Kenyans on average file about 400,000 cases in court every year. Most of these cases, however, would not have ended up in court had the litigants sought the advice of an advocate or retained a family lawyer.
Some of the cases have locked up billions of shillings in succession cases, matrimonial property disputes, and fights over shares and money in banks among other institutions.
The Constitution in Article 159 endorses Alternative Dispute Resolution as a legal option for court proceedings. The law encourages the resolution of cases through reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms.
Why is it advisable to retain a family lawyer?
For starters, a family lawyer helps to minimise succession cases. A family lawyer helps in writing a will and will be one of the witnesses in case there is a contest in the distribution of property, or other disputes such as place of burial, or the method that often lock kin in court battles.
Judy Thongori who has been practicing for more than 30 years says a family lawyer deals with legal issues arising between and among family members.
Some of the legal issues, she says, are easily solved with some advice while others involve court cases. To thrive as a family lawyer, she says one not only needs to have a good grasp of laws but people skills and empathy since they mostly deal with their clients’ feelings.
Ms Thongori who has practiced for over 30 years notes that the services of family lawyers come in handy by guiding on how to move forward while at the same time mitigating the inevitable pain to oneself and other family members in times of conflict.
“Experience in any field is very important, thus hiring a person who has specialised in the subject means that you will get the best advice. Family matters are very sensitive and a wrong move in the dispute resolution process could result in a lot of avoidable pain for the family,” notes Ms Thongori who specialises as a family lawyer. The process of seeking a lawyer should involve research or even reference.
“However, it is also important to determine for yourself whether you are aligned with the lawyer; do you feel heard and understood?” she poses.
“Look for competence, integrity that you can get from referees and then look for your fit,” she empasises.
Julie Soweto, another advocate agrees, saying a piece of advice from a lawyer can save money and time. With so many successful cases and contestations of wills, she says a family lawyer has a must-have. “Get a lawyer to do a will and make him known (to the family) beforehand,” she advises.
However, if one is not in a position to retain an advocate, hiring one on a need basis is also an option. Ms Soweto notes that either of the alternatives saves families from spending millions of shillings on court cases.
Danstan Omari who also practices family law says a family lawyer is more crucial than ever as the practice of law is expanding and new areas emerging.
For instance, Mr Omari says it is now easier to file for divorce unlike before when one would not be allowed by law until after being in a marriage for three years.
“Issues on custody of the children, maintenance, access to children, children education, disposing of matrimonial property and even burial rites can easily be navigated with a family lawyer or consultant,” he says.
“For your information, you need spousal consent before charging that family property to a bank to get a loan or dispose of matrimonial property,” he advises citing one of the instances when consulting an advocate would save one family disputes.
But such lawyers are not only an invaluable asset in times of succession and property disposal. Mr Omari says they can even advise where a child is being molested in school or a spouse is being harassed at work.
Sh1m retainer fee
Is it expensive to hire a family lawyer?
An advocate can charge up to Sh1 million yearly retainer but charges on filing a case in court, conveyance, registration of trademarks, and debt collection, among others, are determined under the Advocates Remuneration Order.
Ms Thongori says family lawyers’ services are not exactly anticipated because they are associated with conflict. “No one budgets for them like medical so they will almost always feel expensive. That said, the charges vary from service to service and lawyer to lawyer,” she says.
She adds that while the law prescribes minimum charges for services, it does not prescribe maximum fee, which is left to the client and lawyer to negotiate and agree upon.
Ms Soweto says the bill depends on the nature of work and the transaction involved. “Some would charge on an hourly basis while others on the volume of work,” she says, but advises people especially those with vast properties to retain an advocate to do their transactions.
On charges, Mr Omari thinks it is affordable to pay a retainer, say for example an agreed fee per year than hire one when the need arises.