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TRIAL ADVOCACY LECTURES

13th February, 2015

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 clients 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 client1 without regards to the barristers self interest or to any personal
consequence.2 The advocates 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 clients interests. He should shun
mediocrity at all times regardless of the clients 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 Angawa, 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.
1

Butterworths, Halsburys Laws of England, vol 3(1) (2005 reissue) 3 Professional Practice and Conduct, Duty to
the lay client *510+
2
Rondel v Worsley[1969] 1 AC 191 at 227 as per Lord Reid
3
Section 134- 137, Evidence Act, Cap 80 of the Laws of Kenya
4
m [2006] eKLR

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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
pkroperly advising a client on the available alternatives that may be cheaper and more
expeditious.
4. Loyalty
The advocates 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 clients trust by misappropriating clients 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 Republic5.
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 clients express consent, to disclose
and 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 Hassan7, 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 counsels 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 pertains8:
i)
ii)

any communication made in furtherance of any illegal purpose


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 part 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
5

(2010) eKLR
ibid
7
(1956) 23 EACA 580
8
An advocate is first an officer of the court, then a confidant to their client
6

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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
clients 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 clients
matters are concluded in a timely fashion. He must avoid unnecessary delays which would be
prejudicial to a clients 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 & Stratton9. The
decision was upheld by the same court in Uhuru Highway Development Ltd & 3 others v
Central Bank of Kenya & 4 Others10,where an advocate who had acted for both parties in the
9Civil Appeal No. 55 of 1999 (Unreported)
10(2003) KLR

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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 advocates standing at the bar
CASES
-

Norman Wachira v Republic HCCA 224/07


Pauline Kiprop and 3 Ors v Julius KipropSuccession 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 GitongaKariuki v Akuisi Farmers Co. Ltd HCCC 197/07 :Kimaru J Nakuru
Simba Hills Farm Ltd v Sultan HashamLalji and 5 Ors HCCC 22/06:Gacheche J.
National Bank of Kenya Ltd. V Peter KipkoechKorat and Anor HCCA 77/97
Francis Mugo and 22 Ors v James BressMutheye and 3 OrsNakuru HCCC 122/05:
Muthinga J.
H. F. Fire Africa Ltd v AmrGharieb Nairobi HCCC 665/03 Emukule J.
Jackson K. Kivinda v United Insurance Co. Ltd Nairobi HCCC 1065/02:Njagi and
KasangoJs.
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.

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In Abraham v Justsun11, Lord Denning MR explained counsels duty as follows:


[It is an] advocates 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 Worseley12:
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 clients 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- MwangiMbothu v GachiraWaitimu13;

ii.

Showing the client how to circumvent Court orders and disobey injunctions as was
the case in Shuck v Gemer14

iii.

Obtaining ex part injunctions without full disclosure as was the case in Tiwi Beach
Hotel v Staum15
4. Courtesy

11

[1963] 2 All ER 401 at p.404

12

(1969)A.C. 191
CA Civil Application No. NAI 23 of 1993
14
(1846) 2 Ph 113
15
(1940) 2 KAR 189
13

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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 officers 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 Lloyds16 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 advocates duty to the court, or his/her duty to a client?
Often times, an advocates 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.

16

[1992] 1 WLR 446, at p.453

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InGiannarelli v WraithMason CJ said17:


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 interestThe 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 advocates 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
Simons18, 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 Association19 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 advocates duty to the client and to the court, the duty to the court, which is the
agent of justice, shall reign supreme.
17

(1988) 165 CLR 543, 556-7

18

[2000] 3 All ER 673


133 Neb. 283, 289, 275 N.W. 265, 268 (1937)

19

20

Lawyer's duty towards his Client :NishigandhaMasurkar

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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 Worsley22 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
Advocates Act and therefore duty bound not to mislead the court regardless of the clients
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 advocates 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 Davis23, 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

21
22

ibid

23

[2006] EWCA Crim 1155

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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 barristers duty to the court to the barristers 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 barristers 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 Simons24, Lord Hoffmann stated25 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 Board26 the Plaintiffs 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 Boards 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 boards solicitor to advise in the litigation to ensue.

24

[2000] 3 All ER 673


at p.687 and p.693
26
(1979) 2 All E.R. 1169
25

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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 Boards 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 ones 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.

