Trial Advocacy - Revision Notes

ATP 104-TRIAL ADVOCACY
TRIAL ADVOCACY
ATP 104
TAUGHT BY: MR.MWANIKI
FROM FEBURUARY 2016
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THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD GAMBINO CLASS OF 2016
Course Description
This course seeks to acquaint the student with experiential learning of law from a skills-
oriented perspective. The aim is to introduce students to the development of legal skills and
the professional approach essential to the practice of law and in particular trial advocacy.
The course focuses on skill areas associated with trial advocacy. A variety of teaching
methods including formal oral and written instruction, demonstrations, interactive group
discussions, moots and other experiential learning exercises and assignments will be utilised
to assist students develop efficiency in all skill areas.
For this purpose, students will be expected to utilize their firm group sessions, class
presentations and moot courts extensively.
The course advisors will endeavor to invite guest lecturers who are experienced in the
practice of law to share their insights with the class on specific topics.
It is emphasized that class attendance is of the essence and save for good cause, it is
expected that every student will attend classes as scheduled on the timetable.
Students are encouraged to consult as much as possible with the lecturers.
They must also, of course, consult a wide variety of legal texts, articles, legislation and other
relevant materials in the course of the year.
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Course Outline
1. INTRODUCTION TO TRIAL ADVOCACY
History of Trial Advocacy

The UN Basic principles on the Role of Lawyers
Key Skills in Trial Advocacy
o Case Analysis.
o Legal Research.
o Legal Writing and rafting.
o People Skills.
o Advocacy/Presentation skills
Trial Advocacy and Formal Sources of Law
Places for Practice of Advocacy - Courts and Tribunals
o Municipal
o Regional
o International
2. QUALITIES OF A GOOD TRIAL LAWYER.

Clarity and order of language.
Honesty and integrity.
Judgment.
Objectivity.
Courage.
Alertness.
Tenacity.
Sincerity.
Humanity.
Hard work.
Professionalism.
3. GENERAL ETHICAL DUTIES OF TRIAL LAWYERS.

Duties to the client.
Duties to the opponent(s).
Duties to witnesses.
Duties to the court.
Duties to the Administration of Justice.
4. COURT ETIQUETTE
Dress
Punctuality
Introductions
Mode of Address
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Behaviour in court
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Witnesses
Court terminology
Perception of bias
Humour in court.
5. CONFLICT OF INTEREST
The Trial Lawyer and Conflict of Interest.

o The “Cab Rank” Rule.
o Exceptions:
Voluntary Disqualification.
Compelled Disqualification.
Judicial officers and Conflict of Interest.

o Voluntary Recusal.
o Recusal on Application by a party.
6. DIMENSIONS, RULES & PSYCHOLOGY OF ADVOCACY

Dimensions
o Trial not necessarily an exercise to discover “the truth”.
o Human animal is more video than audio.
o People don’t like Lawyers.
Rules
o Never express own opinion in court.
o Never give or appear to give evidence yourself.
o Submit only on what was touched on in evidence.
o Never refer to a criminal record or offers of settlement.
o Never put words in the mouth of your own witness.
Psychology of Advocacy.
o Fragility of advocacy materials.
o Being likeable.
o Sympathy rule.
o Rule of equals and opposites.
o First person plural.
o Preparation.
o Being an honest guide.
o Don’t misquote evidence.
o Minimal objections.
o Demonstrate competence.
o Listening.
o Know when to stop.
o Repetition.
7. PREPARATION FOR TRIAL (PRE-TRIAL ADVOCACY)

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Client Interview.
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Research and Documentation.

The Demand Letter.

Negotiations.
Case Analysis.
8. THE OPENING STATEMENT

Meaning
Statutory basis
Objectives
Techniques
9. EXAMINATION-IN -CHIEF.
Meaning
Statutory basis
Objectives
Techniques
10. CROSS- EXAMINATION.

Meaning
Statutory basis
Objectives
Techniques
11. RE-EXAMINATION.
Meaning
Statutory basis
Objectives
Techniques
12. CLOSING ARGUMENT.

Meaning
Statutory basis
Objectives
Techniques
13. OBJECTIONS.
Preliminary Objections.
Trial Objections.
14. APPELLATE ADVOCACY.

15. SKELETON ARGUMENTS
16. CONTEMPT OF COURT.
17. ALTERNATIVE DISPUTE RESOLUTION
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Selected Texts
1. Palmer,R. & McQuoid-Mason,D. (2000) Basic Trial Advocacy Skills Durban:

LexisNexis.
2. De Klerk, et al (2006) Clinical Law in South Africa Durban: LexisNexis.
3. Munkham, J.H. (1999) The Technique of Advocacy New Delhi: Universal Law
Publishing.
4. Evans, K. (1995) Advocacy in Court: A Beginner’s Guide New York: Oxford University
Press
5. Hyam, M (1999) Advocacy Skills New York: Oxford University Press
6. Evans, K. (1993) The Golden Rules of Advocacy New York: Oxford University Press
7. Blake, S. (2009) Effective Litigation New York: Oxford University Press
8. Morley, I. (2007) The Devil’s Advocate London: Sweet & Maxwell Ltd.
9. Ross,D (QC) (2009) Advocacy London: Cambridge University Press
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LECTURE 1: TUESDAY 9FEBRUARY 2016- MORNING SESSION (LECTURE HALL

A)
TOPIC 1: INTRODUCTION TO TRIAL ADVOCACY
What is Trial Advocacy?

It is about presenting a case before a dispute resolution forum
Black’s Law online Dictionary 2nded. Def. of Advocacy-“The active support of an issue or the
espousement of a set cause.
Steven Lubet, “Modern Trial Advocacy”-“Trials are held in order to allow the parties to
PERSUADE(emphasis added) the judge or jury by recounting their version of the historical
facts”
A trial can be referred to as the hearing of a civil or criminal case before a court of
competent jurisdiction.
It can also be defined as the judicial examination of the issues in a civil or criminal cause by a
competent tribunal and the determination of these issues in accordance with the law of the
land.
Advocacy on the other hand originates from a Latin word ‘advocatia’ meaning ‘summon to
one’s aid’.
It is a wide concept in itself but can be narrowed down and viewed from a legal perspective
as; the act of pleading for or supporting an idea and wanting the recipient to make his point
of view that of yours.
Trial advocacy can be defined as the understanding of trial rules and procedures and the
effective and successful persuasion of a tribunal and a judge.
Advocacy is a concept that existed even in the Bible.
In Acts 24:1 we find that a lawyer known as Tertullus and some elders brought charges
against Paul before their governor. It can be seen that Paul spoke for himself as was to be
evidenced even later on in the Roman Empire.
Purpose of Advocacy
Advocacy is speaking up for, or acting on behalf of, yourself or another person.
The other person is often receiving a service from a statutory or voluntary
Advocacy Models
1. Self Advocacy
This is where an individual, or group of people, speaks or acts on their own behalf in pursuit
of their own needs and interests - speaking up for yourself.
Speaking up may be difficult because of a disability or illness or simply because people don't
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take service users seriously or think they are incapable of making decisions.
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2. Citizen Advocacy
This is where someone else speaks up on behalf of the service user or helps them to speak
up for themselves. It is based on the idea of a 'valued citizen' (i.e. someone who does not
have a problem getting heard), working with a person who is discriminated against.
The relationship may develop into friendship or just working together to develop the service
user's skills or confidence to manage their own situation.
Citizen Advocates usually come from a recognised and coordinated scheme.
3. Crisis Advocacy
This is where an advocate is found to help with a one-off difficult situation or crisis. The
advocate may be someone who is already a Citizen's Advocate.
4. Peer Advocacy
This is where service users who have experienced similar problems of not being listened to,
may help others to speak up for themselves.
A peer advocate is likely to have a very good understanding of what other service users are
going through.
5. Professional Advocacy
This can mean experts in a professional field, such as lawyers, being commissioned to speak
up on behalf of an individual service user or group.
They may or may not receive payment for acting as an advocate.
6. Collective Advocacy
This is where a group of people, sometimes from very different backgrounds, campaign on
behalf of themselves or others to try and change things.
This could be a national organization or a local one focusing on either national or local issues
What is the basis of advocacy?
Is advocacy about establishing the truth of an issue?

Advocacy is rather about persuasion, it is more about wining than establishing the truth.
Within the rules of course.
The aim of this course should be to try and improve our advocacy skills and to help us try
and develop competence.
It is about mastering rules, rules of evidence, procedure rules, it is about wining but winning
within the rules.
1. Never mislead the court or the Coram whether it be a court or tribunal.

2. Never use sharp practices on your colleagues – things that make an advocate unreliable.
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Like going back on ones word, or hiding files

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3. Always try to think like the court – it is easy to persuade a judge when you now about his
thinking.
To be persuasive, it is a bout certain things such as personal presentation i.e one is selling a
client’s story.
i. One of the elements towards persuasion is about dressing well.
ii. Secondly is about poise and confidence.
iii. Never ever get annoyed with the tribunal or the court.
What is the message? How does one get the audience to listen?
These are things that only come with practice.
What then is the history of Trial Advocacy?
Advocacy is one of the most ancient and honorable of all callings. From time immemorial,
the principle that a person has the right to select another to plead his case has been
recognized.
History also tells us that the earliest people who could be described as “lawyers” were most
likely the orators of ancient Athens who upheld the “legal fiction” that they were merely
ordinary citizens generously helping out a friend in exchange for a fee.
Many of the great orators of Greece and Rome though in a manner differing from that of
modern times, performed the functions of advocates and many of their most famous
orations were composed for that purpose.
However, the first people who could practice the legal profession openly and legally would
have to be the orators of ancient Rome.
i. The Greeks
Among the Greeks, it was not customary for the advocate actually to plead the cause of his
client in court.
The usual custom was for the client to lay his cause before one of the great orators or
writers of the day who would then prepare an oration which the client read or delivered at
the trial.
Before the tribunals of Athens, although the party pleaded his own cause, it was usual to
have the oration prepared by one of an order of men devoted to this business and to
compensate him liberally for his skill and learning.
ii. The Romans

The case was different among the Romans. Apparently, advocacy received a wide
recognition among the Romans than the Greeks.
During the period of the Republic (the period between 509-264BC), it was the prerogative of
the Roman patrician (rich and powerful individual) to render assistance and afford
protection to his dependents and even to others who sought his services and advice.
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For this purpose, therefore, the patrician frequently appeared in the courts to defend the
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cause of his client.

In this way there gradually developed the highest type of Roman advocate-the
patronuscausarum or patron or in modern times, the barrister.
At this time the patron charged no fee for his services, although it was not considered
improper for him to accept an honorarium or gratuity from the client.
Professional Advocacy then rose to an honorable calling and gradually supplanted the
ancient and more directly honorable relation of patron and client.
Similarly, the Romans also recognized the Juriconsult who happened to be the confidential
legal advisor to the Roman people.
He was presumed to be thoroughly versed in the law of the land and he regularly appeared
in a forum with the purpose of imparting information and advice.
Accordingly, the Juriconsult so happened to be an expert in law, and his opinion was highly
valued by his clients, advocates and others employed in the administering of justice.
iii. England
In England, early history shows that justice was crudely and arbitrarily administered.
The village moots, the shire courts and the barons’ courts were the most effective in
administering justice. However, they did so without much formality.
The duties of an advocate were first performed by priests and monks who were believed to
have educational advantages which were more superior to other classes of persons.
Around the beginning of the 14th Century, certain law societies known as Inns of Courts were
organized and they were given the exclusive power to extend a call to the bar and to
prescribe the qualifications of an advocate.
The organization of this Inns marked the beginning of advocacy and the legal profession in
England. The Inns of Courts then later became the great English law schools.
It may be said in general of the early Greek, Roman and English lawyers that they were not
in any manner inferior to their modern successors in the profession.
They were learned in the law, powerful in oratory and debate, zealous in upholding the law
of the land, devoted to the interests of their clients and true to the finest ethics of their
profession. For example, Julius Caesar was not only a soldier but also a learned lawyer and
an orator of distinction.
iv. The Kenyan Chapter

Kenya being a colony of the United Kingdom, the reception clause in s.3 (1)(c) of the
Judicature Act ensured that the practice in England was brought in its entirety to Kenya thus
trial advocacy was offered in law schools in line with England’s mode.
During the colonial period, students wishing to pursue a career in the legal profession could
neither undertake their studies in Kenya nor anywhere in East Africa.
This state of affairs had been deliberately introduced by the colonial government. The sole
aim of the policy was to encourage Africans to train in other professions rather than law
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since it was deemed that all those interested in the legal profession were preparing
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themselves for a career in politics which the colonialists considered a threat to their
existence.
During this era, two segments of law were inherited, that is, the public law and the private
law.
Public law was meant for the people from England and the Private Law was meant for the
Indians.
There was no comprehensive statute regulating the conduct of the advocate hence the
colonial bar identified with the colonial government which benefited much from these.
The regulation of the legal profession in Kenya by an organized group within the legal
profession started with the Mombasa Law Society which was founded in those early years.
The first High Court was established in Mombasa in 1911 and the legal profession really
started at Mombasa. The Mombasa Law Society was a voluntary organization.
When Nairobi was established as a center of commerce and administration and a High Court
established here, the lawyers practicing in Nairobi formed the Nairobi Law Society which
was also a voluntary organization.
The two societies merged sometime in the 1920s to form the law society of Kenya.
Therefore the LSK was born in 1920s.
Currently membership of the Law Society of Kenya is mandatory.
The Mombasa Law society remained in existence as a voluntary body, the Nairobi Law
Society disappeared when LSK was formed but Mombasa Law Society remained in existence
as a voluntary body and remains so to this day.
The Advocates Act and the Law Society Act of Kenya were enacted in 1949. These are the
two pieces of legislation for the regulation of the legal profession.
The LSK Act Cap 18 established the existing Law Society of Kenya as an incorporated body
and made its membership mandatory.
The two statutes remain in force to date, several amendments have been inserted over the
years and the only other statute to be enacted in recent years is the Council for Legal
Education Act Cap 16A Laws of Kenya
The drive to independence shed light on the colonial government and prior to independence
a committee on Legal Education for Students in Africa (Denning Committee) was formed do
deal with the legal education affairs for Africans.
The committee came up with various recommendations which included inter alia uniform
qualification for one to practice law in East Africa.
The qualification of an advocate was a law degree to be obtained from the faculty of law to
be established in Dar es Salaam - Tanzania. The degree was to be followed by a one year
practice at a law school.
The committee further recommended that all British trained students should only be
admitted after undergoing further training in the local laws.
The Law Society of Kenya was of a contrary opinion which suggested that the law school
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should be established under a system of articled clerkship which was to be embraced as an

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alternative to a university degree followed by one year practice training.

The colonial government embraced the suggestion and both modes of entry were regarded
legal followed by a practice training (now referred to as the pupillage programme).
In 1970, a faculty of law in the University of Nairobi was established and consequently the
school of law which was slated as an inn of court. Later, a complaint commission was
established to deal with the complaints against any advocate.
CONCLUSION
Trial advocacy is all about persuasion. It is taught as a fundamental litigation skill in most law
schools and involves strategic and tactical skills.
Trial advocacy is about winning but winning within the rules. It is about mastering
substantive rules, procedural rules and the rules of ethics.
Trial advocacy brings about beneficial outcomes in a way that enables each client to retain
as much control as possible over how it is carried out. An advocate may provide information
and advice in order to assist a person to take action to resolve their own concerns, or may
take a more active role in representing the persons’ rights to another person or
organization.
Trial advocacy is now encompassed in the statutes that recognize the profession such as The
Advocates Act and Rules, Advocates Remuneration Act, The Council for Legal Education Act
and The Kenya School of Law Act.
All these statutes recognize trial advocacy and provide rules on how it is to be conducted in
various environments.
The UN Basic principles on the Role of Lawyers
Adopted by the Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990
Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia,
their determination to establish conditions under which justice can be maintained, and
proclaim as one of their purposes the achievement of international cooperation in
promoting and encouraging respect for human rights and fundamental freedoms without
distinction as to race, sex, language or religion,
Whereas the Universal Declaration of Human Rights enshrines the principles of equality
before the law, the presumption of innocence, the right to a fair and public hearing by an
independent and impartial tribunal, and all the guarantees necessary for the defence of
everyone charged with a penal offence,
Whereas the International Covenant on Civil and Political Rights proclaims, in addition, the
right to be tried without undue delay and the right to a fair and public hearing by a
competent, independent and impartial tribunal established by law,
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Whereas the International Covenant on Economic, Social and Cultural Rights recalls the
obligation of States under the Charter to promote universal respect for, and observance of,
human rights and freedoms,
Whereas the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment provides that a detained person shall be entitled to have the
assistance of, and to communicate and consult with, legal counsel,
Whereas the Standard Minimum Rules for the Treatment of Prisoners recommend, in
particular, that legal assistance and confidential communication with counsel should be
ensured to untried prisoners,
Whereas the Safe guards guaranteeing protection of those facing the death penalty reaffirm
the right of everyone suspected or charged with a crime for which capital punishment may
be imposed to adequate legal assistance at all stages of the proceedings, in accordance with
article 14 of the International Covenant on Civil and Political Rights,
Whereas the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power recommends measures to be taken at the international and national levels to
improve access to justice and fair treatment, restitution, compensation and assistance for
victims of crime,
Whereas adequate protection of the human rights and fundamental freedoms to which all
persons are entitled, be they economic, social and cultural, or civil and political, requires
that all persons have effective access to legal services provided by an independent legal
profession,
Whereas professional associations of lawyers have a vital role to play in upholding
professional standards and ethics, protecting their members from persecution and
improper restrictions and infringements, providing legal services to all in need of them, and
cooperating with governmental and other institutions in furthering the ends of justice and
public interest, The Basic Principles on the Role of Lawyers, set forth below, which have
been formulated to assist Member States in their task of promoting and ensuring the
proper role of lawyers, should be respected and taken into account by Governments within
the framework of their national legislation and practice and should be brought to the
attention of lawyers as well as other persons, such as judges, prosecutors, members of the
executive and the legislature, and the public in general. These principles shall also apply, as
appropriate, to persons who exercise the functions of lawyers without having the formal
status of lawyers.
Access to lawyers and legal services

1. All persons are entitled to call upon the assistance of a lawyer of their choice to protect and
establish their rights and to defend them in all stages of criminal proceedings.
2. Governments shall ensure that efficient procedures and responsive mechanisms for
effective and equal access to lawyers are provided for all persons within their territory and
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subject to their jurisdiction, without distinction of any kind, such as discrimination based on
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race, colour, ethnic origin, sex, language, religion, political or other opinion, national or
social origin, property, birth, economic or other status.
3. Governments shall ensure the provision of sufficient funding and other resources for legal
services to the poor and, as necessary, to other disadvantaged persons. Professional
associations of lawyers shall cooperate in the organization and provision of services, facilities
and other resources.
4. Governments and professional associations of lawyers shall promote programmes to inform
the public about their rights and duties under the law and the important role of lawyers in
protecting their fundamental freedoms. Special attention should be given to assisting the
poor and other disadvantaged persons so as to enable them to assert their rights and where
necessary call upon the assistance of lawyers.
Special safeguards in criminal justice matters

