Pro Bono Legal Service Agreement (Kenya)

A Pro Bono Legal Service Agreement in Kenya sets out the terms on which a service provider performs work and is paid by the client.

Section 45 of the Advocates Act Cap. 16 requires that every agreement between an advocate and a client for the provision of legal services be in writing where the services are contentious — that is, where the matter may be subject to proceedings before a court or tribunal. While pro bono services by definition involve no fee, a written Pro Bono Legal Service Agreement is essential to define the scope of the services provided, the obligations of both the advocate and the client, the limitations of the pro bono representation, and the grounds on which the advocate may withdraw.

The Law Society of Kenya, established under Section 3 of the Law Society of Kenya Act No. 21 of 2014, sets standards of professional conduct for advocates through the Advocates (Practice) Rules and the LSK Code of Standards and Ethics. An advocate providing pro bono services remains bound by all professional obligations applicable to paid representation, including the duty of confidentiality under Rule 9 of the Advocates (Practice) Rules, the duty of competence, the duty of diligence, and the duty of candour to the court. The Pro Bono Legal Service Agreement must make clear that the advocate's waiver of fees does not diminish these professional duties.

The Legal Aid Act No. 6 of 2016, administered by the National Legal Aid Service (NLAS) established under Section 5, creates a formal framework for state-funded legal aid in Kenya. Advocates who provide services under the Legal Aid Act are paid by the government at rates prescribed in the Third Schedule. A Pro Bono Legal Service Agreement under the Advocates Act Cap. 16 is distinct from legal aid under the Legal Aid Act — the former involves voluntary provision of services by an advocate without government payment, while the latter involves government-funded services. Many pro bono providers in Kenya operate through civil society organisations, law school clinics accredited by the LSK, or through LSK's Kituo cha Sheria partnerships.

The Limitation of Actions Act Cap. 22 and the Civil Procedure Act Cap. 21 apply equally to matters handled on a pro bono basis as to paid matters. An advocate handling a pro bono case must comply with all applicable procedural rules, file court documents on time, and advise the client of applicable limitation periods. The advocate's professional liability under the Advocates Act Cap. 16 is not diminished by the absence of a fee.

The Pro Bono Legal Service Agreement should also address the situation where the client subsequently comes into funds — for example, through a successful award of costs by a court under Order 27 of the Civil Procedure Rules 2010 — and whether any portion of costs recovered should be shared with the advocate or donated to a legal aid fund. The LSK Pro Bono Guidelines address the treatment of court-awarded costs in pro bono matters.

A Pro Bono Legal Service Agreement in Kenya is needed whenever a registered advocate agrees to provide free or substantially reduced-fee legal services to an individual or organisation, regardless of the nature of the legal matter.

A Pro Bono Legal Service Agreement is required when an advocate enrolled under the Advocates Act Cap. 16 represents an indigent individual in a criminal matter before the Magistrates Court, the High Court, or the Court of Appeal. Under Article 50(2)(h) of the Constitution of Kenya 2010, every accused person has the right to have an advocate assigned to them at state expense if substantial injustice would otherwise result. Where an advocate provides this representation voluntarily under a pro bono arrangement rather than through the Legal Aid Act No. 6 of 2016, the written agreement defines the scope and terms.

A Pro Bono Legal Service Agreement is needed when a law firm commits to providing a defined number of pro bono hours per year to a civil society organisation, community group, or registered NGO under the Non-Governmental Organisations Co-ordination Act Cap. 134. The agreement defines the matters covered, the designated advocate, and the procedure for requesting services.

A Pro Bono Legal Service Agreement is required when an advocate provides legal services to a domestic violence survivor referred by a women's rights organisation or by the Gender-Based Violence Recovery Centre. The agreement must specify the types of proceedings — protection orders under the Protection Against Domestic Violence Act No. 2 of 2015, divorce under the Marriage Act No. 4 of 2014, or custody applications — that are covered.

A Pro Bono Legal Service Agreement is needed when a law school clinic operating under the Clinical Legal Education programme accredited by the Law Society of Kenya provides supervised legal services through student advocates. The agreement must identify the supervising advocate who bears professional responsibility under the Advocates Act Cap. 16.

