Trial Advocacy – Consolidated Notes (F.

V)
1. INTRODUCTION
It is about presenting a case before a dispute resolution forum. According Steven Lubet
(Modern Trial Advocacy) “trials are held in order to allow the parties to persuade the judge or
jury recounting their version of the historical facts.”)
What is the role of the lawyer – to persuade the fact finder to arrive at an opinion
favourable to their client, in accordance with a) substantive law b) relevant procedural law c)
ethics.
Discuss 5 basic UN basic principles on the Role of Lawyers - 1990
1. Access to lawyers and legal services
a. All persons are entitled to call upon the assistance of a lawyer of their choice
to protect and establish their rights.
b. Governments shall ensure that efficient procedures and responsive
mechanisms for effective and equal access to lawyers is provided for all
persons within their territory.
c. Governments shall ensure provision of legal aid
d. Governments and professional associations of lawyers shall promote
programmes to inform the public about their rights and duties under the law.
2. Safeguards in criminal justice matters
a. Governments to ensure persons are immediately informed about right to
lawyers
b. Governments should ensure even those who cannot afford a lawyer are
granted representation
c. Ensure access to a lawyer not later than 48 hours from detention
d. Detained people shall have time and facilities to consult with lawyers.
3. Qualifications and training
a. Lawyers are required to have appropriate training and be made aware of
ethical duties
b. There should be no discrimination against a person with respect to entry into
or continued practice.
4. Duties and responsibilities
a. Lawyers shall at all times maintain honour and dignity of their profession as
agents of the administration of justice.
b. Duties to their clients shall include advising clients on rights and obligations,
assisting clients in every appropriate way to protect interests and assisting
clients before courts/tribunals.
c. Lawyers shall always loyally respect interests of their clients
d. Lawyers in upholding clients interests should seek to uphold human rights
and fundamental freedoms.
5. Guarantees for the functioning of lawyers
a. Governments shall ensure lawyers can practice without fear, intimidation or
harassment, be able to travel freely and not suffer sanctions.
b. Security should be safeguarded
c. Lawyers shall not be identified with their clients or their clients causes
because of representing them.
d. Governments shall recognize and respect that all communications and
consultations between lawyers and their clients are confidential.
6. Freedom of expression and association
 a. Right to take part in public discussion of matters concerning law
7. Professional association of lawyers
a. Free to form and join self-governing professional associations to represent
their interests, promote their continuing education and training and to protect
their professional integrity.
8. Disciplinary proceedings
a. Codes of conduct shall be established through appropriate organs and
legislation
b. Charges and complaints shall be processed expeditiously and fairly
c. All disciplinary proceedings shall be determined in accordance the code of
professional conduct.

2. QUALITIES OF A GOOD TRIAL LAWYER

Palmer and McQuoidin “Basic Trial Advocacy Skills”
Clarity and order of language.
Honesty and integrity.
Judgment.
Objectivity.
Courage.
Alertness.
Tenacity.
Sincerity.
Humanity.
Hard work.
Professionalism.
1. Clarity and order of language – communication is the lifeblood of the trial lawyer’s
profession. Put questions clearly and logically to witnesses, address the court with
clarity. Keep questions and sentences short, speak slowly. Ambiguity can be
irritating.
2. Honestly and integrity – in line with being officers of the court and the duty owed to
the client you must disclose relevant decisions and not mislead the court. When you
communicate to the court with regard to yourself, client, matter at hand,
documentation, court record or the law. Dishonesty means you will lose goodwill and
disciplinary proceedings may be instituted against you.
3. Judgment – ability to make appropriate tactical decisions when conducting a case.
Keep client well informed and allow them to also make decisions. Be able to think on
your feet.
4. Objectivity – with a divided bar advocates have no personal ties to the client and
may give both the client and the court an objective opinion. Stand back and analyse
the case progress objectively do not become personally associated with the client’s
interest always remain professional.
 5. Courage – courage to stand up for the client’s interest in spite of the hostility from
the public of even the court e.g. making an application for recusal.
6. Alertness – always be alert to what the witnesses are saying, body language, bench
language, documents and other happenings in the court.
7. Tenacity – means that an advocate keeps pursuing the matter no matter the
opposition from the witnesses, bench of opponents. Be prepared to defend the action
until all proper arguments in favour of it have been exhausted. Do not support a case
that cannot be supported.
8. Sincerity – you must believe in your client’s case
9. Humanity – communicate easily and politely with people from all walks of life. Do not
discriminate between rich v poor, advantages v disadvantaged etc. Parties in a trial
are not robots you should always be understanding and courteous.
10. Hard work – know the facts inside out and get the story behind the story. Know
dates, names, exhibits, other pertinent aspects of the case. Organise your facts,
research the appropriate and applicable law, anticipate the opponents side, visit
sites, get reports, highlight and organise documents.
11. Professionalism – lawyers should at all times maintain the honour and dignity of the
profession in public as well as private life. Abstain from behaviour that tends to
discredit their profession. CJ to be satisfied regarding the qualifications, service and
moral fitness of one petitioning to be admitted Advocates Act s15(3). One seeking to
be SC must be of irreproachable professional conduct s17(1) cannot employ
someone who has been struck off the roll s41. Constitution chapter 6 leadership and
integrity.