5. Governments shall ensure that all persons are immediately informed by the competent
authority of their right to be assisted by a lawyer of their own choice upon arrest or
detention or when charged with a criminal offence.
6. Any such persons who do not have a lawyer shall, in all cases in which the interests of justice
so require, be entitled to have a lawyer of experience and competence commensurate with
the nature of the offence assigned to them in order to provide effective legal assistance,
without payment by them if they lack sufficient means to pay for such services.
7. Governments shall further ensure that all persons arrested or detained, with or without
criminal charge, shall have prompt access to a lawyer, and in any case not later than
forty-eight hours from the time of arrest or detention.
8. All arrested, detained or imprisoned persons shall be provided with adequate opportunities,
time and facilities to be visited by and to communicate and consult with alawyer, without
delay, interception or censorship and in full confidentiality. Such consultations may be
within sight, but not within the hearing, of law enforcement officials.
Qualifications and training

9. Governments, professional associations of lawyers and educational institutions shall ensure
that lawyers have appropriate education and training and be made aware of the ideals and
ethical duties of the lawyer and of human rights and fundamental freedoms recognized by
national and international law.
10. Governments, professional associations of lawyers and educational institutions shall ensure
that there is no discrimination against a person with respect to entry into or continued
practice within the legal profession on the grounds of race, colour, sex, ethnic origin,
religion, political or other opinion, national or social origin, property, birth, economic or
other status, except that a requirement, that a lawyer must be a national of the country
concerned, shall not be considered discriminatory.
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11. In countries where there exist groups, communities or regions whose needs for legal
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services are not met, particularly where such groups have distinct cultures, traditions or
languages or have been the victims of past discrimination, Governments, professional

associations of lawyers and educational institutions should take special measures to provide
opportunities for candidates from these groups to enter the legal profession and should
ensure that they receive training appropriate to the needs of their groups.
Duties and responsibilities

12. Lawyers shall at all times maintain the honour and dignity of their profession as essential
agents of the administration of justice.
13. The duties of lawyers towards their clients shall include:
(a) Advising clients as to their legal rights and obligations, and as to the working of the
legal system in so far as it is relevant to the legal rights and obligations of the clients;
(b) Assisting clients in every appropriate way, and taking legal action to protect their
interests;
(c) Assisting clients before courts, tribunals or administrative authorities, where
appropriate.
14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall
seek to uphold human rights and fundamental freedoms recognized by national and
international law and shall at all times act freely and diligently in accordance with the law
and recognized standards and ethics of the legal profession.
15. Lawyers shall always loyally respect the interests of their clients.
Guarantees for the functioning of lawyers

16. Governments shall ensure that lawyers
(a) are able to perform all of their professional functions without intimidation,
hindrance, harassment or improper interference;
(b) are able to travel and to consult with their clients freely both within their own
country and abroad; and
(c) shall not suffer, or be threatened with, prosecution or administrative, economic or
other sanctions for any action taken in accordance with recognized professional
duties, standards and ethics.
17. Where the security of lawyers is threatened as a result of discharging their functions, they
shall be adequately safeguarded by the authorities.
18. Lawyers shall not be identified with their clients or their clients' causes as a result of
discharging their functions.
19. No court or administrative authority before whom the right to counsel is recognized shall
refuse to recognize the right of a lawyer to appear before it for his or her client unless that
lawyer has been disqualified in accordance with national law and practice and in conformity
with these principles.
20. Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in
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written or oral pleadings or in their professional appearances before a court, tribunal or

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other legal or administrative authority.

21. It is the duty of the competent authorities to ensure lawyers access to appropriate
information, files and documents in their possession or control in sufficient time to enable
lawyers to provide effective legal assistance to their clients. Such access should be provided
at the earliest appropriate time.
22. Governments shall recognize and respect that all communications and consultations
between lawyers and their clients within their professional relationship are confidential.
Freedom of expression and association

23. Lawyers like other citizens are entitled to freedom of expression, belief, association and
assembly. In particular, they shall have the right to take part in public discussion of matters
concerning the law, the administration of justice and the promotion and protection of
human rights and to join or form local, national or international organizations and attend
their meetings, without suffering professional restrictions by reason of their lawful action or
their membership in a lawful organization. In exercising these rights, lawyers shall always
conduct themselves in accordance with the law and the recognized standards and ethics of
the legal profession.
Professional associations of lawyers

24. Lawyers shall be entitled to form and join self-governing professional associations to
represent their interests, promote their continuing education and training and protect their
professional integrity. The executive body of the professional associations shall be elected
by its members and shall exercise its functions without external interference.
25. Professional associations of lawyers shall cooperate with Governments to ensure that
everyone has effective and equal access to legal services and that lawyers are able, without
improper interference, to counsel and assist their clients in accordance with the law and
recognized professional standards and ethics.
Disciplinary proceedings
26. Codes of professional conduct for lawyers shall be established by the legal profession
through its appropriate organs, or by legislation, in accordance with national law and custom
and recognized international standards and norms.
27. Charges or complaints made against lawyers in their professional capacity shall be processed
expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair
hearing, including the right to be assisted by a lawyer of their choice.
28. Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary
committee established by the legal profession, before an independent statutory authority,
or before a court, and shall be subject to an independent judicial review.
29. All disciplinary proceedings shall be determined in accordance with the code of professional
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conduct and other recognized standards and ethics of the legal profession and in the light of
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these principles.
Key Skills in Trial Advocacy

In Trial Advocacy or a lawyer is one that is possessed of optimum qualities and skills set.
There are distinct skills and qualities that are primary for effective delivery of trial
1. Analytical Skills –ability to examine in details and make sense of heaps of documents i.e
letters, pleadings, statutes, contracts etc.
2. Creativity-the mind and ability to create new ideas and approaches and eliminate
conservatism.
3. Research Skills-The ability to systematically investigate and study materials and their
sources in order to establish facts and reach new conclusions.
4. Interpersonal Skills-Ability to learn and excel to create and foster good working
relationships between people and himself and even among other people.
5. Public Speaking Skills-Ability to speak before a crowd in a clear and crisp manner.
Comfort in addressing the court.
6. Reading and Writing Skills- Ability to draft documents , passages, reports, opinions,
submissions .Cases are won or lost mainly at the pleading stage hence superb writing
skills is essential to all trial lawyers.
7. Logical Thinking-Ability to marry ideas and thoughts in a reasonable and authentic
manner. Ability to decipher situations in a systematic manner and make reasonable
assumptions, conclusions and judgments.
8. Advocacy Skills-Super in client service. The profession is a service industry requiring
honesty, capability and efficiency. Proficiency in handling clients, witnesses, the court
and other consumers of justice. Advocacy skills also involve deep and broad knowledge
in substantive law and procedures. It also involves proficiency in the constitutional
principles and provisions, legal systems, statutory provisions, rules of procedure and
regulations of general applications. It also involves knowledge of time deadlines for
instituting proceedings, legal costs and relevant legal terminologies. Exhibit candour and
reflect professional integrity.
Trial Advocacy and Formal Sources of Law (Tools)
‘Tools of a trial advocate’ refers to the sources of law available to an advocate, the purpose
of which is to facilitate or enable the skillful and effective representation of a client by the
advocate at trial.
There is no single document that contains all the advocacy tools as a whole, instead these
sources of law according to Section 3 (1) of the Judicature Act are; the Constitution,
Statutes/ Legislation, and English Common law and Doctrines of Equity.
Another source mentioned in the Judicature Act Section 3 (2) is African Customary law.
There are other sources of law that are not mentioned in the Judicature Act and these are;
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Religious Laws, General Principles of International Law and International Treaties and
Conventions, and Judicial Precedent.
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These sources can be further categorized as substantive, procedural or ethical.

i. Substantive laws are the body of rules which determine the rights and obligations of
individuals and collective bodies.
ii. Procedural laws are laws which govern the flow of the case such as steps to process
a case. They deal with and lay down the ways and means by which substantive laws
are to be enforced.
iii. Professional ethics rules govern personal, organizational and corporate standards of
behavior expected of an Advocate. The most common ethical virtues emphasized by
the Advocates Act (Cap 16) are; honesty, integrity, transparency, accountability,
confidentiality, respectfulness, objectivity and obedience of the law.
Statutory Sources of Law
a) Constitution of Kenya, 2010

Trial advocates are bound by the Constitution as the supreme law of the land to adhere to
its provisions in all their undertakings.
Articles in the constitution that are significant in trial advocacy include; Article 27, 29, 48, 49,
50 and 51 which recognize; equality and freedom from discrimination, freedom and security
of the person, access to justice, rights of arrested persons, fair hearing, rights of persons
detained, held in custody or imprisoned, respectively.
b) Acts of the Parliament of Kenya

These are rules made by Parliament “either directly or indirectly”. Legislations can contain
both procedural and substantive law.
For example, Section 9 of the Advocates Act contains substantive law on the qualifications
for a practicing advocate, professional and academic qualifications for admission as an
advocate, remuneration of advocates, etc.
On the other hand, the Civil Procedure Act contains procedural law on the proceedings of
civil cases. These rules set down the procedure to be followed.
The Evidence Act Cap 80 of the laws of Kenya enumerates several provisions which are to be
strictly observed and applied by advocates at trial in their practice as well as carrying out
their legal and official duties.
Section 144 to section 166 provides the detailed explanation as to the examination and
questioning of witnesses in a trial is it criminal or civil. It contains rules on examination in
chief, cross- examination and re- examination rules regarding leading questions, questioning
witnesses as to credibility and those related to circumstantial questions to a witness to
support and confirm evidence.
c) Treaties and Conventions

According to Article 2 (6)of the Constitution, any treaty or convention ratified by Kenya shall
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for part of the law of Kenya.

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Generally treaties and international conventions are considered essential sources of law
especially to a trial advocate and in cases where there are matters of international nature or
interstate conflicts.
Treaties and conventions are considered as part of Kenyan law by virtue of the Judicature
Act and as provided by Article 2 (5) of the Constitution of Kenya which states that the
general rules of international law shall form part of the law of Kenya.
These include, the Treaty establishing the East African Community and the United Nations
Charter.
d) County Assembly Legislation

The Constitution under Article 176 provides for county government and it clearly states that
each shall have a county assembly and a county executive. It goes further to state to that
every county assembly must have a decentralized system that is efficient.
Every county must have a county assembly that will have the authority to make its laws that
will enable effective performance of the functions and exercise of the powers of the county
government as is envisaged under Article 185 of the Constitution. Each and every advocate
will also be guided by the laws of the county he or she is in.
In case of a conflict between national and county legislation in respect of matters falling
within the concurrent jurisdiction of both levels of government, the national legislation will
prevail over county legislation, Article 191 of the Constitution of Kenya.
e) Certain Specified Statutes of the United Kingdom

i. Statutes of General Application
The Judicature Act in Section 3 (1) (c) states that, where statutory laws do not extend or
apply to a particular matter, the statutes of general application in force in England on the
12th August 1879, will apply.
However the statutes of general application shall only apply so far as the circumstances of
Kenya and its inhabitants permit.
ii. Delegated/ Subsidiary/ Subordinate Legislation
Non-Statutory Sources
(a) Substance of English Customary Law& Doctrines of Equity

According to Section 3 (1) (c), where statutory laws do not apply, the substance of the
common law and doctrines of equity will apply.
However the substance of English common law and doctrines of equity will only apply so far
as the circumstances of Kenya and its inhabitants permit.
The doctrines of equity are applied where common law provides no or an inadequate
remedy.
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(b) International Customary Law

(c) General Principles of International Law
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According to Article 2 (5) of the Constitution, the general rules of international law form part
of the law of Kenya.
(d) African Customary Law

African customary law is applicable so as long as it is consistent with the constitution.
Section 3 (2) of the Judicature act states that the High Court and Court of Appeal “shall be
guided by African Customary Law in civil cases in which one or more of the parties is subject
to it of affected by it.”
It further adds that the application of customary law shall not be repugnant to justice and
morality, or inconsistent with any written law.
African Customary law is diverse given the existence of different tribes.
(e) Religious Laws
(f) Judicial Precedent
Judicial precedent is grounded on the doctrine of stare decisis which when
translated, means stand by the decision.
Judicial precedents, commonly referred to as case laws, are past court decisions that
create law for judges and advocates to refer back to for guidelines in future cases.
In Kenya, the practice of precedence provides that the decisions of a superior court
are binding to those of a subordinate court.
Further, the judicial decisions from other jurisdictions when relied upon are merely
persuasive in nature. In certain circumstances, a court may refrain from a binding
precedence by;
Distinguishing, a judge states that the facts of the subsequent case are not
sufficiently similar to a previous case.
Overruling, the court decides, in a later case, decides that the legal ruling or
reasoning in an earlier case was wrong.
Revising, where the decision of a lower court is overturned by a higher court.
Decision reached per in curium where the decision was reached at in total ignorance
of the law.
Precedents provide certainty, predictability, convenience and consistency when
being relied upon by trial advocates, since subsequent cases have sufficiently similar
facts to previous cases.
Conclusion
These sources are places which advocates look at for the law depending on the particulars of
the case before them.
On instruction a trial advocate must come to a conclusion that the matter before him/her is
a criminal matter or a civil matter.
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Once he/she has classified this matter then his greatest source of solution to his/her client’s
problem is where to find the law.
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A trial advocate need not only know where to find the law, proper interpretation and skillful
application of the law is a necessity at trial.
Places for Practice of Advocacy - Courts and Tribunals
In law, a trial is when parties to a dispute come together to present information (in the form
of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or
disputes.
The Constitution has categorized courts into two
1) Superior Courts – Supreme Court, Court of Appeal and High Court (Article 162)
2) The Subordinate Courts- Magistrate Courts,Kadhis Courts, Court Martial and Tribunals
set up by parliament (Article 169)
One can also practice in International Court like the ICC
There can also be client presentation in ADR tribunals (Negotiation, Mediation and
Arbitration)
In all of the above the venue can be Municipal, Regional or International
GENERALLY ROLE OF A LAWYER
UN Basic Principles on the Role of Lawyers No. 13:Duties of lawyers to their clients:
1. Advise on legal rights and obligations and working of legal systems.
2. Assist clients in every way and take legal action to protect their interests.
3. Assist clients before courts, tribunals or Administrative Authorities where
appropriate.
To persuade the fact finder to arrive at an opinion favorable to their client, in accordance
with:
i. Substantive Law
ii. Relevant procedural law
iii. Ethics
What the lawyer will be doing-Persuading the fact finder to arrive at a conclusion
favourable to his or her client.
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INTER-RELATIONSHIP OF TRIAL ADVOCACY WITH OTHER FIELDS
Civil Litigation
Civil Procedure Act and Rules
Order 18 Rule 2:Unless the court otherwise orders—

(1) On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the
party having the right to begin shall state his case and produce his evidence in support of the issues which
he is bound to prove.
Criminal Litigation
Criminal Procedure Code, Cap. 75
Sec. 300-Case for the Prosecution

“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.”
Sec. 307 –Case for the Defence

307. (1) The accused person or his advocate may then open his case, stating the facts or law on which he
intends to rely, and making such comments as he thinks necessary on the evidence for the prosecution;
the accused person may then give evidence on his own behalf and he or his advocate may examine his
witnesses (if any), and after their cross-examination and re-examination (if any) may sum up his case
Professional ethics
Ethical duties-To client; fellow advocates; to court; to the Administration of Justice.
Conflict of interest -Declining brief; Circumstances in which a judge ought to recuse himself or herself;
Circumstances in which an Advocate can ask a judge to recuse.
Court etiquette-Court and similar fora
Standards set in instruments like the Constitution.

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LECTURE 2: TUESDAY 16 FEBRUARY 2016- MORNING SESSION (LECTURE HALL

A)
TOPIC 2: QUALITIES OF A GOOD TRIAL LAWYER.
Over the years a number of qualities have been suggested as desirable for a person to be a
good trial lawyer. These qualities can be summarized as follows:
QUALITY EXPLAINATION
1 Clarity This is basically the order of language
Communication is the life-blood of the trial lawyer's profession.
Trial lawyers should be able to put their questions clearly and logically
to witnesses, and when addressing the court, should ensure that they
express themselves with clarity and in a logical sequence.
Obscure or ambiguous questions and arguments presented
disjointedly may irritate the court, and issues not clearly presented
may seriously prejudice a client's case.
A good rule to remember is always to keep questions and sentences
short, and to speak slowly.
2 Honesty Honesty and integrity are obvious attributes required of trial lawyers
and in their role as officers of the court and as a result of duties owed to
Integrity. their clients.
This applies to all lawyers, not only good trial lawyers.
A lawyer who does not act honestly and with integrity at all times not
only gets a bad name, but also runs the risk of being struck from the
roll of legal practitioners if he or she is caught.
The lawyer's duty to the court, as well as the need to disclose all
relevant decisions and not to mislead the court.
3 Judgment. A good trial lawyer must have the wisdom to make appropriate tactical
decisions when conducting a case.
Although this should be done in consultation with the client, it is often
said that the advocate is a representative and not a delegate of the
client.
This means that the judgment of the trial lawyer rather than the client
should be followed when conducting the case.
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It is submitted, however, that in the light of the modern move towards

client autonomy in most professions, lawyers should keep clients well
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briefed concerning their strategies.

Furthermore, wherever possible, lawyers should give their clients
sufficient information in appropriate language so that they can be part
of the decision-making process.
In many instances, however, there is very little time to make
judgments during the cut-and-thrust of the trial, and a good trial
lawyer must have the ability to think creatively on his feet.
4 Objectivity. A good trial lawyer has the ability to consider the case dispassionately
and objectively.
It has been said that this is easier where there is a divided bar as
advocates, as opposed to attorneys, have no personal ties with their
clients.
In such instances the advocate is able to give both the client and the
court an objective opinion un-coloured by any emotional attachments
However, even where there is no divided bar, a lawyer should learn to
stand back from his or her client's case in order to analyze its progress
as objectively as possible.
The rules of the advocates' profession specifically require that an
advocate should not become personally, as opposed to professionally,
associated with his or her client's interest.
5 Courage. It has been said that, 'the law is a form of civilized warfare' and the
trial lawyer is 'the modern representative of the medieval champion'.
Lawyers must have the courage to stand up for their client's best
interests irrespective of the degree of hostility which may be aimed at
them by the public and, sometimes, the court (for example, during
recusal applications) .
Trial lawyers must also have the courage to conceal their personal
sensitivities, so that they do not display undue emotions to the court
or the witnesses (for example, where they or their client's case has
been harmed by a witness's testimony).
In short, a good trial lawyer must be a courageous actor.
6 Alertness. A good trial lawyer is always on the alert: alert as to how the witnesses
are responding; alert as to how the bench is reacting; alert as to how
the opposition is conducting the case; and even alert as to what is
going on in the court room.
7 Tenacity. Tenacity means that, within reason, a trial lawyer with a good case will
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keep pursuing it no matter how much opposition he or she meets from

witnesses, the bench or opponents.
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As a general rule a lawyer should never embark on a course of action

unless he or she is ready to justify it.

