NAIROBI, Kenya — The Court of Appeal has upheld the requirement that all practising advocates in Kenya must be members of the Law Society of Kenya (LSK), ruling that the obligation is constitutional and serves a legitimate public interest.
In a unanimous judgment delivered by Justices Gatembu Kairu, Pauline Nyamweya, and Jessie Lesiit, the court affirmed a 2019 High Court ruling that validated sections 22 and 23 of the Advocates Act and section 7 of the Law Society of Kenya Act, which make LSK membership mandatory for issuance of a practising certificate.
The appeal was filed by Eunice Nganga, who argued that compulsory LSK membership violates her rights under Article 36 of the Constitution—freedom of association—and Article 27, which protects against discrimination.
She also challenged the requirement for continuing legal education (CLE) as a condition for licence renewal.
Nganga had asked the court to declare the provisions unconstitutional and to direct the creation of an independent legal regulatory body, separate from the LSK, to oversee certification, discipline, and professional development without requiring advocates to join the society.
However, the Court of Appeal rejected her arguments, stating that the requirement is a reasonable and justifiable limitation in an open and democratic society.
“The compulsion to join the LSK under sections 22 and 23 of the Act is a condition for the issue of practising certificates to advocates, which is reasonable and justifiable,” the court ruled.
The judges emphasized the LSK’s role in maintaining professional standards and protecting the public interest in the administration of justice.
International Precedent Cited
In support of its ruling, the court referenced global legal practices, noting that 31 U.S. states and the District of Columbia have similar mandatory bar associations.
The bench cited landmark U.S. Supreme Court cases—Lathrop v. Donohue (1961) and Keller v. State Bar of California (1990)—which upheld compulsory membership for the purpose of regulating legal practice and enhancing the quality of legal services.
“The justifications for compelled association… limit the permissible extent of that compulsion,” the court stated, adding that Kenya’s legal framework aligns with these principles.
The court also found that Nganga had not demonstrated any violation of her constitutional rights, nor had she shown that the LSK was engaging in activities outside its legal mandate.
“The appellant did not identify or demonstrate any activities that were being undertaken by the LSK that are outside the permissible extent of regulation of advocates,” the judgment read.
While dismissing the appeal, the judges declined to award costs, noting that the case raised significant public interest issues regarding legal profession governance and constitutional freedoms.
