High Court quashes bid to shield advocates from arrest, prosecution while on duty

The High Court has thrown out a petition by the Law Society of Kenya (LSK) seeking to shield advocates from arrest, prosecution, or harassment while discharging their professional duties.

Filed in 2019, the petition accused the Director of Public Prosecutions (DPP), the Inspector-General of Police, and other state agencies of intimidating lawyers, compelling disclosure of confidential client information, and detaining them beyond the constitutional 24-hour limit.

LSK sought orders requiring police to release advocates on free bond and to exhaust disciplinary procedures under the Advocates Act before preferring criminal charges.

Justice Lawrence Mugambi ruled that the petition was “fatally defective,” citing a lack of specificity and failure to identify any individual advocates whose rights had been infringed.

He said the case relied on broad, unsubstantiated claims rather than concrete incidents.

While affirming LSK’s standing to bring the suit, the court noted that the advocate–client privilege is not absolute.

Under the Evidence Act, privilege does not apply to communications made in furtherance of an illegal purpose, or where an advocate is aware of a crime or fraud.

The judge stressed that advocates, like all citizens, are subject to investigation and prosecution if evidence of wrongdoing exists, adding that any interference with their work should be assessed on a case-by-case basis, not through blanket protections.