The lawyer should then be prepared to defend the action until all
proper arguments in favour of it have been exhausted.
The trial lawyer is there 'to fight, not to capitulate’.
However, a lawyer should not be tenacious about a bad case, as this is
likely to work against the interests of his or her client.
There is no point in trying to support a cause that is insupportable.
8 Sincerity. Sincerity is a very important quality for a successful trial lawyer.
A lawyer who wishes to succeed must also appear to wish his or her
client to succeed.
If a lawyer indicates, consciously or subconsciously, to the court that
he or she does not believe in the client's case, the chances are that the
court will also not believe in it.
It has been said in respect of the advocate's profession that 'if the
advocate does not appear to believe in his client's cause ... he places
his services at the disposal of his opponent'
Conversely, lawyers may not, metaphorically speaking, lay aside their
advocates' or attorneys' gowns to make their clients' causes their own.
9 Humanity. A significant attribute of a good trial lawyer is the ability to display 'the
common touch '.
The ability to communicate easily and politely with people from all
walks of life (advantaged and disadvantaged, rich and poor, urban and
rural) is essential.
Witnesses and judges are human beings, not robots.
They all have their likes and dislikes, as well as their inherent
prejudices and preconceptions.
But while judges are trained to disregard them, witnesses are not.
However, both are more likely to respond favourably to the cause of a
lawyer who treats them with understanding and courtesy - in other
words with humanity - than one who does riot.
The same applies to their treatment of colleagues.
10 Hard work. Good trial lawyers are industrious and work very hard.
They carefully 'claw the facts' so that they are fully aware of what has
happened in the case, as well as such details as dates, names, times,
exhibit numbers and so forth .
Memorizing facts is essential to the conducting of a successful case,
because if a lawyer is not conversant with the important facts, 'all the
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virtues and brilliant improvisations will not help him’.

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The nature of trial practice, however, is such that no sooner has the
trial lawyer mastered the facts of one completed case, he or she will
have to forget them as a new case is commenced.
The process of clawing the facts begins all over again.
11 Professionalism. Lawyers should at all times maintain the honour and dignity of their
profession.
They should in practice, as well as in their private lives; abstain from
any behaviour which may tend to discredit their profession
(International Code of Ethics rule 2).
To this end they should render legal assistance with scrupulous care
and diligence, including when they are assigned as counsel for an
indigent person (International Code of Ethics rule l 0).
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LECTURE 3-5: TUESDAY 23 FEBRUARY-8 MARCH 2016- MORNING SESSION

(LECTURE HALL A)
TOPIC 3: GENERAL ETHICAL DUTIES OF TRIAL LAWYERS.
A. DUTIES TO THE CLIENT.
i. Duty to fearlessly uphold the interests of the client
Basically means to be zealous advocates on behalf of clients

Trial lawyers have a duty to uphold the interests of their clients without regard to any
unpleasant consequences to themselves or any other persons.
Advocates have the same privileges as the client in asserting and defending the client's
rights and liberty by rendering every argument that can be legitimately advanced
They may take every point, technical or otherwise, that is fairly arguable on behalf of their
clients. The same principles apply to all trial lawyers.
The advocate should act as the client‘s mouthpiece.
He should ensure that at least the outcome of the case should be favourable to his client.
He should also have a good grasp of the law and an ability to think on his feet.
A trial advocate should as far as possible and within the bounds of the law zealously and
fearlessly defend the interests of his clients.
The duty of a barrister is to promote and protect fearlessly and by all proper and lawful
means the best interests‖ of the client without regards to the barrister‘s self interest or to
any personal consequence. See Rondel v Worsley [1969] 1 AC 191 at 227 as per Lord Reid.
The advocate‘s duties must be within the bounds of the law, as no professional privilege
exists if the actions of the advocate were to help the client in the commission of a criminal
act.
He ought not to engage in conduct that jeopardizes the client‘s interests.
He should shun mediocrity at all times regardless of the client‘s status in society- financial or
otherwise.
See Dr. Khaminwa in “The Advocate”-“I was among the few lawyers who had the gut to
represent outspoken radical political leaders and citizens perceived to criticize the KANU
government”.
ii. Duty to Defend the Client
He must do so to the conclusion of the suit even if that client fails to pay his fee. Once a suit
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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
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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 [2006] eKLR as
per Ang‘awa, J.
iii. Duty not to breach client confidentiality
As a general rule, trial lawyers may not divulge to the court, or any other person,
information confided to them by their clients (International Code of Ethics rule 14).
It is submitted however that, as the confidence belongs to the client, such a disclosure could
be made if the client, with full knowledge and appreciation of the consequences of the
disclosure, consents thereto.
The advocate-client confidentiality is protected under Section 34(1) of the Evidence Act
which states: ―No advocate shall at any time be permitted unless with the client‟s express
consent, to disclose 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. This is
to enable the work of an advocate as an agent of the client.
See Omari v Hassan (1956) 23 EACA 580
Omari v Hassan (1956) 23 EACA 580

The appellant was convicted of murder. During trial, counsel for the accused informed the Court that
the accused person had refused to testify under oath, against his counsel‘s advice. The disclosure by
the advocate was held, on appeal, to be a breach of professional privilege, and the trial court should
not have allowed it to affect its mind in the deliberations.
However, this privilege is not absolute and it may be overlooked where the disclosure
pertains because An advocate is first an officer of the court, then a confidant to their client
i. any communication made in furtherance of any illegal purpose
ii. any fact showing that a crime or fraud has been committed since the
commencement of employment of the advocate
The solicitor holds documents in the right of his client, and can assert in respect of its seizure
no greater authority than the client holds himself.
See R v Peterborough Justices, ex parté Hicks,
R v Peterborough Justices, ex parté Hicks,
Some solicitors, acting on behalf of an accused person, were given documents by the accused person,
one of which was a forged document granting power of attorney to the accused. The solicitors went to
court to challenge the seizure of the document by the police, under search warrant, claiming that the
document was protected by legal privilege. It was held that as the client possessed no legal authority to
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hold it, then the claim must fail.

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Confidentiality is also constitutionally protected.

See the following Articles of the constitution
(a) Art. 48 -Access to justice for all persons
(b) Art. 49(1)( c)-Right to communicate with Advocate
(c) Art. 50(2) (g)-Right to choose and to be represented by an Advocate
(d) Art. 50(2) (h)-Right to an advocate assigned by the State at State expense, if
substantial injustice would otherwise result
(e) Art. 50 (2) (i)-Right to remain silent-See Pattni Case (2005)eKLR
(f) Art. 50 (2) (l)- Right to refuse to give self incriminating evidence.
iii. Duty to speak on behalf of clients and to ensure prosecution discharges onus
Trial lawyers who appear in court for the defence in criminal cases are under a duty to say
on behalf of their clients what the latter should properly say for themselves if they
possessed the requisite skill and knowledge.
Furthermore, lawyers for the defence have a duty to ensure that the prosecution discharges
the onus placed upon it to prove the guilt of the accused beyond reasonable doubt.
Do not mis-communicate
Get what the client is saying and understand it.
Learn the language or bits of the language they commonly use.
“When you listen to a client you can hear levels of communication that may deepen your
understanding of the client’s problem”-Dr.Majalia Mjomba in “Presentation and
Communication skills for the courtroom”.
iv. No duty to assist prosecution
Unlike prosecutors, defence lawyers are not obliged to disclose facts to the prosecutors or
the court which will assist the prosecution case by proving the guilt of the accused.
Defence lawyers must however reveal all relevant cases and statutory provisions - including
those against their contentions.
See Thomas Patrick Gilbert Cholmondeley v Republic [2008]eKLR
Thomas Patrick Gilbert Cholmondeley v Republic [2008]Eklr
“the burden of proof of guilt is invariably upon the prosecution and at no stage does that burden shift to
an accused person whether the accused person be the meanest beggar on our streets, or Lord Delamere
whose grandson the appellant is said to be”… “there can be no question of reciprocal rights, or a level
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playing field or any such theory as between an accused person and the state…”
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v. Duties to Disclose and Keep client informed
The duty of keeping the client informed is an important duty and one that the surveys show
is a major reason for criticism of the profession.
The duty to disclose the likely success or otherwise of the actions that would be taken by the
lawyer and alternatives that might be available could have been given greater emphasis.
This is so especially in the context that litigation should be a remedy of last resort.
An advocate who fails to honestly disclose the true chances of success puts his interests
before those of his client as he would be seeking to earn higher fees through litigation rather
than properly advising a client on the available alternatives that may be cheaper and more
expeditious.
vi. Duty to Loyalty to the Client
The advocate‘s loyalty must be undivided.

Advocates are committed to acting in the interests of the client to the exclusion of their own
interests, or the interests of any third party.
An advocate must not betray the client‘s trust by misappropriating client‘s money or assets.
This is expressly provided for in section 80 of the Advocates Act.
The principle was also upheld in the recent case of Kinyanjui v Republic [2010] eKLR
vii. Duty to carry out instructions
As the legal advisor, it is key that you remain in control.

If in your considered opinion, the client‘s instructions are unlawful and/ or unethical, it is
your duty to;
(a) Advise the client accordingly, if they insist,
(b) Decline to carry out the instructions
viii. 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.
This also involves the duty to account for any moneys received on behalf of the client and
duty to advice the client of any requisite payments over and above their legal fees.
This is also the duty to charge reasonable fee: in accordance with advocate‘s standing at the
bar.
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.
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ix. Duty to expedite proceedings
Justice delayed is justice denied. An advocate should at all times endeavor to ensure that
client‘s matters are concluded in a timely fashion.
He must avoid unnecessary delays which would be prejudicial to a client‘s interests.
This duty is also owed to the court.
x. Duty of an advocate acting for both parties in a transaction not to act against one
for the other
If an advocate acts for both parties in the in the same transaction, he may not act for one
against the other.
This was stated by the Court of Appeal in King Woollen v Kaplan & Stratton Civil Appeal No.
55 of 1999 (Unreported)
The decision was upheld by the same court in Uhuru Highway Development Ltd & 3 others v
Central Bank of Kenya & 4 Others [2003] KLR
Uhuru Highway Development Ltd & 3 others v Central Bank of Kenya & 4 Others [2003] KLR
Where an advocate who had acted for both parties in the preparation of a charge was barred by the
Court of Appeal from appearing as a witness for one party against the other in an ensuing dispute
before the High Court, which action was also proscribed by the Advocates (Practice) Rules, Rule 9.
xi. Client privilege and the duty not knowingly to mislead the court
As a general rule in civil cases the client's privilege precludes a defence lawyer from making
disclosures of privileged material without the client's consent’.
In criminal cases defence lawyers may not, without their client's consent, disclose facts
known to them concerning their client's character or antecedents.
However, they must not knowingly put forward or let their client put forward false
information with the intention to mislead the court.
Likewise, defence lawyers must not indicate their agreement with information that the
prosecution puts forward which they know to be false.
Supreme Court of Kenya Petition No. 14 of 2014 Communications Authority of Kenya and
Royal Media Services and 5 others (eKLR2015) Para 30: “The parties engaged in conduct the
effect of which was to undermine the integrity of the court’s judgment”
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xii. Trial lawyer's right to choose appropriate method of presenting case
Trial lawyers have the implied right to present their client's case at the trial or hearing in
such a way as they consider appropriate.
Thus, if the client's express instructions do not permit lawyers to present the case in a
manner which they consider to be the most appropriate, they may withdraw from the case
after seeking the approval of the court .
Such withdrawal, however, must be done for good cause, and, where possible, in such a
manner that the client's interests are not adversely affected (International Code of Ethics
rule 1 I).
Modern views concerning client autonomy, however, would seem to indicate that a lawyer
should give the client an idea of the options available concerning a particular course of
conduct, and seek to get the client's approval for the method chosen.
In criminal cases however, the accused has a right, to testify in his defence, even if his
lawyer's advice is not to testify.
Should the client insist on testifying against his lawyer's advice, this would not be a ground
justifying withdrawal by the lawyer.
xiii. Duty not to fabricate defences
In criminal cases where Clients instruct their lawyers that they are not guilty, defence
lawyers must put the defence before the court, even if the clients decide not to give
evidence themselves.
Whilst defence lawyers may present any technical defences available to their clients, they
must never fabricate defences on the facts.
See Penal Code-Chapter XI-Offences against the Administration of Justice Sec. 113-113.Any
person who, with intent to mislead any tribunal in any judicial proceeding –
(a) Fabricates evidence by any means other than perjury or subornation of perjury; or
(b) Knowingly makes use of such fabricated evidence, is guilty of a misdemeanor and is
liable to imprisonment for seven years.
xiv. No duty to enquire into truth of client's instructions.
Generally there is no duty on trial lawyers to enquire as to whether their clients are telling
the truth or not.
However, where the instructions or other information are such as to cause the lawyers to
doubt the reliability of the same they must, where practicable, check the truth of what their
clients tell them to the extent that such statements will be relied upon by the court.
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The enquiry is on instructions themselves and other information

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Why it may be important to check

Client’s soundness of mind may be in question.
The lawyer himself or herself might be in danger.
xv. Client insisting on pleading guilty against advice of counsel
Where accused persons tell their lawyers that they did not commit the offence with which
they are charged, but insist on pleading guilty for reasons of their own, defence lawyers
should use their best endeavors to persuade them to plead not guilty.
If clients persist in their guilty plea, against the advice of counsel, the latter may continue to
represent them.
However, they may do so only after they have advised the client what the consequences
will be.
The lawyer must also advise the client that what can be submitted in mitigation can only be
on the basis that the client is guilty.
Thus, it cannot be suggested in mitigation that the facts are such that the elements of the
offence have not been established.
In some jurisdictions e.g. SA it is submitted that if there is doubt about the client's guilt, his
lawyer should insist on a not-guilty plea being entered, or be entitled to withdraw from the
case should the client not consent to the not-guilty plea.
xvi. Duty not to put right to compensation above interests of clients or justice
Lawyers should never put their right to compensation for services above the interests of
their clients and the administration of justice (international Code of Ethics rule 1 7).
The lawyer's right to demand payment of a deposit or out of pocket expenses and
commitments, failing payment of which they may withdraw from the case or refuse to
handle it, should never be exercised at a moment at which the client may be unable to find
other assistance in time to prevent irreparable damage being done to the case (International
Code of Ethics rule 1 7).
xvii. Duty to act competently and with due diligence.
xviii. Duty to act with utmost good faith. 33
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B. DUTIES TO THE OPPONENT(S). /OPPOSING COUNSEL
The opponent would be the 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:
i. Mentioning of authorities to be used in court
It is a sensible practice for lawyers to tell their opponents of the authorities on which they
intend to rely to prevent the chance of the court being misled by a failure to cite all relevant
authorities.
Advocates must not unnecessarily embarrass opposing counsel by not giving adequate
notice of one‘s legal argument and authorities.
See Provision of Civil Procedure Rules Order 11-Pre trial directions and Conferences
Order 11 Rule 2: Pre trial questionnaire at Appendix B.
Order 11 Rule 2: Pre trial questionnaire at Appendix B.
1. If made contact with other party to narrow down on issues.

2. Full disclosure of documents.
3. Need for inspection of documents and if so, when.
4. Filing and serving of interrogatories.
5. Exchange of witness statements.
6. Agreement on experts reports.
7. Schedule of loss and damage.
8. Which oral evidence to be dispensed with.
9. Bundle of documents and case summary.
10. Skeleton arguments.
ii. Duty not to unnecessarily embarrass an opponent
As a matter of professional courtesy, trial lawyers should not unnecessarily embarrass their
opponents, for example, by not giving them notice of legal points not evident from the
papers which may take them unawares, or by taking surprise exceptions, or technical or
other procedural points which may embarrass them if they are not notified in advance.
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Such practices not only undermine the reputations of colleagues, but also that of the
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practicing profession - something that all practitioners are bound to uphold

iii. Omission of case or provision by opponent
As has been previously mentioned, if a trial lawyer knows that an opponent has omitted a
case or legislative provision or makes an incorrect reference to a case or provision, it is the
duty of the trial lawyer to draw attention to it even if it assists the opponent's case.
iv. Courtesy and respect towards colleagues
A trial lawyer's behaviour towards opponents should not be any different from his or her
behaviour towards the court.
Opponents are entitled to courtesy and respect on the same basis as the court.
Lawyers who treat opponents with rudeness and a lack of courtesy are unlikely to gain their
respect and cannot themselves expect to be treated politely.
In either case such attitudes will do little to advance the cause of their clients or indeed
their own careers.
They are likely to receive little co-operation from their colleagues and, while they may hold
the upper hand when displaying such attitudes, at some future stage they may be in a much
weaker position, and may well have to rely on the good offices of their opponents to
advance their client's best interests.
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.
Advocates must specifically agree with the opposing counsel reasonable requests concerning
trial dates, adjournments, and any waiver of procedural formalities and any similar matters
that do not prejudice the right of the client.
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.
Duty to not communicate with the judicial officer without the presence of opposing counsel,
unless in circumstances allowed by the Court.
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Courtesy and Respect-Areas

1. Salutation-”Senior”, “Wakili”
2. Making space for seating.
3. Order of addressing court.
4. Allowing colleague to look at a document in your possession.
5. Accommodating genuine reasons for adjournment application.
6. Conserving time allocated.
7. Keeping emotions and high tone in check.
8. Focus on issues, not the person.
v. Duty not to inconvenience or harass opponents
It is submitted that it would be unprofessional to deliberately inconvenience or harass an

opposing counsel, for example, by deliberately delaying the service of a notice until a time
chosen so that its expiry will fall most inconveniently to the opponent, such as public holiday
periods that are interspersed with work days when the opponent may be away.
Areas of inconvenience or harassment.
1. Failure to inform an out of town counsel not to travel.

2. Insisting on attendance of witnesses who are aware cannot attend that time.
3. Insisting on makers of documents where earlier agreed on admittance of documents had without
calling maker.
4. Insisting that a counsel new in a matter proceeds even before they have studied file.
5. Delaying conveying of payment of decretal sum or consideration in conveyancing.
vi. Duty when prosecuting to provide evidence assisting the defence
Prosecuting lawyers are under a duty to ensure that all relevant evidence is either presented
by the prosecution or made available to the defence.
Advocates must not unlawfully obstruct another party‘s access to evidence unlawfully alter
or conceal a document or other material having potential evidentiary value nor shall he
assist another person to do so.
The Principles were set out in the SA case of Shabalala v AG of Transvaal 1995(2)SACR
761(CC).
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Shabalala v AG of Transvaal 1995(2)SACR 761(CC).
1. No blanket privilege over all documents in police file.

2. Ordinarily accused be allowed access to documents in police docket which are exculpatory.
3. Right to fair trial includes right to witness statements, whether or not the witnesses will be
called.
4. State may resist access for reasons that such access not justified or will lead to risk to informer or
state secrets.
5. Even if State justifies the denial of access, still remains discretion of court, balancing between
prejudice and the risk of not having a fair trial.
See Article 50 (2)
Article 50 (2)
b-be informed of charge in sufficient detail to answer to it.
c- Have adequate time and facilities to prepare a defence.
j- Be informed in advance(emphasis mine) of evidence prosecution intends to bring against him and have
reasonable aces to that evidence.
See George Ngodhe Juma Case Misc. Cr. Application. 345 of 2001
George Ngodhe Juma Case Misc. Cr. Application. 345 of 2001
Applicant’s charges in a Magistrates court wanted witness statements and exhibits.

