Justice David Majanja said that Rule 2 of the Advocates Practice Rules contravenes the rights of the advocates under Article 35 (1)(b), the right of access to information, Article 46, consumer rights, and Article 48, the right of access to justice as stipulated in the Constitution.
Two lawyers Okenyo Omwansa and Marclus Ndegwa Njiru had filed the case claiming their constitutional rights have been infringed.
Justice Majanja said consumers require sufficient and accurate information to enable them assess the nature and quality of services necessary to enable them gain full benefit of legal services.
“In order to generate efficient market outcomes, consumers must know what is available in order to make informed choices. I agree with the petitioners that the prohibition of advertising constrains the consumers of legal services to such information as is necessary for them to make informed choices,”
The judge observed that advertising enables the consumers to have information regarding where, when, from whom and how to get legal service of an advocate.
The judge said consumers have been left in the dark about the nature and extent of legal services that can be offered by an advocate thereby undermining the right of access to justice.
The advocates had filed the suit against the Law Society of Kenya (LSK), the Council of Legal Education and the Attorney-General.
But the judge declined to find Section 32 of the Advocates Act that requires young advocates to practice for a period of two years at a senior counsel’s firm before setting up theirs unconstitutional.
Justice Majanja said the purpose of Section 32 is to enable young advocates gain experience under the tutelage of senior advocates to protect the public which is the overriding interest.
He added that the contested section is intended to support consumers of legal services but also to support its independence and safeguarding the unique role played by advocates who provide legal services to the public.
“Section 32 also protects young advocates by ensuring that their legal work is reviewed by a senior advocate. It therefore prepares young advocates to discharge their calling,” he said.