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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 partys 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
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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 advocates
disrespectfulness towards witnesses and the Court at large.
7. He should not make baseless attacks on a clients 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;
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Comment [u1]: Cab Rank Rule: Ref, England


Code of Conduct for the bar
As an advocate you are under an obligation to
take up matters for as long as;
- the matter is one which you are competent
to handle
- It is within your normal jurisdiction
- Requisite payments are made

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
RukesenvsElius, Munday and Clerk27

In the legal sense, conflict of interest denotes the


representation of client(s) whose interests are
averse to those of an existing and current client of
the firm. In thelegal profession, the duty of loyalty
owed to a client prohibits an advocate from
representing any other party with interests adverse
to those of a current client.
Forms of conflict of interest:

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 Hewartthat,
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

27

(reported in orderly on Solicitors 7th Ed pg.70)

28

James Bleil and Carol King, Focus on Judicial Recusal: a Clearing Picture, 1994, 25 Tex.Tech L. Rev. 773, 775.
See Ibid.

29

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Comment [u2]: The meaning of conflict of


interest

Page 13

Simultaneous Representation
An advocate may not represent two clients who are
adversaries in a case.
Issue Conflicts
An advocate representing two clients in different
cases and urging a legal position of one which will
have negative consequences for another if the cases
are pending in the same court.
Successive Representation
This occurs when an advocate represents a client in
a matter which may be adverse to a former client.
Where matters of the former and current clients are
related in some way and the advocate would risk
breaching confidentiality to represent the current
client. Note that advocate-client confidentiality goes
beyond completion of a court case. It is infinite. An
advocate can be disqualified for such conduct if the
interests of the former and current client are really
and truly adverse in nature and if the past and
current matters are closely related in some way.
Simba Hills Farm Ltd v Sultan HashamLalji& 5
Others
Inan application for the disqualification or barring of
advocate or advocate's firm from conducting suit,
on the ground that advocate for the plaintiff,
Mr.Birech of Birech& Company, Advocates had
previously acted for the 3rd and 4th Defendants
before, it was held that there was conflict of interest
and Mr.Birech could not be allowed to act for the
plaintiffs as it was possible that as former counsel
for the said defendants, he could have come across
some knowledge that would be prejudicial to the
Defendants.
Expected witness
When it is expected that an advocate will be called
as a witness in the case, then the said advocate
may be disqualified from acting in the matter. This is
to protect the clients interest because of the
probability that the testimony could harm his
clients case.
Francis Mugo& 22 Others v James BressMuthee,
Alex M. Ndirangu, Gilbert Kabage T/a Pata
Commercial Enterprises, John MutheeNgunjiri T/a
Tango Auctioneers & General Merchants.
...
Comment [u3]: A judge may disqualify himself
on his own motion upon noticing a conflict of
interest.
A party to a case may apply for the recusal of a
judge.

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 judges 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

Comment [u5]: E.g. where the party is an


organization to which the officer is a party

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

30

Michael Crowell, Recusal, Administration of Justice Bulletin, September 2009, 1.

Joe Kadendi Wachosi

Comment [u4]: There are situations whereby a


judge has a negligible financial interest which would
have no significant bearing on the objectivity of the
ruling, e.g. being a minor shareholder in accompany
which may be a party to the case.

Page 14

Comment [u6]: Philip Moi Case: Asked G.B.M


Kariuki J to recuse himself on the grounds that
whilst the judge was the chair of LSK, he had a lot of
political run-ins with the then President Moi, father
to Philip Moi.

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 person32) directly to the High Court33 by way of
a Petition,34 which shall be supported by an affidavit35 and any other supporting documents.36The
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 officers refusal to recuse themselves, an appeal is allowed.

31

See Supra n. 3, 1.
See Home Pack Caterers v. The Hon. The A.G. and Others, Petition 671 of 2006, 16; See also S. 123 of the
Constitution of Kenya
33
Legal Notice 6 of 2006, Rule 11.
34
Ibid. Rule 12.
35
Id., Rule 13.
36
Id., Rule 14.
32

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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 Ltd38:
1. In any case of automatic disqualification on the authority of Dimes and Pinochet39cases 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.