Relying on the then Constitution’s Sec. 70, 77(1) and 77(2).Meaning of “adequate time and facilities to
prepare one’s defence”.
Described what a fair hearing is.“The purpose of a prosecution is not to obtain a conviction”(page 13).
Guides to exercise of discretion (Page 16.)
i. If will make witness recant statement or if will intimidate him/her.

ii. If statement is sensitive/not in public interest to disclose it(national security or endangering
witness or their family).
iii. If statements has details that can lead to commission of another offence or alerts someone not in
custody that they are a suspect.
iv. If discloses method of detecting crime.
v. If may lead to a domestic risk.
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As per Mbogholi Msagha.J and Kuloba.J

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Still on matters pertaining to evidence 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.
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.
vii. Duty to avoid personality conflicts with opponents
Clients, not the trial lawyers, are the litigants and ill feelings between clients should not
influence counsel.
Personality conflicts between opposing lawyers should be avoided.
It improper to allude to the personal history, personal peculiarities or idiosyncrasies of
counsel on the other side.
viii. Duty to obtain opponent's consent before placing further material before the court
It would be improper for counsel to attempt to place any further material of whatever
nature before the court, after judgment has been reserved, without the consent of opposing
counsel.
The latter's consent should not be unreasonably withheld, particularly when it will assist the
court to come to a correct judgment.
If consent is unreasonably withheld the proper course is to request the court to receive the
further material , or where appropriate, to make an application to re-open the case
Duty to seek consent from opposing counsel when introducing new evidence after
substantial hearing of the case has been completed.
ix. Duties when interviewing witnesses on the other side in criminal matters
In Shabalala v Attorney-General of Transvaal (supra), the Constitutional Court set out the
law regarding the interviewing of State witnesses by the defence as follows:
Shabalala v Attorney-General of Transvaal
1. Not consult with prosecution witnesses without consent of prosecuting authority.

2. Accused can consult State witness if not so doing would impair right to fair trial.
3. In such case accused should seek consent of DPP and if allowed, DPP’s rep. should be at the
consultation and take any recording. If consent withheld, can apply to court.
4. Does not mean compelling consultation if witness declines such consultation or if it will
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intimidate witness, tamper with evidence, reveal state secrets or identity of informer.
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5. Court may exercise on case by case basis discretion to permit consultation in interest of justice.
x. Duties when interviewing witnesses on the other side in civil matters
When interviewing witnesses in civil matters:

(a) If before have testified, give adequate notice.
(b) Be after ascertaining the other side will call the witness or plans to get a statement
from them.
(c) Should be necessary for assisting litigant in their case.
(d) If has NOT testified, other side need not be represented nor attend.
(e) If has testified, but litigation has not ended, the witness’ legal representative must
be present unless the legal rep. was given notice and declined to attend.
xi. Duties when interviewing a judicial officer
General rule (General Council of the Bar rules) Undesirable for a counsel in a contested case
to seek to interview judicial officer hearing or about to hear a case, in absence of the
opponent or their advocate, and without their consent.
Notice of intention to conduct such interview must be given.
C. DUTIES 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‘ s to any party.
His duties to a witness include the following:
i. Duty of courtesy
As a general rule trial lawyers should, as far as possible, be courteous to witnesses at all
times:
'Witnesses must be treated with courtesy and respect.
They are doing a public duty in coming to court' (per Snyman J in S v Azo 1974 (I) SA 808 (T)
at 81 0-811).
It is more likely that counsel will get the information he or she requires from a witness if a
polite and cooperative relationship is developed with the witness concerned.
An argumentative attitude is likely to elicit much less information and to irritate the court.
Examples of courtesy
(a) An advocate has a duty to inform a witness about the date a case is going to be
heard promptly
(b) An advocate must furnish the witnesses with the full details of the case so that their
testimony can be correct.
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(c) 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.
(d) 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.
ii. Duty not to harass or badger witnesses
Trial lawyers should refrain from harassing, badgering or bullying witnesses.

Not only is such conduct unlikely to ensure co-operation from the witness, but it is also likely
to irritate the court.
Few witnesses are likely to be badgered into making admissions they do not want to make.
It is better to expose inconsistencies in a witness's evidence through polite, carefully
structured questioning, and to draw attention to the results in argument and through well
written submissions.
iii. Duty during cross-examination not to make unsubstantiated attacks on the character of a
witness
Questions which affect the credibility of a witness by attacking his or her character, but are
not otherwise relevant to the enquiry, should not be put unless counsel has reasonable
grounds for believing that the imputations conveyed by the questions are well-founded or
true.
The rules go on to state that it is the duty of counsel to guard against being made the
channel for questions which are only intended to insult or annoy either the witness or any
other person, and to exercise his or her own judgment both as to the substance and form of
the question put .
In cases where an advocate is instructed by an attorney who informs him or her that the
imputation is well-founded or true, without merely instructing counsel to put the question,
the advocate is entitled prima facie to regard such instructions as reasonable grounds for so
thinking and may put the question accordingly
An advocate may not accept the statement of anyone other than the instructing attorney.
Where the statement is made by a person other than an instructing attorney, counsel must
ascertain, as far as is practicable, that there are satisfactory reasons for the statement
.Other trial lawyers should do likewise.
An advocate must not barger witnesses with unreasonable questions. He or she should
40
therefore be tactful and gentle. Sallazar v Republic: the Court deplored an advocate‘s
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disrespectfulness towards witnesses and the Court at large.
iv. Duty during cross-examination to keep defamatory statements within qualified privilege
It is submitted that it would be unethical and an abuse of the court process for a lawyer to
put questions simply to insult or annoy the witness:
'No cross-examiner is entitled to insult a witness or to treat him in a manner in which these
witnesses were treated, without there being a very good reason for it' (per Snyman j in S v
Azo supra at 810-811 ).
A trial lawyer's defence of qualified privilege against an action for defamation arising from
cross-examination only extends to statements which are
(a) Pertinent or germane to the issue, and
(b) Which have some foundation in the evidence or circumstances surrounding the trial
(Moo/man v Slovo l 964 ( l) SA 760 (W) at 762; Pogrund v Yutar 1967 (2) SA 564 (A)
at 570).
The approach is that such questions, whether or not the imputations are well-founded,
should only be put if in the opinion of the cross-examiner, the answers would or might
materially affect the credibility of the witness.
If the imputation conveyed by the question relates to matters so remote in time, or is of
such a character that it would not affect the credibility of the witness the question should
not be put.
v. Duty not to wantonly or recklessly accuse the witness of a crime
He should not make baseless attacks on a client‘s character. There must be sufficient reason
for attacking a witness‘character before launching such an attack- (s) 158, Evidence Act.
An advocate defending a client on a criminal charge is not entitled to wantonly or recklessly
attribute to another person the crime with which his or her client is charged.
The advocate may not do so unless the facts or circumstances given in the evidence or
rational inferences drawn from them, raise at the least a not unreasonable suspicion that
the crime may have been committed by the person to whom the guilt is so imputed, the
same principle should apply to all trial lawyers.
vi. Duty not to interview witnesses who have been sworn in
It is generally undesirable to interview any witness after he or she has been sworn in or has
made a solemn declaration to tell the truth.
Furthermore, it would be improper to interview a witness who is under cross-examination,
unless circumstances make such an interview necessary.
41
Where such circumstances exist a lawyer who desires to hold the interview must inform his
or her opponent before doing so.
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It is also generally improper for an advocate to interview a witness after cross-examination

is completed and before re-examination.
In cases where circumstances render it necessary to interview a witness under cross-
examination or before reexamination, and the opponent objects, the court should be asked
for permission.
vii. Duty not to take an affidavit from a witness unless it is to be handed in as evidence
Affidavits should not usually be obtained by lawyers from prospective witnesses, except in
cases in which their evidence is intended to be presented by means of the production of the
affidavits deposed to by.
viii. Duty to consult with one's own witness before trial
There is a duty on all trial lawyers to consult with their witnesses before trial, not with a
view to 'schooling· them, but simply to prepare them for, the ordeal of testifying in court.
For example, it is helpful to explain to the witness the procedure concerning evidence-in-
chief, cross-examination and re-examination, as well as how he or she should dress for court
and address the court.
The lawyer should also take them through the evidence without rehearsing them.
Morris suggests that lawyers should prepare their witnesses for cross-examination as follows
(Daniels (ed) Morris Technique in Litigation 4ed (1993) at 135):
'(l]t is permissible to prepare the witness in the general sense for cross-examination
somewhat in the following terms: "Listen to the question before you answer. If you
do not understand it, say so. If you don't know any answers don’t guess, just say that
you don't know. Don't worry about what the man has in mind when he asks his
question, just give a direct answer. Answer as shortly as possible and don't make
speeches. "'
ix. Duty not to Induce Witnesses
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.
Advocates should not suppress any evidence that the lawyer or the client has a legal
42
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
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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.
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.
D. DUTIES TO THE COURT.
i. 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.
See Abraham vs. Justun [1963] 2 All ER 401 at p.404
Abraham vs. Justun [1963] 2 All ER 401 at p.404

Lord Denning MR explained counsel‘s duty as follows: ― [It is an] advocate‘s duty to take any point
which he believes to be fairly arguable on behalf of his client. An advocate is not to usurp the
province of the judge. He is not to determine what shall be the effect of legal argument. He is not
guilty of misconduct simply because he takes a point which the tribunal holds to be bad. He only
becomes guilty of misconduct if he is dishonest. That is, if he knowingly takes a bad point and
thereby deceives the court.‖
In this regard also they have a duty not to mis-lead the court
(a) Trial lawyers must assist the court in the administration of justice.
(b) They have an obligation to use only proper and lawful means to promote and
protect the interests of their clients.
(c) They must not deceive or knowingly or recklessly mislead the court (see also General
International Code of Ethics rule 6).
(d) Lawyers should never call a witness whose evidence is, to their knowledge, untrue.
This does not however mean that a lawyer may not call a witness whose evidence he
merely suspects to be untrue.
Possible areas of misleading
1. Reason for absence of client or witnesses from court.
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2. Reason for absence of advocate.

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3. Explanation for delay in filing documentation.

4. Statements previously made in court where record cannot be immediately verified.

5. Extent of damage or loss.
6. Value of property used as surety.
7. Financial of health status of client.
8. Status of occupancy or other status quo.
ii. Duty to be Fair/ The duty when prosecuting to act with scrupulous fairness
Only a lawyer who is fair can be aptly described as an officer of the Court. The duty of
fairness is inherent in the nature of the work performed by lawyers.
Lord Reid summed it up in Rondel v Worseley (1969)A.C. 191
Rondel v Worseley (1969)A.C. 191

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

1. If prosecuting ensure every material point is made that supports the prosecution.
2. Not hold back evidence or previous records.
3. Present evidence dispassionately and with fairness.
4. Always remember are representing interests of justice, not a party.
5. Lay the facts fairly and impartially
6. Assist the court on all matters of law(Note the court may be new in the criminal division)
7. Mention all relevant facts and mitigating circumstances.
8. Not be out to get a conviction by all means at their disposal, where such means do not give
the court full information concerning the facts.
9. Inform the court of its sentencing power if court apprehensive of its having such powers.
iii. 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:
(a) Obtaining and executing decrees without sending the draft to the other side for
approval- Mwangi Mbothu v Gachira Waitimu CA Civil Application No. NAI 23 of
44
1993
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(b) Showing the client how to circumvent Court orders and disobey injunctions as was
the case in Shuck v Gemer (1846) 2 Ph 113
(c) Obtaining ex parté injunctions without full disclosure as was the case in Tiwi Beach
Hotel v Staum (1940) 2 KAR 189
iv. Courtesy
An advocate should at all times uphold the dignity of the court through respectful conduct
and courteous speech.
He should never adopt a confrontational view with the Court, even when there is reason to
believe that the judicial officer‘s position is at odds with the law.
Lawyers must at all times be courteous to the court and to all those with whom they have
professional dealings.
They should ensure that while conducting a case they do nothing to undermine the dignity
or reputation of the court.
Areas of Courtesy towards court

1. Punctuality of the court.
2. Delivery of rulings on judgment.
3. Time allocations for commencement of hearing.
4. Permission to leave the court.
5. Other assignments the court may be handling.
6. Court’s workload for the day.
7. Court’s workload for the day.
8. Court officers-clerks, orderlies, interpreters.
See State of the Judiciary report 2012/13
Page 165
“Previously, judicial officers maintained records by hand, which would then be transcribed and typed.
Critical processes to turn the wheels of justice could not begin without manually filling forms. All these
activities created a mountain of paperwork, together with the attendant bureaucracy and delays, which
bred inefficiency and corruption.”
v. Duty to expedite proceeding / Do not waste the court's time
An advocate should make efforts to ensure that he or she does not waste the courts time
through unnecessary proceedings and technicalities.
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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.
See Ashmore v Corporation. Of Lloyd’s [1992] 1 WLR 446, at p.453
Ashmore v Corporation. Of Lloyd’s [1992] 1 WLR 446, at p.453
Lord Templeman said ―The parUes and parUcularly their legal advisers in any liUgaUon 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.‖
Trial lawyers must take all reasonable and practicable steps to avoid wasting the court's
time.
They should, when asked, inform the court of the probable length of their case.
They should also inform the court of any developments which may affect the information
already provided.
Lawyers should always be present in court at the appointed time.
An advocate should not seek to arrange a postponement of a matter to suit his or her
convenience unless the client has agreed, and the lawyers on the other side have been told
of the reasons.
See Civil Procedure Act Section 1A (Over-riding objective-the oxygen principle) to solve
matters expeditiously and it is the work of all judicial officers to give effect to the over-riding
objective.
1A. Objective of Act

1. The overriding objective of this Act and the rules made hereunder is to facilitate the just,
expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.
2. The Court shall, in the exercise of its powers under this Act or the interpretation of any of its
provisions, seek to give effect to the overriding objective specified in subsection (1).
3. A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to
further the overriding objective of the Act and, to that effect, to participate in the processes of
46
the Court and to comply with the directions and orders of the Court.
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What wastes time.

1. Reading passages verbatim.
2. Asking irrelevant foundational questions.
3. Repeating a pint that has been addressed.
4. Not making advance arrangements for witnesses’ availability.
5. Not making advance arrangements for availing of exhibits.
6. Not arranging documents wish to refer to in time.
7. Not marking pages that will refer to.
vi. A lawyer should not seek to influence a judge, tribunal or other official by means
prohibited by law
Which takes precedence? The trial advocate’s duty to the court, or his/her duty to a
client?
Often times, an advocate‘s duty to his or her client conflicts with that to the court. This
arises in instances such as, when a client confesses to having committed a crime, when a
clients‘ intends to give a false testimony or when an advocate is in possession of facts which
may prejudice his clients‘ case. This begs the question: which duty is supreme?
1. Jurisprudence in Commonwealth
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.
In Giannarelli v Wraith (1988) 165 CLR 543, 556-7
Giannarelli v Wraith (1988) 165 CLR 543, 556-7

Mason CJ said
“The peculiar feature of counsel's responsibility is that he owes a duty to the court as well as to his
client. His duty to his client is subject to his overriding duty to the court. In the performance of that
overriding duty there is a strong element of public interest…The duty to the court is paramount and
must be performed, even if the client gives instructions to the contrary.”
The rationale is that the administration of justice in an adversarial system depends in very
large measure on the faithful exercise by an advocate‘s independent judgment in the
conduct and management of the case. The court relies on the integrity of the advocates as
the finding of facts is entirely based on the opposite views put forward by opposing
advocates.
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See Arthur Hall v Simons [2000] 3 All ER 673 19133 Neb. 283, 289,
Page
Arthur Hall v Simons [2000] 3 All ER 673
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... “‖
See Re Integration of Nebraska State Bar Association 19133 Neb. 283, 289, 275 N.W. 265,
268 (1937)
Re Integration of Nebraska State Bar Association 19133 Neb. 283, 289, 275 N.W. 265, 268 (1937)
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. This implies that when
there is a conflict between the advocate‘s duty to the client and to the court, the duty to the
court, which is the agent of justice, shall reign supreme.
2. Public Policy
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
48
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
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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."
See Rondel v Worsley 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. Provision of the Law

The law equally provides that an advocate is an officer of the court as per S. 55 of the
Advocate‘s Act and therefore duty bound not to mislead the court regardless of the
client‘s interests.
In acting in the best possible way for the client, the advocate must, while being fearless
in the cause of the client, do so within the law.
The compromise: Courts however have not entirely been oblivious of the advocate‘s
duty to the client. Some have attempted at striking a balance between these conflicting
duties in a way which will prevent the Court from being misled or the client from being
placed unnecessarily in jeopardy.
See the following cases
R v Davis [2006] EWCA Crim 1155

The appellants appealed against their convictions, on the grounds that certain prosecution witnesses
had been kept anonymous from them. The witnesses had attended the trial for cross-examination and
were observed by the judge and jury, but had given their evidence from behind a screen and had their
voices disguised to prevent the appellants identifying them.
This had raised an issue as to whether counsel for the appellants should be permitted to see the
witnesses (which would assist them in their task of cross-examining) even though their clients could not
see the witnesses. Counsel were concerned about their conflicting duties, namely:
(a) A duty to the court to keep the witnesses anonymous (breach of which duty would be a
contempt of court), and
(b) A duty to their client to describe the witnesses to them (on the basis that this was relevant
information).
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The court did not in this case prefer the barrister‘s duty to the court to the barrister‘s duty to his client.
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The court held that the barrister could perform his duty to both by cross-examining from behind the
screen. However, if the client wished to obtain the possible benefits of his barrister being able to see
the witness‘ demeanour when cross-examining, then this could only take place if the client consented
to a limitation on the barrister‘s usual duty to disclose all relevant information to the client.
Oceanic life Insurance v
The duty to the Court tends to be framed in such a way as to communicate the Public Interest that
confidence in the institution (Court) be maintained, therefore overrides the other.
Competition between the duty of the advocate to lay before the court all relevant evidence, and the
duty to their client not to reveal communication between them
Arthur Hall v Simons [2000] 3 All ER 673
In Lord Hoffmann stated that advocates ―also owe a duty to the court and the administraUon of jusUce.
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?
Waugh v British Roads Board (1979) 2 All E.R. 1169

In the Plaintiff‘s husband was an employee to the board, and was killed while in the course of his duties
in an accident. An internal invesUgaUon was done and a report wriVen, headed ―For the Board‘s
Solicitor‖.
The Plaintiff asked the Court to order discovery of the report. The Board claimed professional legal
privilege over the report. The Board based this on the fact that the report was for two purposes:
i. To establish the cause of the accident; and
ii. To enable the board‘s solicitor to advise in the litigation to ensue.
The Court ordered discovery. The Board appealed. The Appeal Court overturned that decision. The
Plaintiff appealed. The House of Lords held that there were two competing principles involved:
i. All relevant evidence should be made readily available; and
ii. Communication between a client and his lawyer should be allowed to remain confidential.
It held that public interest was best served by confining the privilege within narrow limits. A document
was therefore only privileged from production on the basis of the legal professional privilege if the
dominant purpose for which it was prepared was that of submitting it for advice. Since the purpose for
the report was for advice and legal use was merely subsidiary, the House of Lords held that the Board‘s
claim would fail.
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vii. Personal responsibility for conduct
Trial lawyers are personally responsible for the conduct and presentation of their cases in
court.
They must exercise personal judgement on the substance and purpose of statements made
and questions asked.
Trial lawyers are at all times individually and personally responsible for their own conduct.
This includes their professional work in and out of court .
Privilege vs. Responsibility
Lawyer must not misuse privilege of court proceedings to besmirch character of witnesses or
opponents.
May not attract a defamation suit but loses respect in eyes of the court, fellow colleagues
and general public in court.
Avoid statements that cannot substantiate.
Do not ask a question whose answer you do not know.
See JP Machira v E.A. Standard