3. GENERAL ETHICAL DUTIES OF TRIAL LAWYERS

Duty to the client, opponent, witness, court and to the administration of justice.
Duties to the client
An advocate shares with his client not just a legal or contractual relationship but also a
fiduciary one. It is a cardinal principle of the fiduciary nature of the profession that an
advocate must put the client’s interest above his own. The four elements of the fiduciary duty
are:
a) Loyalty to the client.
b) Duty of confidentiality.
c) The duty to disclose to the client all information that is relevant in order to act in
the client’s best interests.
d) The duty to put the client’s interest above your own or anyone else’s interests.
1. Duty to defend his client and not put compensation above interests of the client –
represent his client until the conclusion of the suit even if he has not been paid he
can later sue for fees JP Machira v Abok James Odera.
2. Confidentiality – arises from the fiduciary nature of the relationship. This duty is
codified under statute – Evidence Act s134-136 which requires that all
communications between an advocate and the client is privileged and thus protected
from disclosure unless the client waives that right. An advocate cannot disclose
communication, content of a document or advice given during the course and for
purpose of such employment. Note this duty of confidentiality persist even after the
 relationship ceases. Note there is an exception under s134 that states the privilege
does not extend to any communication made in furtherance of any illegal act or to
any crime committed since the commencement of the employment, can state name
of client, address and the fact he swore an affidavit, where there is a joint retainer.
King Woolen Mills v Kaplan Stratton – knowledge acquired by advocate is
confidential and should not be disclosed to anyone else without the clients consent.
3. Honesty and good faith – the client shall always have the interests of the client as
first priority.
4. Zealous advocacy - the advocate acts at the client’s mouthpiece. Some argue that
the lawyer must show partisanship and take no consideration of the impact on others.
He should try and ensure the best outcome for the client. Have a good grasp of the
law and an ability to think on his feet. As far as possible and within the bounds of the
law, zealously and fearlessly defend the interests of his client. Lord Brougham’s
statement is often quoted as summarising the position “To save the client by all
means and expedients, and at all hazards and costs to other persons…is his first and
only duty…and in performing his duty must not regard…the destruction which he may
bring upon others”. Renowned lawyer Time Dare argues that lawyers are entitled to
do all that they can to protect clients’ legal entitlements, they do not need to do all
that they can to promote client’s interests.
5. Follow directions of the client - Client centred relationships entail shared decision-
making responsibility and mutual participation by lawyer and client. By avoiding the
trap of either lawyer or client-dominance, these relationships provide greater
opportunities for facilitating wise client decisions in a supportive atmosphere.
6. Keep client informed – must always keep the client informed on the case through
correspondence etc. Under Rule 4 of the 1998 Advocates (Practice) Rules, where an
advocate acts in a suit on the instructions of a client, the advocate must furnish the
client with filed copies of all pleadings in the suit bearing the stamp of the registry of
the court in which the suit was filed.
7. Duty to disclose profit
8. Duty to disclose conflicts of interest – this arises from the fiduciary nature of the
relationship a client should not act where his interests may conflict the clients or
where he is acting for another part or when he is likely to be called as a witness.
9. Duty of care – a lawyer owes a duty of care to the client as a result of the
professional relationship between them in which the lawyer is expected to act
professionally and not negligently. The Advocates Act recognises that an advocate
may be liable to his client for negligence s46. The ruling in Flavio Rodrigues –vs–
Apollo Insurance suggests that it can amount to professional negligence when a
lawyer fails to turn up in court.
The holdingin Hedley Byrne –vs– Heller & Partners suggests that an advocate who
gives out professional advice aware that the person to whom the advice is given
would be relying thereon could not argue that because there was not contract for the
service, he could not be held liable. In that case, the court found that there was a
special relationship between an advocate and a client that gave rise to a duty of care.
10. Duty of loyalty - an advocates loyalty must be undivided to the exclusion of their
own interests or the interests of any other third party.
11. Duty to keep client’s money and property separately - An advocate must not
misappropriate client’s money or assets s80 Advocates Act.
12. Duty to conduct the case expeditiously - justice delayed is justice denied. Avoid
unnecessary delays which would be prejudicial to a client’s interests.
13. Duty to charge reasonable fees
14. Duty to avoid unnecessary expense
Duties to the court
In an adversarial system, courts heavily rely on the integrity of the lawyers and parties before
them. Honesty is of the utmost importance.
1. Duty to uphold the administration of justice – use only proper and lawful means to
promote and protect the interests of his client.
2. Fairness – the duty of fairness is inherent in the nature of the work performed by
lawyers Rondel v Worseley – 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
3. Duty to obey court orders – avoid showing clients how to circumvent court orders or
disobey injunctions, obtain ex parte injunctions without full disclosure or obtain and
execute decrees without sending a draft to the other side.
4. Courtesy – be respectful of the court. Be on time to court, attend delivery of
judgments, seek permission to leave the court, be respectful of clerks and other court
officers.
5. Duty to expedite proceedings – justice delayed is justice denied – do not waste the
courts time through unnecessary proceedings and technicalities. Ensure to mark
pages that you will refer to, arrange documents correctly.
6. A lawyer should not seek to influence a judge, tribunal or other official by means
prohibited by law.
7. Duty not to mislead the court – arises from the duty to assist in the administration of
justice, protect and promote interest of client but only through proper and lawful
means. Do not call a witness whose testimony you know is untrue. Don’t lie about
absence of witness or advocate or delay in filing, extent of damage or loss, financial
health of the client etc
8. Duty to not give personal opinions unless invited by the court to do so, or appear
before a tribunal. Speak in your capacity as a lawyer not a personal capacity.
9. Duty to disclose facts within the courts knowledge even if it is favourable or
unfavourable. If a case or provision is omitted by another counsel, the advocate is
under a duty to draw attention to it even if it will assist the opponent.
Duties to opposing counsel
1. Inform of the authorities to be used
2. Do not embarrass the opponent by ambushing objections on technicalities or other
procedural things. It undermines the reputation of colleagues and the profession.
3. Omission of a case or provision by opponent – if you know a case or legislative
provision has been omitted, or an opponent makes an incorrect reference it is the
duty of the trial lawyer to draw the court’s attention to it even if it assists the
opponent’s case.
4. Courtesy and respect toward colleagues – behaviour to colleagues should mirror
behaviour to the court. Treat people with courtesy and respect. Be accommodating
for genuine reasons for adjournment, conserve time allocations, focus on issues not
the person, allow colleagues to look at a document in your possession.
5. Do not inconvenience or harass opponents e.g. effecting process in a time period
that falls within public holidays, failure to inform an out of town counsel not to travel,
insisting on documents where you had earlier agreed are not necessary, delaying
payments of decretal sums.
6. Provide evidence – Art 50(2)(b) and (c) be informed of the charge in sufficient detail
and have adequate time and facilities to prepare a defence. (j) be informed in
 advance of evidence prosecution intends to bring against him and have access to
that evidence.
7. Avoid personality conflicts – it’s the clients, not the lawyers who are litigants. Counsel
should not be influenced by ill feelings toward opposing counsel.
8. Get consent before placing further material – it is improper to attempt to place further
material while a judgment is pending without consent of opposing counsel
9. Duty to not communicate with the judicial officer without the presence of opposing
counsel, unless it is allowed by the court.
10. Duty to deal promptly with communication from opposing counsels.
11. Interviewing witnesses of the other side – Shabalala v AG Transvaal – consult the
prosecuting authority first.
Duties owed to witnesses
1. Courtesy
2. Advocates should not pay or offer to pay a witness for testimony or the outcome of
the case.
3. Duty to inform the witness about the date the case is going to be heard promptly.
4. Furnish the witness with the full details of the case so that their testimony can be
correct
5. Do not badger the witness with unreasonable questions.
6. Refrain from baseless attacks on the client’s character.
7. Refrain from asking indecent, scandalous or insulting questions
8. Do not be unfair abusive or inconsiderate to witnesses for opposing counsel.
9. Consult with your own witness before trial.
10. Do not interview after the have taken an oath to testify, or one who is under cross
examination. If it is absolutely necessary, you must inform the opponent before you
conduct the interview.
11. When interviewing a judicial officer it is undesirable for the interview in the absence
of the opponent of their advocate without their consent. Notice of intention to conduct
such interview must be given.
Duties to the Administration of Justice
1. As prosecutors – do your best as an officer of the court. The cab rank rule applies.
2. As providers of legal aid when called upon by the bar.
3. Section 34 Judicial Service Act No. 1 of 2011
Mandate: Ensure a coordinated, efficient, effective and consultative approach in the
administration of justice and reform of the justice system.
4. Act ethically at all times-to maintain proper reputation and integrity in eyes of clients,
courts, colleagues, public.
5. Not expose themselves to litigation-Affects their practice and personal reputation.
Arises not just from trail but advise, undertakings or costs.
6. Not make affidavits in cases they appear.
7. Prepare thoroughly for every case.
8. Not take on too many cases.
9. Be properly dressed.
10. Introduce oneself to court.
Oath of an advocate
“I. ....., swear by the almighty God that I will at all times uphold the rule of law and
administration of justice, and that without fear or favour, I will well and truly discharge my
duties as an Advocate of the High Court of Kenya."
4. COURT ETIQUETTE
The correct behaviour at court (court etiquette) is usually determined by long-standing
practice. Sometimes rules of etiquette are also contained in the practice manuals produced
by various divisions of the High Court and bar associations. Many rules of etiquette are also
contained in the rules of conduct of the legal profession. This chapter deals with:
a) Dress
b) Punctuality
c) Introductions
d) Modes of address
e) Behaviour in court
f) Witnesses
g) Court terminology
h) Perceptions of bias; and
i) Humour in court