37

Petition 671 of 2006


[2000] QB 451, Court of Appeal
39
R v Bow Street Metropolitan Stipendiary Magistrate, Ex. P Pinochet Ugate (No. 2) (199) 1 All ER 577
38

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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.
40

1998 SA (4) 147


Ibid.,177.
42
(1986) 161 CLR 342
43
Ibid., 352.
44
(1999) 161 ALR 57
45
Ibid., 56.
46
Clenae case, [1999] VSA 35, para.89(e).
47
Civil Application No.NAI 115 of 2000.
41

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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 partys 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 6th 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, KasangaMulwa,
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 27th 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 Nyongo 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, KasangaMulwa 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 1st respondent hearing.
The issue in this case was therefore whether the two judges would have recused themselves
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Page 18

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
Comment [u7]: Inclusive of all judicial fori

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.
48

See S.A. Rugby Football Union Case, para 31.


Attorney General of the Republic of Kenya v. Prof. Anyang Nyongo and 10 Others, Application No. 5 of 2007.
50
Ibid.
51
Id., 23.
49

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Comment [u8]: Read: The Devils Advocate

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 Js 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
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Comment [PM9]: Common Sense Rules by Keith


Evans.pdf

3.

4.

5.
6.

7.

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
dont want to give the tribunal any reason not to trust you.
Dont 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.
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.
Never convey any visual signal that you do not intend to convey
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.
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. Dont appear to be manipulative
c. Dont 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
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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 of 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 you52.These questions are 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 unless its absolutely relevant/necessary
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.

52

Never refer to your client as the accused

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Comment [PM10]: Cross examination

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 theyll push back. You pull and theyll resist. You demand and
theyll refuse you. You insist and theyll turn you down. In dealing with people, invite, dont
demand. Suggest, dont tell. Lead, dont pull.
Tip 4: Include the fact finder by use of 1st 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; dont ask the tribunal to believe unbelievable things. Dont pretend about the weak
points in your case. Dont 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
NB/ Cases are won or lost in chambers, not Courts. So [re[are your case well and
adequately in your chambers.
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
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2. Identifying the nature of the clients 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
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5. Confirm that the client agrees with the course of action


Conclusion
Check if theres 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, dont 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 clients 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
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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 taken53. 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.

53

The Notice written before the demand letter can be written by either.

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Comment [PM11]: What documentation would


be required by the state counsel in prosecuting the
case?

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 recipients 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 negotiation55:
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.

54

55

Government Proceedings Act S13A

Courtesy of David Laws. At www.core.org.cn

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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.

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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 reexamination (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.

Comment [PM12]: At the outset of the outset


of the trail, a statement by the advocate giving the
fact finder a preview of the case and the evidence to
be adduced, but not containing an argument.

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 pretrialconference. 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.
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Comment [PM13]: In criminal cases, this is done


by the prosecution. It is advised to never waive their
opportunity to give an opening statement first.

Comment [PM14]: A meeting of the parties and


their attorneys before the court prior to the
commencement of the actual proceedings.
It may be requested by the parties/ a party of
ordered by the court.
It may be conducted for several reasons;
-Expedite the disposition of the case
-Help the court establish managerial control over
the case
-Discourage wasteful pretrial activities
-Improve the quality of the trial with thorough
preparation
-Facilitate a settlement of the case.

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.

Comment [PM15]: In criminal cases, it is not


logical for the defence to make their opening
statement right after the prosecution does its own.
It is advisable to wait for the client has been put on
their defence, i.e. found to have a case to answer.

Comment [PM16]: That you can support with


admissible and competent 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 voirdire.

Comment [PM17]: Trial within a trial/ may also


mean pre trial conference.

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 crossexamination 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 defendants 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
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Comment [PM18]: By carefully choosing and


ordering the facts and combining them with a
compelling theme, you can maximize the
chances that the jury will lean your way at the
end of the opening. "Evidence itself is
eloquence, and the facts, if properly arranged,
will make the argument which you are not
allowed to make as such. The facts, if put
together right, will shout louder than you could."

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 dont 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 judges 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 clichs 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
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Comment [PM19]: EXAMPLE: John Smith is