JP Machira v E.A. Standard
The standard carried pictures and a caption alleging the plaintiff had fought with a client.
“An angry businesswoman collars a High Court advocate yesterday –in a punch-up that brought
courtproceedings to a standstill. The fight started in the corridors”.
The plaintiff did not fight back; he kept cool under the lady’s attack.
Defence struck out in ruling of Kuloba, J on 15.11.2001, case set down for assessment of damages.
viii. Do not give personal opinions
Another rule worth following from English legal practice is that, as a general rule, trial
lawyers should not assert a personal opinion on the facts or the law.
They may however do so if:
(a) invited to express a personal opinion by the court;
(b) they are appearing before a tribunal; or
(c) it is their duty to do so.
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Trial lawyers should always speak in their role as lawyers and not in their personal
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capacities.
See illustration
Lord Erskine defending Tom Paine

Richard Du Cann in The Art of the Advocate(1980)40)
Erskine: “I will now lay aside the role of the Advocate and address you as a man”.
Judge: “You will do nothing of the sort. The only right and licence you have to appear in this court is as
an advocate”.
Opinions one may hold
i. State of the Judiciary

ii. The Executive or Legislative arms of government.
iii. Ethical and moral issues.
iv. Freedom of religions.
v. Freedom of conscience.
Remember the courts are courts of law.
Statements in court should be in relation to what the law provides on the issue under
discussion.
ix. All relevant decisions to be disclosed
Trial lawyers must ensure that the court is informed of all relevant decisions and legislative
provisions of which they are aware.
This applies whether the effect is favourable or unfavourable towards their cases.
Thus, if one of them omits a case or provision, or makes an incorrect reference to a case or
provision, it is the duty of the other to draw attention to it even if it assists the opponent's
case.
Lawyers may take every point, technical or otherwise, that is fairly arguable on behalf of
their clients.
They must, however, bring any procedural irregularities to the attention of the court during
the hearing, and not reserve such matters to be raised on appeal or review .Examples: Age
of a party where age is relevant; Sentence as prescribed by law; Absence of material
evidence such as medical , forensic or expert reports.
x. Knowledge of facts assisting opponent
Except when prosecuting, trial lawyers who know of facts or witnesses likely to assist their
opponents are not obliged to inform the latter or the court about them to the detriment of
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their clients.
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However, if they know that a relevant affidavit has been filed in the proceedings and is
therefore notionally within the knowledge of the court, there is a duty on the lawyer
concerned to inform the judicial officer of its existence.
Summary
In general, the duties of prosecutors towards the courts can be summarized as an obligation
of honesty and directness.
This supersedes all other obligations.
In an adversarial system where the findings of fact are based almost entirely on the
opposing views put by counsel, with the judge playing a primarily passive role, the courts are
highly dependent upon the integrity of the lawyers who appear before them.
The need for integrity is absolute.
The courts expect complete honesty concerning such matters as the reasons for an
adjournment, times of delivery of notices or letters, apologies for the trial lawyer's own
lateness of arrival, and so forth.
E. DUTIES TO STATE
Basically these are DUTIES TO THE ADMINISTRATION OF JUSTICE.
i. Duty to assist the State as prosecutors when called upon
It is submitted that when asked to assist the State in the administration of justice as a
prosecutor, lawyers should be prepared to do so as part of their function as officers of the
court.
In the case of the advocates' profession the same rules as those for refusing a 'cab rank'
brief should apply if counsel wishes to decline a brief as prosecutor.
Although attorneys are not bound by the 'cab rank' rule, there is an expectation that they
should also assist in strengthening the administration of justice where they have the
necessary skills to do so.
See Office of the DPP Act No. 2 of 2013
ii. Duty to assist the State by appearing in legal aid matters when called upon
It is a strong tradition of the advocates' profession that its members should undertake to do
pro deo work when called upon to do so by their bar councils or the courts.
Pro deo work has now been subsumed under the legal aid scheme, and there is now a duty
on all trial lawyers to do legal aid work when called upon to do so by their bar councils or the
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courts.
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Although the 'cab rank' rule does not apply to attorneys, they are expected to assist in cases
'assigned by a " competent body' (International Bar Association International Code of Ethics
rule 17), which, it is submitted, could be interpreted to include the Legal Aid Board.
Examples
1. In Kenya, have LSK Legal Aid week.
2. Pauper briefs under Registrar of the High Court.
3. Volunteer lawyers for Legal Aid Agencies.
iii. National Council for the Administration of Justice
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.
Functions:
1. formulate policies relating to the administration of justice;
2. implement, monitor, evaluate and review strategies for the administration of justice;
3. facilitate the establishment of Court Users Committees at the county level; and
4. mobilize resources for purposes of the efficient administration of justice.
Composition
1. CJ-Chair
2. CRJ-Secretary
3. Ministry of Justice
4. Office of DPP
5. National Police Service
6. Kenya Prisons Service
7. Ministry of Gender, Children and Social services.
8. Witness Protection Agency
9. Probation and after care services.
10. Office of the President (Cabinet Office)
Duties to Admin of Justice
1. Act ethically at all times-to maintain proper reputation and integrity in eyes of clients,
courts, colleagues, public.
2. Not expose themselves to litigation-Affects their practice and personal reputation. Arises not
just from trail but advise, undertakings or costs.
3. Not make affidavits in cases they appear.
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4. Prepare thoroughly for every case.

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5. Not take on too many cases.

6. Be properly dressed.
7. Introduce oneself to court.
Oath of an Advocate-Taken upon admission to the roll of Advocates.

"I. ....., swear by the almighty God that iwill 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."
F. GENERAL DUTIES OF A TRIAL ADVOCATE
i. Duty to act ethically at all times

There is a duty on lawyers to act ethically at all times in order to maintain their integrity and
reputation in the eyes of clients, the courts and colleagues.
Integrity and reputation are two of a lawyer's most priceless assets.
ii. Duty not to expose themselves to litigation

As officers of the courts, lawyers should always conduct themselves so that they are not
needlessly exposed to personal litigation.
The threat of litigation may play havoc with a lawyer's practice and may also have a
damaging effect on his or her reputation.
While it is true that it may be difficult to sue an advocate for negligently conducting a trial
(see also Ronde v Worsley [I 969] 1 AC 191 there may still be liability arising out of initial
advice, undertakings or questions of costs .
iii. Duty not to give evidence or make affidavits in cases in which they are appearing
Advocates should avoid, as far as is possible, putting themselves in any position where they
may have to make statements or give evidence in relation to matters which are in dispute in
cases where they are appearing.
The rule would not apply to evidence of a purely formal or non-contentious nature.
iv. Duty to prepare thoroughly for every case

Thorough preparation may be time-consuming and stressful while it is being done, but it
reduces the stress considerably when the trial date arrives.
An under-prepared lawyer is at a major disadvantage during any trial and the knowledge
that all kinds of uncertainties may arise can considerably increase the stress levels
experienced by counsel operating under such conditions.
The fact that a trial lawyer is always thoroughly prepared is likely to enhance a counsel's
reputation in the eyes of clients, the courts and colleagues.
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v. Duty not to take on too many cases
There is a duty on trial lawyers not to take on more cases than they will be ‘able to handle.
A lawyer who takes on too many cases runs the risk of carrying out inadequate preparation,
w.ith subsequent prejudice to his or her clients.
In some instances the lawyer may not even be able to appear in the cases because of double
bookings.
Not only is such conduct unethical, but it will also do great damage to the trial lawyer's
reputation.
vi. Duty to be properly dressed

When appearing in court a trial lawyer should wear clothes that are suitable to be worn
under the gown for a court appearance.
There is nothing more embarrassing for a trial lawyer than to be told by the judicial officer
that he or she cannot 'see' counsel.
vii. Duty to introduce oneself to the court

A trial lawyer appearing before a judge or magistrate for the first time should introduce
himself or herself to the presiding officer before their first appearance before the person
concerned.
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LECTURE 6-7: TUESDAY 15 AND 22 MARCH 2016- MORNING SESSION (LECTURE

HALL A)
TOPIC 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.
Many rules of etiquette are also contained in the rules of conduct of the legal profession.
See example Advocates (Professional Conduct And Etiquette) Regulations 2008
1. DRESS
Appropriate court dress for lawyers is dark coloured suits or dresses (black, dark grey or
blue).
Ties should be understated - loud ties and cartoon characters on ties may be viewed as
improper.
Be aware of 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.
2. 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.
3. INTRODUCTIONS
Trial lawyers should always introduce themselves to the judge who will be presiding in their
cases.
The term 'judge' is used generically to include judges of all courts - magistrates, regional
magistrates, High Court, Supreme Court of Appeal and Constitutional Court judges.
Let the Seniors introduce the others
You only need to introduce yourself once - it is not necessary to reintroduce yourself before
each subsequent case you may have before the same judge. (It may, however, be prudent to
reintroduce yourself if you have not appeared before the judge for a long time and he or she
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may not remember you).

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How to introduce yourself to a judge
a) In the judge's office

On the morning of the trial, prior to the start of proceedings, go to the judge's office and
briefly introduce yourself.
The judge's office is referred to as 'chambers' in High Court buildings.
The introduction must be brief and along the following lines:"Good morning, judge. I am
Mary Delgado, of the firm Delgado and Partners, and I am appearing for the plaintiff in the
Mistry v Mistry trial which is due to start today."
'Judge' is the mode of address to a High Court judge in chambers
After completing the handshake, remain standing while you await the judge's response.
Depending on each judge's inclination, habit and time pressures, you may either receive a
short response ("Nice to meet you, Ms Delgado") after which you should leave the office, or
you may be invited to sit down for a short chat with the judge.
b) If the judge is not in his office

If you cannot locate the judge before the start of the trial, you must "introduce yourself
when placing yourself on record for the trial:
"M'Lord, I am Mary Delgado of the firm Delgado and Partners, and I appear for the
plaintiff in this case. I did try to introduce myself earlier. this morning, but
unfortunately I could not locate your Lordship."
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.
In the High Court, the practice is to be fully dressed for court when introducing yourself.
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.
4. MODES OF ADDRESS
The following salutations are used

a) Magistrates, High court and Supreme court judges-”Your Honour”
b) Court of Appeal-”My Lord(s);My lady; Your Lordship(s);Your ladyship(s)
c) Mixed bench: “My Lords, my lady”.
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The format is as follows
1. Greeting or salutation.
2. Name.
3. Firm.
4. Whom you appear for.
5. When the case is due.
6. What the case is coming up for.
See CJ Practice Notes 2011
Circular on Judicial Dress Code and Address
Made on 23rd August, 2011
FROM: CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT OF KENYA
TO: ALL JUDGES OF THE SUPREME COURT

ALL JUDGES OF THE COURT OF APPEAL
ALL JUDGES OF THE HIGH COURT
ALL MAGISTRATES
REF: C.J. 90
The just concluded Judges Colloquium also attended by the JSC. You will note that some of these
decisions take effect immediately:
1. Wigs will be discarded with immediate effect. Those who have them can either keep them as
souvenirs or hand them over to the Chief Registrar;
2. No head gear of any type will be worn except by the Kadhis;
3. There will be two robes for each court, one ceremonial, one functional;
4. Each court will deliberate on the material and colours of robes it would wish to wear;
5. Magistrates will through their association deliberate on whether or not they want to wear robes;
6. All judges, magistrates and Kadhis will be addressed as YOUR HONOUR/MHESHIMIWA and this
salutation must be communicated to the Bar and the public forthwith; and
7. Each court will determine the dress code of the members of the Bar appearing before it.
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5. BEHAVIOUR IN COURT
a) 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 for everyone in the courtroom to sit as well.
lf the court consists of a judge and assessors, you should wait until the last assessor is seated
before sitting down.
When the judge leaves the court room the orderly again announces that everyone should
rise – remain standing until the judge is out of the courtroom.
b) Leaving the courtroom whilst it is in session should:

i. When leaving, briefly pause at the exit door, turn towards the judge, bow slightly, and then
exit; and
ii. When entering, enter the courtroom, pause, bow slightly towards the judge, and then
proceed to your place.
iii. 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, leave the note with the person concerned, and quietly exit. It is distracting to the
court and bad manners to whisper to one of the trial lawyers whilst proceedings are in
progress. Also limit such interventions to matters that cannot wait until the next
adjournment.
c) 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 defence lawyer wishes to speak to his client (the accused who is
standing in the dock), the defence lawyer will have to request the court's permission:
"M'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 a short

adjournment.
This means that the judge will leave the courtroom, and be recalled by the court orderly
once the consultation has been completed.
d) Always stand when being addressed by the judge

When the judge speaks to you as a trial lawyer appearing in the matter before him, you
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should immediately stand up.

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When the judge is addressing your opponent, you must sit down. For example, if you are
busy cross-examining an opposition witness, and your opponent stands up to object, you
must immediately sit down.
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 also 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 acceptance of the decision by saying: "As the court
pleases."
e) 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 defence is, and then ask leave (permission) to read the Section l l 5
statement into the record:
Magistrate (to accused): How do you plead?
Accused: Not guilty. Your Honour
Defence Counsel: Your Honour, I confirm that the accused's plea is in accordance with my
Instructions. I have prepared a written statement in terms of Section
115 of the Criminal Procedure Act. May I read it into the record?
[Only continue once the magistrate assents.]
Whilst you are cross-examining a witness, the magistrate intervenes by asking a question. If it is a short
intervention (one or two questions), you may remain standing until the magistrate gives you an
indication to continue:
Magistrate: [Having completed his questioning of the witness.]Yes, Mr. Radebe, you may continue.
Defence Counsel: As the court pleases. Now, Mr. Jones, you said ...
6. WITNESSES
When being questioned during examination-in-chief or cross-examination, witnesses must

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look at the lawyer putting the question, and then look at the judge when answering the
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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 witnesses who may be required to hear the evidence for the purposes of their later
testimony).
Be punctual when called (don’t go too far).
Avoid what may cause distraction(phones, too many clothing accessories)
After testifying, either remain in court silently or go away completely.
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7. COURT TERMINOLOGY
Trial lawyers must become familiar with a number of important words and phrases used in court proceedings:
No. TERMINOLOGY APPLICATION

1. "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: "Your Honour, l submit that the court should find ... "
Do not use:"I think";"I aver";"I conclude"; "I say"; " I state"; "I am of the opinion"; "I declare".
2. "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 "as it pleases the court"; "the court pleases"; "OK, Your Honour"; "Alright" or 'I’m finished, Your
Honour".
Direct questions from the bench, should, however. be answered with a simple "yes" or "no":e.g.
Judge: Were the papers served on the defendant personally?

Counsel: Yes, Your Honour.
3. "If the court will bear with me": This is a phrase used to request the court to be patient for a little while you find a misplaced note or authority.
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It is meant to indicate a short delay (a minute or two at most).
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Do not use: "If the court will wait a while"; "Your Honour, just hold on a second"; or "Give me a moment to
find my note, Your Honour."
If the delay is likely to be longer than a minute or two, rather request a short adjournment.
4. "With respect"/ "With great A submission preceded by the term "with respect" indicates in advance to the judge that you do not agree with
respect"/ "With the greatest the view stated by him on the issue being discussed.
respect":
Should the debate become more heated, and your disagreement with the judge's position stronger, you may
show your intensified disagreement by prefacing your submission by saying "with great respect, Your Honour".
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.)
Note, that however strong your disagreement with the court, your submissions must remain courteous and
restrained in tone, volume and content. (Remember, you have a need to retain the sympathy of the court .
5. "I am indebted to the court": This is the traditional method of saying 'thank you' in court proceedings, and is still in wide spread use:
Judge: Ms Chetty, I will give you a short adjournment to take instructions on that point.
Counsel: Thank you. Your Honour. (Or: I am indebted to the Court.)
6. "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
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that a version you are instructed to put to a witness is manifestly absurd.
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In most cases, you will have a duty to comply with your client's wishes.
If you are challenged (usually in an incredulous tone) by the judge, your response that those were your
instructions is sufficient to indicate that you are merely carrying out your legal duty, and are not necessarily
convinced about the legal or tactical soundness of your submission.
7. "I withdraw the question" or Often counsel will put a question to a witness (either in examination-in-chief or cross-examination), and then
"correction": decide to change or modify the question. The correct method to do so is:
Counsel: Now, Mrs. Peters, when you first saw the bruise marks on ... (stops, then says: Your Honour , I
withdraw the question) –
Then starts again: Mrs. Peters, what date was it that you saw the bruises on your son for the first time?
A shorthand method of achieving the same effect is to insert the word 'correction' after the phrase you want
discarded:
Counsel: Now, Mrs. Peters, when you first saw the bruise marks on - correction, Your Worship - Mrs. Peters,
what date was it that you saw the bruises on your son for the first time?
8. "My Learned Friend": The correct method of referring to your opponent in all courts is "my learned friend" (never sarcastically qualify
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the 'learned' with, for example, 'my alleged learned friend' - such behaviour is unprofessional).
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It is also acceptable to refer to your opponent by name: "Mr. Jones has submitted that ... " (This may be the
safer route given the sensitivity of certain members of the Bar at being addressed as 'my learned friend' by
attorneys and prosecutors).
9. References to judges not before Refer to other judges as in the formal written references: 'His Lordship, Mr Justice Du Toit, in his judgment ... ·
court:
When addressing the court, avoid referring to other judges as "Your brother, Du Toit" - this reference is only
used by judges themselves when referring to other judges.
10. Postponements; adjournments; The term postponement is used when a case or matter that has not yet commenced is postponed to a later
remands; standing-down: 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 whilst the accused is in custody on a criminal charge, as
in: "Your Honour , I ask that the accused be remanded in custody to the 3rd of June for trial."
Only witnesses 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.
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8. PERCEPTION BIAS
'Justice must not only be done, but also be seen to be done.'

