing so obtain the knowledge and the skill set, but share the financial rewards of such tenders proportionally or disproportionately? Will we as a profession be placed in a position to ensure our fair share of the consultancies that arise or will the same be taken by outsiders with links to the donors?

The challenge here is specialization and perhaps only a few of us will acquire the necessary skill set, and they will prosper!

1. Commissions – In terms of vacancies for employment there will be a limited number of jobs in the Constitutional Commissions. The availability of such jobs will be capped on rotation, removal and incapacity of the existing Commissioners. There maybe adhoc Commissions created for a one off purpose, but their tenure will be finite and their creation to random for a practitioner to focus their practice only on their existence.

The challenge is to obtain the consultancy work to both types of Commissions. This again requires the practitioner to acquire the skill set needed for such work. This will involve expenditure of financial resources as well as the ability to team up with others, seeking the consultancy, who have different skills.

1. Parliamentary Select Committees – We need to define our role when appearing before such bodies. Are we the representative of our client, therefore dealing directly with the body as in Court, or are we the advisor appearing with the client to advise the client on answering the questions posed?

Already there has been some resistance and hostility to our presence before such bodies and I refer to the Kenya Airways Summons on the issue of the dismissal of employees.

1. Tribunals – The existing ones require specialist knowledge. NEMA, is a major growth area but do we as practitioners have the knowledge? The Tax Appeals tribunal, how many tax lawyers do we have, and who are they; other than a former KRA employee? Here I pause and have the temerity to challenge our own LSK, to implement practical and procedural CLE with these bodies to enable us to acquire these skills.

Oops they must also be AFFORDABLE!

The challenge is for us the practitioners to venture before these bodies and acquire the skills through hard work and exposure.

1. Courts – As a practitioner, I am grateful for the changes and wish to help the process to a successful conclusion. However, in spite of the increase in terms of judicial officers and the proposed new technology that is to be applied to the process, I am still concerned in how we present our pleadings and the process of litigation. The existing Court file with its bundles of paper and the manual recording of proceedings is a challenge both to the practitioner and to the Judiciary. The speed and efficiency is determined by an individual’s skill at recording. This must change! It is unfair to both the Judicial officer and to the customer of the process. The challenge is for us to come up with a better system, either by amending the existing one, with the use of new technologies.

I do not have the answers and leave that to you in plenary to suggest solutions.

The Judicial officers, have they sufficient and adequate facilities and support staff, to enable them to effectively undertake their onerous task as triers of fact. Have the registries improved, do they have sufficient research assistants? Are adequate resources being allocated to the Magistracy who carry the bulk of the burden or are they been left within minimum resources, both in terms of Courts and staff?

The divisions of the High Court will they develop specialist Judicial officers and practitioners to create an acceptable jurisprudence that offers certainty in their respective areas of law enabling the Practitioner to advise and the ultimate customer to understand and accept the outcome.

Will Practitioners specialize in particular areas of practice, or will we remain general Practitioners? Market Forces will play a large part in determining the answer to these questions. Those are challenges that we as a profession face but surely can surmount with time.

1. The County Governments – as previously stated, it is early days and too early to predict with any certainty. I can speculate for the sake of debate the following;

Will there be a balkanization of legal services within the Counties? Will that improve the welfare of Practitioners within the County or lead to provincialism in terms of practice. I cannot answer the above and am not judging whether it be good or bad. From my previous experience we as a profession should ensure practice remains national, as the Courts are national under the Constitution.

1. The National Land Commission – Again too early to predict the result. The challenge currently is in the Lands office. This is under the Ministry of Lands, and what effect the National Land Commission will have on it, is yet to be seen. However this is a challenge to conveyancing practice in Kenya. It is also noteworthy that whereas the Judiciary have recruited and changed, the Lands Office has yet to reincarnate itself along similar lines.

Please note on Wednesday the Cabinet Secretary for Lands, suggested she will ignore the National Land Commission.

PRIVATE SECTOR (PROSPECTS)

Let me now turn to another part of our market, namely the private sector, by this I mean local companies, corporates, individuals, NGO’s and foreign investors.