not guilty of battery. Yes, he shot Bob Green.
But onlybecause Bob Green started the fight,
pulled his own gun, and fired the first shot at
John. JohnSmith is not guilty because he acted
in lawful self-defense.
John Smith is not guilty of battery. The evidence
will show that he shot Bob Green.That same
evidence will also show that the only reason he
shot Green was that Bob Greenstarted the fight,
pulled his own gun, and fired the first shot at
John. The evidence willconclusively show that
John Smith is not guilty because he acted in
lawful self-defense.
Comment [PM20]: -Asking the jury to
resolve disputes in your favor. For example,
you cannot refer to your witnesses as good
and truthful, and therefore more worthy of
belief than your opponents witnesses,25nor
discusshow your evidence satisfied a legal
standard.
-Making negative judgments about your
adversary or referring to the other party in
scurrilous terms. You cannot, for example,
callthe defendant a big cow.26
-Using colorful labels that characterizes facts
in a way distinctly favorably to your side. For
example, the prosecutor cannot
characterizea crime as a rampage of
terror27 or unspeakable evil.28
Comment [PM21]:
25 Murray v. Taylor, 782 A.2d 702, 714 (Conn.
App. 2001).
26 Turner v. Commonwealth, 240 S.W.2d 80
(Ky. 1951).
27 State v. Valdivia, 24 P.3d 661, 677 (Haw.
2001).
28 State v. Runningeagle, 859 P.2d 169, 173
74 (Az. 1993).
Comment [PM22]: Distinguish between case
theory and theme

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 adversarys 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.

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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 clients 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 sides 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. Dont 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 advocates 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 judges 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,
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consider starting with the defendants conduct. Studies have shown that you achieve the most
impact if you start with the defendants conduct. Consider if you start with the plaintiffs
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 judges
mind a vision of the facts almost as if it were shown on videotape. Once the judge sees the
story in the minds 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 defendants 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 opponents position.
6. Communicate your passion and logic in words the judge will understand.
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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 Ds - 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 dont 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.
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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.

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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 advocates 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 counsels 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 dont 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 judges 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 AlphonceMuoki,
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.
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Comment [PM23]: It is not the business of


counsel to provide evidence during the opening
statement.
Do not go through the entire spectrum of the
evidence by referring to what every witness will say
or what will be tendered.
Closing argument is where you may analyze the
evidence and try to sway the conclusion the court
shall come to.

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.
Heres 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 respondents 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 Faiths 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 childrens 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
familys 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 respondents new wife is being put up. She then travels to
Machakos town to confront the respondent, and finds a woman claiming to be the respondents
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 MzeeNyamai, an 85 year old friend of Faiths parents who was present
during Faiths betrothal ceremony. You will see the pictures of Faiths parents taken on the day
of her betrothal and another picture of the respondents dowry negotiation party. These pictures,
as the respondent will admit, were purchased by him and given to MzeeNyamai as a memorial of
the ceremony. This demonstrative evidence, along with the testimony of MzeeNyamai, Jomo
Obama and Faith herself, will convince this court that Faith was legally married to the
respondent.

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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 doesnt 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 couldnt eat his dinner when
the dog wouldnt 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 Faiths contribution in
paying for the familys upkeep, he would not have bought the farm. Again, the sale agreement
will not demonstrate that Faiths 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 cant tell.
After relying on the respondents 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 respondents 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 AlphonceMuoki
May it please the court, my name is, and I represent Mr.AlphonceMuoki 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 AlphonceMuoki 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.
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Your Honour, this court has just listened to a sensational presentation by the petitioners 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 Faiths 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 clients
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 clients
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 MzeeNyamai. MzeeNyamai is an 85 year old friend of Faiths
parents and is in his own words the memory of the community. With all due respect
MzeeNyamai 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 MzeeNyamai 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 clients 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.

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Comment [PM24]: Closing statement as it


imputes on the credibility of the witness.

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 courts eye for justice.
The kind hearted nature of Alphonce has surely been tested over these 13 years, but the straw
that broke the camels back was when Faith had the audacity to storm into my clients
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 petitioners case with
costs. We rely on this courts eye for justice.
Much obliged your Honor.
COMMON ERRORS IN OPENING STATEMENTS:
1.
2.
3.
4.
5.
6.
7.
8.
9.

Being argumentative
Being boring
No theme or poor theme or poorly articulated theme.
Too much detailed facts
Reading from notes
Referring to questionable evidence
Attempting to hide weaknesses in your case
Overemphasizing the weaknesses in your case
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.
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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.
2.
3.
4.

Create a logical, complete and clear picture of the case


To introduce exhibits or support the evidence of another witness.
Shut down potential cross examination and thereby protect exposure of your witness.
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.
2.
3.
4.
5.
6.

A bold start is important


Be prepared
Know your audience
Thou shall not go on a fishing expedition
Do not ask leading questions
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
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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 cant 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 doesnt 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 courts 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.
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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.