a) Dress
Appropriate court dress for lawyers is dark coloured suits or dresses (black, dark grey or
blue – para 10 LSK dress code). Ties should be understated-loud ties and cartoon
characters on ties may be viewed as improper (para 13 LSK dress code). Be aware of the
smaller details, such as ensuring that shoes are clean and that shirt top collar buttons are
fastened. If a robe is required, ensure it is uncreased, of a suitable size and in good repair.
Male witnesses should dress in collar and tie, and female witnesses should dress smartly
and conservatively.
LSK standard of honesty and integrity standard 12 rule requires the Advocate is under a duty
to dress modestly and in a manner that lends itself to the dignity of the legal profession.
NB – Circular on judicial dress code and address
- Wigs were discarded
b) Punctuality
Always ensure that you are at the court at least 30 minutes before the court’s starting time.
Judges and the public expect lawyers to be punctual: repeated tardiness without adequate
explanations may be treated as contempt of court.
c) Introductions
Trial lawyers should always introduce themselves to the judge who will be presiding in their
cases. If in chambers, await invitation to sit down.
d) How to introduce yourself to a judge
The introduction must be brief and along the following lines:
Greeting, name, firm, whom you appear for, when the case is due, what the case is coming
up for.
“Good morning, Judge. I am Mary Juma, of the firm of Juma and Partners, and I am
appearing for the plaintiff in the case of John vs Anne trial which is due to start today.”
“Judge” is the mode of address to a High Court judge in chambers. In court, counsel should
refers to the judge as “My Lord”.
Finally, court etiquette requires you to be accompanied by your opponent when seeing the
presiding officer out of court, but this rule does not apply to pre-trial introductions.
If you have not previously met your opponent, or any of the court officials (like the
stenographer, interpreter, court orderly), you should formally introduce yourself to them as
well.
e) Modes of address
i. Magistrate’s Courts
In the Magistrate’s courts, presiding officers are addressed as “Your Honour” during court
proceedings and by their normal civil titles.
ii) High Court, Court of Appeal and Supreme Court
The presiding officer is addressed as “My Lord” in court, and as ‘judge’ out of court or in
chambers. Note, too, that the informal ‘you’ and ‘your’ is replaced by “Your Lordship”- for
example.
As the term ‘My Lord’ is addressed to the office of the High Court judge, it is preferable to
address both male and female High Court judges in this way. A female judge may prefer to
be addressed as ‘Her Ladyship’ or “My Lady”– establish her preference prior to the
commencement of the trial by checking with her registrar.
f) Behaviour in court
i. Entering and leaving the courtroom
When the judge enters the courtroom, the orderly will shout, “Rise in Court” at which all
those present in the courtroom must stand. When the judge reaches the bench, he or she
will stand, bow slightly and then sit down. This is the cue everyone in the courtroom to sit as
well. When the judge leaves the courtroom, the orderly again announces that everyone
should rise – remain standing until the judge is out of the courtroom.
Everyone (lawyers, witnesses and members of the public) entering or leaving the courtroom
when it is in session should: when leaving, briefly pause at the exit door, turn towards the
judge bow slightly, and then exit; and when entering, enter the courtroom, pause, bow
slightly towards the judge, and then proceed to you place.
Should you wish to deliver a message to one of the trial lawyers while the court is in session,
enter the courtroom and quietly sit down next to the lawyer concerned. Then write out a
message, leaving the note with the person concerned, and quietly exit. Also limit such
interventions to matters that cannot wait until the next adjournment.
ii) Do not wander or walk about in court
The general rule is that a lawyer appearing in a trial should not move away from his position
without the permission of the court. Do not walk around when asking the witness questions
or making submissions. In a criminal case when the defense lawyer wishes to speak to his
client (the accused who is standing in the dock), the defense lawyer will have to request the
court’s permission: e.g.“My Lord, may I approach the accused for instructions on that point?”
Note that if a longer discussion is required, it is more appropriate to request the court for a
short adjournment.
iii) Always stand when addressing and when being addressed by the judge
When the judge speaks to you as a trial lawyer appearing in the matters before him, you
should immediately stand. When the judge is addressing your opponent, you must sit. For
example, if you are busy cross-examining an opposition witness, and your opponent stands
up to object, you must immediately sit. This indicates to the judge – whose attention has
been focused on you – that your opponent is standing, and the judge will then focus on your
opponent to hear the basis of his objection.
Only if the judge is addressing both you and your opponent simultaneously (for example,
discussing a possible postponement date), should you both be standing at the same time.
You are required to stand when indicating your acceptance of a court ruling: for example,
when the judge completes the delivery of the judgment, both you and your opponent should
stand up to indicate your acceptance of the decision by saying: “As the court pleases/most
obliged.”
iv) Get the judge’s permission before moving on to the next stage of the trial
After each stage of a trial, or after an intervention by the judge, first get his permission before
continuing.
For example: during plea proceedings in a criminal trial after the accused has pleaded not
guilty, you will inform the court what the basis of the accused’s defense is.
Magistrate (to accused): how do you plead?
Accused: not guilty, your worship
Defense counsel: Your Honour, I confirm that the accused’s plea is in accordance with my
instructions. May I proceed?
[Only continue once the magistrate assents.]
g) Witnesses
When being questioned during examination-in-chief or cross-examination, witnesses must
look at the lawyer putting the question, and then look at the judge when answering the
question. Should the witness not be trained to do so, the judge is likely to become irritated
by being treated like an interested observer to a conversation between the lawyer and the
witness.
Witnesses yet to be called must wait outside the courtroom (with the exception of certain
expert witness who may be required to hear that evidence for the purposes of their later
testimony).
h) Court terminology
Trial lawyers must become familiar with a number of important words and phrases used in
court proceedings:
i) “I submit …” During argument at the close of the trial, or argument on specific
issues that arise during the trial (for example, following an objection), trial lawyers make
submissions to the court on the correct approach, thus: “My Lord, I submit that the court
should find…” Do not use: “I think”, “I aver”; “I consider”; “I am of the opinion”; “I declare”.
ii) “As the court pleases” This is a stock response phrase indicating the acceptance
of decisions by the court, or is used where counsel wishes to indicate that he has completed
a submission. Do not use phrases like “as pleases the court”; “the court pleases”; OK. ‘My
Lord”; “Alright” or “I’m finished, ‘My Lord”.
Direct questions from the bench, should however, be answered with a simple “yes” or
“no”.e.g.
iii) “If the court will bear with me” This is a phrase used to request the court to be
patient for a little while as you find a misplaced note or authority.
iv) “With respect”/ “With great respect”/ “With the greatest respect”: A submission
preceded by the term “with respect” indicates in advance to the judge that you do not agree
with the view stated by him on the issue being discussed. Should the debate become more
heated, and your disagreement with the judge’s position stronger than, you may show your
intensified disagreement by prefacing your submission by saying “with great respect, Your
Lordship”. Should you reach a stage in your interaction with the court where you consider
the court’s position to be utterly without foundation, you may indicate your disagreement by
prefacing your response: “with the greatest respect…” Thus, the greater the professed
respect, the less the actual respect for the court’s point of view.
v) “I am indebted to the court”; This is the traditional method of saying ‘Thank you’ in
court proceedings, and still is in widespread use. E.g.
vi) “My instructions are…”: Often your client may insist you make an application to,
or request of the court that is ill-advised, or it may be that a version you are instructed to put
a witness is manifestly absurd. In most cases, you will have a duty to comply with your
client’s wishes. If you are challenged (usually in an incredulous tones by the judge, your
response that those were your instructions is sufficient to indicate that you are merely
carrying out you legal duty, and are not necessarily convinced about the legal or tactical
soundness of your submissions.)
vii) “I withdraw the question” or “correction”: Often counsel will put a question to a
witness (either in examination-in-chief or cross-examination), and then decide to change or
modify the question. The correct method to do so is:
viii) “My learned friend”. The correct method of referring to your opponent in all courts
is “my learned friend” It is also preferable to refer to your opponent by name: “Mr. John has
submitted that…..”
ix) References to judges not before court: Refer to other judges as in the formal
written references: ‘His Lordship’, Mr. Justice Paul, in his judgment…” When addressing the
court, avoid referring to other judges as “Your brother, Paul” – this reference is only used by
judges themselves when referring to other judges.
x) Postponements; adjournments; remands; standing-down:
The term postponement is used when a case or matter that has not yet commenced is
postponed to a later date.
Once a matter has commenced, you have proceedings and proceedings are always
adjourned. (Adjournments can be any length of time, from a few minutes to weeks or even
months. During court hours, the morning tea-break is referred to as the ‘short’ adjournment,
whilst the lunch-break is referred to as the “long adjournment”).
A remand refers to the postponement to another date while the accused is in custody on a
criminal charge, as in; “Your Lordship, I ask that the accused be remanded in custody to the
3rd of June for trial.”
Only a witness can stand down (that is, literally step down from the witness box). Matters or
proceedings cannot stand-down –they can only be postponed or adjourned.
xi) Perception of bias
‘Justice must not only be done, but also be seen to done.’
This adaption of the quoted dictum from the old English case of R v Sussex Justices holds
true for all aspects of the trial. For example, the client you are defending on a criminal
charge may not understand your undue familiarity with the prosecutor (who may be an ex-
colleague and good friend). Maintain a professional reserve in your dealings with your court
opponents, lest your client interpret your later behavior during the trial (like a concession
properly made) as having been influenced by your friendship with the opponent. For the
same reason , if the judge in your matter is a friend or close acquaintance, do not refer to
him by his first name in the presence of your opponent , nor should you discuss social
matters when seeing in chambers in the company of your opponent.
xii) Humour in court
Trial lawyers should, as a rule, avoid attempts at humour during the trial. This is especially
true for criminal trials, where attempts at humour may be construed as trivializing a serious
matter.
5. CONFLICTS OF INTEREST
Lord Hewart – Justice should not only be done, but should manifestly and undoubtedly be
seen to be done – Lord Hewart in R v Sussex.
Legal basis – Article 75 (1) Constitution, Section 55 Advocates Act Rules 9 and 6 of the
LSK code of standards of professional practice and ethical conduct.
An advocate should refrain from acting where
- Where he is representing two clients with opposing interest e.g. car crash.
- Advocates own interest conflicts e.g. selling or buying from a client or non-financial
where an advocate is devout catholic and has a pro-choice client.
- Successive and vicarious representation – used to rep the husband now rep the wife
apply the substantial relationship test i.e. is it likely that the advocate has obtained
information from acting for a former client that is highly likely to be detrimental to the
former client if used in his new case. King Woolen Mills Ltd (formerly known as
Manchester Outfitters Suiting Division Ltd & another v M/s Kaplan & Stratton
Advocates. The advocates had acted for both the lenders (respondents) and for the
borrowers (appellants) in a loan agreement. When a dispute arose, the appellants
brought an application to restrain Kaplan Stratton from acting for any companies
associated with the lenders. The court allowed the application and the learned judge
stated that “I have no doubt in my mind that the respondents will consciously or
unconsciously…use the confidential information acquired from the appellant…The
 result will be that the appellants will suffer great injustice and prejudice during the trial
of the main suit.” Vicarious representation means that all members of a firm are
treated as though they have represented a client. The rationale behind this is that
advocates are more likely to discuss amongst themselves the matters that they are
handling.
- Advocate cannot act as a witness.
Exceptions
- Informed consent of the client
- Information barriers
- Substantial common interest
If an advocate breaches his duty to avoid conflict there are penalties that may be levied
against him by the LSK the Advocates Complaints Commission s53 AA and the CJ.
Conflict between the duty to the court and the duty to the client – the duty to the court takes
precedence. The advancing of client’s interest must be consistent with the advancing of the
advocate’s role as an officer of the court.
Confession of guilt to the advocate – LSK Professional conduct and etiquette rule 20(b)
states that the object of privilege is so that the client can confide fully and without reservation
to the advocate. In criminal trials it is not about innocence, but if offence has been proven by
the prosecution. Art 50(2)(l) protects against self-incrimination
The mere confession of guilt does not preclude one from representation. The advocate is
under a duty to do all he can for the client without deliberately misleading the court.
The advocate may object to the competence of the court, the form of indictment, the
sufficiency/admissibility of evidence. He may NOT suggest that someone else committed the
offence or call evidence he knows is false. Cannot make a case inconsistent with the
confession.
Non-clear confession – inconsistent statements by a client to advocate before and during
proceedings. Pointers to guilt but which are not a clear confession.
The Cab Rank rule
An advocate is obliged to accept a brief unless he has good reason for refusing to do so.
The rationale behind this is that every person is entitled to legal representation in a court of
law. Advocates are public servants and may be called upon just as a doctor may be called
upon to operate. It is derived from the concept of taxis waiting in a taxi rank for potential
clients. Basically, a cabbie cannot turn away a fare-paying passenger (subject to limited
exceptions).
Application in Kenya – applicable through the following laws
- Right to justice for all under article 48
- Right to legal rep for arrested persons by an advocate of their choice – Art 50
- Rule 6 code provides that the cab rank rule may be waived if there is a conflict.
When you cannot decline brief
- Thinks the client has limited chances of success – you cannot assume the role of a
judge, it undermines the constitutional presumption of innocence
- Does not think much of the client as a person
 - Thinks the facts of the case are unsavoury.
When you can decline brief
- If the client cannot afford the fee
- If the advocate has been consulted by the other side
- If the advocate has confidential information on the other side
- If he does not have the necessary skill or experience to conduct the case
competently
- If he has too much work and will not be able to handle the brief well.
- If an advocate is already acting unless the advocate gives his consent, has refused
to act further or the client has withdrawn instructions from the other advocate.
- The client wants to pursue the case just so as to injure the other party
- The client is not giving clear instructions.
Advantages – access to justice for all, provides justification for defending people the public
do not like, even those accused of the most heinous crimes will be represented.
Disadvantages – no mechanism in place to ensure compliance, and advocate who feels
forced to represent is unlikely to do their best.
Recusal of judicial officers
There is a requirement of recusal based on any appearance of bias. Rationale – right to fair
trial 50(1) and confidence in the judiciary.
Test Kamplesh Pattni v Republic – objective test based on the reasonable apprehension of
bias by a fair-minded and independent individual with knowledge of all the facts.
Advocate needs to consider utmost tact – remember judicial officers are human and do not
like to be told in open court. They still need to maintain objectivity in considering application
for recusal. Inform the judicial officer in advance out of courtesy in chambers.
Grounds for recusal
Rule 5 of the JSCCE sets out the circumstances under which a judicial officer must recuse
themselves. These situations arise when there is reasonable apprehension that there is a
question regarding his impartiality. Impartiality is of concern where the judicial officer:
a. Has a personal bias or prejudice concerning a party or his advocate;
b. Has served as an advocate in the matter in controversy;
c. His family or a close relation has a financial or any other interest in the proceeding;
d. His spouse, or a person related to either of them or a friend is a party to the
proceeding;
e. Has personal knowledge of disputed evidentiary facts concerning the proceedings; or
f. Is a party to the proceedings.

