NOTES ON TRIAL ADVOCACY-PART I

ETHICAL DUTIES OF TRIAL LAWYERS

A trial advocate owes certain duties to the persons they interact with in the course of the trial, i.e. the client, the court etc.

DUTIES OF A TRIAL ADVOCATE TO THE CLIENT

1.      To be zealous advocates on behalf of  clients

The advocate should act as the client’s mouthpiece. He should ensure that at least the outcome of the case should be favourable to his client. He should also have a good grasp of the law and an ability to think on his feet. A trial advocate should as far as possible and within the bounds of the law zealously and fearlessly defend the interests of his clients.

The duty of a barrister is to “promote and protect fearlessly and by all proper and lawful means the best interests” of the client^[1] without regards to the barrister’s self interest or to any personal consequence.^[2] The advocate’s duties must be within the bounds of the law, as no professional privilege exists if the actions of the advocate were to help the client in the commission of a criminal act.^[3]

He ought not to engage in conduct that jeopardizes the client’s interests. He should shun mediocrity at all times regardless of the client’s status in society- financial or otherwise.

2.      It is a duty for an advocate to defend his client.

He must do so to the conclusion of the suit even if that client fails to pay his fee. Once a suit is concluded an advocate is permitted to sue for his fees. This is the correct procedure of dealing with clients. An advocate should never abandon a case on the grounds that he had not been paid his fee but as stated above must conclude the suit to its finality then sue for his fees- J.P. Machira v Abok James Odera as per Ang’awa, J.^[4]

3.      Duties to Disclose and Keep client informed

The duty of keeping the client informed is an important duty and one that the surveys show is a major reason for criticism of the profession. The duty to disclose the likely success or otherwise of the actions that would be taken by the lawyer and alternatives that might be available could have been given greater emphasis. This is so especially in the context that litigation should be a remedy of last resort.

An advocate who fails to honestly disclose the true chances of success puts his interests before those of his client as he would be seeking to earn higher fees through litigation rather than properly advising a client on the available alternatives that may be cheaper and more expeditious.

4.      Loyalty

The advocate’s loyalty must be undivided. Advocates are committed to acting in the interests of the client to the exclusion of their own interests, or the interests of any third party.

An advocate must not betray the client’s trust by misappropriating client’s money or assets. This is expressly provided for in section 80 of the Advocates Act. The principle was also upheld in the recent case of Kinyanjui v Republic[5].

5.      Duty to maintain clients' confidences.

 The advocate-client confidentiality is protected under section 34(1) of the evidence Act which states:

“No advocate shall at any time be permitted unless with the client’s express consent, to disclose ant communication made to him in the course and for the purpose of his employment as such advocate…”

The Evidence Act establishes professional privilege between an advocate and a client.[6] This is to enable the work of an advocate as an agent of the client. In Omari v Hassan[7], the appellant was convicted of murder. During trial, counsel for the accused informed the Court that the accused person had refused to testify under oath, against his counsel’s advice. The disclosure by the advocate was held, on appeal, to be a breach of professional privilege, and the trial court should not have allowed it to affect its mind in the deliberations.

However, this privilege is not absolute and it may be overlooked where the disclosure pertains[8]:

i)                 any communication made in furtherance of any illegal purpose

ii)               any fact showing  that a crime or fraud has been committed since the commencement of employment of the advocate

The solicitor holds documents in the right of his client, and can assert in respect of its seizure no greater authority than the client holds himself. In R v Peterborough Justices, ex parté Hicks, some solicitors, acting on behalf of an accused person, were given documents by the accused person, one of which was a forged document granting power of attorney to the accused. The solicitors went to court to challenge the seizure of the document by the police, under search warrant, claiming that the document was protected by legal privilege. It was held that as the client possessed no legal authority to hold it, then the claim must fail.

6.      Duty to carry out instructions

As the legal advisor, it is key that you remain in control. If in your considered opinion, the client’s instructions are unlawful and/ or unethical, it is your duty to;

a.      Advise the client accordingly, if they insist,

b.      Decline to carry out the instructions

7.      Duty to act competently and with due diligence.

8.      Duty to act with utmost good faith.

9.      Duty to account to the client.

This also involves giving the client good notice when opting out of service of the client, and also refunding any moneys paid in excess of service, where necessary.

10.  Duty to account for any moneys received on behalf of the client

11.  Duty to advice the client of any requisite payments over and above their legal fees.

12.  the duty to expedite proceedings

Justice delayed is justice denied. An advocate should at all times endeavor to ensure that client’s matters are concluded in a timely fashion. He must avoid unnecessary delays which would be prejudicial to a client’s interests.

This duty is also owed to the court.

13.  Self-Dealing

An advocate is prohibited from what is known as self-dealing with a client. In other words, a lawyer cannot misuse to his benefit the assets of his client.

14.  It is a duty of an advocate acting for both parties in a transaction not to act against one for the other

If an advocate acts for both parties in the in the same transaction, he may not act for one against the other. This was stated by the Court of Appeal in King Woollen v Kaplan & Stratton^[9]. The decision was upheld by the same court in Uhuru Highway Development Ltd & 3 others v Central Bank of Kenya & 4 Others^[10],where an advocate who had acted for both parties in the preparation of a charge was barred by the Court of Appeal from appearing as a witness for one party against the other in an ensuing dispute before the High Court, which action was also proscribed by the Advocates (Practice) Rules, Rule 9.

Duty to charge reasonable fee: in accordance with advocate’s standing at the bar

CASES

-          Norman Wachira v Republic HCCA 224/07

-          Pauline Kiprop and 3 Ors v Julius Kiprop Succession Cause 189/98 NC Nakuru,

-          Malindi Air Service Ltd and Anor V Halima Abdinoor Hassan CA 103/99

-          Caltex Oil (Kenya) Ltd v Inland Petroleum Ltd and Anor HCCA 58/04 Mary Kasango J.

Conflict of Interest

-          Charles Gitonga Kariuki v Akuisi Farmers Co. Ltd HCCC 197/07 :Kimaru J Nakuru

-          Simba Hills Farm Ltd v Sultan Hasham Lalji and 5 Ors HCCC 22/06:Gacheche J.

-          National Bank of Kenya Ltd. V Peter Kipkoech Korat and Anor HCCA 77/97

-          Francis Mugo and 22 Ors v James Bress Mutheye and 3 Ors Nakuru HCCC 122/05: Muthinga J.

-          H. F. Fire Africa Ltd v Amr Gharieb Nairobi HCCC 665/03 Emukule J.

-          Jackson K. Kivinda v United Insurance Co. Ltd Nairobi HCCC 1065/02:Njagi and Kasango Js.

-          Trust Bank Ltd v Midcor Kenya Ltd and 4 Ors, Nairobi HCCC 336/01: Mohammed Ibrahim

-          Ndeto v Gachiri, HCCA 714/02: J. B. Ojwang J.

-          Kagunyi v Gathua and Anor HCEP 3/03:Mwera J.

DUTIES OF THE TRIAL ADVOCATE TO THE COURT

1.      Duty to uphold the administration of justice

As an officer of the court, an advocate should only use proper and lawful means to promote and protect the interests of his clients. Advocates must not knowingly mislead the court. He or she should not fabricate evidence, coach witnesses to deceive the court or support any form of perjury.

In Abraham v Justsun[11], Lord Denning MR explained counsel’s duty as follows:

“[It is an] advocate’s duty to take any point which he believes to be fairly arguable on behalf of his client.  An advocate is not to usurp the province of the judge.  He is not to determine what shall be the effect of legal argument.  He is not guilty of misconduct simply because he takes a point which the tribunal holds to be bad.  He only becomes guilty of misconduct if he is dishonest.  That is, if he knowingly takes a bad point and thereby deceives the court.”

2.      Fairness:

Only a lawyer who is fair can be aptly described as an officer of the Court. The duty of fairness is inherent in the nature of the work performed by lawyers. Lord Reid summed it up in Rondel v Worseley^[12]:

“As an officer of the Court concerned in the administration of justice, the advocate has an overriding duty to the Court, to the standards of his profession and to the public, which may and often does lead to a conflict with his client’s wishes...accordingly an advocate has a duty to be fair, fair to the Court and fair to the public. So important is fairness to the Court and the public that the public duty prevails over the duty to the client if there is a conflict. It is by fairness that the public judges the profession.”

3.      To obey Court Orders:

The advocate must maintain utmost respect for court orders as the dignity of the Court cannot be sacrificed at the altar of the client. Advocates need to avoid issues like:

        i.            Obtaining and executing decrees without sending the draft to the other side for approval- Mwangi Mbothu v Gachira Waitimu^[13];

       ii.            Showing the client how to circumvent Court orders and disobey injunctions as was the case in Shuck v Gemer^[14]

     iii.            Obtaining ex parté injunctions without full disclosure as was the case in Tiwi Beach Hotel v Staum^[15]

4.      Courtesy

An advocate should at all times uphold the dignity of the court through respectful conduct and courteous speech. He should never adopt a confrontational view with the Court, even when there is reason to believe that the judicial officer’s position is at odds with the law.

5.      Duty to expedite proceeding

An advocate should make efforts to ensure that he or she does not waste the courts time through unnecessary proceedings and technicalities.

An advocate should also aid in speedy decision-making by not subjecting the judge to excessive material or  more documents than strictly necessary which do not facilitate decision-making or speedy resolution. Without detracting from his duty to his client, counsel can and should exercise in the interests of justice as a whole a proper discretion so as not to prolong cases unnecessarily.  In Ashmore v Corpn. Of Lloyd’s[16] Lord Templeman said

“The parties and particularly their legal advisers in any litigation are under a duty to cooperate with the court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his own conclusions about the merits when he hears the case. It is the duty of the counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge will be capable of fashioning a winner.  In nearly all cases the correct procedure works perfectly well.  But there has been a tendency in some cases for legal advisers, pressed by their clients, to make every point conceivable and inconceivable without judgment or discrimination.”

6.      A lawyer should not seek to influence a judge, tribunal or other official by means prohibited by law

Which takes precedence? The trial advocate’s duty to the court, or his/her duty to a client?

Often times, an advocate’s duty to his or her client conflicts with that to the court. This arises in instances such as, when a client confesses to having committed a crime, when a clients’ intends to give a false testimony or when an advocate is in possession of facts which may prejudice his clients’ case.

This begs the question: which duty is supreme?

1.      The jurisprudence with regard to this matter in most commonwealth jurisdictions appears to incline to the fact that the duty owed to the court is higher than that owed to the client.

InGiannarelli v WraithMason CJ said[17]:

“The peculiar feature of counsel's responsibility is that he owes a duty to the court as well as to his client. His duty to his client is subject to his overriding duty to the court. In the performance of that overriding duty there is a strong element of public interest…The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary. “

The rationale is that the administration of justice in an adversarial system depends in very large measure on the faithful exercise by an advocate’s independent judgment in the conduct and management of the case. The court relies on the integrity of the advocates as the finding of facts is entirely based on the opposite views put forward by opposing advocates. In Arthur Hall v Simons[18], Lord Hoffmann stated at p.687 and p.693:-

“Lawyers conducting litigation owe a divided loyalty. They have a duty to their clients, but they may not win by whatever means. They also owe a duty to the court and the administration of justice ... The substantial morality of the English system of trial and appellate procedure means that the judges rely heavily upon the advocates appearing before them for a fair presentation of the facts and adequate instruction in the law. They trust the lawyers who appear before them; the lawyers trust each other to behave according to the rules, and that trust is seldom misplaced... ”

Inre Integration of Nebraska State Bar Association[19] it was stated that a lawyer's primary duty is to assist judges and all court staff in the operation of the court system and administration of justice. It was further stated that an attorney owes his or her first duty to the court. He or she assumed his or her obligations toward it before he or she ever had a client. His or her oath requires him or her to be absolutely honest even though his or her clients’ interests may seem to require a contrary course. The [lawyer] cannot serve two masters and the one undertaken to serve primarily is the court.

It is also argued that an advocate is not the servant of the client that engages him, but the true position is that he is that he is the servant of justice itself. He is thus in a sense a member of the body judicial and hence it follows that he can commit no graver betrayal of his function than to deceive the court by means direct or indirect.[20] This implies that when there is a conflict between the advocate’s duty to the client and to the court, the duty to the court, which is the agent of justice, shall reign supreme.

2.      Public policy as well seems to lean towards this view. This is well illustrated by a British case where Lord Brougham in the 19th century when defending Britain's Queen Caroline, who faced an attempt by her husband, King George IV, to obtain a divorce by charging her with adultery, thus ruining her name and putting at risk her fortune and position in society. Lord Brougham let it be known that in the queen's defense he would prove that the king himself was guilty of adultery and had secretly married a Catholic, thus putting at risk his title to the throne. His tactics outraged many who felt he went beyond the bounds of ethical advocacy. He justified his conduct as follows:"[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons. And in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion." Later on at a dinner,[…] the most respected Chief Justice Cockburn looking disapprovingly at Brougham, Cockburn stated that while it was appropriate to be a zealous advocate, a lawyer should not be an "assassin."[21]

in Rondel v Worsley[22] it was stated that in addition to the duty owed to his client, a barrister owes  “…an overriding duty to the court, to the standards of his profession, and to the public.”

3.      The law equally provides that an advocate is an officer of the court as per S. 55 of the Advocate’s Act and therefore duty bound not to mislead the court regardless of the client’s interests. In acting in the best possible way for the client, the advocate must, while being fearless in the cause of the client, do so within the law.

The compromise:

Courts however have not entirely been oblivious of the advocate’s duty to the client. Some have attempted at striking a balance between these conflicting duties in a way which will prevent the Court from being misled or the client from being placed unnecessarily in jeopardy.

 In R v Davis[23], the appellants appealed against their convictions, on the grounds that certain prosecution witnesses had been kept anonymous from them.  The witnesses had attended the trial for cross-examination and were observed by the judge and jury, but had given their evidence from behind a screen and had their voices disguised to prevent the appellants identifying them.  This had raised an issue as to whether counsel for the appellants should be permitted to see the witnesses (which would assist them in their task of cross-examining) even though their clients could not see the witnesses.  Counsel were concerned about their conflicting duties, namely,

(a)            A duty to the court to keep the witnesses anonymous (breach of which duty would be a contempt of court), and

(b)            A duty to their client to describe the witnesses to them (on the basis that this was relevant information). 

The court did not in this case prefer the barrister’s duty to the court to the barrister’s duty to his client.  The court held that the barrister could perform his duty to both by cross-examining from behind the screen.  However, if the client wished to obtain the possible benefits of his barrister being able to see the witness’ demeanour when cross-examining, then this could only take place if the client consented to a limitation on the barrister’s usual duty to disclose all relevant information to the client. 

Oceanic life Insurance v

The duty to the Court tends to be framed in such a way as to communicate the Public Interest that confidence in the institution (Court) be maintained, therefore overrides the other.

Competition between the duty of the advocate to lay before the court all relevant evidence, and the duty to their client not to reveal communication between them

In Arthur Hall v Simons^[24], Lord Hoffmann stated^[25] that advocates “also owe a duty to the court and the administration of justice. They may not mislead the court or allow the judge to take what they know to be a bad point in their favour. They must cite all relevant law, whether for or against their case.” In view of these “divided loyalties” to the Court, in which circumstances does one duty override the other?

In Waugh v British Roads Board^[26] the Plaintiff’s husband was an employee to the board, and was killed while in the course of his duties in an accident. An internal investigation was done and a report written, headed “For the Board’s Solicitor”. The Plaintiff asked the Court to order discovery of the report. The Board claimed professional legal privilege over the report. The Board based this on the fact that the report was for two purposes:

        i.            To establish the cause of the accident; and

       ii.            To enable the board’s solicitor to advise in the litigation to ensue.

The Court ordered discovery. The Board appealed. The Appeal Court overturned that decision. The Plaintiff appealed. The House of Lords held that there were two competing principles involved:

        i.            All relevant evidence should be made readily available; and

       ii.            Communication between a client and his lawyer should be allowed to remain confidential.

It held that public interest was best served by confining the privilege within narrow limits. A document was therefore only privileged from production on the basis of the legal professional privilege if the dominant purpose for which it was prepared was that of submitting it for advice. Since the purpose for the report was for advice and legal use was merely subsidiary, the House of Lords held that the Board’s claim would fail.

DUTIES OF AN ADVOCATE TO AN OPPOSING COUNSEL

Advocates owe a duty to fellow advocates in the profession, these may be dubbed as the general duties of good faith and courtesy. These duties extend from the pre-trial stage up to the point of sentencing and/or acquittal. They include:

1.      Advocates must specifically agree with the opposing counsel reasonable requests concerning trial dates, adjournments, any waiver of procedural formalities and any similar matters that do not prejudice the right of the client.

2.      Advocates must not unnecessarily embarrass opposing counsel by not giving adequate notice of one’s legal argument and authorities.

3.      Advocates are advised to maintain a professional manner, and would be well advised to remember the objectivity and detachment inherent in professionalism. They therefore must not send correspondence to, or communicate with the opposing counsel in a manner that is abusive, offensive, or otherwise inconsistence with the proper tone of a professional communication.

4.      Duty to seek consent from opposing counsel when introducing new evidence after substantial hearing of the case has been completed.

5.      An advocate also has a duty to deal promptly with communication from professional colleagues (opposing counsel). Communications that require an answer must be answered promptly. Similarly advocates are not permitted to communicate or to negotiate a matter directly with any person who is represented by another lawyer except with the express consent of the opposing counsel.

6.      An advocate should not falsify evidence, meaning that he has to be truthful to the opposing counsel. He/she should honor his/ her word. Fraudulent or deceitful conduct by one advocate towards another will render the offending advocate liable to disciplinary action.

7.      Advocates must not unlawfully obstruct another party’s access to evidence unlawfully alter or conceal a document or other material having potential evidentiary value nor shall he assist another person to do so

8.      They should not knowingly disobey an obligation under the rules of a tribunal except in the case where it is an open refusal based on an assertion or argument that no such legal obligation exists in the circumstances or that its unconstitutional.

9.      Advocates must also not make a frivolous discovery request or fail to make diligent effort to comply with a legally founded discovery request by an opposing party.

10.  Duty to not communicate with the judicial officer without the presence of opposing counsel, unless in circumstances allowed by the Court.

DUTY TO WITNESSES

An advocate should thoroughly investigate and marshal the facts; therefore an advocate may properly interview any person, because a witness does not ‘belong’ to any party. His duties to a witness include the following:

1.      He should avoid any suggestion calculated to induce any witness to suppress evidence or deviate from the truth. However an advocate may tell the witness that he or she does not have any duty to submit to an interview or to answer questions propounded by the opposing counsel unless required to do so by judicial or legal process.

2.      Advocates should not suppress any evidence that the lawyer or the client has a legal obligation to reveal or produce. Advocates should not advise or cause a person to secrete himself or herself or to leave the jurisdiction of a tribunal for the purpose of becoming unavailable as a witness. However, except when legally required, it is not an advocates’ duty to disclose any evidence or the identity of any witness.

3.      Advocates should not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witnesses’ testimony or the outcome of the case. In addition, an advocate may advertise for witnesses to a particular event or transaction but not for the witness to testify to a particular version that advances his case.

4.      An advocate has a duty to inform a witness about the date a case is going to be heard promptly

5.      An advocate must furnish the witnesses with the full details of the case so that their testimony can be correct.

6.      An advocate must not barger witnesses with unreasonable questions. He or she should therefore be tactful and gentle. Sallazar v Republic: the Court deplored an advocate’s disrespectfulness towards witnesses and the Court at large.

7.      He should not make baseless attacks on a client’s character. There must be sufficient reason for attacking a witness’ character before launching such an attack- (s) 158, Evidence Act.

8.      The Advocate should refrain from asking indecent, scandalous, insulting or annoying questions. The Court has discretion to restrain such questions, despite the fact that they may reveal relevant information to the case- sections 159-160, Evidence Act.

9.      Moreover, an advocate should never be unfair or abusive or inconsiderate to adverse witnesses or opposing litigants, they should ask questions intended legitimately to discredit the assertions of the witness, but not to insult or degrade them.