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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 courts 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 leading56:

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.
Comment [PM25]: As a matter of fact, ask only
leading questions

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


Example of leading questions in introductory matters:

56

Leading Questions; available at www.wikipedia.com last accessed on 26th May 2010


Article on leading questions available at http://criminal.findlaw.com/crimes/more-criminal-topics/evidence-witnesses/leadingquestions.html
57

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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 Questions58:
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:

58

A Calvin Research Group Academic Resource, Module 020A1 Leading Questions available at
http://www.brethrenassembly.com/Ebooks/Apol_20A1.pdf

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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."

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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 you59.

Other jurisdictions
United States60
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

59

Natural Born Leaders by Elliott Wilcox available at http://www.trialtheater.com/articles/leadingquestions.htm

60

ibid

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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: Blacks 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 and61
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 reexamination, 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.63The 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

61

Quoted in Wellman H.F., The art of cross examination (1997, 4th ed.), p.2.
Section 145 (1) Evidence Act
63
Ibid at section 145 (3)
62

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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?
Theres 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 Act66 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 Code67 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 Rules68 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.
64

Article 48,49 and 50 of the Constitution


Oxford dictionary of law 5th edition
66
Cap 80 Laws of Kenya
67
Cap 75 Laws of Kenya
68
2010
65

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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 Nguravs 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 reexamination respectively.71 In the case of Fernandesvs 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 appellants and respondents 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.

69

Article 50 (2) (h)


(1968) E.A 206
71
Section 146 (4) of Cap 80, The court may in all cases permit a witness to be recalled either for further
examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further crossexamination and re-examination respectively.
70

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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.73A 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 Rules77 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
72

Leading questions may be asked in cross-examination.


Section 153 Cap 80
Section 154 Cap 80
75
Section 156 Cap 80
76
Section 160 Cap 80
77
Supra note 7
78
Order 19(2) (1) Upon application evidence may be given by affidavit but the court may at the instance of either
party order the attendance for cross examination of the deponent.
79
Section 208(3)
73
74

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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 another80the 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 KoriowNur v
Attorney General and 2 others81 the court was of the view thatCross 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 BARTRAM82 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 Ealing83Where the court allowed examination 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 sides 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.

80

(2008) misc application no. 13


(2007) High court miscellaneous application No.800
(1956) 1 ALL ER 563
83
(2002)ELRH C 256
81
82

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In treating of this subject, Halburys 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-examiners 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 depose84
A. 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 courts 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 witnesss 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
84

Halsburys Laws of England (Third Edition) Vol. 15 (Simonds Edn.) p. 444

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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.
B. 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
C. 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 opponents
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 opponents case, to bolster your
case and to predicate your summation.
1. Prejudice Opponents 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 witnesss
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
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diminish the witness credibility. Seek to elicit anything that casts doubt on the witnesss
objectivity.
Highlight the errors or confusion in the witnesss 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 Rules85 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 clients 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 clients 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 clients
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 clients
case and that cannot be denied by the defendants witnesses for example if the plaintiff is
seriously injured, such as paraplegic, the witness for the defendant (defendants doctor in
a medical negligence case) cannot deny the nature, extent and permanence of the injury;
the plaintiffs physical pain, injury. This type of cross examination besides bolstering
your clients case, predicates a persuasive argument in summation: Even the defendants
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 clients 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
85

Supra note 7

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than direct testimony. It is effective to remind the court on summation that several
defence witnesses gave various testimony that bolstered the Plaintiffs case, recognised
the qualifications and integrity of the Plaintiffs witnesses, and verified the Plaintiffs
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 wont 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 oppositions 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 oppositions 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 doesnt 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 crossexamination, 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
86

www.google.com: cross examination of witnesses during trial

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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 clients 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...

87

Supra Note 23

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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 its 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
(attorneys case) favour. According to Davies vs Alaska88, 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. ones 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.

88

1974 (415) USA 308

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Comment [PM26]:
-To ask a witness to explain anything in cross
examination is SUICIDE.
-Always ask leading questions.
-Start strong and end strong
Primary objectives of x-examination
-Establish the veracity of the witness testimony
-Tell your own story
Examination is not about legal theory. It is about
statement of facts. Do not ask the witness about
the law.
-Do not ask compound questions/ many facts in
one question.
-As much as possible, avoid concluding
questions. Do not use words such as bribe or
stole. This should have been saved for the
closing submissions.
-Do not ask a question whose answer you dont
already know
-Watch out for contradictions and lead the
witness to confirm this evidence (impeachment)
Do not necessarily insist that they contradict.
i.e. is the other witness lying?
--use of transitional phrases, I would like to ask
you about or, I would like to take you back
to
-Cross examination is not confined to the
matters that were raised during examination in
chief.