(i) Kinship or previous connection – related to a party or has been previously

connected with the case.
(ii) Bias case Locabail (UK) Ltd. v Bayfield Properties Ltd, where the court
stated that: “Our legal system really could not work properly if judges who had
previous experience and expertise in a particular field were excluded from
subsequently putting that experience and expertise into practice in a case where
it might be most needed
Note that if you abuse your right to apply for recusal, and if in doing so wilfully insult the
court, you may be summarily committed to contempt of court.
Attorney General vs. Anyang’ Nyong’o and Others [2007] 1 EA 12 as follows:
“The usual procedure in applications for recusal is that counsel for the applicant seeks a
meeting in chambers with the Judge or the Judges in the presence of the opponent. The
grounds for the recusal are put to the Judge or Judges who would then be given an
opportunity, if sought, to respond to them. In the event of the recusal being refused by the
Judge, the applicant would, if so advised, move the application in open court.”
Uhuru Highway Development Limited vs. Central Bank of Kenya Limited & 2 Others Civil
Appeal No. 36 of 1996 where the Court expressed itself as hereunder:
“A Judge of the Superior Court runs his court in his own way and he is not under the
directions of the Chief Justice in regard to the findings or observations on any matter before
him.”
You cannot apply to another judge to prevent a fellow judge from acting.
If directed to draft an application for recusal it should be by NOM + supporting affidavit
brought under Article 50(1) and 25(c). If all else fails you can go for constitutional petition
77(9) guarantees an impartial and independent court.
Some grounds may be:
- The judge was connected to the previous case
- The applicants have apprehension, on reasonable grounds that the judge will not
render fair hearing
- That it is just and necessary for the judge to recuse himself.
Philip Tunoi & another v JSC 2016 eKLR quoted Porter v Magill 2002 “the question is
whether the fair minded and informed observer, having considered the facts, would conclude
that there was a real possibility that the tribunal was biased”.
Exceptions: Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others doctrine of
necessity safeguards the administration of justice.