CONFLICT OF INTERESTS

The general rule when it comes to conflict of interests is that an advocate is not supposed to represent a client in the event that such representation will bring about a conflict of interests.

Conflict of interests can take two forms:

a)      Conflict  of duty and interest ( between lawyers and clients)

b)      Conflict of duties ( duty to different clients, former clients or a new client)

It may arise where;

1.      Representation of one client would directly, adversely affect the representation of another client.

2.      Representation of one client would materially amount to the representation of another, a former client or a third party.

3.      The advocate has a corresponding interest in the subject matter of the suit.

4.      There exists a fiduciary relationship between the advocate and the client.

In such circumstances, the advocate should withdraw from acting, good practice entails that upon realization of this eventuality, an advocate should withdraw from any case which may have the effect of compromising his objectivity and impartiality.

An advocate ought not to represent more than one client in the same case when the same case when the clients’ interests are in conflict or there is a possibility of the conflict arising. In;

      King Woolen Mills Ltd v Kaplan and Stratton Advocates

The court held that: ‘once a retainer is established the general principle is that an advocate should not accept instructions to act…. Where there is a conflict of interests.

Another case that was used to guide the court was the case of

      Rukesen vs Elius, Munday and Clerk[27]

It was observed that;

“a solicitor who has been retained by a client is under an absolute duty not to disclose any information of a confidential nature which has come to his knowledge by virtue of a retainer, and to exercise the duty of utmost good faith towards his client not only for so long as the retainer lasts but even after the termination of the retainer..”

The test whether a conflict of interest will arise was laid down by Hardy M.R in the Rukusens case, as being that, a court must be satisfied that the real mischief and real prejudice will in all human probability result if the solicitor is allowed to act… “

JUDICIAL DISQUALIFICATION/RECUSAL OF A JUDGE

Judges form the core of any justice system. Their conduct in terms of independence and impartiality therefore directly impacts on the perceptions of the common citizenry with regard to success or failure of such an institution. It is therefore important as correctly observed by Chief Justice Hewart that,

“… a long line of cases shows that it is merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

The rule of judicial disqualification therefore gains its basis from the aforementioned fundamental principle. Judicial disqualification or recusal refers to the act of abstaining from participation in an official action such as legal proceedings due to conflict of interest of the presiding court official. The rule on disqualification of a judge originates from Common Law rules where it was a settled rule that if a judge had pecuniary interest in a case he was disqualified from sitting in that case.[28] It is important to note that at that time, the Common Law recognized no other grounds for judicial disqualification.[29]

GROUNDS FOR RECUSAL

• If the judge has a personal interest in the outcome of the case or has a family member or close relative who is a party to the case
• If the judge has more than a minimal/ nominal financial interest in the outcome of the case
• If the judge has a close social relationship with a litigant, lawyer, or witness in the case
• If the judge was previously a lawyer on the same or a related case or was associated with the lawyers on the case or a related case
• If the judge previously acted for one of the parties to the suit
• If the judge has been a material/ potential witness on the case or a related case
• If the judge has prior personal knowledge of disputed facts in the case
• If the judge is directly or indirectly party to the suit
• If the judge has dealt with the matter previously, e.g. at trial and then at appeal level
• If the judge has already expressed opinion relating either to the specific case, or another case relating to the same parties, or another based on the same subject matter.
• In other jurisdictions where the judge is elected such as the United States, a ground of recusal would include when the judge's campaign coordinator or campaign committee member is a party or lawyer in the case
• The Judge or judge’s spouse, or someone within the third degree of relationship to either of them, or to the spouse of such a person, is (a) a party or officer, etc., of a party, (b)a lawyer in the case, (c) known by the judge to have an interest that could be substantially affected, or (d) known by the judge to likely be a material witness.[30]
• If the judge was previously a partner to one of the advocates’ firms, there is a need to consider whether a conflict of interest may arise. However, this does not automatically give rise to a need for recusal.
• Personal animosity
• Any other reason that may give likelihood of impartiality

The aforementioned instances of judicial recusal are specifically provided for by law in other jurisdictions. Examples include Rule 25 of the Idaho Criminal Rule and Section C of the North Carolina Code of Judicial Conduct which lists specific instances of judicial disqualification, although the same is only illustrative in nature.[31]

Court of Appeal states that if grounds exist for any officer to recue himself, be free to make an application. However we must avoid making frivolous or vexatious applications. Applications should be in the pursuit of the course of justice.

Legislative Prescription

In the Kenyan scenario, such a provision in the law providing guidance as to the specific instances of recusal is not in existence. This lacuna in the law has therefore been remedied through judicial prescription as it will be discussed later. However, this is not to underscore the fact that there are rules that govern the procedure of making an application for judicial recusal.

Such a petition is made with the support of provisions relating to the contravention of fundamental rights and freedoms, particularly the right to a fair hearing as provided for in the Constitution of Kenya. The requisite rules are provided for under Rules 11, 12 and 13 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006 (known as Legal Notice 6 of 2006). Hence reading S. 77(9) of the Constitution read with Rules 11, 12 and 13 of LN 6/06 a Petition alleging or apprehending contravention of fundamental rights may be brought by an individual person (includes a incorporated person[32]) directly to the High Court[33] by way of a Petition,[34] which shall be supported by an affidavit[35] and any other supporting documents.[36]The laid down procedure is provided in Rule 23 of the LN6/06 that such a Petition should be taken to the challenged Judge whereby he/she makes reference of the matter to the CJ.

PROCEDURE FOR MAKING AN APPLICATION FOR RECUSAL

1.      Oral application - If a conflict of interest is straightforward, e.g. noticing that the judicial officer was previously an advocate in the matter, an application can be made orally in court.

2.      Formal application - This is done by a notice motion in court. It needs to be accompanied by an affidavit and the relevant evidence.

3.      If dissatisfied with an officer’s refusal to recuse themselves, an appeal is allowed.

Judicial Prescription

It is now conventional wisdom that judge-made law begins where legislative prescription has failed and seeks to seal any vacuum created thereof. The case of judicial disqualification is one such example where the Kenyan Courts have stepped into the shoes of the lawmakers to enunciate and/or provide for principles that govern judicial recusal. It is therefore imperative to take a journey through the corridors of justice.

One of the most conclusive authorities in this subject-matter is the case of Home Pack Caterers v. The Hon. A.G. and Others.[37]  The issue in the instant case relate to the recusal of Hon. Justice Ojwang who was the presiding judge in HCC 83/03. In the instant case the facts are that the Plaintiff relied on a draft bill on HIV and AIDS that had been prepared by a Task Force where the Judge in question was one of the consultants. The contention of the Petitioner is that based on the nature of the issues in HCC 83/03 and the reliance on the Task Force Report, the judge may have certain dispositions and inclinations to certain issues that were dealt by the Task Force. Hence, the Petitioner had an apprehension of not receiving a fair hearing. The case was first brought by way of an originating summons before allowed to be a full hearing.The Petition was brought under S. 77(9) of the Constitution, Rules 11, 12 and 13 of the .Legal Notice 6 of 2006.

After an exhaustive analysis of judicial authorities within and without Kenya, the Court adopted and approved 10 benchmarks as set out in Locabail (UK) Ltd v. Bayfield Properties Ltd[38]:

1.      In any case of automatic disqualification on the authority of Dimes and Pinochet[39]cases a a judge should recuse himself from the case before any objection is raised;

2.      The same should be the case, if for solid reasons, a judge feels embarrassed hearing a case;

3.      It is highly desirable, if extra cost, delay or inconvenience is avoided by the judge recusing himself at the earliest stage before the eve of the day of hearing.

4.      Parties should not be confronted with a last minute choice between adjournment after a valid objection.

5.      In any case not giving rise to automatic disqualification or personal embarrassment, where a judge becomes aware of any matter that could arguably give rise to a real danger of bias, it is desirable for disclosure to be made to the parties in advance of hearing. If an objection is made, it is the duty of the judge to consider it and exercise his judgment upon it.

6.      A judge would be wrong to yield to tenuous or frivolous objection, same would be the case for ignoring an objection of substance.

7.      Where the facts of a case lead to apprehension of reasonable suspicion test, the Court of Appeal adopted the principle set out in the Constitutional Court of South Africa in The President of the Republic of South Africa v. South African Rugby Football Union,[40] - “The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel”.[41]

8.      In Re JRL exp CJL Re,[42] the Australian High Court observed that although justice should be seen to be done, the judicial officers discharge their duty to sit and do not, by ceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking disqualification of a judge, they would have someone who would decide their case in their favour.[43]

9.      In Re Ebner v, Official Trustee in Bankruptcy,[44] where the Australian Federal Court asked the question why it should be assumed that the confidence of fair minded people on the administration of justice is to be shaken by existence of a pecuniary interest of no tangible value but not the wastage of resources and delays caused by setting aside judgment on the ground that the judge is disqualified for having an interest.[45] Hence, the necessity for the court to address such an issue when it is seized of the matter.

10.  As observed by Callaway JA, the judge should not accede to unfounded disqualification application.[46]

The Court therefore came to the conclusion that test of whether an objective onlooker might have a reasonable apprehension of bias is clearly a more satisfactory one and thus applied it in this matter. The Court further observed that where a judicial officer is challenged for possible bias, the challenge assumes a higher dimension in that it is a collateral attack on the administration of justice as a whole and ceases to be a personal affair to the judicial officer.

In Kaplan & Stratton v. L.Z. Engineering Construction Limited and Others,[47] an application was made for the disqualification of the presiding judge, Hon. Justice Lakha, claiming it unwise for the judge to have had two luncheons with Mr. Esmail, advocate for the first respondent. The Court analyzed a number of English authorities and came to the conclusion that there is automatic disqualification for any judge who has direct pecuniary or proprietary interest in any of the parties or is otherwise closely connected with a party that he can truly be said to a judge in his own cause.

The Court further observed that if an allegation of bias is made, it is for the court to determine whether there is a real danger of bias in the sense that the judge might have unfairly regarded with favour or disfavor the case of a party under consideration by him or, might be predisposed or prejudiced against one party’s case for reasons unconnected with the merits of the issues. Unconsciously setting the tone for Home Pack Caterers the Court held that surmise, conjecture or suspicion is not enough and that personal knowledge of counsel does not disqualify a judge, otherwise there would be few judges who would not be disqualified. Thus the Challenged judge rejected the application for his disqualification.

The same issue has also arisen in the East African Court of Justice (EACJ). On 6^th February 2007, the Kenya Government was upbraided very publicly for attempting to force two judges to step down from hearing a case in which it is a very interested party the case related to the nomination of members to the East African Legislative Assembly. In brief, the EACJ disallowed the GOK application for disqualification of the President of the EACJ, Kenyan Justice Moijo ole Keiwua; having the previous week allowed the Counsel for the Kenyan Attorney General to withdraw a similar challenge against the participation of another Kenyan Judge, Kasanga Mulwa, and to issue an apology to the Judge for falsely pleading that he was suspended from the Kenyan High Court and facing investigation for corruption.

The EACJ also rejected an application by the Government of Kenya to set aside a 27^th November 2006 ruling which stopped the swearing of the East African Legislative Assembly members nominated by the Government of Kenya. In a fit of pique, the same Government had, while reserving its legal appeals against the EACJ ruling, attempted to change the Treaty that establishes the EACJ itself.

In the February 2007 ruling, the EACJ expressly accused the Attorney General of Kenya of bringing the recusal applications against the two Kenyan Judges as a time-wasting ruse in order to allow the Kenyan Government to amend the Treaty to its desired ends. The Judges of the EACJ say categorically, we are constrained to say that any reasonable court would conclude as we are inclined to do, that this application was brought more out of a desire to delay the hearing of the reference than a desire to ensure that the applicant receives a fair hearing. In our view, this is tantamount to abuse of court process, and we would be entitled to dispose of the application on that finding alone. In other words, the Government of Kenya was attempting to interfere with the administration of justice at the EACJ, by changing its constitutive statute to favour it as a party before the EACJ.

Hence inAttorney General of the Republic of Kenya v. Prof. Anyang’ Nyong’o and 10 Othersan application was filed in the EACJ for disqualification of the President of the EACJ, Kenyan Justice Moijo ole Keiwua and Kenyan Judge, Kasanga Mulwa based on the fact that they failed to disclose to parties the material fact of their relation to the Republic of Kenya in a manner which rendered them impossible for them to give a hearing to the 1^st respondent hearing. The issue in this case was therefore whether the two judges would have recused themselves before hearing the interlocutory application and if that is the case then the consequent order should be set aside.

The Court, agreeing with S.A. Rugby Football Union case observed that where a recusal application comes before a court constituted by several judges, subject to the judge whose recusal is sought giving his individual decision on the matter, all the judges constituting coram for the case have a collective duty to determine if there is sufficient ground for the judge to recuse himself from further participation from the case.[48]

The Court examined the two tests of automatic disqualification and reasonable suspicion test and came to the conclusion that the objective test of “reasonable apprehension of bias” is good law.[49] They further laid down the parameters of the test as: do the circumstances give rise to a reasonable apprehension, in view of a reasonable, fair-minded and informed member of the public, that the judge did not (will not) apply his mind to the case impartially.[50] The Court further held that a litigant who has knowledge of the facts that give rise to the real danger of bias ought not be permitted to keep his objection up his sleeve until he finds out that he has not succeeded. In the instant case the applicant waited until the interim application was decided before raising the aforementioned objection. The applicant while bringing the application to Court, was at the same time seeking an amendment to the EAC Treaty on the subject-matter before the court, resulting in the court coming to the conclusion that the application was brought more out of a desire to delay the hearing of the reference than a desire to ensure that the applicant receives a fair hearing.[51]

COURT ETIQUETTE

1.      Punctuality

2.      Dress Code

Know your judge. Different judges have different views about issues of dress. E.g. Mary Angawa J requires that advocates before her court must always be fully robed.

Familiarize yourself with the dress code for the Law Society of Kenya.

3.      Posture/ poise

This plays an important role in the overall poise of the advocate in court.

4.      Modes of address

How you address judicial officers and fellow cousel.

Magistrates – “your honor”

Judges – “my lord/lady” of “your lordship/ladyship”

For judges/magistrates among themselves, they refer to their peers as “my brother/ sister judge…” As for counsel, it is ill advised to use this reference.

Fellow counsel – “my learned friend…”

5.      Language

In court, always use polite language. Avoid asking the court direct questions.

Make a habit of thanking the court.

Even when disagreeing with the court, do it with respect. Agree politely.

Always be respectful and polite.

6.      Time management

7.      Dressing the court

If you are the last advocate in court, do not leave the court alone. If you have to, seek the permission of the court. E.g. in Angawa J’s court, do NOT leave without her permission.

DIMENSIONS, RULES AND PSYCHOLOGY OF ADVOCACY

                                                                                                                        By Keith Evans

DIMENSIONS OF ADVOCACY

Dimension 1: In the Common-Law Countries, a Trial Is Not an Exercise Designed to Discover the Truth

In the commonwealth tradition/ adversarial judicial system, a trial process is not necessarily a search for the truth. The business that goes on in the trial process is to get the tribunal to arrive at an opinion favorable to your client. It is not a duel, as such, but rather a carefully controlled presentation.

It is however advised that we avoid dishonesty, lies and concealing information.

Some of the rules of evidence achieve the objective of, not necessarily finding the truth, but of something else. Thought: a verdict of “not guilty” is not equivalent to “innocent”.

We are essentially seeking the truth in accordance with the law. We may or may not, in the course of it, arrive at the objective truth. If we do, well and good. If not, those are the rules.Refer to the case of O.J. Simpson. Criminal court found him not guilty, yet the civil court found him liable for wrongful death. In a criminal matter, the standard of proof is beyond a reasonable doubt. In a civil court, it is on a balance of probabilities.

Nevertheless, although it is not a device to discover the objective truth, it is not for the lawyer to engage in dishonesty.

Dimension 2: The human animal is far more video than audio.

• 60 percent of a message is conveyed by body language and visual appearance generally.

• 30 percent of a message is conveyed by tone of voice.

• Only 10 percent of a message comes through the words used.

• Only 10 percent of what people hear gets remembered. If, on the other hand, they see something connected with what they are hearing, as they are hearing it, they remember 50 percent.

1.      Dress appropriately

2.      Do not be seen to be in too friendly a relationship with your opponent

This is particularly important in courts where you know your opponents well. Even if you are the greatest of friends outside the courtroom, it is your duty when in the courthouse to conceal this. Plain courtesy is enough. Be pleasant but not friendly. The reason for this ought to be clear: if the tribunal should happen to see you, outside court or on your way to the courthouse, in an obviously friendly encounter with your opponent, and then see you, in court, in an adversarial situation with the same person, they are going to wonder about your sincerity. Is your advocacy some sort of act in court, some kind of game? You don’t want to give the tribunal any reason not to trust you.

3.      Don’t Smile, Laugh, or Joke without Including the tribunal in

The use of jokes is a very delicate matter. Nothing is as off-putting as seeing laughter and joking in front of you without knowing what is going on and being able to share in the fun.

4.      Appear at All Times to Be Absolutely Sincere

If you fail in this even one time, you undermine your chances for the whole of the rest of the case.

5.      Never convey any visual signal that you do not intend to convey

6.      The use of visual aids

Where appropriate, where suitable, use visual aids to make a point. Maps, diagrams, charts, etc. A case can be built or collapsed on this.

7.      Eye contact

Maintaining eye contact with the tribunal is important. Differentiate this from perpetual staring. Eye contact depicts honesty and conviction.

Dimension 3: People do not like lawyers

Evans’ survival skills;

a.      Stick rigorously to the truth

b.      Don’t appear to be manipulative

c.       Don’t sound like a lawyer

Dimension 4: Time

Lawyers’ trade lies mainly in time and advice. Therefore it is important to observe all matters of time. These include brevity, punctuality, etc.

MANDATORY RULES OF ADVOCACY

Rule 1: The advocate must not express his or her opinion in court.

The story must come from the witness, and not the advocate. Your submission is only dependent on the evidence tendered.

NEVER express your opinion or view.

Rule 2:  The advocate must never give, or appear to give evidence in a case

Lawyers do not give evidence in court. This is the basis for the rule against posing leading questions. Asking leading questions in x-examination is however allowed.

Rule 3: In your final speech, speak only on things which have been touched upon in the evidence.

Do not appear to fill gaps that may be there in the evidence already tendered by you.

Rule 4: Make absolutely sure you “put your case” to opposing witnesses

Phrase your questions in such a manner that you want your witness to either agree or disagree with you[52].These questions re intended to bring out your case theory.

Rule 5: You must never refer to the criminal record of an accused person or to any offers of settlement

This can be qualified where matters such as the criminal record are relevant. Therefore, stick to relevance. It is unethical for a lawyer to bring to court without prejudice correspondence.

Rule 6: Never put words into the mouth of your own witness

Stick only to what the witness said. When examining your own witness, ask everything you need to establish your case theory. Never leave anything hanging, even to ask in re-examination. This will backfire should the opposing counsel choose not to cross-examine your witness.

THE PSYCHOLOGY OF ADVOCACY

There is a lot of human psychology that goes into the trial process.

Tip 1: Be likeable

People like people who are likeable. At any rate, be slightly more likeable than your opponent.

Tip 2: The sympathy rule

Conduct yourself in such a manner as to attract the sympathy of the fact finder. Never get into a confrontation with the fact finder. They are then more likely to listen to you willingly, put the kindest interpretation to what you say, feel reluctant to deny you what you ask and the tribunal will feel inclined to overlook your mistakes.

Tip 3: The rule of equals and opposites

The rule is simple. You push and they’ll push back. You pull and they’ll resist. You demand and they’ll refuse you. You insist and they’ll turn you down. In dealing with people, invite, don’t demand. Suggest, don’t tell. Lead, don’t pull.

Tip 4: Include the fact finder by use of 1^st person plural

Think we never they, us never you.