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
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3. Try and shift the courts 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 youre ahead and quit while youre 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 lawyers 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.

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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 favour 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 factfinder. 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
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Akuya v Republic CrA 42/02 High Court at Kisumu


Robert Oyoo v Republic CrA802/1997 - 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
i.
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.
ii.
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.

89

Paul Bergman (Professor, UCLA School of Law) www.videojug.com


Steven Lubet& Jill Turnbill Harris, Mock Trials, Preparing, Presenting and Winning your case 9, 167 (Natl Inst
for Trial Advocacy)(2001)
90

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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 courts 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 clients 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
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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 partys 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:
91

Lecture notes Kenya School of Law 2009 by Mr.Kaluma Trial Advocacy: The Qualities of a Good Trial Advocate

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i.
ii.
iii.

iv.

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

92

See part II of the Evidence Act generally.


Section 26 of the Evidence Act.

93

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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.
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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 recognition94. Rapid
cognitive recognition entails the following:

i.
ii.
iii.
iv.

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


secondly, recognizing a potential objection,
thirdly, deciding whether to make the objection, and
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 prosecutions 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.

94

Malcolm Gladwells Blink.The Power of Thinking without Thinking

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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 (POs)
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.


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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 vsJaggit 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 14th 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. 2nd 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 KashbhaivsSempagawa (1976) EA 16.

c) Notice of preliminary objections.


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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 LiaseWalibwavs Attorney general
NBI HCCC No. 2714 of 1987 (Ringera J. on 9th 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.
95

Section 6 of the Civil Procedure Act.


Section 7 of cap.21.

96

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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 OrutavsNyamato (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
ChesirKipkore(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.
a. 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.

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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.

b. 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.

c. 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.

d. 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.

e. 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.
f. 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.

g. 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.
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h. 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.

i. 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.

j. 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.

k. 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.
a. A question that invites hearsay: As a general rule, hearsay is inadmissible. Oral
evidence must in all cases be direct evidence. 97The Evidence Act gives exceptions to the
hearsay rule. These include evidence of dying declarations, expert opinions, and
97

See section 63 of the Evidence Act.. Direct evidence is defined to mean:(a) with reference to a fact which could be seen, the evidence of a witness who says he saw it;
(b) with reference to a fact which could be heard, the evidence of a witness who says he heard it;
(c) 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.
(d) 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 may be, who holds it on those grounds:
Provided that the opinion of an expert expressed in any treatise commonly offered for sale and the grounds on which
such opinion is held, may be proved by the production of such treatise 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.

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documentary evidence of official records e.t.c. where such an exception does not exist, an
advocate should object to questions inviting such evidence.

b. 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.

c. 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

d. 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.

98

Section 5 of the evidence act provides thus: Subject to the provisions of this Act and of any other law, no
evidence shall be given in any suit or proceeding except evidence of the existence or non-existence of a fact in
issue, and of any other fact declared by any provision of this Act to be relevant.
99

Section 48 of Evidence Act.

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e. 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.

f. 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.

g. Illegally obtained evidence. A party will not be allowed to give evidence that was
procured illegally.
h. Evidence that may threaten state security. The Official Secrets Act100 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.

i. 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
100

Cap. 187 Laws of Kenya.

101

Section 146. of the Evidence Act provides that:

(1) Witnesses shall first be examined-in-chief, then, if the adverse party so desires, cross- examined, then, if the party calling them so desires, reexamined.

(2) Subject to the following provisions of this Act, the examination-in-chief and cross-examination must relate to
relevant facts, but the cross-examination need not be confined to the facts to which the witness testified in his
examination-in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross- examination; and, if new
matter is, by permission of the court, introduced in re-examination, the adverse party may further cross- examine
upon that matter.
(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further
cross-examination, and if it does so, the parties have the right of further cross-examination and re- examination
respectively.

