Instructing Kenyan Litigation Counsel: A Guide for In-House Legal Teams Managing Disputes Remotely

When a foreign company ends up in Kenyan litigation, whether as claimant, defendant in a dispute involving a Kenyan subsidiary, or a party to a joint venture gone wrong, the in-house team running the file is almost always doing so from outside Kenya. Kenyan procedure does not let a foreign company appear in its own courts through its own foreign-qualified lawyers or officers; it has to instruct a Kenyan advocate, execute the right authorising documents, and manage that advocate remotely. This guide sets out how the engagement, authorisation, and remote case management actually work, so a team instructing Kenyan litigation counsel for the first time knows what to sign and where the risk points sit.

Why a Kenyan advocate has to be on record

Section 9 of the Advocates Act (Cap 16) limits the right to act as an advocate in Kenya to a person who has been admitted, whose name is on the Roll of Advocates, and who holds a current practising certificate. A foreign in-house lawyer, however senior, meets none of those conditions and cannot file pleadings, sign court documents, or appear at a hearing on the company’s behalf. Section 11 lets the Attorney-General admit a practitioner entitled to appear before the superior courts of a Commonwealth country for one specified matter, but only alongside instructed Kenyan counsel and never to sign or file pleadings; in practice the route is narrow and unavailable to counsel qualified outside the Commonwealth. Every advocate who appears is an officer of the court under section 55, underpinning the conduct obligations discussed below. The Kenyan advocate is not an intermediary; the advocate runs the case, and everything the foreign team wants done in court goes through them.

Setting up the retainer and the fee arrangement

The Law Society of Kenya’s Code of Standards of Professional Practice and Ethical Conduct treats written instructions as good practice before an engagement begins, whether a letter of instructions from the client or a signed memorandum of agreement, defining the scope of the engagement and the basis for fees. Section 45 of the Advocates Act lets an advocate and client agree remuneration for contentious work, but the agreement must be in writing and signed by the client or a duly authorised agent; an email fee estimate is not the same thing. A client who later considers the agreed fee harsh, unconscionable, or exorbitant can apply to have it set aside or varied, within one year of the agreement or three months of a payment demand, whichever is later. Below that sits the Advocates (Remuneration) Order; charging below its scale is professional misconduct.

Authorising the advocate to act: powers of attorney and board resolutions

A Kenyan advocate needs more than an engagement letter to put the company’s name on a plaint or defence; the company has to be formally represented in the proceeding itself. Order 9 rule 2 of the Civil Procedure Rules defines a party’s “recognised agent” as either a person holding a power of attorney authorising them to act, subject to the court’s approval, or, for a corporation, an officer duly authorised under the corporate seal. Separately, Order 4 rule 1 requires a plaint to carry a verifying affidavit, and for a corporate plaintiff that affidavit must be sworn by an officer duly authorised under the company’s seal. In practice a remote team needs a board resolution naming the officer, or attorney, authorised to instruct counsel, execute the power of attorney, and swear the affidavit, well before filing. This sits close to the company’s own corporate secretarial practice, which our guide to board resolutions and corporate secretarial compliance covers in more detail.

Getting foreign-executed documents ready: legalisation, not apostille

Powers of attorney and board resolutions signed outside Kenya cannot simply be dropped into a court file. Kenya has not acceded to the 1961 Hague Apostille Convention, so an apostille does not, on its own, satisfy Kenyan authentication requirements; documents executed abroad generally need consular legalisation instead: notarisation locally, authentication by the relevant foreign ministry, and legalisation by the Kenyan embassy or high commission. This follows the logic of Kenyan oath-taking itself: under section 4 of the Oaths and Statutory Declarations Act (Cap 15), a Kenyan commissioner for oaths can only act within Kenya, so a document meant to be sworn has to be executed before an appropriate local official abroad and then authenticated for use here. The exact chain differs by document type and by what the receiving registry will accept, so confirm the steps with Kenyan counsel and budget real time for it.

Running the case remotely: communication, appearances, and escalation

Once the advocate is instructed and properly authorised, remote management is largely a matter of discipline rather than procedure. Appearances remain the advocate’s alone; neither the foreign parent’s in-house counsel nor its business people can step into a Kenyan courtroom to argue an application or examine a witness. What a remote team should agree upfront is a reporting rhythm: a note after each substantive hearing or filing, advance warning of anything needing a client decision, and a single point of contact on the Kenyan side. The Law Society’s Code treats keeping the client informed as a core client-care obligation, and treats persistent failure to do so, or unexplained inaction on the file, as conduct the client is entitled to raise. If the relationship breaks down, changing advocates is procedurally simple under Order 9 rule 5, and every advocate remains an officer of the court subject to the Advocates Act’s disciplinary framework, with complaints escalated to the Disciplinary Tribunal under section 57, useful leverage for a team with no one on the ground.