Tip 5: Prepare the tribunal

Point out the weaknesses of your case yourself. These makes you, first of all, appear honest (and also steals the thunder from your opponent by diluting their attacks).

Tip 6: Always aim to be the honest guide

For example; don’t ask the tribunal to believe unbelievable things. Don’t pretend about the weak points in your case. Don’t misquote the evidence in any way. Always come across as being absolutely fair. Keep your objections to a minimum.

CASE ANALYSIS: PREPARATION FOR TRIAL

CLIENT INTERVIEW

This involves the initial interview meeting between the lawyer and the client.

To be effective interviewers, the

Key objectives:

1.      Establish a good relationship with the client

2.      Identifying the nature of the client’s problem

3.      Obtain adequate information and reach a conclusion

Preparing the client for an interview

1.      You need to have all the vital materials you will need for the interview. This includes the requisite documents and stationery

2.      You must have read through the interview in advance

3.      Setting up the appointment - You must have set the appropriate date, time and location for the meeting. The location must be comfortable as well as formal.

Confirming the appointment and requesting information

Details of the meeting and the agenda should be confirmed to the client through a formal letter from the firm.

It is important to gather all the requisite documents for the interview and reviewed them prior to the interview.

Preparing the interview location

This is important to make the client comfortable. The location should be comfortable, clean and free of clutter. Interruptions should be kept to a minimum. Client consent must be obtained before recording the interview.

Preparing an instructional folder for the client

Consider all documents and checklists for all the information that will be relevant to the client. Prepare a deposition/ brief for the interview.

Handling the client interview

This handles how you welcome the client, make them feel comfortable, how you ask the questions and the advice you offer.

Listening and questioning

1.      Active listening

2.      Do not interrupt constantly

3.      Reflect on what you have been told, summarize findings to the client

4.      Observe body language

Advising the client

1.      Outline the options, both legal and non-legal

2.      Assist the client in making an informed decision

3.      Take instructions on the client wishes, do not try to persuade them

4.      Explain any follow-up to be undertaken by the advocate, including payments

5.      Confirm that the client agrees with the course of action

Conclusion

Check if there’s AOB on what the client wants.

Provide an idea of the timelines and what will take place.

Tell the client what they can expect from you

Politely end the meeting and courteously escort them out.

Top tips for client interview

1.      Establish a good rapport

2.      Empathize, don’t sympathize

3.      Be attentive to what the client is saying, do not appear disinterested

4.      Pay attention to the non-verbal signals the client puts out

5.      Clarify what the client tells you by paraphrasing the story and the questions

6.      Exercise active listening

7.      Appreciate the client’s needs, expectations and situation

8.      Offer the proper advice but let the client decide

9.      Put the client at ease about your capabilities; be clear about the fees and the time scales and guidelines.

10.  Never give guarantees

PRE-TRIAL RESEARCH AND DOCUMENTATION

Starts with a lawyer listening to the client

Importance of legal research

Research process

1.      Understanding and analyzing the facts

2.      Identifying the legal issues and arranging them in order of relevance

3.      Classifying the legal issues

a.      Statutory

b.      Administrative

c.       Case law

d.      Procedural

4.      Defining the scope of the research problem

5.      Develop a research strategy

6.      Sources of information

a.      Primary

b.      Secondary

7.      Develop a research plan

The research plan

            Creating a research plan

Writing up a plan

Research tools

1.      Internet

2.      Telephone

3.      Libraries, primarily, law libraries

4.      Generating search terms which will be informed by the instructions and the nature of the case in question.

Documentation

Develop a case file and a notebook

Case file contains;

1.      The instruction notes

2.      Minutes of meetings

3.      Court attendance sheets

4.      All requisite documents such as evidentiary documents

Trial notebook contains;

This is used by the advocate to record the list of documents needed in the document. It should also contain the organization of the trial process. It should also contain outlines such as examination outlines, motions, orders, etc.

Conclusion

Understand the court

Always keep copies

Always have alternative strategies

DEMAND LETTER

Definition of a demand letter:

This is a formal letter written by the advocate on behalf of a claimant demanding that some action be taken[53]. It is aimed at avoiding litigation. For example, in a monetary claim, it can be written to demand unpaid monies in order to avoid unnecessary litigation.

Its contents derive from the initial client interview in order to set out clearly what the claimant wished to obtain.

S. 13 of the Advocates Act states that no advocate may request in a letter of demand before action payment from any person other than his client of any costs chargeable by him to his client in respect of such demand before action, or in respect of professional services connected with the demand.

Order 3 Rule 2(d) of the Civil Procedure Rules 2010 places the letter of demand as one of the documents accompanying a suit.

As an advocate, you are barred from making any demands for your own payment in the first letter.

A notice of intention to sue comes in government proceedings.[54]

Components

1.      Summary of accounts – all the details associated with the action sought. This should include a description of what was to be done, what has not been done, when it should be done.

2.      Summary of actions to date – the nature and timing of all communications to date both written and verbal and the recipient’s response of lack thereof.

3.      Clarification of the demands –

4.      Time of response - make it clear the time period within which the recipient should respond. Consider factors such as postage time.

5.      Consequences of non-compliance – Be specific and clear as to what action you will take should there be non-compliance. Do not be angry or threatening. Expedite the matter in order to avoid litigation. Do not be insulting. Always keep it objective and professional. Do not make empty threats. Avoid using many adjectives of being over descriptive. This is to avoid being emotive.

6.      Timeline for payment and compliance – in the conclusion, state the exact the timeline for compliance. This should be reasonable, at least 7 days to allow for compliance and/ or response.

7.      Signature – this is for authentication and should be handwritten.

Length

There is no prescribed length, but it should be precise, to the point and not too long. Be assertive, concise and straightforward.

Suppose you need to take out urgent proceedings where there is no time for a demand letter, can one be exempted? In reference to Anton Pillar orders, etc.

NEGOTIATION

·         Definition

"A negotiation is an interactive communication process that may take place whenever we want something from someone else or another person wants something from us.”

Elements of negotiation[55]:

1. Relationship: Negotiation involves relationships. It is important when we need the consent of others to achieve our ends, when we can meet our ends better by involving others, or when unilateral means are not morally, socially, or politically acceptable. Negotiation is interactive.

2. Communication: A central process in negotiation is communication. This can take place implicitly in bargaining processes, or more explicitly in different kinds of conversation. Communication should not be taken for granted.

3. Alternatives: Things you can pursue away from the table. It is especially important to understand your Best Alternative to a Negotiated Agreement or BATNA

4. Interests: What is important to you that you can achieve in the negotiation. You get at them by asking, "Why?"

5. Options: Tangible steps that serve interests and can be part of an agreement

6. Legitimacy: Sources of justification such as legal standards or precedents, professional norms, market value, social or economic standards (e.g. blue book value)

7. Commitment: How do we guarantee we both will follow through on our agreement?

·         Validity of negotiation

·         Reasons people find negotiation difficult

·         Classes of negotiation – as a consequence of non-agreement

·         Advantages and disadvantages of negotiation

·         Phases of negotiation

Without prejudice statements

Communications made between parties with the intention that they not be used against the party in litigation.

Evidence Act s 23 provides for this rule.

Exceptions:

1.      By express consent of the parties,

2.       

GOOD FACTS BAD FACTS

…

OPENING STATEMENT

CRIMINAL CASES

City of Hippo v Desmond Peters

Criminal Procedure Code S 300 The advocate for the prosecution shall open the case against the accused person, and shall call witnesses and adduce evidence in support of the charge.

307. (1) The accused person or his advocate may then open his case, stating the facts or law on which he intends to rely, and making such comments as he thinks necessary on the evidence for the prosecution; the accused person may then give evidence on his own behalf and he or his advocate may examine his witnesses (if any), and after their cross-examination and re-examination (if any) may sum up his case.

Issues such as reasonable doubt are discussed at the closing. Analysis of the case in general is discussed in the closing argument. In opening, say “at the end of this we shall be urging the court to find your favor”. The request to the court to find in your favor should not be made at the beginning.

Do not make reference to evidence you do not have, and character evidence should not be introduced at this point.

CIVIL CASES

The opening statement introduces the fact finder to the parties’ competing theories of the case. Opening statements generally are fairly short, and focused on the key facts you will present. They are told in chronological order, as much like a story as possible. They help judges understand the nature of the dispute, focus on the key evidence, and place witnesses and exhibits in their proper context. A well-planned opening statement serves as a road map of the trial.

While opening statements should generally be short, their length and detail vary widely with the complexity of the case. The more complicated the case, the longer and more detailed your opening will need to be.

If a party chooses to give an opening statement, the party with the burden of proof will usually present its opening statement first. Under order 18 Rule 1 of the Civil Procedure Rules, 2010 the plaintiff has the right to begin unless the court otherwise orders. Thus, even when a statute seems to set a specific order for opening statements, the trial judge has discretion to change the order of opening remarks in unusual circumstances.

One such unusual situation is a multi-party lawsuit. Where several counsels represent multiple plaintiffs or defendants, or the case involves a third-party complaint, the order of statements customarily is resolved among the parties at pretrial conference. If the parties are unable to set the order themselves, the trial judge will do so. The party with the most to gain will usually go first for plaintiffs, and the party with the primary liability or the largest financial exposure will usually go first among defendants.

Another instance in which the plaintiff may not begin is where the defendant admits the facts alleged by the plaintiff but raises an objection on a point of law, for example if a plea of limitation or res judicata is raised. The defendant may also begin if he admits the facts alleged by the plaintiff but states that the plaintiff is not entitled to the relief claimed.

Given the overwhelming significance of this stage of the trial, counsel must deliver a powerful, potent, and persuasive opening statement.

2. PURPOSE OF OPENING STATEMENTS

The general purpose of an opening statement is to provide the judge with a statement of the facts counsel intends to prove. It necessarily includes a brief description of the issues, a description of the parties’ factual contentions, and a preview of important evidence.

The four main purposes to be accomplished in opening statements can be summarized as follows:

·         Present a clear picture of the case — its major events, participants, instrumentalities, disputes and contentions.

·         Arouse the interest of the judge in your case and general theory so that they want to hear your evidence.

·         Build rapport with the judge, speaking to them as intelligent people and communicating your sincere belief in your cause. This continues the process of establishing bonds with the judge that was begun in the voir dire.

·         For the defense, the opening statement presents the opportunity to alert fact finders that there will be two sides to the case so they do not make up their minds too soon.

3. THE CONTENT OF AN OPENING STATEMENT

B. Permissible Content

During opening statement, the defendant is allowed to:

·         Preview the evidence he or she intends to present.

·         Set forth the grounds for his or her defense, i.e., state the evidence on which the claim or defense is based.

·         Point out facts that the defendant reasonably expects to bring out in cross-examination even if the defendant does not intend to present evidence.

Defense counsel also may make certain general observations in an opening statement, although as a practical matter such observations may do little to articulate the defendant’s theory of defense to the jury. Counsel may:

·         Tell the jury that it should give attention to all of the witnesses

·         Ask the jury to consider each piece of evidence carefully.

For additional considerations and objectives in making an opening statement, see infra

C. Impermissible Content

Counsel is generally given wide latitude in opening statements, but it is improper for counsel to engage in argument.

·         refer to inadmissible evidence;

·         exaggerate or overstate the evidence; or

·         discuss evidence he or she expects the other party to introduce

The most basic rule of opening statements is that “argument” is prohibited. The rule is easy to state, but it is hard to define argument precisely. In theory, the opening statement should be a non-argumentative description of the facts. The advocate must use an objective form in presenting the opening statement but may deliver it with great commitment and fill it with hidden argument.

The objective form simply means that obvious argument should be eliminated. Counsel should not argue the credibility of witnesses, weigh the competing evidence, or discuss in detail the application of the law to the facts. A brief reference to the law in describing the issue is permissible. The advocate should avoid argumentative language, such as rhetorical questions, discussions of the “reasonableness” or “fairness” of positions, or assertions regarding the believability of witnesses. A discussion of any point should be fact-based, and phrased in an objective form.

4. HOW TO MAKE AN EFFECTIVE OPENING STATEMENT/ TECHNIQUES

How the opening begins is so important that it must be structured to grab the attention of the judge when it is at its highest point and then begin to direct the judge through the evidence that you will be presenting. You don’t want to be in the position that the judge is holding the remote control and they began to change the channel before you finish the opening.

1. Start Strong

To accomplish this, consider beginning the opening with a short statement that gives the judge a capsule of the case in two to three dynamic statements. For example;

            -This is a case about a company that put profits over people.

            -What you will hear is a story of a human tragedy.

You want to capture the judge’s attention in the first few minutes in a way that will convey your case in a theme with simple language, and then proceed to tell the story so he can follow and understand.

Avoid clichés and boilerplate statements like “What I say is not evidence.” “This is a road map.” “It is your decision to determine the facts.” “It is now my opportunity to give an opening statement to tell you what I think the evidence will be.” If you do that, by the time you are finished with your introductory remarks, the fact finder is thinking about something else other than you.

2. Have a theme

Given the elusiveness of the spoken word, a theme is crucial in the opening statement. Most listeners forget the particulars of any oral presentation within a few minutes after they hear it. If the statement is built around a theme, however, the listeners are likely to remember it.

But what is a theme? It is an overall point that runs throughout the presentation, receiving reinforcement as different aspects of the message are presented. It is a short, simple concept that states a capsule of your case. It “provides essential meaning to the judge and helps him to organize and remember the case facts” and is the means to reach the ultimate action in the case. It is not simple repetition of the same small point, but a consistent overall message that is drawn from smaller points. The theme of the opening statement should carry throughout the trial.

Identifying the theme of your case is something that should be done when you first take the case – not the night before, or during lunch right before opening statements are to begin, or never at all. What is it that you feel the case is all about? Why is it important? If you had to explain the case in 30 words or less, what would it be? If you had to explain it to your child when they ask you what the case is about, how would you explain it in a short, concise statement? If a neighbor asks what kind of case are you working on, how would you tell them what the case is about? Your answer is your theme.

 A strong thematic beginning is also important because most people have a short attention span. If you can capture their attention in that span, you can hold it, but once their minds wander, it is hard to draw them back.

An appropriate theme in most cases is built around the facts. To emphasize the theme, you should call attention to it in the introduction, bring it out by presenting the factual “story” in narrative form, reemphasize it when you describe key pieces of evidence, and address it again in the conclusion. For example, a lawyer who expects to build her case around key documents could fashion an introduction that emphasizes the reliability of written evidence, present a narrative built around the preparation and execution of the documents, emphasize the documents in describing the evidence, and close with a reference to the credibility of the written word. This approach implicitly suggests that the adversary’s reliance on non-documentary evidence is less persuasive, without requiring direct argument of the point.

The theme depends on the facts and equities. It should be linked to the key points that must be proven under the law. Further, you should ensure that the theme is real: that it can be drawn from, and supported by, the facts. It must be consistent with universal concepts of fairness and what is right.

A theme provides mental organization that enables a judge to look for evidence that fits the theme. That is why you must develop a theme that taps into the collective unconsciousness of the judge. If you fail to connect your client’s situation to the values of the judge, he may not find in your favor. The right theme helps judges rationalize any and all of the case conflicts and gives them the means to justify the desired result. If you fail to give the judge a theme, chances are he will come up with one on his own, or worse, use the other side’s theme.

Some examples of themes: Life, liberty and property; Good vs. evil; When in doubt, you must rule out; If the glove does not fit, you must acquit; Profits over safety; Break the watch without harming the crystal; The buyer needs a thousand eyes – the seller only one; You must be stupid, stupid, stupid etc. 

3. Don’t give the judge unconnected facts

Explaining and arguing, while great at showing our rhetorical skills, is not as persuasive as storytelling. A cold listing of facts that each witness will testify to fails to persuade. Facts stacked on facts producing a rack of facts, while it will give the judge an outline of the case, it generally will not be effective in persuading him. Information does not tell us what we always want to know or need to know. It is recognized that when people receive random data or unconnected facts, it seldom leads to understanding or knowledge. Data does not equal understanding, and understanding is the key to persuasion. Henry David Thoreau said “It takes two people to speak the truth, one to speak it and one to hear it.” 

4. Tell a story

The most important advocate’s rule in the opening statement is to present a “word picture” of the facts. Rather than concentrating on the descriptions of the witnesses and what they will say, counsel should deliver a narrative description of what happened – a story.

Telling a story is one of the most persuasive means of communication. How this is done is through a story to tell the information, the evidence you have, so that the judge will understand it, and its relationship to the theme. How we persuade is how we deliver and tell our story to the judge.

You want to make your opening statement like a good story. It can make the most complex simple, the boring interesting, and the dull exciting. It should have a beginning, middle and end. In the beginning, you grab the judge’s attention with an impact theme. The principle of primacy also dictates the need for a strong beginning. People tend to retain those things they hear first. They are slow to change their view from what they hear first. If you can express the essence of your case in the first four minutes, you will take full advantage of primacy.

Sequencing of the facts is also important in how you tell your story. Who are you going to focus on? Whose conduct do you want the attention to be on? When you begin to tell the story, consider starting with the defendant’s conduct. Studies have shown that you achieve the most impact if you start with the defendant’s conduct. Consider if you start with the plaintiff’s conduct, the listeners may question why the plaintiff did something or failed to do something.

The middle is where you provide the facts and evidence with the theme wove throughout, using devices to help persuade. The middle of the story should employ techniques such as rhetorical questions, analogies, visual aids, and the rule of threes, keeping in mind the principles of persuasion. Use passion, draw the audience into the story, and use your theme to relate to general principles and universal truths.

The end or conclusion should be dramatic and powerful and connect to your opening. It should give the judge a call to action, involving him in the process to make the right and just decision.

The word picture/story is crucial to advocacy because it allows the advocate to draw inferences from the evidence without engaging in obvious argument. It also tends to stamp on the judge’s mind a “vision” of the facts – almost as if it were shown on videotape. Once the judge sees the story in the mind’s eye, he is more prone to accept it. The story also provides an overview of the facts that helps the judge understand the evidence. With a story fixed in his mind, the judge understands its parts as they are presented through individual witnesses and exhibits. Without a word picture, the judge is left to assemble the facts himself and might not see them in the light counsel hopes to achieve.  

5. Use tools of persuasion

How we persuade is how we deliver and tell our story to the judge. Cicero, a great attorney from ancient Rome, set forth “Six Maxims of Persuasion” that can be used and incorporated into any opening to effectively communicate and persuade the court:

1. Understand that what reaches the mind moves the heart. Passion, as well as reason, must be used.

2. Understand motives to understand human behavior. The defendant’s conduct is an essential part of persuasion and should come first.

3. Move from the particulars of the case to universal truths. Social importance of taking action is an important element in the story.

4. Draw the audience into the story. Tell the story in the present tense as if the judge was watching the events unfold in front of them, rather than hearing a narrative of something that happened in the past.

5. Expose the flaws in the opponent’s position.

6. Communicate your passion and logic in words the judge will understand.

The content of the presentation and the manner in which it is made is important. Social scientists have studied the impact of messages related to the three primary channels of delivery: verbal (words), vocal (how the message is delivered), and nonverbal (facial expressions, eye movement, body positions). What is said – the words – account for only 10% of the impact. Our voice message, inflection and resonance, account for 40%, but by far the most important aspect of the message is nonverbal, which delivers 50% of the impact. You have to use all three means of delivery if you are going to persuade in your opening.

Consider the following techniques to enhance the power of persuasion in your opening.

Present tense. Consider when you tell the story, telling it in the present tense makes it more real in that the judge is actually with you, participating in the process.

Repetition. Repeat words and your theme. Repeat the theme throughout the opening. Repeating words or phrases can give them more significance and importance.

Rule of threes or use of trilogies. Social scientists again tell us that information is best understood when it is presented in groups of threes. It is important that data be inputted in the form of three pieces of information, for example, the three D’s - discrepancy, deception, distortion; three blind mice etc.

Voice inflection. The change in the tone of your voice or the speed in your voice. The delivery of your opening. Be careful in opening statements to not go too fast. You don’t want to tell your story so fast that it is similar to getting on an airplane and flying off without the passengers. Be sure that you have connected with the judge and that he is in the plane before you allow the plane to take off. Opening is not a race.