6. DIMENSIONS, RULES AND PYSCHOLOGY OF ADVOCACY

Dimensions
Dimension 1 – the fact finder (judge) is not being asked to unearth the truth. In adversarial
system the judge does not descend into the area. You are seeking to get an opinion
favourable to your client Advocates primarily are trying to persuade the fact finder to arrive at
an opinion in the Advocate’s favour. The court process is not a duel but a controlled
atmosphere for making of presentations.
Dimension 2 – human animal is far more video than audio. 60% of a message is conveyed
by body language and visual appearance, 30% by tone of voice and only 10% through
words. If you see something connected to what you hear, you will remember 50% if you hear
only, you will remember 10%. Advocates must dress well, voice projection, smile, laugh and
joke, correct posture, appear sincere at all times and keep eye contact. Use visual aids such
as plans, photos, maps.
Dimension 3 – people do not like lawyers – stick to the truth, do not be manipulative and use
simple plain unintimidating language
Dimension 4 – time – all people involved have other things to do – being concise is a secret
weapon.
Rules
1.Don’t express your personal opinion in court.
- its your client’s case, not yours. Do not detach your role as an advocate and address the
court as a man. Avoid saying “I think” and start saying “the evidence shows, it has been
found, experience has shown, all reasonable indications point to, measured against the
standard of”.
2.Don’t testify from the bar.
- giving evidence makes one liable to being cross examined
3.In submissions speak only of what was touched on in evidence.
- specifics that needed evidence ought to have been testified about. Do not talk about things
that did not come up in pleadings or in trial.
4.Don’t “PUT IT TO” the witness.
5.Never refer to Criminal record (unless it was brought up or was likely to be brought up) or
settlement offers.
- unless past criminal record is relevant to the trial and so you need to minimise its negative
impact by bringing it out first.
- offers of settlement are always on without prejudice basis.
6.Never put words into your witness’ mouth.
- evidence has to always come from the witness. Putting words in witnesses mouths closes
out giving of detailed evidence.
Psychology of advocacy
The process of arriving at an opinion by the judge involved both thinking and feeling. Judges
are human.
You want to lead the fact finder along the garden path of the theory of your clients case.
Tips:
- Be likeable consistently – take your nice side to court and do not be pompous and
snap.
- Try and get people to be sympathetic to your cause because they will listen willingly,
give kind interpretation to what you say, feel reluctant to deny what you ask, feel
inclined to overlook mistakes. Mentally try and put yourself in the judges seat.
- Rule of equals and opposites – for every push you make there is an equal and
opposite push – invite don’t demand, suggest don’t insist.
- First person plural – allows the fact finder to feel included its about we not they. We
are here for this case not the court is listening to the case. Tell his honour or tell the
court.
 - Preparation is key – deal with weaknesses in your case beforehand to mitigate their
impact. Lay the right foundation
- Be an honest guide – present your case in an honest, sincere manner. You are a
professional with professional responsibility and professional pride. In the first 20
mins of talking, the fact finder should have already trusted you. Don’t ask the judge to
believe the unbelievable, do not misquote evidence, come across as fair and keep
objections to a minimum.
- Demonstrate competence – refer to statutes, case law, regulations – do not state “ I
leave it to the court” it has its own workload.
- Listening – its an important skill to listen to the witness, if possible have someone
else take notes so you can focus on listening.
- Know when to stop – when you make a wrong statement stop and say let me take
that again, let me rephrase etc
- Repetition – should be used sparingly and only in certain instances like in
submissions to emphasise a theme after every sub-heading
- Show the way home – what do you want the court to do for you, what is the goal?
Make it easier for the court to make the decision.

7. PREPARATION FOR TRIAL (PRE-TRIAL ADVOCACY)

Client interview
Objectives
- Why is the client here? What do they want to achieve?
o You need basic information to open a file, advise on costs
o It’s not just information gathering to deal with a legal problem, it’s about
responding to the person
o It’s a professional but personal relationship. The client interview established
the inter personal dimensions between a lawyer.
o You still need to identify issues to obtain sufficient information
o Determine the client’s objectives and advise on them
o Prepare way for further action on the client’s behalf.
- Interview process – WASP method
o Welcome – meet, greet, seat. Take notes but maintain eye contact and
explain why you are taking notes. Discuss costs.
o Acquire information - let the client do the talking. Establish a report be
empathetic but probe for details and check the facts.
o Supply information – give counsel from prior knowledge and experience using
a language the client understands. Give structured advise and confirm that
they understand.
o Part – Agree on an action plan moving forward, establish channels for further
contact and explore legal and non-legal options. Establish when you will next
speak/meet and set deadlines for tasks
- File should have
o Details of client’s personal information
o Events leading to the meeting
o Tasks for the lawyer and the client
o Advice given and to be confirmed.
It is important that the client participates throughout the issue. Reduces potential client-
lawyer conflict. Increases client satisfaction and they are usually more satisfied in the
outcome.
- Interview environment
o One that avoids interruption like a board room or meeting room
o Lawyer should appear organised and uncluttered
o Have a comfortable seating arrangement, not one that is intimidating.

Research and documentation

- Who has the information you need?
- In what categories can the information be classified
- Who are the potential witnesses? Eye witness, expert witness?
- Does the other party have a lawyer?
- Are there forensic aspects to the case?
- What physical evidence is available?
- Research – keep it within a reasonable time frame, restrict scope to clients need, be
relevant within local jurisdiction and anticipate the adverse side.
- Documentation – store information securely, label well, determine what needs extra
security and have summaries.
Information categories
1. Personal information
2. Other parties including lawyers who previously acted
3. Witnesses
4. Events
5. What the client wants
6. Previous advice and assistance
7. Existing legal proceedings.
Demand letter
- Summarise what the client’s case is
- Substance of the claim they are making
- What are you demanding from the other party
- Determine the mode of delivery
- Plan for the next step in case the letter is ignored or the offer for negotiation is made
Negotiation Principles:
a) What is your client's case?
b) Your client remains your client.
c) Are they required by the applicable law/rules?
d) The cost/benefit analysis for choosing negotiations.
e) Have a time frame: cannot go on forever.
f) Plan B in case they fail.

8. THE OPENING STATEMENT

The advocates first opportunity to speak directly to the court about the merits of the case.
Statutory basis
- Civil – CPR order 18 rule 2 on the day of the hearing the party with the right to begin
shall state his case.
- Criminal
o or prosecution – s300 CPC prosecution shall open the case.
o For defence – s307 CPC defence will state facts or law on which he intends
to rely.
Why?
- It provides a roadmap of where the advocate intends to go. It helps create a mental
image the judge holds as they hear evidence and it reduces confusion in flow. This is
the opportunity to advance your case.
How to conduct a good opening statement
First you introduce yourself and who you act for, introduce the opposing side.
1. Start Strong – To accomplish this, start with a short statement that gives the judge a
capsule of the case in two to three dynamic statements. What has brought you to
court e.g. you want a licence revoked, we are here to seek an injunction.
2. What you will prove – all the things the opposing side did.
3. Have a theme – This is an overall point that runs throughout the presentation. It is a
short, simple concept that states the crux of your case. Ask yourself what is the case
about, why is it important, explain it in 30 words or less. A theme is crucial as most
people forget particulars of an oral presentation very soon after hearing but if there is
a theme, the listeners are likely to remember it. To emphasize your theme bring
attention to it in the introduction and reemphasize it when you describe key pieces of
evidence and address it again in the conclusion. 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.
4. Don’t give the judge unconnected facts – when people receive random data or
unconnected facts, it seldom leads to understanding or knowledge. Do not quote law
in your opening statement.
5. Tell a story – present a ‘word picture’ of the facts. Telling a story is one of the most
persuasive means of communication. This is done based on the information and
evidence you have. It should have a beginning, middle and end. People tend to retain
things they hear first, so it is important to start strong. The middle is where you
provide facts in a sequenced order. The end should be dramatic and connect to your
opening. Give call to the judge to make the right and just decision. Know the
witnesses and the evidence on both sides.
6. Good facts and bad facts – Whatever is a good fact for you is a bad fact for them and
vice versa. Revealing your weaknesses helps diffuse and mitigate.
7. Use tools of persuasion – passion as well as reason must be used, play on human
behaviour and expose the flaws in the opponent’s position. Communicate your
passion and logic in words the judge will understand. Talk in the present tense,
repeat words and your theme, rule of threes – info is best understood when
presented in groups of three, change the tone and speed of your voice, use rhetorical
questions, use visual aids and talk with authority.
 8. Primacy and Recency – that which is said first is remembered best and that which is
said last is remembered best.
9. Avoid legal talk – use every day language.
10. End strong - What do you want the court to do – e.g. grant a permanent injunction.
Ingredients of an opening statement
a) Introduction – brief introduction of the advocate and the parties, short description of
points to be covered and introduction of the theme. Sign post the topics you will
cover.
b) Story – “We will prove the following facts” bring out facts that support key elements.
Explanation of the charge and relate the facts to the law.
c) Relevance to key evidence – refer to credible witnesses and the testimony the will
provide.
d) Conclusion – conclude on a high note using the theme again as the core of the
conclusion. Explain what verdict you will request at the close of the trial.
Communication techniques – National Institute of Trial Advocacy
- Use appropriate language and vocabulary
- Demeanour
- Eye-contact
- Voice projection
- Pace, cadence and silence
- Facial expressions
- Posture
- Avoid distracting gestures.