1. The local companies/ corporates have not necessarily exploded in number. The market has expanded but not in such a manner as to drastically increase legal practice in that area.
2. The new technology companies have been the most interesting player in this market. The fact that you have Companies with products that were previously unheard driven by the internet, mobile telecommunications Mpesa etc. these should provide prospects for legal practice.
3. The real excitement in the market, is the influx of foreign investors, whether in infrastructure projects, malls, housing and minerals such as oil and gas. Such an influx should correlate with the growth in demand for legal services to enable the projects. I don’t think that is what is happening on the ground.
4. Banks, has their commercial work increased in the recent past? This all depends on the interest rate, and whether borrowing is affordable to the borrower. As a result there are flurries of intense commercial activity when the interest rate is good followed by a drought of activity, other than foreclosures.

There has been a construction boom in terms of residential property namely flats, which is centered more in the urban areas. This has led to the growth of more mortgages and charges.

1. Individuals and NGO are also in our Market place. Myself I have never received NGO work, and would be grateful for someone to enlighten me on the amount, variety and revenue generating capacity of the work

The individual however is a bedrock of practice, and I would state comfortably that all lawyers in private practice have at least one individual client. Have those dynamics changed, in that more individuals are accessing legal services or has their demand remained relatively stagnant. We have no data to confirm, whatever opinion you may personally hold. I believe that this group has remained relatively constant, and no large spike in growth has been seen.

PRIVATE SECTOR CHALLENGES

1. The new technology companies demand legal services that are specialized in nature, if we are to obtain the lucrative work. The challenge is to obtain the necessary specialization and skills to compete for that work. At present, the really lucrative work that is taking place in the County is being undertaken by Foreign Law firms who do all the detailed work and then contract a local firm to take the procedural steps. The foreign firm earns the bulk of the lucrative fee as well as retaining the expertise as the same is not shared. Unfortunately this conduct has been ongoing and an example of the same is the practice of Admiralty Law in Mombasa. Our challenge is to obtain the expertise and compete for the work. Already big international law firms are creating alliances with local firms to tap into that work. There are consortium of professional service firms, such as the Strategic Legal Solutions Group offering a wide but specialized service to clients. Such groups are using the Limited Liability Partnership Act 2011 to good effect, and they may be the future of the profession.

We need to consider what the accountants have done. They have become large one stop service providers, through mergers acquisitions and global alliances with other large players in their market. They now command huge fees, employ many people and offer consultancies to both Governments, NGO’s and the Private Sector. As a profession we need to consider how we can create such super firms, and if need be amend our laws to allow us to do so.

1. One challenges that is dear to all of us, is the Remuneration Order. What purpose does it service, has it become an anachronism, a lovely piece of silver or a miraa plant held on to because of sentiment?

Its purpose was to ensure fees are regulated in the profession and to ensure all practitioners were entitled to the same fee irrespective of the size of their practice, location or fame. That I would suggest is not the case today. Our market has rejected the Remuneration Order. The profession is constantly been squeezed by Corporates and individuals who now price shop for Advocates. Advocates are quoting for work offered with the lowest offer tending to be the acceptable one.

The fees of the profession, have to be ratified by another body, namely the Chief Justice, yet that esteemed office does not deal with the economic realities of practice today. How can we be asking for an increase from an arm of Government, when we are in private practice, does that not sound illogical. The market will determine what is affordable to the customer. In any event from my own perspective what we as Advocates undergo can never be remunerated adequately. The reality today I would suggest, is that the Remuneration Order is as dead as dodo, and we as a profession need to debate and agree to either liberalize the profession on fees or restructure the current Order to be more realistic in term of the fees Advocates can earn.

A further challenge to the profession is the dramatic increase in numbers of new lawyers. It is a challenge for them to obtain pupilage and employment in the numbers that are graduating from our increased Universities. If they migrate into private practice, in order to survive they will have to charge fees that the market offers and not what is stated in the Order.

I believe, I have rambled enough, and knowing that boredom set in over Forty Minutes ago, I will end by saying my presentation is far from exhaustive or authoritative of this topic. I genuinely believe that this debate is ongoing and all our opinions are valid and ought to be considered.

Thank you for listening.

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