Anchoring. Anchoring is a rhetorical device of which you refer to a certain event, theme, or piece of evidence at a particular place in the courtroom. Every time you come back to it, the judge is anchored by that position.

Rhetorical questions. Questions like “Is that fair? What is it like to not be able to tie your own shoes, to take a fork and eat a piece of chocolate cake? Is that right? Why would a company fail to do that? Why would they not tell the customers about that?” are quite thought-provoking, although they should not be overused.  

Visual aids. Be careful not to use too many, but several visual aids may be effective in conveying a point. Charts and diagrams can be helpful in understanding. Judges remember what they see and hear better than what they just hear.

Eye contact. Eye contact with the judge solidifies the bonding process. But do not stare.

Use time efficiently and speak with authority

Choose labels for the parties. Parties, whether natural or juridical, have names.

6. Primacy

That which is heard first by the judge will be remembered best. If the judge accepts the belief in the beginning, his belief is more intense. People tend to believe more intensely that which they hear first. This is shown by the first impression approach and the four-minute rule. You can also use this with positioning of facts. Introduce strong facts first to get the most effect.

7. Recency

That which is said last is remembered best. Recency relates to the ability to remember. Primacy relates to the intensity of the belief. Both can be used throughout opening and the case to present your theme, strongest witnesses and key points.

8. Avoid overstating and reveal weakness

Avoid overstatement. Never overstate what your case is or state something that you will not be able to prove. Credibility is an important factor in any trial, and the loss of credibility will result when you overstate what your evidence may be.

Reveal your weaknesses. To defuse or mitigate the known problems or weaknesses in your case, identify those matters early on and this will cause a judge to emotionally identify with the Plaintiff. Explain before you have to contradict.

9. Avoid legal talk

Avoid legalese and use everyday language. Car rather than vehicle, before rather than precedent, after rather than subsequent, heart attack rather than myocardial infarction, brain damage rather than hypoxia ischemia encephalopathy. The words should be simple and direct in everyday English. Richard Leder in ‘The Miracle of Language’ said that 11 words account for 25% of all spoken English, and 50% of the most common spoken words are one syllable.

10. End strong

End as you began your opening, with a strong statement, tying your entire case together and giving the judge a call for action.

The opening is the most critical point of the case. It is there that you have the undivided attention of the judge. With a powerful theme stated forcefully at the beginning of the opening, then developed into a story that you present, with a beginning, middle and end, hopefully you will take the judge where you want him to go – accepting your theme and making it his own by reaching a verdict in favor of your client.

How your opening is presented will decide how your case will end. So, make a powerful opening that will make the case end the way you want it to.

6. SAMPLE OUTLINE OF THE OPENING STATEMENT

Although each case is different, the following sample outline may be adapted to virtually any case.

a) Introduction- The introduction should call attention to the issue and provide the first reference to the advocate’s theme. It should include a brief introduction of the advocate and the parties and a short description of the points to be covered. It is counsel’s opportunity to introduce the theme in an appealing manner and should include: a self-introduction by the advocate, description of the parties, description of the legal issue, signposts-tell the judge, briefly, the topics you will cover.

b) Word picture/ story – Begin the discussion with; “We will prove the following facts….” It is not necessary to repeat this phrase throughout. Use selection and emphasis in your story of the case. You should bring out the facts that support the key elements by describing them in more detail, and with more animation than other points. Acknowledge harmful facts, so the statement is accurate, but don’t discuss them in the same detail as helpful facts.

c) Reference to key evidence – This part of the opening statement describes the main items of evidence that support the word picture. Here, you can refer to the most credible witnesses and describe the testimony they will provide. Additionally, important items of physical evidence can be shown to the judge. As you refer to this evidence, you can again present short segments of the word picture, reinforcing these events in the judge’s mind. Pay special attention to real evidence and demonstrative evidence.

d) Conclusion -   The conclusion, like the introduction, commands special attention. You should conclude on a high note, using the theme again as the core of the conclusion. Additionally, explain what verdict you will request at the close of the trial.

Sample opening statement for Faith Mueni

I am…, and I represent Faith Mueni who is the petitioner. The respondent is Alphonce Muoki, represented by ….   This is a request for Faith to be allocated her half of the Machakos farm and for the intended eviction by the respondent to be blocked. I will first discuss the facts we will prove, after which I will review the evidence that will support these facts.

We will prove the following facts;

i) That Faith Mueni was legally married to Alphonce and that the marriage was contracted under Kamba customary law; and,

ii) That Faith contributed to the purchase of the 13 acre farm in Machakos (LR No. 9999)

iii) That Faith is legally entitled to an equal share of the farm.  

Your Honour, this is a case about a promise broken, a dream ended, a life shattered. My client, Faith Mueni, is a 35 year old mother of 3 children, Sebastian, Stella and Anne. She has been married to the respondent for 13 years, during which time she was a stay-at-home mom. The respondent is the District Education Officer of Machakos District.

Here’s how it all started, 13 years ago. Faith meets the respondent and the two fall in love. They then decide to move in together. At the time, Faith is working as a waiter in a local hotel in Machakos. To formalize their relationship, they contract a marriage under Kamba customary law. 2 years after the marriage and one child later, they buy a 13 acre farm near Katumani Research Institute. Although Faith does not make direct monetary contribution to the purchase of the farm, she takes care of all the family bills in order to allow the respondent to accumulate enough money to pay for the farm.

A year after the purchase of the farm, Faith, on the respondent’s request quits her job as a waiter and relocates to the farm. She diligently works the farm and is able to feed her family without requiring support from the respondent. There is even surplus harvest which is sold by the respondent and the proceeds used to build Faith’s house on the farm. She later starts a dairy farm which becomes very successful. With her proceeds from the dairy farm, she takes care of all the family bills, including the children’s school fees, in order to allow the respondent to comfortably pay off the mortgage on the farm.

After the respondent finally finishes paying off the mortgage, he refuses to help Faith with the family’s upkeep. By then, the family has grown by two more children. He suddenly becomes verbally and physically abusive. His usual weekend visits become more infrequent, and finally stop altogether. Later Faith notices some construction taking place on her farm and on making enquiries is told that a house for the respondent’s new wife is being put up. She then travels to Machakos town to confront the respondent, and finds a woman claiming to be the respondent’s wife at his house. When the respondent comes home later, he gets so incensed on seeing Faith and orders her out. He even calls her a “mad woman” for saying that she was his wife. Now this same respondent who was helped to his feet by Faith wants this court to help him evict Faith and their children from the only home they have known for the last 13 years.

Your Honour, on the point of whether Faith was legally married to the respondent, you will hear the expert evidence of Mzee Nyamai, an 85 year old friend of Faith’s parents who was present during Faith’s betrothal ceremony. You will see the pictures of Faith’s parents taken on the day of her betrothal and another picture of the respondent’s dowry negotiation party. These pictures, as the respondent will admit, were purchased by him and given to Mzee Nyamai as a memorial of the ceremony. This demonstrative evidence, along with the testimony of Mzee Nyamai, Jomo Obama and Faith herself, will convince this court that Faith was legally married to the respondent.

Your Honour, as you will see, the respondent has little time for his family. Initially he would only go home over the weekends, but he has stopped visiting completely. Faith will testify that for almost the whole life of this marriage she was the responsible for the needs of the children, all in an effort to ease the financial burden on the respondent. A selfless sacrifice to which the respondent has attached no value. A review of the pleadings will demonstrate that it is the respondent who wants this marriage (whose existence he denies) to end. As the facts of the case will show, like the dog in the manger, the respondent doesn’t want Faith as his wife, is unwilling and does not have time to take care of his three children, but does not want his wife to be able to go on with her life, either. How selfish is that? Ask the horse who couldn’t eat his dinner when the dog wouldn’t move from the manger.

Your Honour, the respondent will contend that he single-handedly bought the farm in Machakos. He will even produce as evidence a Sale agreement which indicates that he is the sole buyer. Further, the seller of the farm will testify that to his knowledge, the respondent was not married to Faith. What the respondent will not tell you is that were it not for Faith’s contribution in paying for the family’s upkeep, he would not have bought the farm. Again, the sale agreement will not demonstrate that Faith’s contribution enabled the respondent to raise the purchase price. The seller, who had not seen or communicated with the respondent in many years, will also not tell you that Faith is married to the respondent, because he can’t tell.        

After relying on the respondent’s promise to live with her till death, and after 13 years of dedication to the respondent, Faith is about to lose it all. For nothing. She and her children are now threatened with eviction from their only home, and are facing a very uncertain future because of the respondent’s selfishness. This court can come to her aid, and I ask that a permanent injunction be granted to block the respondent from evicting Faith and her children from the farm, and that this court issues orders granting Faith an equal share of the farm in Machakos.    

Sample opening statement for Alphonce Muoki

May it please the court, my name is…, and I represent Mr. Alphonce Muoki who is the respondent. It is our case that the petitioner in this matter, Faith Mueni, does not and has never owned or held the parcel of land identified as L.R. No 9999 Machakos and therefore is ill advised by her counsel in asking this honorable court to making any orders regarding the said parcel of land.

We will show the court that;

i)     My client Alphonce Muoki was never married to Faith Mueni,

ii)   All the contributions towards the purchaser of the 13 acre farm in Machakos (LR No. 9999) were made by my client Alphonce,

iii) Subsequently, Faith is not entitled to any share of the farm.

Your Honour, this court has just listened to a sensational presentation by the petitioner’s side intended to paint my good client in bad light. It is not disputed that my client knew Faith Mueni; my client admits that they had a brief romantic liaison 13 years ago and got a child. My client not being one to abandon his responsibilities and as a way of making up for his indiscretions, out of the kindness of his heart offered to provide for the petitioner and their baby. It is sad that the kindness shown by my client has been abused to this point that we find ourselves at today.

Thirteen years ago, Alphonce was a well-educated man working for the Ministry of Education making strides career wise. He meets Faith who is working as a waiter and they have a brief sexual liaison for ten months. They are blessed with a son and Alphonce is proud enough to give the child his last name, Sebastian Muoki. For whatever reason, the relationship turns sour and the two part ways but Alphonce is responsible and proud enough of his son that he supports them and even makes visits to Faith’s home to be with him.

Six months after their relationship has ended, Faith contacts Alphonce and informs him that she has lost her job as a waiter and is in need of a place to stay. She could rely on my client’s kindness and sense of responsibility to act.

Alphonce has held a relatively enviable job and has made something of himself, having been able to acquire loan facilities from a bank and buy a 13 acre piece of land near Katumani research institute on his own. Alphonce empathizes with the seemingly helpless Faith and agrees to put her up at his farm house even letting her work the land at no profit to himself and never demanding any rents. There is a clear understanding that this arrangement was merely temporary until my client finds a bride and starts his home at the farm. This is all contained in my client’s sworn statement and he will testify to this.

Your Honour, the petitioner contends that she has been married to my client for 13 years and seeks to rely on the evidence of Mzee Nyamai. Mzee Nyamai is an 85 year old friend of Faith’s parents and is in his own words “the memory of the community”. With all due respect Mzee Nyamai has seen better days. He was 72 years when the alleged traditional marriage ceremony between my client an Faith took place. With ageing comes a lot of degradation physical functional and abilities such as memory and recollection bear the brunt. As “the memory of the community” is it also possible that Mzee Nyamai witnessed very many such ceremonies and is getting the participants confused? In his sworn statement he already makes the mistake of stating that Faith has 3 sons when in fact it is a son and 2 daughters. Alphonce is father to the boy and is responsible for him alone.

The petitioner also seeks to rely on two photographs as proof of my client’s alleged marriage to Faith. We admit that the photographs are authentic but they are not dated and the photographer cannot come before this Honourable court. We will kindly be requesting the court to indulge us in the rule requiring documentary evidence to be presented by its author.

Your Honour, counsel for the petitioner has attempted to ‘take the wind out of our sails’ by pre stating what we intend to rely on in proving that my client bought the 13 acre parcel of land with his own money and without any form of contribution from Faith or anyone else. I am confident that this Honourable court has an eye for justice that will easily see through this smoke screen tactic. I do not wish to fall into their trap by being repetitive so I will just make an extremely short statement. The entire transaction for the land is clearly documented and at no point is Faith a party to the transaction. We will tender as evidence the sale agreement made between Alphonce and Mr. Charles Muema. The petitioner on the other hand seems unable to produce any documentary evidence that support her contention of being a contributor to the purchase of the farm.

The complainant employs similar smoke screen tactics of pre stating weaknesses in their case so as to ‘take the wind out of our sails’ again. Faith mentions in her sworn statement that she tracked her contributions by recording them in a book that was allegedly taken by my good client and has somehow managed to elude finding, how convenient. I trust this court’s eye for justice.

The kind hearted nature of Alphonce has surely been tested over these 13 years, but the straw that broke the camel’s back was when Faith had the audacity to storm into my client’s matrimonial home and desecrate its sanctity by peddling hurtful lies to his young bride, almost destroying their union ordained before God. After all evidence is tendered and all witnesses have taken the stand, I request that this court finds for my client, dismissing the petitioner’s case with costs. We rely on this court’s eye for justice.

Much obliged your Honor.

COMMON ERRORS IN OPENING STATEMENTS:

1.      Being argumentative

2.      Being boring

3.      No theme or poor theme or poorly articulated theme.

4.      Too much detailed facts

5.      Reading from notes

6.      Referring to questionable evidence

7.      Attempting to hide weaknesses in your case

8.      Overemphasizing the weaknesses in your case

9.      Failing to exhibit confidence

EXAMINATION IN CHIEF

CRIMINAL CASES

This is the first opportunity for the court of law to be able to assess the witness. If this is a strong examination, it strengthens your case.

Examination is the process of getting a witness to tell his/her story, give his/her evidence and testify to facts that you have called him/her  to prove, without asking him leading questions. Examination in chief is covered by Part IV of the Evidence Act (sections 148-160).

Examination in chief: [s.145 of the Evidence Act: 145 (1)] The examination of a witness by the party who calls him shall be called his examination-in-chief.

From this definition, we are able to see that during examination in chief, an advocate is cautioned against using leading questions.  A leading question is one which suggests the answer. Therefore, you cannot be seen as trying to suggest answers to the questions you are putting to the witness during examination in chief.

Objectives of the examination in chief

1.      Create a logical, complete and clear picture of the case

2.      To introduce exhibits or support the evidence of another witness.

3.      Shut down potential cross examination and thereby protect exposure of your witness.

4.      To volunteer the weaknesses of the case.

PLANNING AND PREPARATION FOR TRIAL

1.      Calling your best witness first as this creates a lasting impression. The accused must be called first in order to create a good impression.

2.      Organize your questions in a way that brings out the story of the witness clearly and gets stronger evidence from the witness.

10 commandment of examination in chief

1.      A bold start is important

2.      Be prepared

3.      Know your audience

4.      Thou shall not go on a fishing expedition

5.      Do not ask leading questions

6.      Thou shalt use piggy-back questions – using the answer used in the previous question to ask the next question. It helps create a chronological order.

7.      Thou shalt not ask stupid questions.

8.      Thou shalt not argue, just ask the question. Do not attempt to force a favorable answer.

9.       Fake sincerity

10.  The final question should be the most important

It is worthy to note that, the problem with leading questions is not limited to the fact that the opposition can object, but in real sense, leading questions undermined your case.  However, there are certain instances in which leading question can be admitted:-

EXCEPTIONS

1.      Leading Questions by Consent: you can always use leading questions if your opponent agrees.  There are usually parts of a case where little is in issue. Therefore in order to save time, you and your opponent may agree in advance.

2.      Undisputed Facts: Even without the consent of your opponent, these can be brought out by leading questions. You will always know from the pleadings or the committal papers what is in dispute.

3.      Indisputable Facts: Some things are so obvious and incontrovertible everybody knows them to be true.  You can lead in respect to this and there is no problem or risk involved.

4.        Getting a Denial: there is no choice, you have to lead e.g.  Were you in the Trattoria Restaurant on the night of June 3rd…….? Yes or NO

Examination in chief is admittedly hard to master. It takes a lot of hard work and practice.  Some renowned authors like Keith Evans have come up with what is called the Foundation Rule.  This rule dictates that before you ask question on any topic you should be able to lay a foundation showing that the witness is competent to answer. This is because, a witness can’t tell you what he/she knows until he/she has told you how they are able to know it.  Therefore, you should first lay the foundation, then bring out the facts.

One of the core principles during examinations in chief is to know your objectives.  This will help you to know what each witness needs to say for your case to succeed. Once you know your objectives, you will be able to follow those objectives and avoid veering off during the process.

GUIDELINES DURING EXAMINATION IN CHIEF

·         You should at all times be careful not lead the witness, you must bear in mind the one line of transcript rule, breaking the thing down into the shortest questions eliciting the shortest answers, and by analyzing out as you go along what building bricks you in fact require in order to erect the structure that you want from the witness.

·         Ensure that the factual content of your witnesses’ evidence doesn’t come from you.

·         Practice extracting information from the witness without prompting.

·         You can adopt a ‘just tell us what happened’ approach but always be careful not to take up much of the court’s time

At this point it is worthy to note that leading questions can be used in cross-examination since it is easier to control the witness. 

Strategies of Examination in Chief

When conducting an examination in chief there are various procedures to be followed and formalities involved. These include:-

1)      The lawyer should not ask a question based on supposition of fact since the same is considered improper.

2)      Counsels are allowed to ask apparently and consequentially inadmissible questions upon the promise to follow them up at the proper time by proof of other facts which true would make the question part legitimately operative.

3)      The party examining a witness is bound to his part to ask all material questions in the first instance and if he fails to do this, it cannot be done in reply.

4)      If a question as to any material fact has been omitted upon examination in chief, the usual course of action is to suggest it to the court which will exercise its discretion in putting it to the witness.

5)      A witness can only give evidence of facts within his knowledge and recollection.

6)      The answer the witness gives to a question during examination in chief must be based upon a point of fact and not a point of law.

7)      Conclusions of the witness as to motive of other persons are inadmissible, motives being eminently inferences of conduct.

8)      Leading questions should not be put to the witness.

Despite the procedures and formalities laid out by the courts, an advocate may employ the following strategies in order to achieve the goals and objectives of carrying out an examination in chief:-

1)      Outline-the entire process of the examination in chief must look impressive and spontaneous. The advocate must for instance retain eye contact.

2)      Clarity- the questions put to the witnesses should be clear, only one new fact to each question. The advocate should avoid vague and ambiguous questions.

3)      Build evidentiary bridges- there should be connection between witnesses to be presented before the court.

4)      Proper use of phrases to connect the matter in issue.

5)      Stretch important things- an advocate should continue for a long time in an effort to emphasise certain important issues. However he should try and keep the judges’ mind fresh due to the prolonged nature of presentation.

6)      Learn to mirror the good characteristics of the witness in an effort to build their credibility.

7)      Have your foundations ready – counsel should authenticate and lay foundations for any exhibits to be produced. This enhances persuasion of the judge and further ensures smooth introduction of tangible exhibits.

8)      Counsel should also make witness’ personal knowledge clear,non expert witness must speak from personal knowledge, lay witnesses can give lay opinions based on their personal perception but they should not draw conclusions that call for specialized knowledge.

9)      Advocate should deflate any potential cross examination questions – he should ask questions which counter all rebutting or probable questions which may crop up during cross examination.

10)  The advocate should utilize open ended questions for the important parts of the case; for instance the use of word like what, when, how, among others may help in description of an issue.

11)  The counsel should also avoid questions which suggest answer to the witness to avoid constant objections from the opposing party in turn saving the court’s time.

LEADING QUESTIONS:

A leading question is a question that suggests the answer or contains the information the examiner is looking for. For example, this question is leading[56]:

• You were at Duffy's bar on the night of July 15, weren't you?

It suggests that the witness was at Duffy's bar on the night in question. The same question in a non-leading form would be:

• Where were you on the night of July 15?

This form of question does not suggest to the witness the answer the examiner hopes to elicit.