9. EXAMINATION IN CHIEF
Examination in chief is covered by Part IV of the Evidence Act (sections 148-160)
Statutory basis – Order 18 Rule 3 evidence to be taken orally in court.
Section 300 CPC – prosecution open the case against the accused and call witnesses and
adduce evidence in support.
Examination-in-chief is the process of calling witnesses to support the elements of your
case. This can be done through the witnesses’ own testimony, or through items of evidence
(objects or documents). Witnesses rely on memory. First tell the whole story-then return to
emphasize.
The essence of the examination-in-chief is to lead the witness from given point in time,
taking him through the sequence of events step-by-step to a later point in time. Let the
witness present his version (‘tell his story’) in chronological sequence without any diversion
or detailed explanations- once the judge has heard the outline of the story, you can return to
the specific events. Ensure that the evidence present in court should be legally sufficient to
meet the burden of proof.
Purpose – introduce undisputed facts, enhance likelihood of disputed facts, lay foundation
for introducing exhibits, reflect on witnesses credibility.
Make sure to use language the witness understands, keep eye contact, project your voice,
keep a good pace and posture.
In pre-trial preparation you will have prepared a witness sheet for each of the witnesses you
intend on calling. You may prepare questions based on this and ensure each important point
on the statement is asked.
The essential purpose of leading the witness in-chief is to ensure that the witness deals with
the issue or elements identified in your trial plan (may be the elements of a crime/defence).
His manner of testifying must be persuasive. The key is to remember that your witness’s
testimony paints pictures in the mind of the judge – if that picture is a dull summary in black-
and-white, it will be much less persuasive than a vivid, dramatic rendition in technicolor.
Always go chronologically and know your objects with each witness. A witness who is at
ease, to whom you gave smiled and gently settled with clear opening questions is more
likely to say what you require.
- Leading the witness
 The core skill in leading a witness from a given starting point to a pre-
determined end-point is the simple sentence. “What happened next?”
 Remember the acronym ‘D.T.P.A?’ (DATE-TIME-PLACE?-ACTION?) as a
device for starting your examination-in-chief of a witness.
 Counsel: Mr. Jones, on Sunday 1 April 1992 (date), at 2 o’clock in the
afternoon (time), where were you (place) and what were you doing (action)?
 Jones: I was walking in Sleep street going towards Down Street in Umlazi.
 Counsel: What happened next?
 Jones: [Continue until basic story is completed – then return to deal with
certain aspects in details]
 Deal specifically with any weaknesses in the witness’s version (defuse
landmines)
 Finally, at the conclusion of the witness’s evidence, indicate to the court that
you have finished. Never conclude your evidence with an open-ended
invitation to the witness to add to his testimony, such as: “Is there anything
else you would wish to tell the court?” This is a recipe for disaster, as you
never know the witness will come up with.
Leading questions are not permitted in examination-in-chief.
Non-leading questions begin with – who, what, why, when, where, how, please describe?
These are examples of open questions. [TIP: 4 WIVES/1 HUSBAND]
Closed questions are either word choice questions – “was the man tall or short or average
height?” or yes/no questions – “was the man tall?”. Only ask closed questions after laying
your foundations. Also, be careful not to suggest the correct answer with your voice. Note to
provide a genuine choice and not disguise a leading question “was it so dark you could not
have seen anything, or were you able to see well enough to see the burglars face?”
Be careful not to overuse “what happened next?” instead piggyback by using part of the last
answer in the next question.
Look at the judge’s pen – make sure your questions are at the pace of the judges writing.
You may come up with signals with the witness to indicate when the witness should
complete a statement and then stop or to continue with his answer.
Both the lawyer and the witness must project their voices and speak in a clear, audible
manner. Also speak slowly and pause between submissions –the court also needs time to
consider the submissions made. Note that if your witness is inaudible this will be noted in
the official record (proceedings), any physical demonstrations in court shall be described
accurately by the advocate, for the record.
- Order of calling witnesses
Your trial strategy (overall plan) will determine the order in which you call your
witnesses. In some cases, you may want to call your best witness first, because the
other witnesses merely corroborate his version; in others you may call your best
witness last in order to leave a strong, positive impression in the mind of the court.
In criminal cases, the accused must be called first, or else a negative inference may
be drawn by the court.

- Refreshing the memory of the witness during examination in chief

If your witness cannot remember a portion of his evidence when testifying, you may
ask him if he wishes to refresh his memory from his statement (or note book or other
document). The refreshing of your witness’s memory may be crucial to your case, as
without the forgotten.

- Leading expert witnesses in chief

Before leading your expert witness on his findings, you have to first establish the
witness’s credential as an expert. Only once this has been done, may the court have
regard to his opinion. His credential may be established by virtue of his academic
and professional qualifications and previous experience, or by previous experience.

- Hostile witnesses
It may happen that a witness you have consulted with for trial suddenly tries to
undermine your client’s case once he or she is testifying in the witness box. Should
this happen, the trial lawyer has to decide to what extent the witness’ evidence will
hurt his client’s case if it is left uncontested. The options are:
 To merely stop evading the witness once the antipathy towards your case
becomes apparent; or
 To prove the witness’s inconsistent prior statement against him; or
 To apply for the witness to be declared a hostile witness and if the application
is successful, to cross-examine the witness.

- Objections
The general rule is only to formally object if it is really necessary. If your opponent
asks leading questions during his exam in chief you should warn him a few times by
a whisper before standing up to object.
If you must object just stand up the court will direct its attention at you and your
opponent will sit down. You may then state the basis of your objection. There is no
need to yell objection!

- Mannerisms
Whilst leading your witness, try to eliminate mannerisms that may irritate or distract
the court, such as:
 Clicking you pen;
 Smacking your lips;
 Jingling your keys;
 Putting a hand in your pocket while leading the witness: or
 Repeating your witness’s answer immediately after it is given.
10 commandments of examination in chief
1. A bold start is important
2. Be prepared
3. Know your audience
4. Thou shall not go on a fishing expedition
5. Do not ask leading questions
6. Thou shalt use piggy-back questions – using the answer used in the previous
question to ask the next question. It helps create a chronological order.
7. Thou shalt not ask stupid questions.
8. Thou shalt not argue, just ask the question. Do not attempt to force a favorable
answer.
9. Fake sincerity
10. The final question should be the most important
Section 149 of the Evidence Act which states that a leading question is any question
suggesting the answer which the person putting it wishes or expects to receive or assumes
the existence of disputed facts as to which the witness is yet to testify. Section 150 of the
EA states that a leading question must not, if objected to by the adverse party, be asked in
an examination in chief or in a re-examination except with permission of the court. The court
will permit a leading question on matters which are introductory or undisputed or which have
in its opinion been already sufficiently proved or have been consented to by both parties to
save time. However, leading questions may be asked in a cross examination per section 151
EA.
The general rule at common law is that a witness cannot be asked in chief whether he had
formerly made a statement consistent with his present testimony. This is referred to as the
rule against self-corroboration. Two exceptions to the rule are where the complaint should
have been made voluntarily and where the complaint is made at the first opportunity after the
offence.
10. CROSS EXAMINATION
Statutory basis
Civil Procedure Rules – Order 18 Rule 6
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.
Section 148 a witness to character may be cross examined. Section 151 allows the use of
leading questions in Cross Examination. S153 may be cross examined on previous
statements reduced intro writing. S154 may be asked questions to test accuracy, veracity or
credibility.
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”. Section 307 talks
about the right of an accused to be examined.
Purpose – enhance your case, detract the opponent’s case, discredit evidence given in
chief, discredit witness as a person, reflect on credibility of another witness.
There are at least two different types of cross examination.
1. Supportive (Concession Based) Cross – Examination: This type of cross is
employed when you want to ask questions and get answers that support and
advance your case. In a supportive cross, you won’t use your questions to attack,
pillage and plunder the witness. Instead, you use cross examination to obtain
favourable information, for example admissions, fill-in-the-gaps in the story or facts
from the witness. If you can develop favourable evidence from the opposition’s
witness, you can then argue, “their own witness said (insert the testimony favourable
to your position).” It adds credibility to your evidence from an opposition witness;
2. Discrediting Cross – Examination: this occurs when you attempt to discredit the
believability of a witness’ factual testimony by showing that it doesn’t jibe (not
matching) with common sense and/or with what others say.

(a) Discuss the rules that an advocate must adhere to in order to minimize the
problems and perils of cross-examination and execute it effectively.
The objective of cross-examination is to ensure that your client’s version of events is
preferred to the version of the witness you are cross-examining. If you are acting for the
accused in a criminal case, your aim is to ensure that at the conclusion of your cross-
examination of the state witness, your client’s version remains reasonably possibly true. In
civil cases, your client’s version must be the more probable version at the conclusion of the
cross-examination.
- One tactic to create doubt in the mind of the court is to obtain concessions from the
state witness.
Defence counsel: Sgt Jones, I’m sure you will agree me it is not easy to identify a
person by moonlight?
Sgt Jones: It’s not easy.
Defence counsel: And you only saw the person who jumped over the wall for a fleeting
moment?
Sgt Jones: I suppose so.
(b) Give an outline of the critical rules or warnings regarding what an advocate
must not do in re-examination.