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j. 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.

k. 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.

l. 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

102

See section 55-57 of the Evidence Act.

s.55. (1) In civil cases, the fact that the character of any person concerned is such as to render probable or
improbable any conduct imputed to him is inadmissible except in so far as such character appears from facts
otherwise admissible.
(2) In civil cases, the fact that the character of any person is such as to affect the amount of damages, is admissible.
56. In criminal proceedings, the fact that the person accused is of a good character is admissible.
57. (1) In criminal proceedings 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(aa) such evidence is otherwise admissible as evidence of a fact in issue or is directly relevant to a fact in issue; or
(a) the proof that he has committed or been convicted of such other offence is admissible under section 14 or section
15 to show that he is guilty of the offence with which he is then charged; or
(b) he 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
(c) 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
(d) he has given evidence against any other person charged with the same offence:
Provided that the court may, in its discretion, direct that specific evidence on the ground of the exception referred to
in paragraph (c) shall not be led if, in the opinion of the court, the prejudicial effect of such evidence upon the
person accused will so outweigh the damage done by imputations on the character of the complainant or of any
witness for the prosecution as to prevent a fair trial.
(2) Notwithstanding the provisions of subsection(1), evidence of previous conviction for an offence may be given in
a criminal trial after conviction of the accused person, for the purpose of affecting the sentence to be awarded by the
court.

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

n. Nothing pending: an objection may be raised normally when a witness continues


speaking on irrelevant matters to a question posed.103

o. 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.
i. 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
103

Sedivy, Common Trial Objections Highlands Ranch Colorado, available at sedivy.tripod.com.usgov-9.html

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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.

ii. 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.

iii. 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,

Joe Kadendi Wachosi

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 ,
Page 79

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


where the suit relates to children to the marriage.

iv. 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.

v. 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.

vi. 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 persons 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.

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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
curious104about 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 courts 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 tube105.

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.

104

How to Successfully Make and Meet Objections (www.trialtheater.com)


Supra note 17.

105

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If your opponents 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 clients 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 debtors. It enables parties with equitable
interest over a judgment debtors 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 persons
estate are left out of the same. This is provided for under section 68 and 69 of the Law of
Succession Act.
106

Ibid.

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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 SERVICE107
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
107

National Police Act

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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 Womens 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 AkilaRanich[1972] EALR 347

Comment [PM27]: Should Section 3 (1) of the


Judicature Act be reviewed or should we just be
satisfied with the Supremacy clause in the
Constitution 2010?

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;
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Comment [PM28]: National legislation v county


legislation

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 KarimiNjeru 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 AnaritaKarimiNjeruVs Attorney General108(hereinafter
referred to as the AnaritaKarimiNjeru 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 AnaritaKarimiNjeru case are; Stanley
NjindoMatibaVs Attorney General109, KamleshMansukhlalDamjiPattniVs Attorney
General110, and Meme Vs Republic &Anor111

108

[1979] KLR 154.


Misc. Application No. 666 of 1990 in which Bosire J (as he then was) and Mango J (as he then was) thus held:
In our case , the applicant did not indicate at all the provisions of the Constitution he considers which have been
infringed by he detaining authority in relation to him. It is none of those stated in Section 84(1). The language of
Section 84(1) does not permit a construction to include grounds other than those stated therein. The section has
clear and unambiguous language. An applicant must allege in his application a violation of any of the provisions of
sections 70 to 83 (inclusive) before the court can have jurisdiction to entertain his complaint. An applicant in an
application under S 84(1) of the constitution is obliged to state his complaint the provision of the Constitution he
considers has been infringed in relation to him and the manner in which they are alleged to be infringed. Those
allegations are the ones which if pleaded with particularity invoke the jurisdiction of this court under the section. It
is not enough to allege infringement without particularizing the details and the manner of infringement.
110
[2001] KLR 264 where the court held while approving the holding in the case of AnaritaKarimiNjeruVs The
Attorney General that if a person is seeking from the High Court on a matter which involves a reference to the
Constitution, it is important that he should set out with a reasonable degree of precision that of which he
complains the provisions said to be infringed and the manner in which they are said to be infringed.
111
*2004+ 1 KLR 637 where it was held that The threshold issue is whether or not this constitutional reference was
rightly made. Learned counsel .. has unequivocally submitted that the constitutional reference, at one remove
raises non-constitutional questions one notch too high; and at another remove engages this very court in a purely
109