Many leading questions call for answers of either "yes" or "no." But not all questions that call for an answer of "yes" or "no" are leading questions.[57]

The law relating to leading questions in Kenya is the Evidence Act (Cap 80). Sections 149, 159 and 151 state as follows:

149. Any question suggesting the answer which the person putting it wishes or expects to receive, or suggesting a disputed fad as to which the witness is to testify, is a leading question.

150. (1) Leading questions must not, if objected to by the adverse party, be asked in an examination-in- chief or in a re-examination, except with the permission of the court.

(2) The court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion been already sufficiently proved.

151. Leading questions may be asked in cross-examination.

Example of leading questions in introductory matters:

Sir, please introduce yourself to the jury by telling them your name and what you do for a living."

How is it a leading question? By addressing the witness as 'Sir,' Counsel has suggested to the witness that the witness is a male.  Furthermore, counsel is suggesting that this witness has a name and evidently is supposed to work somewhere. 

The Need For Asking Leading Questions[58]:

TO CONSERVE TIME:

Time is precious, and more so in the modern world. However, once there is a debate or discussion even on the most trivial subject, no amount of time might suffice to arrive at a useful conclusions. Once a certain amount of time is expended, the opponent might be able to escape defeat by appealing to the busy schedule and his need to go. Thus in spite of all the energy spent, the apologist might have to go home without coming to the real issues. At the same time, this incompleteness might give a false sense of pride to the opponent to truth who feels that by not losing the debate he has won his case.

The problem of time becomes more acute if the opponent is determined to sidetrack the Christian apologist. Thus some strategy to conserve time by eliminating unnecessary discussion is essential. Leading Questions play a very important part here by separating the significant from the trivial and the useless.

TO LEAD INTO A DEFINITE DIRECTION:

 As said before, though all interrogation involves asking questions, not all such interrogation leads into a definite direction.

Leading involves aiming at a goal and then asking questions in a manner to lead the respondent into that definite direction. This can be achieved only if the general and aimless questioning is abandoned and leading questions asked.

Anyone who has attended committee meetings knows that often a discussion can prolong endlessly, dwelling on trivial issues, without ever moving into any definite direction. At the same time, committee meeting chaired by able and perceptive chairmen does not suffer this problem because the chairman repeatedly brings them back on track with the help of rightly planted leading questions.

TO GET TO THE ROOT OF THE PROBLEM:

A logical analysis of statements, cause and effect, deductions, and other ways of reasoning often uncovers many hidden assumptions. Further, often the issues involved are so complex that the discussion goes on without ever touching the root of the problem. Only leading questions can expose the hidden assumptions and the root cause of the problem being discussed.

As mentioned in the previous point, committee meetings are a good example. Often the discussion might prolong for hours without actually discussing the root problem. Only the appropriate questions planted at the appropriate time can lead people to address the real issues. So in all discussions.

TO CONVINCE THE RESPONDENT:

 Often the person responding the apologist is not convinced of truth, or is not willing to see the truth. Affirmations made by the apologist does not create much impact because the logical thinking and reasoning has passed only through the apologist's mind.

Often the issues involved are so complex, that the opponent is unable to see it unless he is forced to go step by step through his process of reasoning and deduction. At other times the willingness of the respondent is so opposed to discovering truth, he does not come to the right deduction unless he forced to reason step by step. Only leading questions can help the apologist to force the opponent to go through the steps needed to arrive at truth.

Rationale for prohibiting leading question in direct examination:

Sample leading questions the most important issues in the case:

Attorney: "So, Mr. Hill, as you approached the intersection, you were looking at the traffic light, weren't you?"

Witness: "Yes."

Attorney: "You saw that the light for traffic heading in your direction of travel was green, wasn't it?"

Witness: "Yes."

Attorney: "You could see that the light for traffic on Kaley Avenue was red, correct?"

Witness: "Yes."

The lawyer isn't the one who's supposed to be testifying.  He's not the one who took the oath and promised to tell "the truth, the whole truth, and nothing but the truth."  The court needs to evaluate the testimony, demeanor, and character of the person who witnessed the events.  That person is supposed to be the "witness." 

By leading through every important detail, the court does not get to hear from the real witness.  The only testimony the court can really evaluate are those single word "Yes" and "No" responses.  How are they supposed to evaluate that?

The problem will be compounded during closing arguments, when the opposing attorney asks the jurors, "Didn't the attorney trust the witness to tell us what happened?  Maybe it's because the witness doesn't know what really happened.  After all, he had to be led by the nose and told what to say every step of the way.  Plaintiff's counsel could have put a parrot or a bobble head doll in the witness stand and gotten the exact same testimony..."

What should have been a slam-dunk case and a five-minute liability verdict becomes a quagmire of extended deliberations, because the lawyer couldn't resist the desire the lead. 

How to avoid leading a witness during direct examination:

• Ask the witness questions that start with "Who," "What," "Where," "How," "When," or "Why,"  and you'll guarantee that your witness tells the story, not you[59].

Other jurisdictions

United States[60]

While each state has its own rules of evidence, many states model their rules on the Federal Rules of Evidence, which themselves relate closely to the common-law mode of examination. Rule 611(c) of the Federal Rules of Evidence provides that:

“ Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or witness identified with an adverse party, interrogation may be by leading questions.”

Although Rule 611(c) of the Federal Rules of Evidence (and comparable rules of many states) do not prohibit leading questions on re-direct, some states have expressly limited the use of leading questions on re-direct. As a practical matter, it rests within the trial court's discretion as to what leading questions may be asked on re-direct. Generally speaking, leading questions will be more liberally permitted on re-direct in order to establish a foundation and call the attention of the witness to specific testimony elicited on cross examination. Additionally, on re-direct, an interrogator will often ask questions which specifically seek to elicit whether an inference resulting from questioning on cross examinations is accurate. Although these type of questions will likely result in a "yes" or "no" response, they are properly understood to be direct questions, not leading questions, and are permissible.

Some exceptions to the no-leading-questions rule

1. Where the witness is hostile to the examiner, or reluctant or unwilling to testify, in which situation the witness is unlikely to accept being "coached" by the questioner.
2. To bring out preliminary matters (name, occupation, and other pedigree information).
3. Where the memory of the witness has been exhausted and there is still information to be elicited.

In a sensitive area, to avoid the witness from testifying to incompetent or prejudicial matter.

FIRM 9 & 10 EXAMINATION IN CHIEF

Desmond Peters and Mueni Case

FIRM 11 & 12 CROSS EXAMINATION

Desmond Peters and Mueni Case

CROSS EXAMINATION

Definition: Black’s law dictionary.

 “Cross-examination, --- the rarest, the most useful, and the most difficult to be acquired of all the accomplishments of the advocate.... It has always been deemed the surest test of truth and a better security than the oath.”- Cox

Cross examination is an important step in legal process in Kenya in both civil and[61]

 criminal litigation. It involves interrogation of a witness of the opposing party on evidence given.Cross examination is preceded by examination in chief in which the party calling the witness questions the witness.[62] In some instances, cross examination can be followed by re-examination, whereby the witness is questioned again by the prosecutor or party who called the witness to clarify points brought up in cross examination which might be damaging to the their case.[63]The process of cross examination is presumed to be necessary because most witnesses come forward to support one side or the other. In the case of the defence, a witness might omit certain information which the prosecution might find interesting or relevant. A prosecution witness might, likewise, omit information. Cross examination ensures that the trial is fair and that information is truly out on the table.[64]

WHAT IS CROSS EXAMINATION?

There’s no specific definition to Cross examination. However it can be said it involves putting forth questions to a witness brought by the opposing side or an interrogation of witness called by an opposing witness. Cross-examination is defined asthe questioning of a witness by a party other than the one who called him to testify. It may be to the issue, i.e. designed to elicit information favourable to the party on whose behalf it is conducted and to cast doubt on the accuracy of evidence given against that party; or to credit, i.e. designed to cast doubt upon the credibility of the witness.[65]

The Evidence Act[66] defines cross examination at Section 145 (2) as the examination of a witness by the adverse party. It also gives who and what is to be cross examined. Section 211 (1) of the Criminal Procedure Code[67] states that at the close of prosecution case if it finds the accused person has a case to answer, it will put the accused to his defence and if he chooses to give evidence on oath in the witness box he will be cross examined on evidence given so will his witnesses.  Section 302 of the Criminal Procedure Code states that the accused person or his advocate has a right to cross examine the prosecution witnesses.  Section 22 (a) of the Civil Procedure Act states that the court may on its own motion or on application make such order as to production of documentary evidence. Subsection (b) of the section 22 states that the court on its own motion or on application by a party to issue summonses to persons who are required to produce evidence or be examined on the documentary evidence they have given. Order 18 of the Civil Procedure Rules[68] subsequently talks about the order in which witnesses are called respectively by the party seeking to rely on them. The Order also discusses the manner in which the evidence deponed by the witnesses is to be recorded by court.

STATUTORY AND CONSTITUTIONAL BASIS OF CROSS EXAMINATION

Constitutional Basis for Cross examination

The Constitution of Kenya dedicates entire 3 articles to the rights granted to an accused. Article 50 (2) (k) of the Constitution states that, “every accused person has the right to a fair trial which includes the right to adduce and challenge evidence.” This just basically gives an accused person the right to give evidence that supports his case but most importantly it gives him the right to cross examine any witness called by the prosecution so as to challenge either its truth or its admissibility.

In acknowledgement of the fact that not many accused persons have the capacity to conduct an effective cross examination, the Constitution further provides that the accused has a right to legal representation by a qualified advocate if substantial injustice would be occasioned by the lack of such representation.^[69] One could therefore argue that incapacity of an accused person to cross examine a prosecution witness would occasion such substantial injustice. In Ngura vs Republic ^[70]the appellant and another accused were charged inter alia with larceny and tried together. The other accused gave evidence on oath but there was no indication in the record that the appellant cross examined him, or was informed of his right to do so but had no questions to ask. The other evidence against both accused was very strong. The appellant was convicted and appealed. On appeal the High Court considered whether there had been failure of justice as a result of the appellant not having been showed to cross examine his co-accused. It was held it is not reasonable to lay down as a rigid proposition that in every case in which there is an omission to afford an accused person the right to cross examine his co-accused there is ipso facto a fundamental irregularity a quashing of the conviction.

Statutory Basis for Cross Examination in a Civil Trial.

The Evidence Act gives details as to who is to be cross examined and on what. A witness can be recalled for further examination-in-chief or for further cross examination as may be permitted by court. If the court permits, both parties have a right of further cross examination and re-examination respectively.^[71] In the case of Fernandes vs Noronha (1969) E.A 506 the appellant was proceeding along the main road on his motor cycle at a fair speed. There was no traffic on the road. The respondent having seen the appellant some 200 yards away drove his car from a side entrance onto the main road intending to drive across the road. After he got onto the main road he stopped, by his own account because he saw the motor cycle coming very fast. The motor cycle collided with the car and the appellant was injured. There was evidence that the rear tyre of the motor cycle was smooth and that the appellant lost control of the motor cycle. The appellant having unsuccessfully sued the respondent in the High Court then brought an appeal. One ground of the appeal was whether the judge at the High Court should have allowed the respondent to be recalled after both the appellant’s and respondent’s cases had been closed to enable him to be further cross examined on statement given by him to the police.

It was held that the discretion to recall a witness for further examination or cross examination should be exercised in exceptional cases where an injustice might otherwise result. In this case the judge was right in not allowing further cross examination.

Section 149 of the Evidence Act defines a leading question as a question suggesting an answer that the person putting it wishes to extract or receive and section 151 allows the use of leading questions in Cross Examination.^[72] A witness can be cross examined as to previous statement made by him in writing and relevant to matters before court without those writings being shown to him or been proven. However, if intended to contradict him, parts relied on must be shown to him.^[73]A witness can be cross examined for the following purposes;^[74] Test his credibility, accuracy and veracity; Discover who he is and his position in life; Shake his credibility by injuring his character e.g. by asking questions that incriminate him. An accused person can also be cross examined on his testimony even if the response will incriminate him.^[75] However the court shall forbid any questions that appear to be intended to insult or annoy or is offensive even if the question is relevant to the case in court.^[76]

Section 163 of the Evidence Act Cap 80 states that the credibility of a witness maybe impeached by evidence of persons who testify that from their knowledge of the witness, they believe him to be unworthy of credit or lack of credibility. Such a person or witness who says that one is not of credibility will not give reasons upon his examination-in-chief but may be asked his reasons in cross examination.

Section 22 Civil Procedure Act allows a person to be questioned on the documentary evidence produced as evidence and subsequently Order 19 Rule 2 the Civil Procedure Rules^[77] states a person may be called to be cross examined on his documentary evidence that he has produced in court.^[78]

Statutory Basis for Cross Examination in a Criminal Trial

The Criminal Procedure Code is the statute that guides the conduct of criminal trials in all courts in Kenya. Section 302 of the Criminal Procedure Code states that, “a witness called for the prosecution shall be subject to cross examination by the accused person or his advocate, and to re-examination by the advocate for the prosecution”. Criminal Procedure Code imposes a mandatory obligation on the court to invite an unrepresented accused person to exercise the right of cross examination.^[79]

In criminal cases bad character evidence is admissible under five exceptions canvassed in section 57 of the Evidence Act as follows: Section 57 (aa) and (a), it is admissible to show his state of mind or under the rule as to similar fact evidence.  Under section 57 (1) (b) evidence of bad character is admissible where the accused has personally or by his advocate asked questions of a witness for the prosecution with a view to establishing his own good character then he could be questioned on bad character. Section 57 (1) (c) where the nature or conduct of the defence is such as to involve imputations on the character of the complaint or of a witness for the prosecution. If an accused person raises an issue in his defence that casts aspersions on the complainant or witness he can be questioned on the good character. An accused person can be questioned on his previous antecedent if he gives evidence against any other person charged with an offence.

The Evidence Act in section 145 lists cross examination as one of the three methods of examining witness. It also refers to the matters to which an advocate may direct his cross examination questions and these are; written statements or statements reduced to writing as well as the credibility of a witness.

CROSS EXAMINATION IN JUDICIAL REVIEW

Judicial review is a special jurisdiction under sections 8 and 9 of the law reform Act and order 53 of the civil procedure rules 2010 which is neither civil nor criminal. The power to cross examine in judicial proceedings in Kenya has been denied by the courts.in the case of Simon Mbugua Nganga v The Returning officer of Kamukunji and another^[80]the court held that they have no jurisdiction to engage the court in cross examination of the first respondent and inspection of form 16A as the duty is reserved for election court. In the case of Mohamed Koriow Nur v Attorney General and 2 others[81] the court was of the view that Cross examination in judicial review was so rarely done that it was only in rare cases of remarkable character or in very special circumstances that it was allowed. 

 In other jurisdictions like England cross examination in judicial proceedings has been allowed but only in exceptional and limited circumstances. In the case of R V STOKESLEY JUSTICES ex parte BARTRAM^[82] The court held that it is rare to call for cross examination in Judicial Review proceedings but it can be done in exceptional cases. Example of such a case was the case of R v Ealing^[83]Where the court allowed exa mination of witnesses provided it did not interfere with the rules of the court or procedures.

WHY DO A CROSS EXAMINATION

The purpose of cross examination is firstly to establish and advance your own case and secondly to attack the other side’s case. The questions designed in cross examination are aimed at testing the reliability of the witness as well as to uncover additional information about the case at hand.

In treating of this subject, Halbury’s Laws of England states; “Cross examination is directed to (1) the credibility of the witness; (2) the facts to which he has deposed in chief, including the cross-examiner’s version thereof; and (3) the facts to which the witness has not deposed to but to which the cross-examiner thinks he is able to depose”^[84]

1. Cross examination as to credibility

Cross examination is important as it gives the opposing party the chance to test the credibility and knowledge of the witness as well as to discredit the testimony of the witness. The arbitrary forum (court or tribunal) will believe the credible testimony they hear first and remember the longest that which they hear last. It is therefore essential in planning cross examination to ensure a strong opening and finish on the strongest point possible.

Before you cross examine a witness you need to consider whether the evidence they have provided in chief is harmful to your case. If you establish that their evidence has not been harmful then you need to conduct constructive cross examination showing that he or she is to be trusted. On the other hand, if a witnesses’ testimony has been harmful to your case then in cross examination you will seek to challenge their evidence as inconsistent, improbable or unrealistic, or you will challenge the witness as either mistaken or untruthful.

There are further provisions regarding questions as to the credibility of the witness. Where the effect of the question is only to affect the credit of the witness by injuring his character, the court shall decide whether or not the witness shall be compelled to answer, and may if it does not so compel him, warn that he is not obliged to answer. In deciding whether to compel a witness to answer questions or not, the court puts the following into consideration: The questions are proper if the truth of their imputation would seriously affect the opinion of the court as to the credibility of the witness regarding the matter he is testifying. The questions are improper if their imputation relates to matters so remote in time or of such a nature that the truth of their imputation would not seriously affect the court’s opinion as to the credibility of the witness on the matter to which he testifies. They are improper if there is great disproportion between the importance of the imputation made against the witness’s character and the importance of the evidence.

Section 162 of the Evidence Act states that a witness may be charged for giving false evidence. There are however two exceptions where evidence may be given to contradict him. If he is asked about any previous convictions and denies it; If he is asked questions that would impeach his impartiality.

Section 163 goes ahead to give ways through which the credibility of a witness may be impeached: By evidence of persons who testify that from their knowledge of the witness they believe him to be unworthy of credit. By proving that he has been bribed, accepted such offer or has corruptly received any other inducement. Proving former statements either written or oral that are inconsistent with any part of his evidence. In a rape case or attempted rape, it may be shown that the victim was of generally immoral character.

2. Cross examination as to previous written statements – section 155

A witness may be cross examined on a document he produced as evidence or on a previous written statement. However if the intention is to bring out a contradiction between what he said under oath and what is contained in the written statement, the same must be shown to the witness

3. Cross examination as to character – Bad Character Evidence

Part X of the Evidence Act also deals with the question of character evidence which would more often than not arise during cross examination.

If you decide to undermine a witness you need to elicit from them the favourable evidence that they provided first and then continue to discredit them. It is important when cross examining witnesses that the questioning is constructive to obtain support for your story and destructive questioning to challenge a version of the story which is not accepted by you. In addition you should look at any inconsistencies with what the witness has said during trial and what they have said in a prior statement. If you notice any differences you should ask the witness to repeat the fact which they gave in the examination in chief and then read out the part of the previous statement which is inconsistent and ask the witness if they made the statement. This will show that what the witness has said is inconsistent and it will assist you in challenging your opponent’s case.

Cross examination aims at getting the witness to reveal the truth as well as confusion as to certain key issues like date and time.

The purpose of cross-examination

The goals of cross examination are three fold: to prejudice the opponent’s case, to bolster your case and to predicate your summation.

1. Prejudice Opponent’s Case

As part of the preparation trial, you should investigate the background of every potential witness to discover information that may be useful to mitigate the impact of the witness’s testimony. Depending on the veracity and integrity of the witness, your attack may range from demonstrating a bias of the witness to total impeachment. An attack on character is, by far, the most dangerous form of impeachment.

A less dangerous way of discrediting a witness is by eliciting facts that demonstrate bias or prejudice e.g. if the witness is a relative, friend or professional colleague of the defendant. Establishing any pecuniary interest in the outcome to the litigation will diminish the witness credibility. Seek to elicit anything that casts doubt on the witness’s objectivity.

Highlight the errors or confusion in the witness’s testimony. This can be done through emphasizing inherent improbabilities in the testimony, conflicts with common sense, internal conflict and confusion within the testimony, the witnesses’ limited access to the facts, and prior inconsistent statements or testimony given by the witness.

Section 22 (a) of the Civil Procedure Act provides that the court through an application from one of the parties to the case may order production of documents. The Civil Procedure Rules[85] at Order 11 Rule 3 (2) (d) provide ample opportunity to discover documents hence before trial one needs to read all prior statements of the witness. Thus prepared, one can listen attentively to the evidence during Examination-in-chief of the witness and readily recognise conflicts in testimony when they occur.

