It was the official policy of the colonial government that it would not promote the education of the native population in Kenya. The only education it provided to the African inhabitants of the colony was two to three year courses for teachers, chiefs, policemen, health inspectors and what were generally described as “community development assistants”.
With this education the colonial authorities aimed at developing a class of people who could adequately serve as “African leaders”. Due to this lack of adequate education facilities, no African was able to obtain an education that could give them the requisite qualifications to join the legal profession. Thus the profession was open to British solicitors and barristers who decided to relocate their law practices to the colony and a few Indians who had taken law training in India and England.
The Africans had then to begin initiating and promoting learning amongst them. Realizing there was no place for them in the colonial education system; they began to build their own schools. The Kikuyu Central Association, for example, initiated the “Kikuyu Independent Central Association” where the few Africans who had been lucky enough to acquire the basic education as “African leaders” taught African children and provided them with the education that was specifically reserved white children. The best students from these schools were then sent to universities abroad, mostly India, with community funded scholarships.
At first the colonial authorities paid no attention to these African schools. But as more and more Africans begun to leave the country to acquire a university degree, the schools became a source of concern. The Law Society of Kenya became particularly worried since the majority of the African students were enrolling for law degrees in those universities. Racial bigotry then was so intense that the English advocates were horrified at having Africans as professional colleagues.
The colonial government itself had its own fears over this renaissance and in 1953, it issued a decree proscribing the over 300 Kikuyu independent schools. More than 60,000 students were sent home. The leaders of the association reacted by retaining an English lawyer in London to challenge the action of the government. When the lawyer arrived in the colony to investigate the claim, he was declared a prohibited immigrant and deported.
By the time the first of the African lawyers returned to the colony, the Law Society of Kenya had promulgated inhibitive laws that would restrict the entry of Africans to the profession. These rules required a 12 month residential training period for those qualified in England and a 24 month period for those returning from other countries, like India. The Chief Justice could, however, waive this requirement and often did so for non-Africans.
One soon instance was the case of a young South African lawyer named Duirs, who had applied to practice in the colony, but the Kenyan Bar did not wish to open to South African lawyers and Duirs’ application was rejected. While still in the colony, the South African rugby team visited Kenya and Duirs joined up with the Kenyan team and played a splendid game against his home team. His application was then reconsidered and allowed, the residential training requirement was waived and one of the law firms employed him as an associate.
The kind of treatment African lawyers received form the English ones is evident from the case of Cheido More Gem Argwings –Kodhek, yes of the Argwings-Kodhek road fame. He was the first ever Kenyan African lawyer. He had trained at Lincoln’s Inn in London and was called to the Bar in 1951. He returned to Kenya as an English barrister and after fulfilling his residential training requirement, was entered into the Roll of Advocates.
In 1957, the Law Society of Kenya investigated his small law practice and discovered that he did not keep a properly written book of accounts. He, for example, did not distinguish, by use of proper titles, his client’s account from his office account. The matter was immediately brought to the attention of her Majesty’s Supreme Court at Nairobi and on July 10, 1957, the court ordered his name to be struck off from the Roll of Advocates.
The matter was taken further and the Law Society of Kenya filed a complaint against him before the Bar Council of Lincoln’s Inn in London. On October 8th 1958, the Masters of the Bench of the Honorable Society in Lincoln’s Inn ordered that Cheido More Gem Arwings – Kodhek be disbarred and expelled from Lincoln’s Inn and further be expelled from the Law Society of Kenya and his expulsion be advertised.
Earlier in the year, an English lawyer named B.J Robson cheated for his client in an Immigration Statutory Declaration Form, in order to enable the client obtain a certificate to immigrate to the colony. He was arrested, charged in a court of law and convicted for the offence.
Two months after Kodhek’s disbarment, a complaint was lodged against an Asian lawyer, Shri Ram Gautama, by his client. Gautama, while acting for his client in respect of a property that was being compulsorily acquired, managed to negotiate for an increased award in compensation to his client. He withheld this information from the client and got the client to agree to pay a percentage of any monies negotiated above the previous offer as legal fees. The client agreed and Gautama charged the client the normal legal fees and then paid himself the agreed percentage. He was only suspended for two years.
Towards 1960, it became very clear to the Colonial Office in Britain that Kenya would have to obtain its independence. The Colonial Office therefore begun to prepare the colony for the handing over of sovereignty. One such preparation was the conference on the future of law in Africa held in London in the winter of 1959. In attendance was the former Chief of the English Court of Appeal, the Right Honorable Lord Denning.
The conference made such a great impression on Lord Denning that he became the chief advocate to the establishment of local institutions for training lawyers.
While in Kenya, he held meetings with the Chief Justice, members of the Judiciary and the Bar, the Attorney General and the Minister for Education. The Law Society of Kenya argued that the matter of law teaching in Kenya was not urgent and that in any event, there was no indication for lawyers.