- Make statements supporting your client’s version, do not ask open ended questions

Prosecutor. When the deceased stood in front of you, you could see he was drunk –
correct?
The advantage of putting statements instead of asking questions is that you restrict
witnesses to merely confirming or denying assertions put to them. This way, you
 keep control of the witnesses, and give them very little scope to give detailed
responses.

Although the statement plus ‘tail’ is your main cross-examination device, open-ended
questions may still be used during cross-examination for tactical purposes. However,
only use an open-ended question if you are sure that the witness’s answer cannot
hurt your case.

- Basic cross-examination technique

(i) Use a cross-examination sheet (A4 paper divided into two) to write down
exactly what the witness says in examination in chief on one side and note
items for cross examination on the other side. Note down what the witness
says in verbatim and take note of pauses, hesitation etc. You need not write
the questions put to the witness.
(ii) Ask yourself if the witness has hurt your case? If so, highlight the points on
the cross-examination sheet the parts that hurt your case. Then cross the
witness to try nullify or reduce the harmful effect of the damaging evidence
e.g. try get the witness to concede that he may have been mistaken.
(iii) Ask yourself if the witness can help my case? For example, can you elicit
testimony from this witness that will strengthen the probabilities in your
client’s favour? If the witness clearly does not have the potential to help your
case, decline to cross examine by saying: "I have no questions for this
witness. Your Lordship.
Classic format
1. Start friendly
2. Affirmative questions that build up your case not destroy opponents
3. Information that cannot be controverted
4. Information that challenges
5. Hostile information that confronts the witness directly.
Make sure to use language the witness understands, keep eye contact, project your voice,
keep a good pace and posture.
Cross-examination court craft
i. Listen to the witness using the L.A.E.R formula
Listen: Listen carefully to the answer given by the witness you are cross
examining, ensuring that you fully understand the answer.
Analyse: Consider the choice of words, any hesitation, and information
volunteered that was not requested.
Evaluate: Decide what the effect the answer given has on your case-does it have
the possibility to hurt or help your case?
Respond: In light of these steps, you must decide in what direction your cross-
examination of the witness will continue, or whether to end the cross-examination
at that point.

ii. Frame your question to elicit only one item of information at a time
Counsel: Is it not correct that you stood at the door for five minutes before
entering and stabbing the complainant?
Witness: Yes
 (Does this mean the witness has agreed with all the four allegations contained in
the question?)

iii. Do not formulate sloppy or imprecise questions – you must ensure that the
question posed only permits the answer or range of answers you intend.
iv. Maintain your demeanour – keep a poker face. Show no outward signs that the
answer has hurt you
v. Do not be enticed into arguing with the witness – focus on your cross-
examination objectives.
vi. Watch the judge’s pen – pace your questions in cross-examination to keep up
with the judges writing speed (unless your cross requires a quick follow up
question).
vii. Never ask why – this is an open-ended question and may be damaging.
viii. Put forward your client’s version and see if the witness contradicts, modifies or
otherwise impacts your client’s version. Put your client’s version after first
highlighting your client’s version as being more probable than the version of the
witness being cross-examined
ix. Refrain from asking one question too many – when you strike oil, stop digging.
Defence counsel: Who do you say bit off the plaintiff’s tongue?
Eye-witness: The defendant did
Defence counsel: Did you actually see the defendant bite off the plaintiffs
tongue?
Eye-witness: No, Sir, I did not.
(At this point, defence counsel should have ended his cross-examination and
have sat down, but he did not).

x. Repetition. The most common forms of repetition used during cross-examination

are:
o Repeating the answers for the witness you are cross-examining;
o Repeating the question put to the witness during cross-examination;
o Asking the witness under cross-examination to repeat a portion of his
evidence in –chief; and
o Repeating the witness’s answers to questions put to him in cross-
examination.
This is an irritating mannerism that must be avoided.
Sometimes, counsel may repeat the witness’s answer as a tactical ploy, for
example, to indicate a disbelief at a far-fetched answer. Also, asking to repeat a
portion of exam in chief is ok where you think the witness fabricated evidence so
asking again may lead to a different version.

xi. Indicate relevance where the court tries to get you to abandon your line of
questioning.
xii. Do not interrupt the witness – let the court intervene to reprimand the witness.
You do not want to seem like you are badgering the witness or that you are afraid
of the full answer.
Cross-examination rules
1. Get in, get what you want and leave – do not ask excessive questions
2. When you get the answer you are looking for, stop asking questions – do not allow
witnesses to backtrack
 3. Never ask a question to which you do not already know the answer to. Cross is not a
fishing expedition – the purpose is to draw attention to your case and make the judge
see it from your perspective
4. Ask leading questions – allows you to control the witness/narrative.
5. Never ask the witness to explain/why – they will come up with something that may not
be helpful to your case.
6. Do not ask conclusionary questions
7. Never ask the witness for help – “surely you cannot be certain of the identification, I
mean it was really dark, that’s fair isn’t it?” – look unfazed by devastating answers.
8. Ask one question at a time – it avoids confusion and lengthy explanations.
9. When putting your case, tell the witness he disagrees with it.
10. Confrontations may be necessary – bounce off what the witness says for rhythm.

Cross-examination ethics
o Attacking the character of a witness – it is permitted to a certain level to aid in
a fair trial.
o Confusing or misleading cross-examination – you are entitled to object if the
cross of your witness is either deliberately or unintentionally confusing or
misleading e.g. the cross-examiner assuming a fact which is not yet in
evidence.
o Abusive cross-examination – the court has a duty to protect witnesses from
abusive cross-examination. Apart from it being unethical, it also carries the
danger of the loss of the sympathy for your case.
o Contradictions and normal discrepancies – some discrepancies are normal it
is unethical to draw adverse inferences as a result.

11. RE-EXAMINATION
After a witness has been cross- examined, the trial lawyer who led the witness in-chief has
the right to re-examine the witness (there is no obligation to re-examine). Sometimes re-
examination can highlight to the court the areas you think are the weakest in your witness
and by not doing it you may make it look as if you feel your witness has done well even
where he hasn’t.
The purpose of re-examination is to give the lawyer who called the witness an
opportunity to lead the witness again in order to:
 Clarify evidence that has been left in a confused state after cross-examination or;
 Place in context evidence that may have left the court with a mis-leading impression.
One circumstance for re-examination is where the cross has opened up a new area for
exploration which you would not have been allowed to explore in an examination in chief.
A three-stage approach to re-examination would be salvage, clarification, massacre –
if your opponent in cross opened the door, take advantage here!
Defence Counsel: Did you actually see the defendant bite off the plaintiff’s tongue?
Eye Witness: No, sir, I did not.
Defence Counsel: Thank you. I have no further questions for you.
Re-exam: You told the court the defendant bit off Ps tongue, how do you know
this?
Witness: I know this because I saw the defendant spit the tongue out.

Re-examination procedure – while your witness being cross-examined, make notes about
items of evidence that are left confused or incomplete during cross-examination. In re-exam
it is accepted that you may bring the witness being re-examined to the relevant point in
evidence by repetition or leading question.
Things to remember when re-examining
 Re-examination is confined to issues that were covered in cross-examination.
Should you wish to ask new questions beyond this, you have to seek court’s leave.
 Choose your words carefully so that the witness knows exactly what the re-
examination intends to focus.
 Do not ask questions in re-examination unless you are sure the witness knows the
answer.
 Do not ask leading questions during re-examination.
12. CLOSING ARGUMENT
Statutory basis
- Civil – Order 18 Rule 2 and 3 – the party beginning shall have the right to address
the court at the conclusion.
- Criminal – s306/s311 CPC if accused does not intend to give evidence then
prosecution may sum up.
S307 the accused may sum up his case after examining witnesses.
Why?
- To consolidate all the evidence that has been adduced
- To link together the components of the trial
- To argue out the case from the client’s perspective
- To make the prayer of what you are seeking.
- It must complement and encompass the evidence in the case.
How?
- Theory – logical movement from fact to conclusion based on admissions by opposite
side, undisputed facts, common sense, credibility of witness and is legally sufficient.
- Theme – important to have it present in closing argument.
- Story – still important as a sum up. It establishes client as the centre of the story,
engages fact finder as the hero to rectify the disruption and save the client from
further injustice.
Elements of the closing argument
1. Conclusion – flows from the evidence
2. Inference – a deduction drawn from a known fact
3. Detail and circumstantial evidence – that was earlier gathered in examination in chief
and in cross-examination.
 4. Analogy – draw from everyday human behaviour.
5. Allusion – a literary reference to add persuasive force
6. Stories – to humanize the client
7. Credibility and motive -comment on and compare the motive and credibility of
witnesses, what came from impeachment? Directly compare testimony that came
from witnesses.
8. Weight and evidence – why one version is preferable to another, why some facts
should be accepted others rejected, why one piece of evidence is stronger than the
other.
9. Demeanour – Delay or refusal to answer question, sudden loss of temper by
witnesses and anything else you observed.
10. Refutation – refute opposing positions by pointing out errors, inconsistencies,
implausibility’s and contradictions.
11. Application of the law – apply law to the facts.
12. Moral appeal – explain how and why your client’s position makes sense. Shared
values, civic virtues and common motivations.
Topical organisation
1. Issues – factual and legal
2. Elements
3. What is the turning point of the case
4. Issue, Rule, Application, Conclusion.
Palmer and McQuoid’s method
1. Issues – what is the issue, legal test applicable
2. Agreed facts – pretrial, admissions at trial
3. Summary of evidence – witnesses, contested evidence
4. Evaluate summarised evidence
5. Factual conclusion
6. Applying law to the conclusion on facts, overall burden of proof.
P- Point of view R- reason E- evidence S-summary
Ethics in closing argument
- Avoid asserting personal belief
- Misstating the evidence
- Misstating the law
- Misusing the evidence
- Appealing to the fact finders personal interest
- Appealing to emotion based on stereotypes, physical appearance