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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 KubaiVsStanleyKanyongaMwenda112 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.
academic exercise. He cited in support of his contention the very relevant case AnaritaKarimiNjeruVs Republic (No.
1) 1979 KLR 154. The High Court in that case did set out considerations which should guide parties as they seek to
file a constitutional reference in the High Court. In the words of Trevelyan and Hancox, JJ (at P. 156)
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 a 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.
We are in agreement and adopt this principle as the basis upon which all constitutional references must be
founded.
See also the words of BenardChunga C.J (as he then was) in the case of Nation Media Group Ltd Vs Attorney
General High Court Misc Civil Application Number 821 of 2002, that a person alleging violation or likelihood of
violation of his or her constitutional rights under Chapter V of the Constitution of Kenya must set out his or her
complaint in the clearest possible manner. To do so, the following areas ought to emerge with sufficient clarity in
the Application papers filed in Court:
(a) The nature of the alleged violation of the Constitutional Rights
(b) The person or persons or authority or Institution alleged to be responsible for the violation or likelihood of
violation.
(c) The manner of the violation or likely violation
(b) The section of the Constitution which creates and gives the Constitutional right that is under violation or under
threat of violation.
112
Nairobi High Court Miscelleneous Application Number 612 of 2002.

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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 MugambiMongare 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, fairand
responsive to the needs of those who use it.
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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 magistrates 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 NdiaMathunya&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 drivers seat.
6. Change in litigation patterns as cooperation between the litigants is encouraged.
7. More use of technology making litigation much easier.

EXPERT WITNESSES
Blacks 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.
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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:
Dont script your questions but use an outline instead.
Present qualifications in an interesting manner.
Use short precise questions and simple language.
Use hypothetical questions to get an opinion where necessary.
Use demonstrative evidence to prove a point.
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.
1.
2.
3.
4.
5.
6.

Cross examination
1.
2.
3.
4.
5.
6.
7.
8.

Prepare: advance preparation is essential.


Be flexible: adapt to changing circumstances in the courtroom.
Be in control of the witness. Do not let the witness direct you on the questions to ask.
Brevity: keep it short.
Be more familiar with the facts than the witness themselves. Do not be caught off-guard.
Know the rules of evidence
Plan to attack: attacking the expert witness
Proper use of language: use plain English

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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 Kavitis [Chief Govt. Pathologist] testimony in Dr. Robert OukosCase.

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.
2.
3.
4.

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


Where the person bound by the document is not contesting its validity.113
Where the attesting witness denies the document.114
7

113

Section 73 EA
Section 74

114

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Comment [PM29]: Suggested that the case may


have been one of suicide, a theory he later
withdrew as all the circumstances pointed to
murder.

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
115

Section 65
Section 68

116

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4. A person acquainted with the handwriting


5. By comparison
6. Admission by the maker
Exclusion of oral evidence when a document is available117
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
117

Section 67

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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
118

Section 163 of the Evidence Act

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1.
2.
3.
4.

List of witnesses
Copies of documents including the demand letter
Witness statements
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.
119

Order 3 Rule2

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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 bythisAct,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.
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Comment [PM30]: Distinctions:


Review v Appeal
Review v Judicial Review
Review v Revision

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 NdunguCivil Appeal No. 11 of 2006
Rose Kaiser v Angelo Kaiser [2009] EklrCiv App No. 225 of 2008
Steven Kipkebut t/a Riverside Lodge V NaftaliOgola[2009] Eklr
John W. V mosesWetangula&OrsElection 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.
ii.
iii.

Judgment debtor
Decree holder
Execution of decrees

There are various methods of enforcement


iv.
v.
vi.
vii.
viii.
ix.

Delivery of the properties specifically decreed (movable property)


Attachment and sale
Sale without attachment
Arrest and detention
Appointment of receivers
Any other orders that the court may make

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The CPA provides for property that cannot be attached.


Re the Matter of ZipporahWambui Mathara [2010] eKLR
Beatrice Wanjiku& another v Attorney General & 3 others [2012] eKLR

CHALLENGING JUDGMENTS
APPEALS IN CRIMINAL CASES
These are divided into;
1. Those from subordinate court
Section 347 or the CPC;
Section 10 of the Magistrates Courts Act;
2. Those from higher courts
Section 379 of the CPC:
Section 349 of the CPC
Section 279 (2) CPC
Section 361 CPC
Court of appeal cannot entertain appeals from a court martial: Section 115(3) Armed
Forces Act Cap 199 [repealed by the Kenya Defence Forces Act]
APPEALS IN CIVIL CASES
Section 11 of the Magistrates Courts Act
In civil cases, the appeal is lodged through a memorandum of appeal.
N.B: For judicial review, you are not challenging the merits of the decision, but the legality
of the decision. This is as compared to an appeal where you are challenging the merits of
the decision.

Joe Kadendi Wachosi

Page 97