This adaptation of the oft 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 behaviour 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 him in chambers in the company of your opponent.
9. 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.
Leave attempts at humour to the judge.
Sometimes, however, a wry comment may not be inappropriate.
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LECTURE 8-10: TUESDAY 29 MARCH-12 APRIL 2016- MORNING SESSION

(LECTURE HALL A)
TOPIC 5: CONFLICT OF INTEREST/CAB-RANKRULE AND RECUSAL OF JUDICIAL

OFFICERS
1. CONFLICT OFINTEREST
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 the legal 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:
i. 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.
ii. 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.
See Simba Hills Farm Ltd v Sultan Hasham Lalji & 5 Others
Simba Hills Farm Ltd v Sultan Hasham Lalji & 5 Others

In an 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
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acted for the 3rd and 4th Defendants before, it was held that there was conflict of interest and Mr.Birech
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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.
iii. 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 client’s interest because of the probability that the testimony could
harm his client’s case.
See
i. Francis Mugo& 22 Others v James Bress Muthee,
ii. Alex M. Ndirangu, Gilbert Kabage T/a Pata Commercial Enterprises
iii. John Muthee Ngunjiri T/a Tango Auctioneers & General Merchants
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.
See the following cases In;
King Woolen Mills Ltd v Kaplan and Stratton Advocates

The court held that: “once a retainer is established the general principle is that an advocate should not
accept instructions to act…. Where there is a conflict of interests. Another case that was used to guide
the court was the case of
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Rukesen vs. Elius, Munday and Clerk

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… “
Different Forms of Conflict of Interest for a Trial Lawyer
1. Conflict between the duty to the court and duty to the client
A major area of conflict of interest faced by trial lawyers is where their role as an officer of
the court conflicts with their duty to the client.
Where such a conflict exists the question is: whose interests prevail?
The answer must be that the duty to the court takes precedence, because a trial lawyer may
only protect or advance the interests of his or her client to the extent that it is consistent
with counsel's function as an officer of the court.
2. Client confessing guilt to lawyer
In considering the duty of a lawyer employed to defend an accused person who makes a
clear confession to him or her concerning the offence charged, the following should be
borne in mind:-
(a) Every punishable crime is a breach of common or statute law committed by a person
of sound mind and understanding.
(b) The issue in a criminal trial is always whether the accused is guilty of the offence
charged, never whether he or she is innocent.
(c) The burden of proof rests on the prosecution.
See LSK Digest of Professional conduct and etiquette Rule 20(b): Object of privilege is so
that client can confide fully and without reservation to the advocate. Communications for
purposes of defence in a criminal trial are privileged.
In a criminal trial issue is not about innocence, but if offence of which one is charged has
been proven. Burden of proof rest on prosecution.
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3. Confession of guilt by client no bar to defence by lawyer
See Article 50 (2) (g) (h) -Every person who is charged before the court has a right to the
services of counsel in the presentation of his or her defence.
Constitution protects one against self incriminating evidence. See (Art. 50(2)(l)
The mere fact that an accused person has confessed to counsel that he or she committed
the offence charged is no bar to an advocate appearing in his or her defence.
Such a confession does not release a lawyer from his or her duty to do all that can be done
for the client without deliberately misleading the court .
4. Confession of guilt imposes strict limitations on the conduct of case
A confession of guilt by a client imposes very strict limitations on the conduct of the defence.
Where a client makes a confession to his or her counsel either before or during criminal
proceedings, counsel should explain to the client that he or she may only continue with the
case on the following basis
i. Counsel may not in the proceedings assert that which he or she knows to be untrue, nor may
he or she connive at or attempt to substantiate a fraud or untruth.
ii. Counsel may appropriately argue that the evidence offered by the prosecution is insufficient
to support a conviction and may take advantage of any legal matter which might relieve the
accused of criminal liability.
iii. Counsel may not set up an affirmative case which he or she knows to be inconsistent with
the confession.
The client may then decide whether he or she wishes counsel to appear on the above basis
or whether he or she wishes to withdraw their instructions.
The above principles provide useful ethical guidelines for all practicing trial lawyers.
5. Grounds of objection after confession of guilt
The English Bar rules provide that an advocate to whom a confession of guilt has been made
may, by way of using principles of legal procedure to relieve the accused of criminal liability,
object to such matters as
(a) the competency of the court;
(b) the form of the indictment;
(c) the sufficiency of the evidence; and
(d) the admissibility of any evidence.
He or she may, however, not suggest that someone else committed the offence charged, or
call any evidence which the advocate knows or ought to know to be false having regard to
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the confession, for example, evidence in support of a false alibi

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These principles apply to all trial lawyers.

6. Limits of how far a trial lawyer may go in attacking prosecution evidence after confession
of guilt
The question arises as to how far a trial lawyer to whom a confession of guilt has been made
may go in attacking the evidence for the prosecution in his or her cross-examination, or
during the closing argument for the defence.
Such a lawyer is entitled to test the evidence given by each witness, and to argue that the
evidence taken as a whole is insufficient to prove that the accused is guilty of the offence
charged.
An advocate may not go beyond this by making a case inconsistent with the client's
confession for example, by putting a version to a witness which he or she knows is false.
The rule is you may challenge evidence to its sufficiency, but will not make a case
inconsistent with the confession.
7. Statements not indicating a clear confession
The instances in part (2-6 relating to confessions) apply where there is a clear confession to
counsel by the accused. They do not apply to cases where
a) A series of inconsistent statements are made to the advocate by the accused before or
during the proceedings; or
b) Statements are made by the accused which point almost irresistibly to the conclusion that
the defendant is guilty but which do not amount to a clear confession.
It has been suggested that: 'The insistence of the client in pleading not guilty in the face of
compelling evidence to the contrary would not be a reason for declining to act unless it
adversely affected confidence or the solicitor/client relationship'.
These instances raise difficult questions and must be dealt with very carefully to ensure that
the client's interests are not jeopardized
Trial lawyers should exercise similar caution
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2. CAB-RANK RULE
The 'cab rank' rule (that is, that an advocate is obliged to accept a brief unless he or she has
some good reason for refusing to do so.
This rule applies to lawyers practicing on their own in the profession of advocates.
It does not apply to attorneys who are governed by the International Code of Ethics which
states: 'Lawyers shall at any time be free to refuse to handle a case, unless it is assigned by a
competent body' (International Code of Ethics rule I0).
The following aspects of Cab-Rank Rule are considered
i. Advocate obliged to accept brief
Counsel is under an obligation to accept a brief in the courts in which he or she professes to
practice, at a proper professional fee, unless there are special circumstances which justify his
or her refusal to accept a particular brief.
Furthermore, subject to the above, it is the duty of every advocate to whom the privilege of
practicing in courts of law is afforded to undertake the defence of an accused person who
requires his or her services.
The phrase 'cab rank' was coined by Lord MacMillan (he used the words 'on the cab rank for
hire' and means that an advocate is obliged to accept a brief unless he or she has some good
reason for refusing to do so.
The reason for the rule is that every person is entitled to be represented in a court of law.
ii. When counsel may not refuse a brief
An advocate may not refuse a brief simply because he or she:

a) does not think much of the client's chances of success;
b) does not think much of the client as a person; or
c) thinks that the facts of the case are unsavoury.
iii. Reason for 'cab rank' rule
Marshall Hall, the famous English advocate, explained the reason for the cab rank rule as
follows: 'Barristers are public servants and may be called on just as a doctor may be called
on to operate on a man suffering from a loathsome complaint'
The reason as 'every person who is charged before the court has a right to the services of
counsel in the presentation of his [or her] defence ... Any action which is designed to
interfere with the performance of this duty [to accept a brief] is an interference with the
course of justice' .
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iv. Counsel not to assume role of judge
It can be argued that an advocate who refuses to defend an accused person because he or
she feels that the person does not have a good case, or is guilty, assumes the role of a judge.
Such an assumption undermines the fundamental and constitutional principle of
presumption of innocence to which an accused is entitled (see the Constitution Article 50 (2)
(a)).
The duty is on the court, not the advocate, to make the decision on the guilt or otherwise of
the accused.
v. When counsel may refuse a brief
Despite the 'cab rank' rule, an advocate may refuse a brief where there are special
circumstances which justify his or her refusal to accept a particular brief.
It has been suggested that counsel may refuse a brief for any number of good reasons
including the following
a) the client cannot afford the fee;
b) the advocate may have been consulted by the other side;
c) the advocate may have confidential information about the other side;
d) the advocate may know one of the witnesses involved;
e) the taking of the brief may clash with some office or appointment the advocate holds and
his or her duties as an advocate;
f) the advocate does not have the necessary skill or experience to conduct the case
competently on behalf of the client; and
g) the advocate has too much work and can see in advance that he or she will not be able to
carry out the brief.
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3. RECUSAL OF JUDICIAL OFFICERS
Judges form the core of any justice system.

Their conduct in terms of independence and impartiality therefore directly impacts on the
perceptions of the common citizenry with regard to success or failure of such an institution.
It is therefore important as correctly observed by Chief Justice Hewart that, ―
“… a long line of cases shows that it is merely of some importance but is of
fundamental importance that justice should not only be done, but should manifestly
and undoubtedly be seen to be done.”
The rule of judicial disqualification therefore gains its basis from the afore mentioned
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.
It is important to note that at that time, the Common Law recognized no other grounds for
judicial disqualification.
TYPES
There are two types
i. Voluntary
ii. On Application by a Party
Grounds for Recusal
1. 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
2. If the judge has more than a minimal/ nominal financial interest in the outcome of
the case. 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.
3. If the judge has a close social relationship with a litigant, lawyer, or witness in the
case
4. 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.
5. If the judge previously acted for one of the parties to the suit.
6. If the judge has been a material/ potential witness on the case or a related case.
7. If the judge has prior personal knowledge of disputed facts in the case.
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8. If the judge is directly or indirectly party to the suit. e.g. where the party is an organization
to which the officer is a party.
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9. If the judge has dealt with the matter previously, e.g. at trial and then at appeal
level.
10. 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.
11. 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.
12. The Judge or judge‘s spouse, or someone within the third degree of relationship to
either of them, or to the spouse of such a person, is
a) a party or officer, etc., of a party,
b) a lawyer in the case,
c) known by the judge to have an interest that could be substantially affected, or
d) known by the judge to likely be a material witness.
13. 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.
14. Personal animosity
15. Any other reason that may give likelihood of impartiality e.g 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.
Court of Appeal Rules 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.
LEGAL BASIS
Article 22(1) of the Constitution states that every person has the right to institute court
proceedings claiming that a right or fundamental freedom in the Bill of Rights has been
denied, violated or infringed or is threatened.
If a Judge has conflict of interest or can be impartial this threatens your right to a fair
hearing.
The Petition alleging or apprehending contravention of fundamental rights may be brought
by an individual person (includes a incorporated person) directly to the High Court by way of
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a Petition, which shall be supported by an affidavit and any other supporting documents.
The laid down procedure is provided in Rule 23 of the LN6/06 that such a Petition should be
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taken to the challenged Judge whereby he/she makes reference of the matter to the CJ.
PROCEDURE FOR MAKING AN APPLICATION FOR RECUSAL

1. Oral application - If a conflict of interest is straightforward, e.g. noticing that the judicial
officer was previously an advocate in the matter, an application can be made orally in court.
2. Formal application - This is done by a notice motion in court. It needs to be accompanied by
an affidavit and the relevant evidence.
3. If dissatisfied with an officer‘s refusal to recuse themselves, an appeal is allowed.
JUDICIAL PRESCRIPTION ON RECUSAL (PRECEDENCE)
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. Petition 671 of 2006
Home Pack Caterers v. The Hon. A.G. and Others. Petition 671 of 2006
The issue in the instant case relate to the recusal of Hon. Justice Ojwang who was the presiding judge in
HCC 83/03. In the instant case the facts are that the Plaintiff relied on a draft bill on HIV and AIDS that
had been prepared by a Task Force where the Judge in question was one of the consultants. The
contention of the Petitioner is that based on the nature of the issues in HCC 83/03 and the reliance on
the Task Force Report, the judge may have certain dispositions and inclinations to certain issues that
were dealt by the Task Force.
Hence, the Petitioner had an apprehension of not receiving a fair hearing. The case was first brought by
way of an originating summons before allowed to be a full hearing. The Petition was brought under S.
77(9) of the Constitution, Rules 11, 12 and 13 of the .Legal Notice 6 of 2006.
After an exhaustive analysis of judicial authorities within and without Kenya, the Court adopted and
approved 10 benchmarks as set out in Locabail (UK) Ltd v. Bayfield Properties Ltd [2000] QB 451, Court
of Appeal
1. In any case of automatic disqualification on the authority of Dimes and Pinochet (R v Bow Street
Metropolitan Stipendiary Magistrate, Ex. P Pinochet Ugate (No. 2) (199) 1 All ER 577 cases 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;
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3. It is highly desirable, if extra cost, delay or inconvenience is avoided by the judge recusing
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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 adjournments after a valid
objection.
5. In any case not giving rise to automatic disqualification or personal embarrassment, where a
judge becomes aware of any matter that could arguably give rise to a real danger of bias, it is
desirable for disclosure to be made to the parties in advance of hearing. If an objection is made,
it is the duty of the judge to consider it and exercise his judgment upon it.
6. A judge would be wrong to yield to tenuous or frivolous objection, same would be the case for
ignoring an objection of substance.
7. Where the facts of a case lead to apprehension of reasonable suspicion test, the Court of Appeal
adopted the principle set out in the Constitutional Court of South Africa in The President of the
Republic of South Africa v. South African Rugby Football Union, 1998 SA (4) 147 - ―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‖
8. In Re JRL exp CJL Re, (1986) 161 CLR 342 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.
9. In Re Ebner v, Official Trustee in Bankruptcy, (1999) 161 ALR 57 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. 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. See Clenae case, [1999] VSA 35, para.89(e).
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
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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.
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See Kaplan & Stratton v. L.Z. Engineering Construction Limited and Others -Civil
Application No.NAI 115 of 2000.
Kaplan & Stratton v. L.Z. Engineering Construction Limited and Others -Civil Application No.NAI 115 of
2000.
An application was made for the disqualification of the presiding judge, Hon. Justice Lakha, claiming it
unwise for the judge to have had two luncheons with Mr. Esmail, advocate for the first respondent. The
Court analyzed a number of English authorities and came to the conclusion that there is automatic
disqualification for any judge who has direct pecuniary or proprietary interest in any of the parties or is
otherwise closely connected with a party that he can truly be said to a judge in his own cause.
The Court further observed that if an allegation of bias is made, it is for the court to determine whether
there is a real danger of bias in the sense that the judge might have unfairly regarded with favour or
disfavor the case of a party under consideration by him or, might be predisposed or prejudiced against
one party‘s case for reasons unconnected with the merits of the issues.
Unconsciously setting the tone for Home Pack Caterers the Court held that surmise, conjecture or
suspicion is not enough and that personal knowledge of counsel does not disqualify a judge, otherwise
there would be few judges who would not be disqualified. Thus the Challenged judge rejected the
application for his disqualification.
See in Attorney General of the Republic of Kenya v. Prof. Anyang’ Nyong’o and 10 Others
Application No. 5 of 2007.
Attorney General of the Republic of Kenya v. Prof. Anyang’ Nyong’o and 10 Others No. 5 of 2007.
East African Court of Justice (EACJ) In the Matter of Nomination of members to the East African
Legislative Assembly.
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,
Kasanga Mulwa, and to issue an apology to the Judge for falsely pleading that he was suspended from
the Kenyan High Court and facing investigation for corruption.
The EACJ also rejected an application by the Government of Kenya to set aside a 27th November 2006
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ruling which stopped the swearing of the East African Legislative Assembly members nominated by the
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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 in Attorney General of the Republic of Kenya v. Prof. Anyang’ Nyong’o and 10 Others an
application was filed in the EACJ for disqualification of the President of the EACJ, Kenyan Justice Moijo
ole Keiwua and Kenyan Judge, Kasanga Mulwa based on the fact that they failed to disclose to parties
the material fact of their relation to the Republic of Kenya in a manner which rendered them impossible
for them to give a hearing to the 1st respondent hearing. The issue in this case was therefore whether
the two judges would have recused themselves before hearing the interlocutory application and if that
is the case then the consequent order should be set aside.
The Court, agreeing with S.A. Rugby Football Union case observed that where a recusal application
comes before a court constituted by several judges, subject to the judge whose recusal is sought giving
his individual decision on the matter, all the judges constituting coram for the case have a collective
duty to determine if there is sufficient ground for the judge to recuse himself from further participation
from the case.
The Court examined the two tests of
1. automatic disqualification and

2. reasonable suspicion test
And came to the conclusion that the objecUve test of ―reasonable apprehension of bias‖ is good law.
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
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succeeded. In the instant case the applicant waited until the interim application was decided before
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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.
HOW TO DEAL WITH THE ISSUE OF RECUSAL OF JUDICIAL OFFICER AS A TRIAL LAWYER
Trial lawyers faced with the prospect of having to ask a judicial officer to recuse him- or
herself must consider the following:
1) The need/or utmost tact
Trial lawyers who find themselves faced with having to request the recusal of a judicial
officer should always use the utmost tact when doing so
Judicial officers are only human, and do not like to be told in open court that they may not
be able to make a fair or unbiased decision because of some reason they themselves have
not brought to the attention of the interested parties.
They are nevertheless expected to retain their objectivity when considering an application
for recusal.
2) Recusal based on kinship or previous connection with decision
Where the application is based on the judicial officer being

a) Related to somebody, or
b) Because of some previous connection with a decision in the same proceedings, the
application will not be difficult as the court will usually oblige.
It is advisable for the lawyer to point out such a relationship or connection to the judge or
magistrate in chambers before raising the issue in open court.
3) Recusal based on bias
Applications for recusal on grounds of bias can be very difficult, and the trial lawyer must
take care to avoid words, 'which may reflect adversely upon the actual impartiality of the
court and which may thus be contemptuous'.
Submissions founded on fact and made in moderate language are protected.
However, exaggerated, reckless or incautious language may result in the applicant being
held in contempt of court (see R v Silber 1952 (2) SA 475 (A)).
Once again it is advisable to advise the bench beforehand about the pending application, in
order to give the judicial officer an opportunity to withdraw from the case on his or her own
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initiative.
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4) Factors to consider when applying for recusal
The former Appellate Division, now the Supreme Court of Appeal in South Africa, has
mentioned the following as important factors affecting applications for recusal per Schreiner
JA in R v Silber
(a) The repetition of protestations of deep respect will not make the submissions more
convincing if the effect of the words is to undermine the honour and dignity of the
court.
(b) As a matter of professional courtesy, the judicial officer who is being asked to
recuse himself or herself should be informed in advance that such an application will
be made. This is usually done informally by asking the judicial officer to receive both
counsel in chambers where the person wishing to make the application indicates
tactfully the fact and the grounds of the application. The officer concerned then has
time to consider the request and where appropriate to arrange for someone else to
hear the case.
(c) Where a lawyer moves for recusal, the other counsel should remain completely
neutral because it is essentially a matter between the first lawyer and the bench.
The lawyer on the other side should not become involved and should state that he
or she will abide by the court's ruling.
5) Avoiding premature assessment of need for recusal
Every trial lawyer at some stage may feel that the court has formed an opinion adverse to
his or her client particularly if the court gives this impression, or counsel identifies too
closely with the client.
It has been suggested that this can be overcome by doing the following
(a) Lawyers should always preserve the degree of independence and detachment
necessary to allow them to remain objective.
(b) Lawyers should not act prematurely when deciding to apply for recusal in case the
court's opinion is merely the expression of transient contemporaneous feelings.
(c) Lawyers should make sure that they are right before making an application for
recusal, and that it is the only reasonably practical step to take.
6) Consequences of abuse of the right to apply for recusal
If a trial lawyer abuses the right to request a judicial officer to recuse himself or hersel f, 'and
if under the cloak of an application for recusal, the applicant is in truth insulting the court
wilfully, summary committal [for contempt of court] may be appropriate' (per Schreiner JA
in R v Silber supra).
Advocates should never use their position to undermine the dignity and reputation of the
court.
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LECTURE 11: TUESDAY 19 APRIL - MORNING SESSION (LECTURE HALL A)
TOPIC 6: DIMENSIONS, RULES & PSYCHOLOGY OF ADVOCACY
A) DIMENSIONS
There are Four Dimensions as illustrated by Keith Evans in his book “The Golden Rules of
Advocacy”-OUP 1993.These are
1) Trial NOT an exercise to discover the truth but to persuade arrival at a certain
opinion.
2) Human animal is more video than Audio.
3) People do not like Lawyers.
4) Time
Dimension 1: 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.
1. Fact finder not being asked to unearth the truth.

2. Demonstrated by exclusive rules of evidence; Umpire rarely questions (adversarial
system).
3. Advocates primarily are trying to persuade the fact finder to arrive at an opinion in the
Advocate’s favour.
4. It is NOT a licence to be dishonest.
5. The court process is not a duel but a controlled atmosphere for making of presentations.
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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
Disintegrating, torn, shabby clothing speaks about you to client’s disadvantage.
2. Do not be seen to be in too friendly a relationship with your opponent
This is particularly important in courts where you know your opponents well.
Even if you are the greatest of friends outside the courtroom, it is your duty when in the
courthouse to conceal this.
Plain courtesy is enough.
Be pleasant but not friendly.
The reason for this ought to be clear: if the tribunal should happen to see you, outside court
or on your way to the courthouse, in an obviously friendly encounter with your opponent,
and then see you, in court, in an adversarial situation with the same person, they are going
to wonder about your sincerity.
Is your advocacy some sort of act in court, some kind of game? You don‘t want to give the
tribunal any reason not to trust you.
3. Don’t Smile, Laugh, or Joke without Including the tribunal
The use of jokes is a very delicate matter.