2. Bolstering your client’s Case

Not all cross examination is directed toward discrediting or impeaching a witness. One can use the witness to ratify the important aspects of your client’s case.  Use the cross examination of a witness to testify on behalf of your client without making him take the stand.

Seek to secure the positive points. Frequently there are many strong points in the client’s case that cannot be denied by the opposing side. When preparing the cross examination of each adverse witness, include each line of questioning that clearly bolsters the client’s case and that cannot be denied by the defendant’s witnesses for example if the plaintiff is seriously injured, such as paraplegic, the witness for the defendant (defendant’s doctor in a medical negligence case) cannot deny the nature, extent and permanence of the injury; the plaintiff’s physical pain, injury. This type of cross examination besides bolstering your client’s case, predicates a persuasive argument in summation: “Even the defendant’s witnesses cannot deny the devastating nature of the permanent injuries suffered by the plaintiff.” To achieve this one can use offensive cross examination. The advocate is to prepare a complete list of subjects about which the witness cannot avoid giving favourable testimony for the plaintiff.

3. Predicate your client’s Summation.

Eloquent summations are the progeny of diligent preparation and effective witness examination.

You must plan the examination of witnesses with the understanding that the testimony elicited on cross examination is more memorable to the judge and carries more weight than direct testimony. It is effective to remind the court on summation that several defence witnesses gave various testimony that bolstered the Plaintiff’s case, recognised the qualifications and integrity of the Plaintiff’s witnesses, and verified the Plaintiff’s theory as a viable alternative theory on the case.

TYPES OF CROSS EXAMINATION

There are at least two different types of cross examination.

1. Supportive (Concession Based) Cross – Examination: This type of cross is employed when you want to ask questions and get answers that support and advance your case. In a supportive cross, you won’t use your questions to attack, pillage and plunder the witness. Instead, you use cross examination to obtain favourable information, for example admissions, fill-in-the-gaps in the story or facts from the witness. If you can develop favourable evidence from the opposition’s witness, you can then argue, “their own witness said (insert the testimony favourable to your position).” It adds credibility to your evidence from an opposition witness; it may not make sense to attack credibility of that witness. Occasionally, the testimony on direct examination may be so helpful to your theory of the case that you simply have the witness repeat it on cross and pass the witness. In most instances, the favourable evidence that you will accrue from opposition witnesses will come in small increments. Seldom will you receive a single blockbuster answer that obliterates or skews the opposition’s theory of the case; however, it does happen.
2. Discrediting Cross – Examination: this occurs when you attempt to discredit the believability of a witness’ factual testimony by showing that it doesn’t jibe (not matching) with common sense and/or with what others say. Cross examination can be used to show what the witness does not know and to impeach the witness. Sometimes you can discredit an opposition witness by something in addition to or other than cross-examination, e.g. where you use another witness to prove the target witness’ bad reputation for telling the truth.[86]

GUIDELINES TO EFFECTIVE CROSS EXAMINATION

a)      Preparation

Proper preparation is the key to success in cross-examination. Effective cross-examiners are able to lead their witness down a pre-selected path to obtain the information that is vital to their case or defence. Proper preparation involves collecting as much background information on the circumstances as possible from the client. Proper preparation allows the person carrying out cross examination to understand which points he ought to rebut and have his own theory of the case. This also prepares him to devise a strategy for use in case an unexpected response arises.It is a good idea and sensible practice to do a written preparation. This involves jotting down the points of cross-examination rather than the whole questions themselves. List the points you will put to the witness. Put the points in suitable order ask questions insitu. During cross examination take note of the answer but watch the witness. Be ready to depart from your notes if needed.

Preparation also involves a thorough reading of the pleadings, charge sheet, witness’ statements to the police, as well as a perusal and examination of the various reports, documents and exhibits that the prosecution intends to rely on.

b)     Control

Another important aspect of cross examination is control. Control of the witness, evidence and the entire scenario in the courtroom. Cross examination is limited to questioning only on matters that were raised in direct examination. Leading questions may be asked in cross examination since the purpose of cross examination is to test the credibility of statements made during direct examination. Open ended questions like “why” or “please explain” are to be avoided as it gives the witness control of the answer. Having a technique is therefore important.

“Leading questions may be asked, and must be answered; though it is not permissible to put the actual words into the witness’ mouth for him to repeat or to mislead him by false assumptions or actual misstatements”.^[87]

c)      Have a Goal for Your Effective Cross-Examination

A person carrying out cross examination must identify and keep in mind the goal he/ she intends to establish in his cross examination. The goals of cross examination may include pointing out the inconsistencies in the witness testimony, impeaching the witness, using the witness to corroborate the facts in your client’s case etc.

d)     Have a plan for your cross examination

The best effective method of reaching the goal of cross examination is by having a plan to be used in establishing the basic points which must be established in cross examination. It also helps in identifying possible areas which must be covered in cross examination.

e)      Keep it simple

When devising a plan for cross examination always keep it simple. Do not put complicated questions to the witness as this may only lead to confusion. Repetition of each answer as a preface to the next question breaks the rhythm of the cross examination and you must be careful not fall into such habits as beginning each question with “now, let me ask you this question...”

 Cross-examination questions should be planned and organized in units (segments/blocks) by subject matter rather than in the chronological order often used with direct examination.

Ask unambiguous questions that are not subject to vagueness objections.

f)        Know the rules

Cross examination is conducted within the ambits of the rules of evidence. Its therefore important to follow the rules of admissibility of evidence so as to maneuver without technicalities like objections from the opposing counsel.

Knowledge of the rules will ensure a smooth cross examination that may lead one to the desired results like an acquittal.

g)      Stop when necessary

Start the cross examination on a high note and finish strong since the attention of the judge or magistrate is usually at the beginning and towards the end. Once you have made the significant point end the cross examination.

Techniques to be used when conducting a cross examination

1.      Repeat similar basic questions in a different way to get different responses which shall be used against the witness, if it’s obvious the questions are too repetitive as to make the witness nervous, the other attorney may accuse the cross examiner of badgering the witness.The less a witness speaks the better for him. He ought to just restate the facts and not add anything.

2.      Be brief in your cross examination as you have the attention of the court. Try to make the witness explain and verify something or some facts which then reveals some weaknesses in the facts he stated.

3.      In closing submission, the attorney will respect any admission by the witness in his (attorney’s case) favour. According to Davies vs Alaska[88], cross examination is the key principal means by which the believability of a witness and truth of his testimony are tested.

4.      Use close ended question i.e. one’s that require ‘yes’ or ‘no’ answer.

5.      Keep your cross examination to four points which support your theory of the case. This will strengthen your argument.

6.      Make your strongest points at the beginning and end of your cross examination as these are the points likely to remain in the mind of the listener.

7.      Anticipate what the answer will be before you ask the question.

CONCLUSION

Cross examination is a very important aspect of establishing the truth in the adversarial system of justice therefore its indispensable in both criminal and civil as well judicial review proceeding. 

Cross examination is both an art and a science which must therefore be perfected so as to obtain the desired results in the proceedings. Itis therefore imperative for advocates to master the art for able representation of their clients. 

THE 3 Cs OF IMPEACHMENT OF A WITNESS

1.      Confirm

2.      Credit

3.      Confront         

This can only be done when you know you have watertight information.

Evasive witnesses

They can be dealt with by;

1.      Repeating the question until it is answered

2.      Ask the question in reverse

3.      Break down the question

4.      Shorten the question as you repeat it

5.      Elimination method – go eliminating the facts until they respond to the correct one.

6.      You can ask the witness to repeat the question

Questions should be structured to be short, and do not ask the witness to explain.

RE-EXAMINATION

S 145 (3) and 146 Evidence Act –

Ian Morley says, you do not re-examine unless you are sure that you can nail it. Re-examination is a way of saying that the cross-examination has some weaknesses.

Civil Procedure Act Or 18, R 12

Criminal Procedure Code S 302

NATURE AND SCOPE

Its purpose is to correct the mistakes made in cross examination.Wentworth v Rogers. C v Wilson P

If the witness has done irreparable damage during cross-examination, you must not re-examine.

If counsel wishes to introduce something new during re-examination, they must seek leave of court.

OBJECTIVES

1.      Salvaging a case

2.      Clarifying confusing points

3.      Try and shift the court’s probable inference – explaining a distorted testimony to favor your case

LIMITATIONS

1.      Limited to matters touched during cross examinations alone

2.      Highlights on weaknesses of your witness

THE ART OF RE-EXAMINATION

1.      The advocate must question along the line of an argument – only issues raised during cross-examination. If you ask on questions on examination in chief, you are setting yourself up for another cross examination.

2.      Come out smoking – focus on how misleading the cross-examination was. To ask leading questions, seek the leave of the court.

3.      Quit while you’re ahead and quit while you’re behind – leave a good testimony as is and do not touch an irreparably damaging testimony

4.      Never re-examine for the sake of it – always consider if you need to re-examine and if you do, keep it short.

5.      Confer with your witness when unfamiliar issues arise during cross-examination – seek leave of court to confer with your witness. “Your honor, the witness has been asked question upon which I have no instruction. I humbly seek leave of the court to confer with my client” This can only be done on the basis that what you had completely not raised in the examination in chief was raised during cross examination, and you have evidence to counter it. You could therefore ask for leave to produce further evidence. However, be aware that this opens up the right of the other party to cross-examine the witness again.

6.      Do not merely re-examine on trifling matters, and improving on already good matters. Be careful in trying to reconcile contradictory matters. You may come out with a third version altogether.

7.      Master the art of re-examination – avoid the risks of seeking explanations.

A properly done re-examination can salvage a bad cross-examination. Conversely, a badly done re-examination can make bad matters worse.

Re-examination is completely optional.  You do not have to do it at all.

All the rules of examination in chief apply to re-examination.

CLOSING ARGUMENT

This is the reason why advocates exist. Closing arguments are a trial lawyer’s final statements to the fact finder in which they ask the court to consider the evidence and find for them. This is the moment to persuade the court to rule in their favor.

A closing argument is an argument, and not an opinion giving session. It is the occasion to apply the IRAC approach. This is where you tie-up the entire case.

From the very moment you begin your case analysis (good facts/ bad facts) you should create an outline of your closing argument. You then fine-tune it as the trial progresses.

The first thing you do in the closing speech is therefore to return to your theme.

Use the opening statement to tie the beginning of the case to the end.

Connect the facts to complete the story – this adds value to the argument.

Persuasion – use analogy, comparisons, and rhetorical questions.

If the credibility of the witness is in doubt, you may comment on it. You may argue in favor of it or against it. This can be buttressed by the issues raised during the impeachment.

You may make use of visual aids. It should however not be a distraction.

You can have notes, but do not read out the opening statement.

Speak, as far as possible, directly to the fact-finder.As you do so, show respect for the fact-finder. Do not exaggerate the evidence or adduce fresh evidence. Remember that the fact finder sat through the trial as well. Be honest about bad/ negative facts. You can implore the fact finder not to decide the case on these facts by arguing on the positive facts.

Use the skills of good communication.

Specifically ask the court for the prayers you want for your client.In a criminal case, ask for an acquittal or a conviction.

OBJECTIVES

Persuade the court to find in their favour

Summarize the facts, evidence and law

Provide the court with a conscious clear and logical discussion of the case

Provide an opportunity for free and fair presentation of the facts.

NATURE: WRITTEN V ORAL

Written submissions help identify the issue and hence expedite the disposal of the case

Unambiguous and organized presentation

However, they may overburden the court with paperwork

Increased costs due to printing, etc.

CONTENTS

A way of introduction; thanking the judge, and introducing the issues

LAW

Order 18 CPR

CONCLUSION

Akuya v Republic CrA 42/02 High Court at Kisumu

Robert Oyoo v Republic CrA 802/1997 - with the consent of the accused person you can practice written submissions

OBJECTIONS

An objection may be said to be in simple terms, a motion asking the judge to exclude evidence that the other side is seeking to offer.[89]

An objection may be by an interjection when proceedings are going on mainly during examination in chief or cross-examination.

An objection may also be in the form of a motion seeking that the entire suit should not be entertained. This is what is referred to as a preliminary objection (P.O).

An objection to indictment refers to objections that may be raised by an accused person in a trial on indictment. The accused may object on legal grounds. An example is where the indictment contravenes or fails to comply with the law. A breach of the fundamental rights of an accused person prior to arraignment in court is a classical example that would warrant such kind of objections. This is raised by an application to quash the indictment or to declare the trial a nullity.

Lastly, an objection may refer to oppositions raised during the process of execution in civil cases. This is governed by the Civil Procedure Rules, and particularly Order 22 Rule 51 thereof.

CATEGORIES OF OBJECTIONS

Objections may be categorized into. Firstly, content objections and secondly, form objections.[90]

1. Content objections: These relate to substantive evidence. They invoke the applicable rules of evidence to exclude either the witness's anticipated answer or the introduction of an exhibit. They may relate to both oral and documentary evidence. Examples include when one objects to hearsay, opinion of persons otherwise not experts and on information that is privileged. They address the evidence itself.
2. Form objections: These deal with non-substantive issues. They relate to the procedure of the trial and are intended   to remedy the manner in which the advocate questions the witness. For instance where the advocate adopts leading questions or becomes argumentative during trial. It also involves the manner in which the witness is responding. Objections to the entertainment of a suit, for instance, where the court lacks jurisdiction.

1.            PURPOSE AND FUNCTION OF OBJECTIONS

Generally, objections are utilized in a trial to ensure that parties prosecute and defend their cases in accordance to the law. This is both on procedure and substance. Some of the specific purposes and functions include the following:

a)        Trial objections invoke the applicable rules of evidence to preclude inadmissible evidence from being presented to court.

b)        Trial objections may be utilized to enable witnesses give evidence without intimidation or harassment by the opposing advocate.

c)         They also help to predicate error on a court’s evidentiary ruling.

d)        Preliminary objections help to prevent a court from entertaining a matter that it ought not to.

e)        Preliminary objections in criminal cases guide and ensure that the court does not entertain a trial that is otherwise a nullity.

f)          Preliminary objections are also be used to strike out defective pleadings.

2.            TIMING, MAKING AND RESPONDING TO OBJECTIONS

In deciding whether or not to object, the qualities of a good trial advocate will come into play and more particularly the following: -

a)        Clarity of thought and language; an advocate must have clarity of thought and language so as to be able to put forward and respond to objections clearly and logically in court.

b)        Confidence and courage; an advocate should put up a civilized warfare in defending or raising a trial objection rather than sit back without putting up a fair fight.

c)         Alertness; an advocate must be alert during trial so as to point out when to raise an objection. He/she should also know when to expect objections against his/her client. This virtue is achieved by keenly following evidence and being alert to the mind of the court.

d)        Preparedness; to be able to alleviate situations of surprise in the event that a trial objection is raised against your client’s case, an advocate needs to be well prepared. Moreover, by researching the law well, you get to raise informed and timely trial objections.

e)        Professionalism; this demands that an advocate knows the rules of practice and evidence so as to prevent objections against his/her ill advised choice of action. The rules of ethics and conduct also come in handy to enable one raise well founded objections in a respectful and professional manner.

Professionalism ensures that advocates do not raise objections actuated by malice. The advocate should not raise emotions against the other or go personal. The manner and language to be used in raising the objection is important. An advocate ought to rise up and politely but confidently say such words as,… ‘your honour/ your lordship counsel is leading the witness !’ 

f)          Sound judgment; sound judgment enables an advocate make appropriate tactical decisions as to when to raise or not to raise objections, or how to respond to objections. You ought to be able to think on your feet. Experienced judgment dictates that you only assert objections when both a valid objection can be asserted and should be asserted. You should make a quick cost benefit analysis, to avoid a situation where you win the battle but end up losing the war.[91]

3.1 Issues to consider in deciding whether or not to object

The following are the factors that may be used to guide an advocate on deciding whether or not he/she should raise an objection.

a)        Relevance: All facts that are relevant should be admissible unless specifically excluded by law. You should show, or indeed look at the opposing party’s proposed evidence to determine whether it tends to prove the existence or non-existence of a fact in issue. The Evidence Act and particularly sections 5-16 guide on relevance and admissibility of evidence. In a nut shell, facts which are relevant though not in issue include the following: 

                                                        i.            facts forming part of the same transaction,

                                                       ii.            facts causing or caused by facts in issue,

                                                     iii.            facts relating to motive, preparation and conduct for any fact in issue,

                                                     iv.            facts necessary to explain or introduce a relevant fact,

                                                       v.            fact tending to prove statements and actions referring to common intention,

                                                     vi.            facts that are inconsistent with facts in issue or affect the probability of existence or otherwise of facts in issue,

                                                   vii.            facts that would determine quantum of damages,

                                                 viii.            facts showing the existence of any right or custom,

                                                     ix.            facts showing the existence of state of mind or feeling,

                                                       x.            facts showing system or a series of similar occurrences, and

                                                     xi.            facts showing the existence of a course of business.

b)        Reliability: Second hand information, for example hearsay, would normally be excluded since it is not as reliable as first hand information. Section 63 of the Evidence Act provides that oral evidence must in all cases be direct evidence. Direct evidence has been defined to mean:

                  i.            with reference to a fact which could be seen, the evidence of a witness who says he saw it;

                ii.            with reference to a fact which could be heard, the evidence of a witness who says he heard it;

              iii.            with reference to a fact which could be perceived by any other sense or in any other manner, the evidence of a witness who says he perceived it by that sense or in that manner;

              iv.            with reference to an opinion or to the grounds on which that opinion is held, the evidence of the person who holds that opinion or, as the case maybe, who holds it on those grounds.

Provided that the opinion of an expert and the grounds on which such opinion is held, may be proved by the production of such article in which the opinion and grounds thereof are contained, if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable.

Moreover, evidence, which has not been authenticated, should not be admissible. For example, it is not proper to admit an analysis of the alcohol content in someone’s breath if the testing instrument was unreliable or tampered with. The same applies to opinion evidence given by someone without the credentials or sufficient basis of information to render an expert opinion.

c)         The concept of legality: All evidence that ought to be proved should have been obtained through legal means. Evidence which is relevant but is obtained illegally may be objected to. The following examples may give guidance in the concept:

                  i.            An admission will not be admitted if the circumstance under which it was made was that such admission would not be admitted in court. These are admissions made on a without prejudice basis in civil cases. [92]

                ii.            Confessions that are illegally obtained in criminal cases will not be admissible as evidence. Pursuant to section 25A of the Evidence Act,a confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court. A confession obtained by inducement, threat or promise will also not be admissible, unless to the opinion of the court, such inducement, threat or promise is removed.[93]

              iii.            Another illustration is bad character evidence in criminal cases. By virtue of section 57 of the Evidence Act, the fact that the accused person has committed or been convicted of or charged with any offence other than that with which he is then charged, or is of bad character, is inadmissible unless the following exceptions arise:

·         Where such evidence relates to a  fact in issue or is directly relevant to a fact in issue;

·         or the evidence tends to prove some state of mind or feeling of the accused or a series of similar occurrence of that offence with which he is then charged; or

·         the accused  has personally or by his advocate asked questions of a witness for the prosecution with a view to establishing his own character, or has given evidence of his own good character; or

·          the nature or conduct of the defence is such as to involve imputations on the character of the complainant or of a witness for the prosecution; or

·         the accused has given evidence against any other person charged with the same offence:

iv.             Another illustration that may be used as guidance is the notion of ‘the fruit of the poisonous tree’, that is, illegally obtained evidence. Evidence, though relevant and reliable, may be objected to if such evidence was obtained pursuant to an improper search or seizure.

3.2 Preparation and procedure

Objections ought to be timely and specific. This means that an objection should be raised before the inadmissible evidence is produced and should be specifically attributed to a particular issue, statute or rule of evidence.

