SECTIONS

Professionals, lawyers included have failed Kenya at every turn

Street children take a nap along Moi avenue in Mombasa. 

When the final audit of Kenya’s rot since independence is taken, a special part will be reserved for professionals who have over the years used their professional certification to sanitise outright misappropriation of public funds.

When public land was routinely grabbed by the State and dished to the politically correct, licensed surveyors and planners accorded this thieving process a veneer of legality. When unreasonably high compensation has been paid for compulsory acquisition of private land, the exorbitant values are provided by professionals duly registered by the Valuers Registration Board.

When numerous buildings have collapsed due to poor workmanship in construction, there are licensed architects, engineers and quantity surveyors who have given the stamp of approval. The hordes of negligently botched surgeries and careless misdiagnosis leading to death and bodily harm emanate from licensees of the medical professionals’ board. I could go on ad nauseum.

But it is my profession, the lawyers, who will deserve a separate chapter for the ways in which we have clothed sleaze in legal garb and sanitised what are essentially robberies without violence. In the 90s, one of the easiest ways to make money by lawyers was to be instructed by government agencies and parastatals to pursue spurious cases of high net worth.

I recall a period when one of the government regulators, who is statutorily entitled to a levy from cash crop factories would routinely instruct a particular law firm to demand the levies, worth hundreds of millions of shillings.

The lawyers would quickly file suit. Of course, the case would quickly be marked as settled and the monies paid, since in any event a simple call to the defaulting party would have led to payment. But alas, having involved the learned friend, he would be entitled to a hefty sum as instructions fees! No prizes for guessing there was revenue sharing involved.

On the face of it, there is nothing legally wrong with the fee claim. But if one removes the veil of legality, you discover a well calculated plot to divest the state agency of public resources. That practice continues, aided, and abetted by an Advocates Remuneration Order which has no higher limit for the fees that can be earned for acting as an advocate in litigation, the principal consideration being the amount of the claim, not necessarily the complexity thereof.

The theory is that where there is a dispute on fees, the courts can align the same towards reasonability, but what if the State agency from whom the fee is claimed, is a participant in the conspiracy and so makes only feeble pretenses to challenge the fees?

Interestingly, the same Remuneration Order caps the fees earned in conveyancing transaction but not for ligation. Technically, a lawyer can legally claim billions in litigation legal fees for a simple matter as long as the sums involved are hefty. For the avoidance of doubt, I am not suggesting all lawyers claims for hefty fees are contaminated by skullduggery and mischief.

However, a rat smells in situations where filing of a case in court was unnecessary, where there is no complexity, where cases are quickly withdrawn or settled soon after filing. Another rule of thumb; would any private company part with such monies as fees?

This issue needs to be arrested, firstly by reviewing the Remuneration Order to cap fees for litigation, aligning fees with effort. But more importantly, our community of professionals needs to stop the pretense that all that is technically legal is right. There is such a thing as public interest.

There are times when a mechanical “the law allows it” is not enough! There is such a thing as the spirit of the law, and it seeks the good of all society, not just professionals.