Nothing is as off-putting as seeing laughter and joking in front of you without knowing what
is going on and being able to share in the fun.
4. Appear at All Times to Be Absolutely Sincere
If you fail in this even one time, you undermine your chances for the whole of the rest of the
case.
5. Never convey any visual signal that you do not intend to convey
6. The use of visual aids
Where appropriate, where suitable, use visual aids to make a point. Maps, diagrams, charts,
etc. A case can be built or collapsed on this.
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7. Eye contact
Maintaining eye contact with the tribunal is important. Differentiate this from perpetual
staring.
Eye contact depicts honesty and conviction.
Dimension 3: People do not like lawyers
This is what is called the Evans‘ survival skills;

Lawyers have borne the brunt of coarse jokes.
There are three survival skills
a) Stick rigorously to the truth
b) Don’t appear to be manipulative
c) Don’t sound like a lawyer
Dimension 4: Time
Lawyers‘trade lies mainly in time and advice.

Therefore it is important to observe all matters of time.
These include brevity, punctuality, etc.
1. 5 hours listening to a boring lawyer can be a torment.

2. All players have other things to do-Expert witnesses have their practices to go back to;
Witnesses have their occupations; Judge has rulings and judgments to write; Prosecutor has
other cases…
3. Let client know being concise is a secret weapon.
4. Don’t repeat yourself-Don’t go over and over a point you have already made.
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B) RULES
There are 6 Rules
1. Don’t express your personal 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.
It’s your client’s case, not your case.
Cab rank rule was devised to avoid people finding no one to represent them.
Thomas Erskine defence of American revolutionary, Tom Paine.
Erskine-“I will lay aside my role as an Advocate and address you as a man”
Lord Campbell-”You will do nothing of the sort. The only right and licence you have to appear in this
court is as an Advocate”)
Avoid words like “I think” or “I believe”.

Instead use words like:
i. “The evidence shows”…
ii. “From the testimony of…”
iii. “It has been found that ….”
iv. “All reasonable indications point to…”
v. “Subjected to the test of a reasonable man…”
vi. “Measured against the standard of …..”
vii. “Experience has shown…”
2. Don’t testify from the bar.
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.
1. Giving evidence makes one liable to being cross examined on it.

2. Don’t use words like, “My client personally told me…”
3. In opening statement say, “We will lead evidence…” or “the evidence will show…”
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4. In submissions, say, “It came out in evidence …or the evidence tendered showed…”
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3. In submissions speak only of what was touched on in evidence.
Do not appear to fill gaps that may be there in the evidence already tendered by you.
1. Can refer to what can be taken judicial notice of, such as:
2. Documented state of the environment.
3. Commonly used Biblical and English literature expressions.
4. Specifics that needed evidence ought to have been testified about, e.g. service records at time of
accident; recordings on speed camera; date of last inspection of fitness or safety of fire
equipment.
4. Don’t “PUT IT TO” the witness.
This happens in cross-examination

Phrase your questions in such a manner that you want your witness to either agree or
disagree with you.
Don’t refer to your witness as the accused.
These questions are intended to bring out your case theory.
1. Was taken from English practice of “putting across” to the witness your version of events.
2. Can accomplish it by the form of cross examination.
3. E.G if your version is that it was self defence, ask questions that show a build up to a state
where defendant or accused were actually acting in self defence.
4. If you “put it to”, they’ll simply say, “That is not true”, and lead to an argument of my word
against yours.
5. Never refer to Criminal record (unless it was brought up or was likely to be

brought up).
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.
Have in mind:
1. Presumption of innocence.
2. Constitutional protection against self incriminating evidence.
3. Unless past criminal record is relevant to the trial and so you need to minimise its negative
impact by bringing it out first.
4. Offers of settlement: Are always on without prejudice basis.
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6. Never put words into your witness’ mouth.
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.
1. In examination in chief, don’t ask leading questions.

2. Leading questions are asking witness to agree or disagree with you.Leading question: That
which can be answered as either “Yes” or “No”.
3. Evidence always has to come from witness.
4. Putting words in witness’ mouth closes out giving of detailed evidence.
C) PSYCHOLOGY
There is a lot of human psychology that goes into the trial process.
Process of arriving at an opinion by the fact finder involves both “Thinking” and “feeling”.
Remember the fact finders are human.
Tip 1: Fragility of Advocacy Material
The fragile thought and feeling process of the fact finder.

In a manner of speaking, you want to lead the fact finder along the garden path of the
theory of your client’s case.
Tip 2: Be likeable
People like people who are likeable.
At any rate, be slightly more likeable than your opponent.
Your likeability should not seem like a cover up.
It should be consistent.
Don’t snap till they ask, “Was that the same person”?
We all have a nice side. Take this nice side to court.
Take the real human being to court, not the grim, serious, solemn, grave and pompous
person.
Tip 3: 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.
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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
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overlook your mistakes.

Are converting a number of people previously unfamiliar with you to be sympathetic to your
cause.
If succeed will have them:
i. Listen to you willingly.
ii. Give kind interpretation to what you say.
iii. Feel reluctant to deny what you ask.
iv. Feel inclined to overlook your mistakes.
Mentally put yourself in the Judge’s seat.
Tip 4: The rule of equals and opposites

The rule is simple.
You push and they‘ll push back.
You pull and they‘ll resist.
You demand and they‘ll refuse you.
You insist and they‘ll turn you down.
In dealing with people, invite, don‘t demand.
Suggest, don‘t tell.
Lead, don‘t pull.
Tip 5: Include the fact finder by use of 1st person plural

Makes the fact finder feel included.
It’s about “We”, not “they”.
“We are here for this case”, not “The court is listening to the case in which….”
“Tell his Honour” or “Tell the Court”…
Think we never they, us never you.
Tip 6: 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).
Deal with weaknesses in your case beforehand.
It helps mitigate their impact.
It takes away the element of surprise.
Lay the right foundation.
Tip 7: Always aim to be the honest guide

For example; don‘t ask the tribunal to believe unbelievable things.
Don‘t pretend about the weak points in your case.
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Don‘t misquote the evidence in any way.

Always come across as being absolutely fair.
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Keep your objections to a minimum.
Tip 8: Demonstrate Competence

Refer to:
i. Case law
ii. Statute law
iii. Regulations.
A NO, NO: “I leave it to the court”.
Remember the court has other workload.
Tip 9: Listening
Is not automatic; it has to be practiced.
Temptation is that “I have to ask all my questions”.
Get someone to take notes and write down answers to your questions so you can pay
attention to listening to the witness.
Tip 10: Know when to Stop

When you make a wrong statement.
When you realize you are lost.
Use words like:
i. “Let me take that again…”
ii. “Let me rephrase my question…”
Tip 11: Repetition

Be used sparingly.
Be tactful in changing the end of the question:
E.G: “The shirt was blue?”“The shirt had a colour?”“The shirt was not white?”“The shirt was
not yellow?”
In submissions:
May want to emphasize a theme:
Spread it after every sub-heading.
Example: “Innocent father, looking for bread for his children”.
Sub-headings:
•His normal character through his lifetime.
•How he arrived at the scene.
•Behaviour upon arrest.
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Tip 12: Show the way home
What do you want the court to do for you?

What is the goal? The objective?
You have been taking the people on a tour; have been their guide. How do they get home?
Remember:
Decision making is difficult. Make it easier for them to make the decision.
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LECTURE 12-13: TUESDAY 26 APRIL & 3 MAY- MORNING SESSION (LECTURE

HALL A)
TOPIC 7: PREPARATION FOR TRIAL (PRE-TRIAL ADVOCACY)

1. CLIENT INTERVIEW
NB/ Cases are won or lost in chambers, not Courts. So prepare 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
2. Identifying the nature of the client‘s problem
3. Obtain adequate information and reach a conclusion
Preparing the client for an interview

1. You need to have all the vital materials you will need for the interview. This includes the
requisite documents and stationery
2. You must have read through the interview in advance
3. Setting up the appointment - You must have set the appropriate date, time and location for
the meeting. The location must be comfortable as well as formal.
Confirming the appointment and requesting information

Details of the meeting and the agenda should be confirmed to the client through a formal
letter from the firm.
It is important to gather all the requisite documents for the interview and reviewed them
prior to the interview.
Preparing the interview location

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

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

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

1. Active listening
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2. Do not interrupt constantly

3. Reflect on what you have been told, summarize findings to the client
4. Observe body language
Advising the client

1. Outline the options, both legal and non-legal
2. Assist the client in making an informed decision
3. Take instructions on the client wishes, do not try to persuade them
4. Explain any follow-up to be undertaken by the advocate, including payments
5. Confirm that the client agrees with the course of action
Conclusion
Check if there‘s AOB on what the client wants. Provide an idea of the timelines and what will
take place.
Tell the client what they can expect from you.
Politely end the meeting and courteously escort them out.
Top tips for client interview

1. Establish a good rapport
2. Empathize, don‘t sympathize
3. Be attentive to what the client is saying, do not appear disinterested
4. Pay attention to the non-verbal signals the client puts out
5. Clarify what the client tells you by paraphrasing the story and the questions
6. Exercise active listening
7. Appreciate the client‘s needs, expectations and situation
8. Offer the proper advice but let the client decide
9. Put the client at ease about your capabilities; be clear about the fees and the time scales and
guidelines.
10. Never give guarantees
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CLIENT INTERVIEW
Objectives of interviewing Why is client here? (What happened to them?
What do they want to achieve?
Basic info to open a file, advise on costs.
Is not just information gathering.
Is not just dealing with the legal problem.
It’s about responding to the person.
It’s a professional but personal relationship.
Functions of the interview Establish the inter personal dimensions between lawyer and client.
Identify issues and obtain sufficient information.
Determine client’s objectives and advise on them.
Prepare way for further action on client's behalf.
Interview Process WASP

Welcome
Acquire information
Supply information
Part
See Maughan and Webb, “Laywering Skills and the Legal Process”, 2ndEd.
Importance of client participation Reduces potential of client-lawyer conflict of interest.

Increases client satisfaction.
Enables client perform better in outcome.
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Interview environment One that avoids interruption.

Lawyer should appear organized and uncluttered.
Have a comfortable seating arrangement, not one that is intimidating.
WASP a) Welcome
Meet, greet, seat.

Take notes but maintain eye contact.
Explain to client why need to take notes.
Discuss costs up front.
b) Acquiring Information
Listen. Let the client do the talking.
Questioning:
i. Basic, to establish a rapport.

ii. Avoid closed questions (Did? Are?)
iii. Use: “Tell me”?
iv. Be empathetic.
v. Probe for detail.
vi. Check the facts.
c) Supply Information
Advise; Give counsel.
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From:
i. Prior book knowledge.
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ii. Experience.
Use language client understands.

Give structured advise.
Confirm with client that they got the advice.
d) Parting
Agree on an action plan.

Establish channels for further contact.
Explore Legal and non-legal alternatives. May refer client.
File to have:
i. Details of client's personal information.
ii. Events leading to the consultation.
iii. Work to be done by lawyer and client.
iv. Advice given and to be confirmed.
Action plan:
i. Next contact
ii. Deadlines for tasks
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2. RESEARCH AND DOCUMENTATION
Starts with a lawyer listening to the client
Importance of legal 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
1) Writing up a plan Research tools

a) Internet
b) Telephone
c) Libraries, primarily, law libraries
d) Generating search terms which will be informed by the instructions and the nature
of the case in question.
2) Documentation
Develop a case file and a notebook Case file contains;
a) The instruction notes
b) Minutes of meetings
c) Court attendance sheets
d) All requisite documents such as evidentiary documents
3) 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.
4) Conclusion
Understand the court always keep copies
Always have alternative strategies
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RESEARCH AND DOCUMENTATION

Questions to Ask: Who has the information I need?
In what categories can the information be classified?
Who are the potential witnesses?(Eye witness; Expert)
Does the other party have a lawyer?
Are there forensic aspects to the case?
What physical evidence is available?
Information categories Personal information

Other parties (lawyers who have previously acted for the client)
Witnesses
Events
What client wants.
Previous advice and assistance.
Existing Legal proceedings.
Research Keep it within reasonable time frame.

Restrict scope to client's need.
Be relevant within local jurisdiction.
Anticipate the adverse side
Documentation Store the information securely

Categorize it. Label or classify. Have sub-folders.
Determine what needs extra security(safe; strong room)
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Have a cover report/summary
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3. THE DEMAND LETTER
Definition of a demand letter:

This is a formal letter written by the advocate on behalf of a claimant demanding that some
action be taken.
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.
Section. 13 of the Advocates Act states that no advocate may request in a letter of demand
before action payment from any person other than his client of any costs chargeable by him
to his client in respect of such demand before action, or in respect of professional services
connected with the demand.
Order 3 Rule 2(d) of the Civil Procedure Rules 2010 places the letter of demand as one of the
documents accompanying a suit.
As an advocate, you are barred from making any demands for your own payment in the first
letter.
A notice of intention to sue comes in government proceedings. See Government
Proceedings Act S13A
Components
1) Summary of accounts – all the details associated with the action sought. This should include
a description of what was to be done, what has not been done, when it should be done.
2) Summary of actions to date – the nature and timing of all communications to date both
written and verbal and the recipient‘s response of lack thereof.
3) Clarification of the demands –
4) Time of response - make it clear the time period within which the recipient should respond.
Consider factors such as postage time.
5) Consequences of non-compliance – Be specific and clear as to what action you will take
should there be non-compliance. Do not be angry or threatening. Expedite the matter in
order to avoid litigation. Do not be insulting. Always keep it objective and professional. Do
not make empty threats. Avoid using many adjectives of being over descriptive. This is to
avoid being emotive.
6) Timeline for payment and compliance – in the conclusion, state the exact the timeline for
compliance. This should be reasonable, at least 7 days to allow for compliance and/ or
response.
7) Signature – this is for authentication and should be handwritten.
Length
There is no prescribed length, but it should be precise, to the point and not too long. Be
assertive, concise and straightforward.
Suppose you need to take out urgent proceedings where there is no time for a demand
letter, can one be exempted? In reference to Anton Pillar orders, etc.
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THE DEMAND LETTER BEFORE ACTION
What is a demand letter?

A demand letter is a formal notice demanding that the addressee perform a legal obligation,
such as rectifying a problem, paying a sum of money or honouring a contractual commitment,
on specific terms and within a specified time.
The letter gives the recipient a chance to perform the obligation without being taken to court
In certain types of legal proceedings, a demand letter is mandatory.
Scope of Demand Letter
Where it is pleaded a demand is required to be made as a matter of law.

It is a letter sent to the person against whom a grievance is raised
It is sent before the commencement of the suit
The letter is intended to elicit a payment or compliance from the part of the prospective
defendant
It serves to inform the adversary of a pending claim
The adversary is given a time-frame within which a response is required
A demand letter may be written by the person seeking redress or by a lawyer on that person’s
behalf.
A copy is made and the original must be sent in a way that provides proof of delivery.
It can be sent by registered mail.
It can also be served by a registered legal clerk
Purpose of the Demand Letter
The purpose of a demand letter and notices prior to litigation is to afford both parties an
opportunity to avoid embarking on unnecessary litigation or incurring additional costs,
especially within the context of our overburdened judiciary and the reality of a constricted
economy. Today, it is a very important step in legal proceedings.
It also serves as notice to the other party, that there is an issue against them.
It offers parties a chance to settle the matter out of court.
Out of Court Settlement
Important because it is required by the Constitution of Kenya, 2010, as an alternative solution,
Article 159 (2)
It’s expeditious, allegedly.
Allegedly cost-effective
Privacy
Amicable way of solving disputes ...win-win situation
Maintain a business relationship/peace
Flexibility, the parties choose arbitrator/mediator/etc...parties choose their judge
Demand letter mandatory

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In most types of legal proceedings, especially civil suits guided by the Civil Procedure Rules,
2010, a demand letter is mandatory.
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Where it is pleaded a demand is required to be made as a matter of law. (O3, r2 (d)).

Where it is excluded, a party may not be able to claim for costs in the suit.
Reasons for making formal demand
It is usually advisable as per the Advocates Practice Rules so as to avoid incurring additional
costs of suit should the claim be admitted by the other party
If the demand letter achieves its results, litigation is avoided
To avoid suits that may be vexatious or brought out of malice.
To give notice of intention to right a wrong against a legal right
However, it may be preferable not to give the debtor warning through the demand letter
especially if he’s a flight risk (to be discussed later)
Contents of a demand letter
(a) A date, the recipient’s contact information, and the legal phrase WITHOUT PREJUDICE to
protect the sender with regard to the contents of the letter
(b) The authority to act for the claimant
(c) A summary of the matter in issue
(d) A demand for a specific relief or payment
(e) A deadline by which the matter must be settled
(f) Consequences of non-adherence to the demand of claim
(g) The term demand letter stated in the body of the letter to direct the recipient to act accordingly
What should be included in a demand letter?

a clear intimation that payment is required…it must be of a peremptory character and
unconditional…’ as per Re Colonial Finance, mortgage & Investment & Guarantee Corporation
Limited (1905) 6 S.R.N.S.W. 6
Under the Law Society of Kenya Digest of Professional Conduct and Etiquette (1982 Edn Revised
2000) on Paragraph 19, the period a party must normally be given to respond to a letter of
demand:
i. 7 days, where debtor resides in the same town as advocate,
ii. Not less than 10 days, where he resides in a different town in Kenya,
iii. 15 days, where he resides outside East Africa
Note: A demand letter should be signed by an advocate. Why?
i. It is a document that is chargeable under the Advocates (Remuneration) Order, 2009
and therefore attracts the prohibition u/ss 34 & 35 Advocates Act, cap 16, i.e., not to be
drawn by an unqualified person, or remuneration thereof accepted by an unqualified
person.
ii. Further, signing in the name of the firm is not sufficient as it is not safe – it may lay the
demand letter open to challenge as not being given either by the party or by an
advocate as his representative on his behalf. See Singh v Munshi Ram (1937) 4 EACA 9
What should not be included in a demand letter?
A threat that criminal proceedings would be initiated against the debtor in event of non-
payment. See Khanbhai v O’Swald (1933) 15 KLR 53
Letter of demand may not demand from the debtor the costs of the advocate giving notice –
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there is both a statutory and professional bar to making such a demand. See Rule 13, Advocates
(Practice) Rules subsidiary legislation to the Advocates Act, cap 16 and Under the Law Society of
Kenya Digest of Professional Conduct and Etiquette (1982 Edn Revised 2000) on Paragraph 19.
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But, if subsequent to the original letter of demand, the debtor requests to be allowed to make
payment of demand sum by installments, and these terms are accepted, then it is permissible to
add the advocate’s costs to the principal sum owing.
This must be done at the time of accepting the proposal of payment by installments.
This is permissible because fresh consideration is being given by the creditor, for adding those
costs to the principal amount.
Other considerations
It must be kept in mind that the demand letter or notice will later become highly relevant in
subsequent applications and hearings in the suit, as well as to an assessment of the conduct of
parties. See Mbogo v Shah (1968) EA 94
Court shall order particulars of notice;Express provision is made in the Civil Procedure Rules,
2010 for a court to order that particulars of any notice pleaded to be supplied to the opposite
party.
Where the plaint is at variance with the demand letter, particulars in explanation must be given
by the plaintiff .See Abdulla v Esmail (1969) EA 111 a and Jared Benson Kangwana v Attorney-
General (unreported) HC Misc. Civil Application No. 446 of 1995
When demand letter would not be advisable

i. Anton Pillar Order
ii. Mareva Injunction
iii. Initial application for this is usually made ex parte without notice to the defendant
iv. Knowledge by defendant that the application is pending may defeat the very object which the
plaintiff is trying to achieve, through dissipation of the subject matter of the suit, or removal of
assets of the debtor from the courts jurisdiction, etc. A demand letter would obviously
adversely affect the element of surprise and thus the efficacy of the court orders.
Without Prejudice communication

Upon reply the person who is being claimed against will quote the legal phrase “WITHOUT
PREJUDICE” to protect the sender with regard to the contents of the letter. See Millicent
Wambui v Nairobi Botanica Gardening Limited [2013]eKLR Cause No. 2512 of 2012
Scope of the protection
The protection goes only insofar as protecting the communication between parties that
genuinely attempts to resolve the disputes between the parties
The doctrine protects admissions, concessions or offers made by parties in communication
The words ‘without prejudice’ impose upon the communication an exclusion of use against the
party making the statement in subsequent court proceedings.
A party making a ‘without prejudice’ offer does so on the basis that they reserve the right to
assert their original position, if the offer is rejected and litigation ensues
However, the ‘without prejudice’ communication could be admissible if the issue was whether
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or not the negotiation resulted in an agreed settlement

Without prejudice means that you are making offers and counter offers and the negotiations
are unsuccessful and they go to court, they should not be used to prove anything in court.See
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Section 23 (1) of Evidence Act.