In respect to preliminary objections, a party must file and serve a notice of the preliminary objection. In civil cases, a defence may have a paragraph to the effect that the defendant shall raise a preliminary objection at the hearing thereof on some stated grounds. That serves as sufficient notice. Service of the application to strike out a suit or pleading preliminarily also serves as notice of the preliminary objection. The parties are then given an opportunity to argue at the appointed time. The court thereafter gives a ruling thereon, either overruling or sustaining the preliminary objection. Any aggrieved party is at liberty to appeal within the time stipulated and in accordance with the law.

In respect to trial objections on the other hand, the party wishing to raise the objection does so by simply standing and stating, “Objection, your honour” or “Objection, your Lordship” whichever is appropriate. You should then succinctly explain why the trial objection is well founded. The court will either rule on it immediately or require a response from the other party before ruling. This process should take place with utmost respect and with use of polite language.

As a trial lawyer, you do not need to know all the evidentiary rules but only the ones that potentially apply to your case. You need to do a thorough case preparation. Moreover a lawyer needs to have a rapid cognitive recognition and increasing the “moment of recognition”[94]. Rapid cognitive recognition entails the following:

                  i.            firstly, researching on the matter or listening to the question/issue raised,

                ii.            secondly, recognizing a potential objection,

              iii.            thirdly, deciding whether to make the objection, and

              iv.            finally, making the objection.

3.      DECISIONS ON OBJECTIONS

It has been illustrated above that the court is required to make and give a decision on objections. For preliminary objections, the issues canvassed will usually require more time and research before a decision is arrived at. The court thus gives the parties some date when the court thinks it shall have written the ruling.

 

For trial objections on the other hand, the court ought to make ruling instantly for purposes of expediency. This does not however preclude the court from deferring the ruling to a given date. What is important is the weight of the objections both on legal issues and factual issues. It will be noted for instance in the case of Republic vs Robert Gilbert Cholmondeley , at the close of the prosecution’s  case, the prosecution moved the court under section 60 of the constitution for an order directing the defence to make a full disclosure of their witnesses, their statements and copies of certain forensic reports that the defence intended to produce. The defence objected to the motion on the ground that such a motion intended to infringe the constitutional rights of the accused and that no reciprocity existed to warrant the defence discloses their witnesses and statements as the prosecution was required to do. The Judge adjourned the proceedings as he retired to consider a ruling.

In objections raised during execution in civil cases, the court by practice makes the decision after due consideration of the arguments propounded by the parties and the evidence. This requires more time before ruling. What is important in either case is the weight of the case. Expediency and the need to make sound rulings must be balanced when any issue is to be properly addressed.

4.            ETHICS AND OBJECTIONS

Professional ethics and conduct should guide advocates when raising and responding to objections. Advocates should not deliberately bring or try to incorporate objectionable material or arguments in court, as this is unethical conduct.

It is improper to assert a trial objection without a valid legal basis. It is arguable that this may be tactical hence justifiable, but the bottom line is that it is improper to make such objections. Objections raised solely for the purpose of slowing down, impeding justice or protecting witnesses is unethical. Basically, if your primary motivation is tactical as opposed to legal, then prudence and ethical standards are implicated.

5.            COMMON OBJECTIONS

For the purpose of our discourse, we have chosen to classify objections into three categories namely: -

1. Preliminary objections
2. Trial objections
3. Post-trial objections

6.1              Preliminary Objections (PO’s)

Preliminary objections are objections raised before the substantive matter is heard and determined on merit, only on a point of law. Preliminary objections may be raised where a pleading is defective for want of form, where a pleading breaches a mandatory statutory provision, where a suit is time barred, et cetera.

A preliminary objection may be raised by a party in his/her pleading, pursuant to rule 7 of Order VI of the civil procedure rules. Under order L rule 1 of the Civil Procedure Rules, a party may nevertheless raise a PO by way of a motion. Section 16 of the Civil Procedure Act requires that one makes an objection as to the place of suing in the court of first instance since failure to do so no such objection shall be allowed on appeal.

a) Preliminary objections must be on a point of law.                      

The courts have held that preliminary objections shall only be based on a pure point of law, which is clear, and beyond doubt. The court of appeal in Mukisa Biscuit manufacturing Co. Ltd vs west End Distributors Ltd. (1969) EA 697 observed as follows;

‘A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.’

It should also be noted that preliminary objections are argued on the assumption that all the facts pleaded by the other side are correct. No preliminary objection can be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. This position was illustrated in Natin Properties Limited vs Jaggit Singh Kalsi & Another Court of Appeal Civil Appeal No. 132 of 1989 (Gicheru, Kwach & Shah JJ.A) The court of appeal further emphasized that when a preliminary objection is raised, it should be capable of disposing the matter preliminarily without the court having to resort to ascertaining the facts from elsewhere apart from looking at the pleadings alone. 

Preliminary objections, which are premised on facts that are disputed, cannot be used to determine the whole matter as the facts must be precise and clear to enable the court say that the facts are not contested or disputed. This was held in United Insurance Company Ltd. Vs Scholar A. Odera Kisumu HCCA No. 6 of 2005( Wasame J. on 14^th March 2005.)

Whereas the law gives courts the discretion of allowing parties to a suit to amend their pleadings as would enable the real issues to be determined, a plaint that is hopelessly bad that no life can be breathed into it may be struck. This was illustrated in Quick Enterprises Ltd. Vs Kenya Railways Corporation Kisumu HCCC No. 22 of 1999 (Birech J. 2^nd November, 2000)

b) Particulars of preliminary objections.

Where a party indicates that she/he intends to raise an objection on a point of law, she/he must state the particulars of the statutory provision upon which she/he relies to raise the objection. This was the holding in Kashbhai vs Sempagawa (1976) EA 16.

c) Notice of preliminary objections.

Anyparty who intends to raise a preliminary objection must give a sufficient and reasonable notice to the other party. This was the holding in Hudson Liase Walibwa vs Attorney general NBI HCCC No. 2714 of 1987 (Ringera J. on 9^th November, 1994)

The requirement of notice is not however necessary in matters before the court of appeal. This is because matters before the court of appeal are prosecuted in accordance to the court of appeal rules.

Purpose of preliminary objection.

Preliminary objections ensure that parties file their cases and defend the same according to the mandatory requirements of the law. They also prevent abuse of the process of court. This may arise in instances where a party files a defense that is a mere sham and fraught with mere denials. Another instance may be where a suit is time barred and a party proceeds to file the same without first obtaining the leave of court. Under Order VI Rule 12 of the civil procedure rules, no technical objection may be raised to any pleading for want of form.

Examples of preliminary objections.

a)      A preliminary objection may be raised on the ground that the court lacks jurisdiction to entertain the matter. An objection as to the place of suing must be raised in the court of first instance.

b)      A preliminary objection may also be raised where there is pending before a court of competent jurisdiction another suit relating to the same parties and the same subject matter.[95]

c)      A PO may also be raised where the matter has been substantially in issue between the same parties and the same determined by a competent court. This is what is referred to as res judicata.[96]

d)      A preliminary objection may also be raised where a pleading offends the rules of procedure on form and substance. i.e. where a Notice of Motion is filed instead of a Chamber Summons, or where a suit is commenced by way of a plaint instead of an Originating Summons.

e)      Under the Limitation of Actions Act. Where a suit is time barred a party wishing to institute the same must first apply for the leave of the court in the prescribed manner. Once leave is granted, then the party will be at liberty to file the matter.

Preliminary objections in respect to limitation of time on claims for damages arising out of personal injuries, breach of duty or nuisance shall not be properly raised but a party may only be allowed to cross-examine the other party during trial in challenging the leave granted, or the legality of filing suit without the leave of court. This was illustrated in Oruta vs Nyamato (1988) KLR590

Preliminary objections in criminal cases.

Preliminary objections may also be raised in criminal cases. A good illustration is where an accused raises a motion that the trial be declared a nullity on the ground that his/her constitutional rights have been violated. This aspect was illustrated in Republic vs William Chesir Kipkore(2008)eKLR  the accused had been held in custody for 107 days before being arraigned in court. His advocate raised the objection. The High court observed as follows:

That …while it is mandatory for applications raising constitutional issues in respect of causes of action outside judicial proceedings or which arise in matters before the subordinate courts, to be by way of petition, in the High Court when any constitutional issue arising the court may deal with the matter within the same proceedings as a preliminary point or question.

6.2        Trial objections

We have categorized trial objections broadly into two. These are objections top form of questions and objections to the evidence offered. Put aptly, these are form and content objections. We will consider the kinds of objections available under these two broad heads.

Objections to form of questions

The following are examples of objections that a trial advocate may raise in objectiong to questions raised to the witness.

1. A question that is ambiguous or unintelligible: it means that the witness may misunderstand the question. It is objectionable on the ground that it may take on more than one meaning.

An illustration is to be found in the Evidence Act, which excludes evidence to explain a patent ambiguity in a document. Section 99 states: -

“When the language used in a document is on the face of it ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.”

On the other hand, section 101 allows evidence to explain a latent ambiguity in a document. It states: -

“When language used in a document is plain, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.”

2. A question that is argumentative: This is a question asked to persuade the judge rather than elicit information. It calls for an argument in answer and merely asks a witness to concede to inferences.

3. A question that has been asked and answered: This is raised when a witness has already answered a substantially similar question asked by the same advocate on the subject matter.

4. A question assumes facts not in evidence: This is a question, which presumes unproved facts to be true. For example, “When did you stop beating your wife?” This is an assumption that one actually beat his wife; particularly where the actual act of beating has not been proved.

5. A question that is compound: This is where an advocate joins two or more questions ordinarily with the use of the words “or” or “and”.

6. A question that is too general: A question is too broad, general or indefinite if it permits the witness to respond with testimony, which may be irrelevant or otherwise inadmissible.

7. A question that is leading: This is a question that suggests the answer the examining party desires. This may however be allowed on cross-examination. Sections 149, 150 and 151of the Evidence Act deal with leading questions.  Any question suggesting the answer which the person putting it wishes or expects to receive, or suggesting a disputed fad as to which the witness is to testify, is a leading question.

Under section150. (1), Leading questions must not, if objected to by the adverse party, be asked in an examination-in- chief or in a re-examination, except with the permission of the court.

By virtue of Subsection (2) ,the court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion been already sufficiently proved. Leading questions may be asked in cross-examination.

8. A question that misstates the evidence or misquotes the witness: A question may misstate or misquote the testimony of a witness or any other evidence produced at the hearing. Trial advocates have the tendency to confirm the evidence of a witness by repeating what such witness has stated. Where the advocate adds or alters a statement from the witness, then one should be quick to object to the same as misquoting the witness.

9. A question that calls for a narrative answer: This is a question that invites the witness to narrate a series of occurrence, which may provide irrelevant or otherwise inadmissible testimony.

10. A question that calls for speculation: This is a question, which invites or causes a witness to speculate or answer on the basis of conjecture. It asks a witness to guess the answer rather than to rely on known facts. This is where the witness is asked to give an opinion whereas such a witness is not an expert.

11. Indecent and scandalous questions. Under section 159 of the Evidence Act, the court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the court, unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed.

Objections to offered evidence (content objections).

The following are types of questions which may be objected to as tending to give evidence which ought not to be adduced.

1. A question that invites hearsay: As a general rule, hearsay is inadmissible. Oral evidence must in all cases be direct evidence. [97]The Evidence Act gives exceptions to the hearsay rule. These include evidence of dying declarations, expert opinions, and documentary evidence of official records e.t.c. where such an exception does not exist, an advocate should object to questions inviting such evidence.

2. A question that is irrelevant or immaterial: This is a question whose intent and purport is to elicit evidence which does not relate to facts in issue or relevant facts.[98] The trial advocate should therefore ensure that he predicts that kind of evidence that may come forth from a witness and consider whether the same is relevant and admissible before raising an objection.

3. Inadmissible opinion. As discussed earlier, a witness may be called to give an opinion. Section 48 of the Evidence  Act requires that where the court to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by  experts.

Experts are defined as persons specially skilled in foreign law, science or art, or in questions as to identity, or genuineness of handwriting or finger or other impressions.[99]

4. Improper impeachment. The Act allows an advocate to ask a question that impeaches on the credibility of a witness. However, an improper impeachment will not be allowed. Section 154 of the Act provides that a witness may be cross-examined to test his accuracy, veracity or credibility; to discover who he is and what is his position in life; or to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

The court is however given the discretion under section 157 and 159 to forbid any questions which may lead to improper impeachment of character or which may be annoying, indecent and scandalous.

5. Excluding secondary evidence. Section 67 of the Act provides that documents must be proved by primary evidence unless secondary evidence is admissible under the Act. An advocate may therefore object to secondary evidence where its admission is not provided for.

6. Inadmissible parole evidence. The Evidence Act states that no oral evidence may be given to contradict a written agreement. In case a witness is asked to give oral evidence which would in the circumstances contradict a written agreement, then an objection may be sustained. This is provided under section 98 of the Evidence Act which states that,when the terms of any contract or grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to or subtracting from its terms.

7. Illegally obtained evidence. A party will not be allowed to give evidence that was procured illegally.

8. Evidence that may threaten state security. The Official Secrets Act[100] provides for the preservation of state secrets and state security. An advocate may object to evidence which in the circumstances may threaten state security, or would in the circumstances lead to disclosure of state secrets. An illustration is where investigations on Angloleasing were barred on the ground that they tended to question the manner in which the departments of defence of Kenya carried on its business.

9. Re-examination on matters not raised in cross-examination: this in not fair and just since one is not afforded the opportunity to cross-examine again on such issues. [101]
10. Best Evidence Rule: This requires the most original source of evidence available. For example, instead of asking what the contents of a document are, you should ask for and look at the actual document itself.

11. Instances of badgering: This is where the opposing party is antagonizing a witness to provoke a response. Section 160 of the Evidence Act gives the court the discretion to forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the court needlessly offensive in form.

12. Introducing character evidence when it has not been brought in issue: In simple terms, the fact that the accused committed prior offences does not necessarily mean he or she committed the present offence. Each case should be treated independently on its own merits without prejudice to the accused. However the accused may bring his or her character in issue, for example, by alleging good conduct.[102]

13. Non-responsive answer: This is when a witness is evading a question and is not really answering it.

14. Nothing pending: an objection may be raised normally when a witness continues speaking on irrelevant matters to a question posed.[103]

15. Privileged information: as a general rule, evidence which is privileged will not be admitted in evidence. Where the law protects a witness from answering questions which relate to some privileged information, then unless that protection ceases to exist, no question may be asked in respect thereof. This limb is broad and we will consider each category of privileged information.
1. Advocate-client privilege. Section 134 of the evidence Act protects such information from being admitted in court.The act provides that no advocate shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Exceptions to such privileges are given where the communication is made in furtherance of any illegal purpose or where the information relates to any fact observed by any advocate in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment, whether the attention of such advocate was or was not directed to the fact by or on behalf of his client.  It should also be noted that the protection shall continue after the employment of the advocate has ceased.

Section 142 of the Act further provides that no person who is entitled to refuse to produce a document shall be compelled to give oral evidence of its contents. As such, an advocate may not be compelled to give evidence of the contents of any agreement or document prepared by himself for a client in that capacity. This issue is illustrated in

H.F. FIRE AFRICA V A. M. R. GHARIEB (2005)e KLR

This was an application to have one Saleh El-Din, an Advocate or his firm of Omar K. Amin & Co. Advocates disqualified from representing the plaintiff. The grounds propounded were that the said Advocate and/ or his firm were potential witnesses in the case and that there existed a conflict of interest in such representation.

The advocate opposed the application on grounds inter alia, that he could not be compelled to testify as a witness in the proceedings as to require him to give evidence would be tantamount to forcing him to betray the confidentiality he owes to his clients and thereby his professional and ethical duties owed to his client would be violated.

The court dismissed the application and observed that:

Under the Evidence Act, the standard of confidentiality of an Advocate as opposed to any other confidential agent or employee is regarded so high that the relation of client and Advocate is protected. The Advocate being so privileged as provided under section 134 of the Evidence Act, cannot be compelled to give Evidence on any of the three agreements which the Advocate concede were drawn by him or his firm.

2. Doctor-patient privilege. There exists a fiduciary relationship between a [patient and a doctor. This relationship operates within the helm of confidentiality. A doctor can not therefore disclose information obtained by him from a client in the course of that relationship.

3. Privilege not to testify against spouse. Section 130 of the Evidence Act provide that no person shall be compelled to disclose any communication made to him or her during marriage, by the other spouse; nor shall a person be permitted to disclose such communication without the consent of the person who made it, or of his or her representative in interest.

 The exception is given where,

·               the suit is  between the parties to the marriage,

·               where one of the parties is charged with bigamy ,

·               where the suit is in relation to an offence against morality ,

·               where the offence relates to the person or property of either spouse or

·               where the suit relates to children to the marriage.

4. Privilege of official communication.  By virtue of section 132 of the Evidence Act, no public officer shall be compelled to disclose communications made by any person to him in the course of his duty, when he considers that the public interest would suffer by the disclosure.

5. Privilege for identity of informer. This privilege is given under section 133 of the Evidence Act. No judge, magistrate or police officer shall be compelled to say whence he got any information as to the commission of any offence, and no revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the law relating to the public revenue or to income tax, customs or excise.

6. Privilege against self-incrimination. Under section 127 of the Evidence Act, any person charged with a criminal offence shall not be compelled to give evidence as a witness except upon his own application. Such failure of a person charged to give evidence shall not be made the subject of any comment by the prosecution.

The presumption of innocence under section 77 (2) of the constitution is a founding argument that any person charged with a criminal offence has that right of silence. Under section 210 of the criminal procedure code, the court makes a ruling at the closure of the prosecution case on whether or not a prima facie case has been made top warrant the accused to be put on his defence. In the event that there is no such case made, the accused is acquitted. This provision further protects the accused person’s privilege of self incrimination.

6.2.1 The tactical approach in making and responding to objections

6.2.1.1 Making objections

One needs to move from spotting skills to become a top-tier trial advocate by not just knowing when you ‘CAN’ object, but also determining whether you ‘SHOULD’ object and ‘WHEN’ it is appropriate to do so.

‘CAN’ involves issue spotting which require prior vast knowledge in the law and more particularly the Evidence Act since you will definitely not have the time to go through statute in trial.

‘SHOULD’ entails knowing that not every issue really matters. Just because it is objectionable does not mean you should object. Why object if it does not hurt your case? If you object and prevent the judge from hearing some information, for example, hearsay, it is only natural to be curious[104]about the ‘forbidden fruit’. You had better make sure it stays out of the evidence since if not it will gain more attention and significance than it ought to have had, had you not objected. One also ought to skim through the consequences of the objection either being sustained or overruled. Ultimately, read the mood of the court and the court’s response to the objections you raise.

‘WHEN’ entails the right time to object. It may be before trial by notice or during trial. You may also want to read the mood of the court before doing so. Ultimately, object before the evidence is introduced. This you do in a split second. Once you fail to make a proper objection in time, then it might be too late to fix the damage; just the same way you cannot ‘unring’ a bell or stuff toothpaste back in a tube[105].

In summary: -

1)      Know your Evidence Law.

2)      Raise the right objection (Be specific).

3)      Know how to object (Say ‘objection’, think as you rise to your feet, stand up and give your ground, wait for the court to give a ruling and if necessary approach and proffer your argument).

4)      Practice.

6.2.1.2 Responding to objections

If your opponent objects, just pause, think, respond, wait for the ruling and probably rephrase your question if the matter is absolutely or obviously necessary so as to avoid the objectionable material. It may also be prudent to smoothly transition to another section of the testimony. Think like a burglar, of course not literally, in terms of having the evidence admitted if extremely vital. If your opponent’s objection is overruled, repeat the entire question for the witness for clarity purpose.[106]

6.3        Post Trial Objections

Objections during execution proceedings

A trial may have been conducted in which your client was not a party to but the same affects your client’s property in the execution stage. You definitely will have to object.

These are objections that arise during execution proceedings of a civil case. They are brought under order XXI rules 53-59 of the civil procedure rules. The party who objects to the proceedings is called an objector. Rule 53 of Order XXI of the CPR provides that any person claiming to or to have a legal or equitable interest in the whole of or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the decree holder and the court of his objection to the attachment of such property.