A Pro Bono Legal Service Agreement is required when an environmental advocate provides free representation to a community group challenging a government project before the National Environment Tribunal (NET) under the Environmental Management and Coordination Act No. 8 of 1999 or before the High Court's Environment and Land Court. The agreement must define the specific proceedings and the advocate's authority to act.

A Kenya Pro Bono Legal Service Agreement under the Advocates Act Cap. 16 and the LSK Pro Bono Guidelines must contain the following essential elements to be professionally sound and enforceable.

Parties and Advocate's Enrolment Details: The full name of the advocate, their LSK membership number, the name of their law firm or chambers, physical address, and contact details. The client's full name, national identity card number, residential address, and contact details. Confirmation that the advocate is duly enrolled on the Roll of Advocates maintained by the Registrar of the High Court under Section 12 of the Advocates Act Cap. 16 and holds a current practicing certificate issued by the LSK.

Scope of Services: A precise description of the legal matter covered by the pro bono agreement — the specific proceedings, court, tribunal, or transaction. The agreement must specify what is included (e.g., drafting pleadings, court appearances, negotiations) and what is excluded (e.g., appeals, enforcement proceedings, matters before other tribunals). Scope limitations protect the advocate from being expected to handle matters beyond the original pro bono commitment.

Pro Bono Nature and Fee Waiver: An express statement that the services are provided without charge as a pro bono matter under the LSK Pro Bono Guidelines, with confirmation that no legal fees under the Advocates (Remuneration) Order will be charged. Where a nominal fee is charged to maintain the advocate-client relationship and prevent it from being treated as a gift, this must be stated clearly.

Duration and Matter Completion: The commencement date of the representation, the expected duration or the specific milestone at which the pro bono representation ends (e.g., conclusion of first instance proceedings, obtaining a specific order, or completion of a specific transaction). The agreement must be clear that the pro bono commitment does not automatically extend to appeal proceedings.

Client's Obligations: The client's duty to cooperate with the advocate, to provide accurate and complete instructions, to attend court hearings or meetings when required, to promptly disclose any material change in circumstances, and to notify the advocate if they retain paid legal representation. The client's failure to cooperate may be a ground for withdrawal under Rule 9 of the Advocates (Practice) Rules.

Advocate's Professional Obligations: A statement that the advocate provides pro bono services subject to all duties imposed by the Advocates Act Cap. 16, the Advocates (Practice) Rules, and the LSK Code of Standards and Ethics — including the duty of confidentiality, the duty of competence, and the duty to act in the client's best interests. The advocate is not, by reason of providing pro bono services, relieved of any professional obligation.

Withdrawal and Termination: The grounds on which the advocate may withdraw from the representation — including the client's failure to cooperate, a conflict of interest arising under Rule 12 of the Advocates (Practice) Rules, the advocate's inability to maintain competence, or a material breakdown of the advocate-client relationship. The procedure for withdrawal must include reasonable notice to the client and assistance in finding alternative representation under the Legal Aid Act No. 6 of 2016.

Costs and Disbursements: A statement as to whether the client is responsible for out-of-pocket disbursements — court filing fees, witness expenses, expert fees, process server fees, and official document costs — even where the advocate's own fees are waived. Court filing fees under the Civil Procedure Rules 2010 are the client's obligation unless the court grants a waiver under Order 51 of the Civil Procedure Rules.

Court-Awarded Costs: Where the pro bono matter succeeds and the court awards costs against the opposing party under Order 27 of the Civil Procedure Rules 2010, the agreement must state how those costs will be applied — whether retained by the advocate, donated to a legal aid fund, or shared with the client. LSK Pro Bono Guidelines recommend that court-awarded costs in pro bono matters be donated to the LSK Compensation Fund or retained by the firm for future pro bono work.

Confidentiality and Conflict of Interest: The advocate's ongoing obligation of client confidentiality under Section 134 of the Evidence Act Cap. 80, which protects privileged communications, and the procedure for identifying and managing actual or potential conflicts of interest under Rule 12 of the Advocates (Practice) Rules.

The forms-legal.com Kenya Pro Bono Legal Service Agreement template meets all requirements of the Advocates Act Cap. 16 and the LSK Pro Bono Guidelines and can be adapted for any area of law, court, or tribunal in Kenya.