OPINION EVIDENCE
S48 Evidence Act – opinions made admissible if made by persons specially skilled in that
field, such persons are called experts
S49 facts bearing upon opinions of experts are admissible
- General rule is that evidence is largely inadmissible unless an appropriately qualified
expert can give his opinion on a matter requiring expertise. A non-expert may give
opinion on a matter not calling for expertise as a way of conveying facts perceived.
 - Rationale – prevents witnesses from usurping the role of the tribunal of fact which
might otherwise be tempted to accept the opinion as truth rather than draw its own
inferences from facts of the case.
- Expert opinion is admitted because the drawing of certain inferences calls for an
expertise which the tribunal of fact does not possess. It is only admissible on matters
that are not within the experience and knowledge of the tribunal R v Turner. E.g.
psychiatric conditions R v Walker
- Where two or more experts conflict, the judge will look at the sources of knowledge
from which the experts have drawn, in order to decide between the conflicting
testimony.
- There are three requirements that must be met for an expert witness testimony
to be relied upon
i. Expertise – properly qualified in the subject matter, has good practical
experience e.g. someone who has experience and knowledge on drug abuse
through drug projects. Competency must be shown before his testimony is
properly admissible Gatheru s/o Njagwara v R.
ii. Independence – the key is to maintain an impartial opinion even though
you’re called at the behest of one of the parties. If there is a conflict that is
material i.e. you are good friends, the expert should be disqualified.
iii. Reliability - has the technique been tried and tested, has it been the subject
of peer review and publication, its error rate and whether it is generally
accepted, is there sufficient data?
- Duty of assisting the court in resolving facts in issue and arriving at a just conclusion
take precedence over any duties owed to the client.
- Kitismile Mugisha v Uganda – expert opinion is only opinion, it cannot take the place
of substantive evidence.
- The weight to be attached to expert evidence is a matter entirely for the tribunal of
fact
Non-experts
- May give opinion evidence on matters in relation to which it is difficult or virtually
impossible to separate his inferences from the facts on which those inferences are
based e.g. ID of persons, weather, age, speed of a car.
- S50 EA a non-expert can testify to the handwriting of a person if they are acquainted
with the said persons writing.
Ultimate issues rule – prevents both the expert and non-expert witness from expressing an
opinion on the very point that the trier of fact has to decide, namely the ultimate issue.
DOCUMENTARY EVIDENCE
Admissible evidence is referred to as the evidence a court will receive for the purpose of
determining the existence or non-existence of facts in issue. For evidence to be admissible it
must: be relevant, have sufficient weight, have a probative value that outweighs any
prejudicial effect, not adversely affect the fairness of proceedings and not be excluded by
any rules of evidence.
The document itself may be the issue (a will, a contract or a deed) or it may contain
information which a party wishes to put before the court as evidence e.g. correspondence,
expert’s report etc.
A document is subjected to the normal criteria on admissibility i.e. relevance, probative value
and avoidance of prejudice as well as proof of contents and proof of due execution.
S3 IGPA defines document to include any publication and any matter written, expressed or
described upon any substance by means of letters, figures or marks. Today, the word
document means anything in which information of any kind of description is recorded this
includes maps, plans, graphs etc.
Jane Betty v R – the court recognized the use of electronic recording media in the Kenyan
context.
S65(5) EA includes micro-film of a document or the reproduction of images, a copy of a
document or image document derived from the original, a computer print out.
Documents produced by mechanical devices such as cameras, speed guns, video tapes etc
do not purport to be statements by a person but a machine recording the state of affairs –
there admissible.
All documents can either be classified as public documents or private documents.
Public docs s79 all docs forming the acts or records of the acts of a sovereign authority,
official bodies and tribunals, public officers, legislative, judicial or executive whether of Kenya
or of any other country. And public records kept in Kenya of private documents.
Public documents should be certified s80
Two important matters arise with respect to documentary evidence:
i. Proof of contents – at common law, a document was only evidence of its contents
if it was the original document, although in certain circumstances copies or oral
testimony of the contents was permitted. S80 and 81 lay the foundation for
admissibility of certified copies of public documents.
ii. Proof of due execution – proof that the document was written or signed by the
person by whom it purports to have been written or signed.
S64 identifies that proof of documents may be done either by primary or secondary
evidence. Public documents can be proved by secondary evidence s68(1).
For private documents to be admitted it must be proved to be genuine there is also a
requirement that the private document be duly executed (and duly attested where required).
Proof of hand writing can be done through testimonial evidence i.e. testimony of a person
who saw the doc being executed s73. Opinion evidence of a person who is acquainted to the
writing s50.
Comparison of a document usually calls for expert evidence. S71 and 72 state where a doc
requires attestation e.g. a will, it is essential to call one of the attesting witnesses (other
evidence will only be admissible if the attesting witnesses are dead, insane or beyond the
jurisdiction of the court.
Where a party seeks to rely on the contents of a document as direct evidence, he must
adduce primary evidence of the contents. The original document can be in different forms:
signed copies/duplicates, enrolled documents (docs filed in court or other public offices),
admission of contents (where a party admits the contents of a private document)
When can you adduce secondary evidence?
S66 secondary evidence includes certified copies, copies made from the original, copies
made from or compared with the original, counterparts as against parties who did not
execute them, oral accounts of the contents of a document given by some person who has
himself seen it.
- S68(1)(a)(i)(ii)(iii) where a party is served with a notice and fails to deliver the
documents then secondary evidence can be produced.
- S68(c) when the original has been destroyed, lost or when the party producing
having taken all reasonable steps cannot produce it.
- S68(d) when the original is of such a nature as not to be easily movable.
(tombstones, walls, foreign court has custody of the document or required to be
affixed to the wall)
- S68(e) when the original is a public document (can be proved by means of
secondary evidence)
- S68(f) when the original is a document of which a certified copy is permitted by this
Act
- S68(g) when the original consists of numerous accounts or other documents which
cannot conveniently be examined in court.
Extrinsic evidence – general rule it is inadmissible s98 i.e. oral evidence would
contradict, vary, add to or subtract from the terms of the contract. Exceptions s98(i) fraud,
intimidation, illegality, mistake etc can be proved by oral evidence. S98(ii) where the oral
terms are not inconsistent with the terms contained in the document. S98(iii) oral agreement
constituting a condition precedent. S98(iv) subsequent oral agreement to modify or rescind
the terms of the document as long as the doc does not have to be registered. S98 (v) usage
and/or custom exception. S98(vi) facts showing the relation of a document to existing facts.
Admissibility of video evidence s106B – court must be satisfied that
i. the electronic record was produced, fed into or derived from the computer in the
ordinary course of business by a person having lawful control over the computer.
ii. The computer was operating properly or if there was any way in which it was not
operating properly then such malfunction was not of such a nature as to affect the
electronic record or the accuracy of its contents.
iii. Conditions are satisfied by the production of a certificate signed by a person
occupying a responsible position in relation to the operation of the relevant device
or the manager of the relevant activities, identifying the electronic record and the
manner in which it was produced and/or giving the particulars of any device
involved in the production for the purpose of showing that the record was
produced by a computer.