Upon receipt of such notice, the court shall order a stay of the execution proceedings and shall call upon the attaching creditor by notice in writing within fifteen days to intimate to court and the objector in writing whether he proposes to proceed with the attachment and execution there under in whole or in part.  

The objecting party takes out an application by way of summons in chambers in the same suit in which the application for attachment was made. This must be supported by an affidavit. The application once filed must be served upon the judgment creditor and if the court so directs, upon the judgment debtor. Such summonses operate as a stay of attachment unless otherwise ordered. Once this is done, the parties will argue their case if the judgment creditor still desires to proceed with execution and the court thereafter makes a ruling on the same.

The purpose of these objections is to ensure that attachment and execution of decrees are not done on goods, which are not otherwise the judgment debtor’s.  It enables parties with equitable interest over a judgment debtor’s property to protect those interests.

There are also objection proceedings in succession matters particularly where people entitled to be co-applicants in an application for grant of letters of administration of a deceased person’s estate are left out of the same. This is provided for under section 68 and 69 of the Law of Succession Act.

Section 68-5(1) provides for Notice of Objection to an application for grant while subsection (2) provides for notice to objector to file answer. Section 69 provides for the Procedure after notice and objections.

TRIAL ADVOCACY AND POLICE WORK                                                                      Mr. Muraya

STRUCTURE OF THE POLICE SERVICE[107]

The police service established under the Constitution

Administrative police and Kenya Police – the two units have been unified under the police service by the Constitution.

The service should have county representatives, business community, women representative, persons with special needs and other stakeholders.

Where the police and advocates converge;

The first meeting is most likely at the police station where a person is apprehended or in the course of an arrest.

Powers of the police service

        i.            Arrests with or without warrants.

       ii.            Powers to stop and search vehicles and premises can only be conducted while the officer is in uniform.

     iii.            Powers to search without warrant in special circumstances

Force standing orders is mostly a document of internal administration, therefore why it is not usually open to the public, but nowadays it is.

CID and the uniformed police are part of the same service, they are merely separate departments.

FORMAL SOURCES OF LAW IN KENYA

HEIRARCHY OF LAWS

1.      Constitution of Kenya

2.      Acts of the Parliament of Kenya – Article 94 of the Constitution

3.      The general rules of international law – Article 2(5) and (6). This refers to customary international law

4.      Doctrines of Equity and the substance of common law

5.      African customary law – Judicature Act Section 3(2). The Constitution refers to religious customary law under Article 170. The reference is also found in the Law of Succession Act, Wakf Commissioners Act, Mohammedan Marriage, Divorce and Succession Act, the Hindu Marriage and Divorce Act.

6.      Judicial precedents

The hierarchy of the laws of Kenya is found in the Judicature Act, Section 3(1). The supremacy of the Constitution is found in the supremacy clause, Article 2(4).Okunda v Republic

Section 3(1)(b) of the Judicature Act refers to all other written laws. What does this refer to?

·         Acts of the Parliament of Kenya

·         Nine Acts of the parliament of the United Kingdom

The Admiralty Offences (Colonial) Act 1849,

The Evidence Act 1851, sections 7 and 111.
The Foreign Tribunals Evidence Act 1856.
The Evidence by Commission Act 1859.
The British Law Ascertainment Act 1859.
The Admiralty Offences(Colonial) Act 1860.
The Foreign Law Ascertainment Act 1861.
The Conveyancing(Scotland) Act 1874, section 51.
The Evidence by Commission Act 1885.

·         One Act of the parliament of Australia (Ceylon)

·         One Act of the Parliament of India

·         Subsidiary legislation

Statutes of General Application, Section 3(1) (c)

1.      Married Women’s Property Act of 1882

Refer to these cases in regard to the binding nature of judicial precedents.

Rashid Molevina v …  [1967] EALR 645

Meyers v Akila Ranich [1972] EALR 347

CONSTITUTIONAL LITIGATION

This refers to cases that require the court to litigate over constitutional related matters.

Articles 22 and 23 provide for the enforcement of the bill of rights.

Article 165 provides for the jurisdiction of the High Court; Article 165 (3) (d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—

(i) the question whether any law is inconsistent with or in contravention of this Constitution;

(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;

(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matterrelating to the constitutional relationship between the levels of government; and

(iv) a question relating to conflict of laws under Article 191;

This section operates by virtue of article 2(4) which is the supremacy clause.

Not every issue for determination by the high courts is a constitutional issue.

Threshold test

Anna Rita Karimi Njeru v AG[1979] KLR 154

In addressing constitutional litigation in courts, there are specific aspects that must be considered to establish whether the matter is a constitutional one.

The litigant must specifically raise the provision of the constitution that they are litigating under. The litigant must invoke specific articles of the constitution which he wishes to claim under.

Not every issue for determination by courts of law is a constitutional issue. In Constitutional litigation, there is need to meet a threshold test for a constitutional question. This is intended to avoid raising purely statutory questions before the forum of the constitutional court.

In terms of judicial precedent, this requirement of meeting the threshold test has been considered in a number of cases commencing with Anarita Karimi Njeru Vs Attorney General^[108](hereinafter referred to as the Anarita Karimi Njeru case), where the court held that:

we would however again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed.

The other cases that have taken cue from the Anarita Karimi Njeru case are; Stanley Njindo Matiba Vs Attorney General^[109], Kamlesh Mansukhlal Damji Pattni Vs Attorney General^[110], and Meme Vs Republic & Anor^[111]

Khamoni J attempted to set out the rationale for insisting on particularization of the section and even the subjection of the fundamental rights chapter of the Constitution alleged to be infringed in the case of Cyprian Kubai Vs StanleyKanyonga Mwenda[112] where he held that:

An applicant moving the court by virtue of section 60, 65 and 84 of the Constitution must be precise and to the point not only in relation to the section, but also to the subsection and where applicable the paragraph of the section out of 70 to 83, allegedly contravened plus relevant act of that contravention so that the respondent knows the nature and extent of the case to respond to enable the respondent prepare accordingly and also to know the exact extent and nature of the case it is handling. 

It is discernible from the foregoing that to meet the threshold requirement for a constitutional reference, the “holy trinity” comprises of:

(i)            The precise complaint;

(ii)          The provision of the constitution infringed;

(iii)        The manner in which the section is infringed.

Locus Standi

Article 258 (1) provides that every person has the right to institute court proceedings,claiming that this Constitution has been contravened, or is threatenedwith contravention.

Article 22 of the Constitution 2010 remedies the shortfalls of Section 84 of the Repealed Constitution which was notorious for striking out constitutional matters on mere technicalities.

In India, the law allows one to invoke the court by way of a letter.

Procedure

The Chief Justice was mandated to make the rules governing the procedure of constitutional litigation. Since the current Chief Justice has not made new rules, the pervious rules under LN 6/2006 (Gicheru Rules) are still in force as per the transitional provisions of the Constitution.

Matters are instituted in the high court by way of;

1.      Petition

2.      Notice of motion

3.      Reference by a subordinate court

Once the petition has been made, the respondent responds by way of replying affidavit.

Remedies

Article 23 sets out the remedies for constitutional matters as;

(a) a declaration of rights;

(b) an injunction;

(c) a conservatory order;

(d) a declaration of invalidity of any law that denies, violates,infringes, or threatens a right or fundamental freedom in theBill of Rights and is not justified under Article 24;

(e) an order for compensation; and

(f) an order of judicial review

Emerging jurisprudence

Kenya Transport Association v Municipal Council of Mombasa and Another

Article 22(2) on locus standi

Dennis Mugambi Mongare v AG & 3 Others

Litigation around the Gicheru Rules

OVERRIDING OBJECTIVES (Oxygen Principles)

This deals with the primary concern of the court, which is access to justice. It is provided for under Section 1(a) and (b) of the Civil Procedure Act and the Appellate Jurisdiction Act Section 3(a) and (b).

For any civil justice system to be said to have worked, the results should be just, fair…and responsive to the needs of those who use it.

Constitution

Article 159(2)

Technicalities should not hinder access to justice.

Civil Procedure Act

The Act deals with effective case management with regard to court resources. Certain aspects of rules should be streamlined.

Kamani v Kenya Anti-corruption Commission

The appellant forgot to include parts of the magistrate’s notes and the respondent wanted the case struck out on this ground. Court of Appeal applied overriding objectives in considering what it would cost the court to strike out the matter. Since striking out would cost the court more, the applicant was allowed to file a supplementary record and proceed.

Overriding objectives however does not mean you have thrown out the rules of procedure. In this case, filing the notice of appeal 6 months (as opposed to 14 days) after the suit was considered taking advantage of the court.

The decision is made on a case-by-case basis to ensure that justice is served substantively without undue regard to technicalities, but not to throw out proceedings entirely.

Allan Kiama v Ndia Mathunya & Others,Civ. App. No. 47/1978 Unreported

Principles of the Oxygen principles

Effects of the Oxygen principles

1.      There is advanced planning and preparation

2.      Stricter court deadlines. Courts, in consultation with the parties will set the time tables.

3.      Fewer interlocutory applications as the parties have time to agree on the issues.

4.      Greater use of ADR mechanisms leading to less crowded courts.

5.      Greater court interventions to avoid delay tactics. Court is in the driver’s seat.

6.      Change in litigation patterns as cooperation between the litigants is encouraged.

7.      More use of technology making litigation much easier.

EXPERT WITNESSES

Black’s Law Dictionary defines it as a witness qualified by knowledge, skill, experience, training, or education to provide a scientific, technical or other specialized opinion about the evidence or a fact issue.

Section 48 of the Evidence Act;(1) When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger or other impressions.

(2) Such persons are called experts.

A person who, through education or experience, has developed skill or knowledge in a particular subject, so that he/she may form an opinion that will assist the fact finder.

ROLE OF EXPERT WITNESSES

They are called to court to give their opinion is particular matters. Their opinion is in relation to some fields of expertise.

Where their experience is not taken judicial notice of, then their curriculum vitae should be provided.

EXAMINING EXPERT WITNESSES

Examination in chief:

1.      Don’t script your questions but use an outline instead.

2.      Present qualifications in an interesting manner.

3.      Use short precise questions and simple language.

4.      Use hypothetical questions to get an opinion where necessary.

5.      Use demonstrative evidence to prove a point.

6.      Be aware of the opposing counsel and anticipate what they may wish to bring up regarding the credibility of the expert.

7.      Summarize the opinion. Ensure that the expert only focuses on their area of expertise.

Cross examination

1.      Prepare: advance preparation is essential.

2.      Be flexible: adapt to changing circumstances in the courtroom.

3.      Be in control of the witness. Do not let the witness direct you on the questions to ask.

4.      Brevity: keep it short.

5.      Be more familiar with the facts than the witness themselves. Do not be caught off-guard.

6.      Know the rules of evidence

7.      Plan to attack: attacking the expert witness

8.      Proper use of language: use plain English

9.      Saying “no”: determining whether to put your expert on the stand and how this will affect your case.

10.  Know your judge

11.  Know when to quit.

Expert witnesses are unique in that they do not necessarily testify about facts. Their testimony is largely an opinion.

Therefore;

1.      Establish the expertise of the witness; this is aimed at persuading the court that the expert is truly such on account of their training and experience. This is done by asking a series of foundational questions.

Ref: Dr. Jason Kaviti’s [Chief Govt. Pathologist] testimony in Dr. Robert Ouko’s Case.

PRODUCTION OF DOCUMENTARY EVIDENCE DURING A TRIAL

Documentary evidence is the evidence introduced in a trial as evidence. The term includes any medium by which information may be preserved. It includes photographs and tape recordings.

Section 3 of the Interpretation and General Provisions Act:

Classification of documents

1.      Private

2.      Public: Section 79 of the Evidence Act

When adducing documentary evidence, first establish whether it is genuine or not. This is usually predicated on the kind of document it is, whether public or private.

1.      There is a presumption that public documents are genuine.

2.      For private documents, it is predicated on whether they are attested or not.

The court will usually call the attesting party.

Exceptions to circumstances where the attesting party must be called in;

1.      Where attestation is a requirement for registration and the document is registered.

2.      Where the person bound by the document is not contesting its validity.[113]

3.      Where the attesting witness denies the document.[114]

4.      … 7

Proof of the contents of the documents

This can be done by primary or secondary evidence.

Private documents can only be proved by primary evidence. This means the original document itself.[115]

Admissibility of secondary evidence

As a general rule, courts rarely entertain secondary evidence where primary evidence is available.[116] Exceptions to this rule are found in Section 68 of the Evidence Act;

(a) when the original is shown or appears to be in the possession or power of-

(i) the person against whom the document is sought to be proved; or

(ii) a person out of reach of, or not subject to, the process of the court; or

(iii) any person legally bound to produce it, and when, after the notice required by section 69 of this Act has been given, such person refuses or fails to produce it;

(b) when the existence, condition or contents of the original are proved to be admitted in writing by the person against whom it is proved, or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in a reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 79;

(f) when the original is a document of which a certified copy is permitted by this Act or by any written law to be given in evidence;

(g) when the original consists of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection.

Proof of handwriting

1.      Proof through testimony by the writer or someone familiar with it.

2.      Opinion evidence; i.e. that of an expert

3.      A witness to the writing of the document

4.      A person acquainted with the handwriting

5.      By comparison

6.      Admission by the maker

Exclusion of oral evidence when a document is available[117]

Section 67 provides that, documents must be proved by primary evidence except in the cases hereinafter mentioned.

Section 97. (1) When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of this Act.

(2) Notwithstanding subsection (1) -

(a) wills admitted to probate in Kenya may be proved by the probate;

(b) when a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.

(3) Subsection (1) applies equally to cases in which contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one.

(4) Where there are more originals than one, one original only need be proved.

(5) The statement, in any document whatever, of a fact other than the facts referred to in subsection (1), shall not preclude the admission of oral evidence as to the same fact.

Order 14: Production of documents in civil cases

Steps of admission

1.      Seek leave of the court to produce the evidence.

IMPEACHMENT OF A WITNESS

This means to challenge the credibility of the witness. There are various ways of doing this;

1.      Bias – where the witness has an interest in the outcome of the case.

2.      Mental or physical impairment – this may affect their ability to perceive, recollect or link facts.

3.      Contradiction in the testimony

4.      Prior inconsistency – the witness may make a statement…

5.      Character – perhaps where the witness is a habitual liar

6.      Previous convictions

Voucher Rule: Previously advocates could not impeach their own witnesses as they were required to vouch for the credibility of their witness.[118] This has been made subject to exceptions in modern day practice;

(1) The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him -

(a) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;

(b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;

(c) by proof of former statements, whether written or oral, inconsistent with any part of his evidence which is liable to be contradicted;

(d) when a man is prosecuted for rape or an attempt to commit rape, it may be shown that the prosecutrix was of generally immoral character.

(2) A person who, called as a witness pursuant to sub-section (1) (a), declares another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged withgiving false evidence.

Procedure [the three Cs of impeachment] alternatively [the three Rs]

1.      Confirm the particular aspect of the testimony that the witness has just given in court in the evidence in chief. This is done by asking the witness to repeat the relevant part of the testimony.(Repeat)

2.      Credit the witness by way of establishing the reliability of the document that you are about to use to impeach the witness. Ask questions tending to show that the document you are about to refer to is a reliable document. Read the statements in the document yourself and ask the witness to confirm the veracity of your reading.(Reliability of the document)

3.      Confront the witness with the inconsistent statement. (Read verbatim)

PRODUCTION OF DOCUMENTARY EVIDENCE

Civil cases

In civil cases, the following documents are required to be filed at the commencement of the suit in preparation for trial;[119]

1.      List of witnesses

2.      Copies of documents including the demand letter

3.      Witness statements

4.      Affidavit to aver the correctness of the details in the plaint.

The Civil Procedure Rules 2010 encourage full disclosure which is the rationale behind the filing of these documents. The bundle of documents must be paginated and filed to as to allow all parties and presiding judicial officers to have copies of the same.

In adducing such evidence, it is important to first lay a foundation for the production of the document, i.e. to show relevance. The steps are the following;

1.      Create a foundation;

2.      With leave of the court, refer the witness to the relevant page on which the document is contained;

3.      Ask authentication questions;

These include questions such as, what is the document. Does the witness recognize the document? Who has signed the document? Who is the document addressed to? What is the reference?

Where the authenticity of the document is in question, you may bring the original document, or seek leave of the court to adduce a copy for security reasons; Opposing counsel may also be asked to authenticate, e.g. that the original is the same as the copy served upon him/her.

4.      Content of the document;

This is done where and as necessary.

Criminal cases

In criminal cases, the bundle of documents is not filed. The prosecution is required to file its documents but there is no corresponding duty on the defence the supply the prosecution with anything. In Cholmondley v Republic the Court of Appeal stated that the burden of proof remains with the prosecution throughout.

The witness who first refers to the document may not be the witness competent to produce it. The document is then marked for identification(MFI #). E.g. in a case involving a forged cheque, the accused as the maker may refer to it but the paying bank is the competent party to produce it.

After the document has been identified and authenticated, where appropriate testified about the contents, the party then states that it wishes to tender the evidence as Exhibit (XY n).

Always remember to produce the document as evidence.

Where there is an agreed bundle, there is no need to produce it at trial. If the document is not agreed upon, it is for the court to rule once is it produced at trial.

The guidelines as to documentary evidence also apply to non-documentary exhibits.

Objections

In a criminal case, the defence may object to the production of a document by the prosecution which they have not had an opportunity to examine.

An objection may also be raised as to the testimony of a witness on a document that they had no knowledge of or that they had access to illegally.

REVIEW UNDER THE CIVIL PROCEDURE RULES 2010

Section 80 of the Civil Procedure Act provides that. any person who considers himself aggrieved

(a) by a decree or order from which an appeal is allowed by thisAct, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is allowed bythis Act,may apply for a review of judgment to the court which passed thedecree or made the order, and the court may make such order thereonas it thinks fit.

Grounds for review

1.      When there is a discovery of new matters;

Order 45 Rule 1: a review is permitted on the grounds that there is a discovery of new matters which after due diligence could not be discovered by the applicant or was not within his knowledge.

The matters must be relevant and must have been able to sway the decision of the court.

Mohammed v Mohammed Zachariah

Josephine v James Sidney

Khan v Ibrahim

2.      Where there is a mistake apparent on the face of the record;

This can be an error of fact or of law or both. There is no need for evidence to reveal the error.

3.      Any other significant reason.

Making applications for review

There is no inherent power of review. Application for review must be made before the same judge who made the ruling/ judgment. The application may also be made before another judge at the same level.

Application is by notice of motion or chamber summons.

The procedure commences by an ex parte application by the same party. The court may reject the application but must show cause.

The court may fix a hearing date for the review or hear it at once. The court may thereafter confirm the original decree or vary it.

A judgment can be reviewed only once, but cannot review a reviewed judgement.

An application for review must be brought within a reasonable time;

National bank of Kenya v Ndung’u Civil Appeal No. 11 of 2006

Rose Kaiser v Angelo Kaiser [2009] Eklr Civ App No. 225 of 2008

Steven Kipkebut t/a  Riverside Lodge V Naftali Ogola [2009] Eklr

John W. V moses Wetangula & Ors Election Petition No. 1 of 2008

ENFORCEMENT OF JUDGMENTS IN CIVIL CASES

A decree can be defined as a judicial decision in a court. Order 22 provides for execution of judicial orders.

Terminologies in the enforcement of a decree;

i.                    Judgment debtor

ii.                   Decree holder

iii.                 Execution of decrees

There are various methods of enforcement

iv.                 Delivery of the properties specifically decreed (movable property)

v.                   Attachment and sale

vi.                 Sale without attachment

vii.               Arrest and detention

viii.             Appointment of receivers

ix.                 Any other orders that the court may make

The CPA provides for property that cannot be attached.

Re the Matter of Zipporah Wambui Mathara [2010] eKLR

Beatrice Wanjiku & another v Attorney General & 3 others [2012] eKLR