Based on public policy that matters should be settled out there and not burden court system
Exceptions (where without prejudice communication can be produced as evidence):
i. Where the parties consent to the production of the without prejudice doc in court
(where there is waiver).
ii. IN cases of fraud and concealment
iii. To prove reasonable action, to explain delay...delay defeats equity/aids the vigilant
Without prejudice communication may be implied from the letter of offer to settle matter (n/b:
not demand letter). The reply to this offer does not have to have the without prejudice
statement on it, it is implied from the first letter already.
Demand Letter
Ref: Principles in Civil litigation.
Summarize what client’s case is.
Substance of claim it is making.
What are you demanding from addressee.
Same principles will apply in opening statement; submissions; Theme and theory.
Determine mode of delivery.
Next step, in case of :
a) Letter being ignored.
b) Offer for negotiation is made.
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SAMPLE DEMAND LETTER
M529/001/L/17M
TBA
8th February 2017
Maskani Ltd
nd
2 Floor, Mayfair Business Center
Parklands Road,
Westlands
P.O.Box 67735-00200
Nairobi
ATTN: MR.MADENI
Dear Sirs,
RE: BREACH OF CONTRACT
We are instructed by Mr.Bidii trading as Maskani Africa (“our Client”) to address you as we do hereunder.
On or around 6th June 2016 you entered into a Marketing Agreement (“the Agreement”)with our client for
marketing services more particularly described at paragraph 3 of the Agreement. In consideration for the services
rendered by our client, you were to pay to our client a total sum of Kshs 1,200,000/-in installments upon the
conclusion of each phase. Payments were to be made within thirty days of invoicing.
Further to that contract our client duly performed the work as regards phase I and II of the Agreement and
submitted an invoice for the work. Our instructions are that you failed to make any payments to her in breach of
the Agreement.
Our instructions therefore are to demand from you, as we hereby do, an acknowledgement of debt for the above
and the payment of the sum of Kenya Shillings Five Hundred Twenty Five Thousand (Kshs 525,000/-)together with
our collection charges of 10%.
TAKE NOTICE that unless we receive a cheque from you for the sum of Kenya Shillings 525,000/-within seven (7)
days from the date of this letter, our mandatory instructions are to institute legal proceedings for the recovery of
all sums due to our client at your risk as to costs and other consequences.
Yours faithfully,
MCDONALD ASSOCIATES
Joseph McDonald
mcddear@mcdonaldassociates.com
cc: Mr.Bidii
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Maskani Africa
Loiyangalani Drive
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Lavington
P.O.Box 53913-00200
4. NEGOTIATIONS
Definition
"A negotiation is an interactive communication process that may take place whenever we
want something from someone else or another person wants something from us.‖
Elements of negotiation
1) Relationship: Negotiation involves relationships. It is important when we need the consent
of others to achieve our ends, when we can meet our ends better by involving others, or
when unilateral means are not morally, socially, or politically acceptable. Negotiation is
interactive.
2) Communication: A central process in negotiation is communication. This can take place

implicitly in bargaining processes, or more explicitly in different kinds of conversation.
Communication should not be taken for granted.
3) Alternatives: Things you can pursue away from the table. It is especially important to
understand your Best Alternative to a Negotiated Agreement or BATNA
4) Interests: What is important to you that you can achieve in the negotiation. You get at them
by asking, "Why?"
5) Options: Tangible steps that serve interests and can be part of an agreement
6) Legitimacy: Sources of justification such as legal standards or precedents, professional

norms, market value, social or economic standards (e.g. blue book value).
7) Commitment: How do we guarantee we both will follow through on our agreement?
Validity of negotiation
Reasons people find negotiation difficult

Classes of negotiation – as a consequence of non-agreement
Advantages and disadvantages of negotiation
Phases of negotiation
Without prejudice statements

Communications made between parties with the intention that they not be used against the
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party in litigation.
Evidence Act s 23 provides for this rule.
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23. Admissions made without prejudice in civil cases.

1. In civil cases no admission may be proved if it is made either upon an express condition that
evidence of it is not to be given or in circumstances from which the court can infer that the
parties agreed together that evidence of it should not be given.
2. Nothing in subsection (1) shall be taken to exempt any advocate from giving evidence of any
matter of which he may be compelled to give evidence under section 134.
Upon reply the person who is being claimed against will quote the legal phrase “WITHOUT
PREJUDICE” to protect the sender with regard to the contents of the letter. See Millicent
Wambui v Nairobi Botanica Gardening Limited [2013]eKLR Cause No. 2512 of 2012
Scope of the protection
The protection goes only insofar as protecting the communication between parties that
genuinely attempts to resolve the disputes between the parties
The doctrine protects admissions, concessions or offers made by parties in communication
The words ‘without prejudice’ impose upon the communication an exclusion of use against
the party making the statement in subsequent court proceedings.
A party making a ‘without prejudice’ offer does so on the basis that they reserve the right to
assert their original position, if the offer is rejected and litigation ensues
However, the ‘without prejudice’ communication could be admissible if the issue was
whether or not the negotiation resulted in an agreed settlement
Without prejudice means that you are making offers and counter offers and the negotiations
are unsuccessful and they go to court, they should not be used to prove anything in
court.See Section 23 (1) of Evidence Act.
Based on public policy that matters should be settled out there and not burden court system
Exceptions (where without prejudice communication can be produced as evidence):

i. Where the parties consent to the production of the without prejudice doc in court
(where there is waiver).
ii. IN cases of fraud and concealment
iii. To prove reasonable action, to explain delay...delay defeats equity/aids the vigilant
Without prejudice communication may be implied from the letter of offer to settle matter
(n/b: not demand letter). The reply to this offer does not have to have the without prejudice
statement on it, it is implied from the first letter already.
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Principles:
1. What is your client's case?
2. Your client remains your client.
3. Are they required by the applicable law/rules?
4. The cost/benefit analysis for choosing negotiations.
5. Have a time frame: cannot go on forever.
6. Plan B in case they fail.
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5. CASE ANALYSIS
What Does the Law provide?

a) What type of case are we faced with?
i. Criminal
ii. Civil
iii. Constitutional petition
iv. Matrimonial dispute
v. Succession cause
b) Specific applicable statute law
Ingredients of what is to be proved

Ian Morley, QC in “The Devil’s Advocate”: “In crime everything starts and ends with the
charge”.
Example:
Penal Code, Cap. 63, Murder:
Any person who of malice aforethought causes death of another person by an unlawful act
or omission is guilty of murder.
Ingredients
i. Person
ii. Malice aforethought
iii. Cause death
iv. Of another person
v. Unlawful act or omission
Fact v Conclusion
Fact-What can be discerned by the five senses:(Seen, touched, heard, smelt, tasted)
Conclusion-Opinion arrived at after linking the facts Duty to bring out facts is upon the
Advocate Duty to make conclusion is upon the trier of fact.
A witness gives a fact; An advocate makes a comment
A fact is descriptive; A comment is prescriptive.
A fact is detail; A comment is argument.

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What has to be proved?
In our example of murder:

i. There was a person (Accused) who caused the murder
ii. Has to be capable of committing a crime (Soundness of mind; age of criminal culpability).
iii. Had malicious aforethought.
iv. Caused death of the other person.
v. There was that other person who was killed.
vi. The act causing death
vii. The omission causing death.
viii. Death within one year and one day.
How will be proved: Fact table
1. Fact
2. Witness
3. Page /paragraph of witness statement
4. Exhibit
FACT WITNESS PAGE EXHIBIT

NO./PARAGRAPH
Causing death PW 1 1 Knife
Causing Death Pw2 Doctor 1 Post mortem report
Good Facts vs. Bad Facts
a) Three Best Facts
Outline ALL the facts favourable for the side you represent.
If are a team, vote for the three best facts
NOTE:
i. You can combine some facts.
ii. Some facts may be good for either side.
iii. The good facts for your side are the bad facts for your opponent
b) Three Worst Facts

Outline the bad facts (those that work against or weaken your case).
Vote for the best three.
Determine how to deal with them.
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Can:
i. Ignore them
ii. Explain them
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iii. Best: Turn them to your advantage.

LECTURE 14-15: TUESDAY 10 & 17 MAY- MORNING SESSION (LECTURE HALL

A)
TOPIC 8: OPENING STATEMENT
A) DEFINITION
1. Black’s Law online Dictionary 2nded.
“A term that is given to the initial statement of the attorney to the judge or the judge to a
jury.”
2. Steven Lubet, “Modern Trial Advocacy”-

”Advocates' first opportunity to speak directly to the jury about the merits of the case”
B) STATUTORY BASIS
i. Civil Cases
Under the Civil Procedure Act and Rules

See Order 18 Rule 2 (1):
ORDER 18-HEARING OF SUIT AND EXAMINATION OF WITNESSES
1. The plaintiff shall have the right to begin unless the court otherwise orders.
2. Unless the court otherwise orders—
1) On the day fixed for the hearing of the suit, or on any other day to which the hearing is
adjourned, the party having the right to begin shall state his case and produce his
evidence in support of the issues which he is bound to prove.
The opening statement introduces the fact finder to the parties‘ competing theories of the
case.
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.
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.
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While opening statements should generally be short, their length and detail vary widely with
the complexity of the case.
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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
pre-trial conference.
Pre-Trial Conference
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;
i. Expedite the disposition of the case
ii. Help the court establish managerial control over the case
iii. Discourage wasteful pretrial activities
iv. Improve the quality of the trial with thorough preparation
v. Facilitate a settlement of the case.
If the parties are unable to set the order themselves, the trial judge will do so.
The party with the most to gain will usually go first for plaintiffs, and the party with the
primary liability or the largest financial exposure will usually go first among defendants.
Another instance in which the plaintiff may not begin is where the defendant admits the
facts alleged by the plaintiff but raises an objection on a point of law, for example if a plea of
limitation or res judicata is raised.
The defendant may also begin if he admits the facts alleged by the plaintiff but states that
the plaintiff is not entitled to the relief claimed.
Given the overwhelming significance of this stage of the trial, counsel must deliver a
powerful, potent, and persuasive opening statement.
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ii. Criminal Cases
Under the Criminal Procedure Code, Cap. 75

See Section 300 (Case for the prosecution)
Case for the Prosecution

300. Opening of case for prosecution.
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.
See Section 307 (Case for Defence)
Case for the Defence

307. Defence
(1) The accused person or his advocate may then open his case, stating the facts or law on which he
intends to rely, and making such comments as he thinks necessary on the evidence for the prosecution;
the accused person may then give evidence on his own behalf and he or his advocate may examine his
witnesses (if any), and after their cross-examination and re-examination (if any) may sum up his case.
NB: 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.
As mentioned earlier if a party chooses to give an opening statement, the party with the
burden of proof will usually present its opening statement first.
In criminal cases, this is done by the prosecution. It is advised to never waive their
opportunity to give an opening statement first.
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.
C) OBJECTIVE/PURPOSE/ROLE OF AN OPENING STATEMENT

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The purpose of the opening statement is to provide the court with a framework within
which to understand your case.
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Normally your client's version is briefly outlined, the essential elements of the case are
highlighted, and the names and number of witnesses are mentioned.
Sometimes the essential focus of each witness's testimony will also be mentioned.
It can therefore be said that the general purpose of an opening statement is to provide the
judge with a statement of the facts counsel intends to prove.
It necessarily includes a brief description of the issues, a description of the parties‘ factual
contentions, and a preview of important evidence.
The four main purposes to be accomplished in opening statements can be summarized as
follows:
I. Present a clear picture of the case — its major events, participants,
instrumentalities, disputes and contentions.
II. Arouse the interest of the judge- in your case and general theory so that they want
to hear your evidence.
III. 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.
IV. Alert fact finders-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.
Role of Opening Statement

According to Steven Lubet (Modern Trial Advocacy) the roles of opening statement are:
a) Opening moment: Helps create mental image that trier of fact holds as they hear
the evidence.
b) Legal function: Help reduce confusion in flow that arises in trail process, through
sequence of witnesses and cross examination
c) Advocacy: Opportunity to advance theory of your case.
d) Story arc: Change of characters from the start to the finish.(Things were ok;
something drastic happened; there has to be a remedy now)
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D) CONTENT OF OPENING STATEMENT
We will look at two
I. Permissible Content
During opening statement, the defendant is allowed to:

i. Preview the evidence he or she intends to present.
ii. Set forth the grounds for his or her defense, i.e., state the evidence on which the claim or
defense is based.
iii. Point out facts that the defendant reasonably expects to bring out in cross-examination even
if the defendant does not intend to present evidence.
Defense counsel also may make certain general observations in an opening statement,
although as a practical matter such observations may do little to articulate the defendant‘s
theory of defense to the jury.
Counsel may:
i. Tell the jury that it should give attention to all of the witnesses
ii. Ask the jury to consider each piece of evidence carefully.
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."
II. Impermissible Content
Counsel is generally given wide latitude in opening statements, but it is improper for counsel
to engage in argument.
(a) refer to inadmissible evidence;
(b) exaggerate or overstate the evidence; or
(c) 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.
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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
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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 posiUons, or asserUons regarding the
believability of witnesses.
A discussion of any point should be fact-based, and phrased in an objective form.
Example of Being Argumentative
John Smith is not guilty of battery. Yes, he shot Bob Green. But only because Bob Green started the
fight, pulled his own gun, and fired the first shot at John. John Smith is not guilty because he acted in
lawful self-defense.
or
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 Green started the fight,
pulled his own gun, and fired the first shot at John. The evidence will conclusively show that John
Smith is not guilty because he acted in lawful self-defense.
Another impermissible thing is to ask the jury to act in your favour
For example,
1. You cannot refer to your witnesses as “good and truthful,” and therefore more worthy of
belief than your opponent’s witnesses, nor discuss how your evidence satisfied a legal
standard.
2. Making negative judgments about your adversary or referring to the other party in scurrilous
terms. You cannot, for example, call the defendant a “big cow.
3. Using a colorful label that characterizes facts in a way distinctly favorably to your side. For
example, the prosecutor cannot characterize a crime as a “rampage of terror” or
unspeakable evil.”
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E) HOW TO MAKE AN EFFECTIVE OPENING STATEMENT/ TECHNIQUES
How the opening begins is so important that it must be structured to grab the attention of
the judge when it is at its highest point and then begin to direct the judge through the
evidence that you will be presenting.
You don‘t want to be in the position that the judge is holding the remote control and they
began to change the channel before you finish the opening.
1) Start Strong
To accomplish this, consider beginning the opening with a short statement that gives the
judge a capsule of the case in two to three dynamic statements.
For example; -This is a case about a company that put profits over people. -What you will
hear is a story of a human tragedy.
You want to capture the judge‘s attention in the first few minutes in a way that will convey
your case in a theme with simple language, and then proceed to tell the story so he can
follow and understand.
Avoid clichés and boilerplate statements like
(a) What I say is not evidence.‖
(b) This is a road map.‖
(c) It is your decision to determine the facts.‖
(d) It is now my opportunities to give an opening statement to tell you what I think the
evidence will be.‖
If you do that, by the time you are finished with your introductory remarks, the fact finder is
thinking about something else other than you.
2) Have a Theme
Given the elusiveness of the spoken word, a theme is crucial in the opening statement.
Most listeners forget the particulars of any oral presentation within a few minutes after they
hear it.
If the statement is built around a theme, however, the listeners are likely to remember it.
But what is a theme?

It is an overall point that runs throughout the presentation, receiving reinforcement as
different aspects of the message are presented.
It is a short, simple concept that states a capsule of your case.
It ―provides essenUal 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
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drawn from smaller points.

The theme of the opening statement should carry throughout the trial.
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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
presenUng the factual ―story‖ in narraUve form, reemphasize it when you describe key
pieces of evidence, and address it again in the conclusion.
For example, a lawyer who expects to build her case around key documents could fashion an
introduction that emphasizes the reliability of written evidence, present a narrative built
around the preparation and execution of the documents, emphasize the documents in
describing the evidence, and close with a reference to the credibility of the written word.
This approach implicitly suggests that the adversary‘s reliance on non-documentary
evidence is less persuasive, without requiring direct argument of the point.
The theme depends on the facts and equities. It should be linked to the key points that must
be proven under the law.
Further, you should ensure that the theme is real: that it can be drawn from, and supported
by, the facts. It must be consistent with universal concepts of fairness and what is right.
A theme provides mental organization that enables a judge to look for evidence that fits the
theme.
That is why you must develop a theme that taps into the collective unconsciousness of the
judge.
If you fail to connect your client‘s situation to the values of the judge, he may not find in
your favor.
The right theme helps judges rationalize any and all of the case conflicts and gives them the
means to justify the desired result. If you fail to give the judge a theme, chances are he will
come up with one on his own, or worse, use the other side‘s theme.
Some examples of themes:
(a) Life, liberty and property;
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(b) Good vs. evil;

(c) When in doubt, you must rule out;
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(d) If the glove does not fit, you must acquit; (OJ Simpson Case)
(e) Profits over safety;

(f) Break the watch without harming the crystal;
(g) The buyer needs a thousand eyes – the seller only one;
(h) You must be stupid, stupid, stupid etc.
3) Don’t Give the Judge Unconnected Facts
Explaining and arguing, while great at showing our rhetorical skills, is not as persuasive as
storytelling.
A cold listing of facts that each witness will testify to fails to persuade.
Facts stacked on facts producing a rack of facts, while it will give the judge an outline of the
case, it generally will not be effective in persuading him.
Information does not tell us what we always want to know or need to know.
It is recognized that when people receive random data or unconnected facts, it seldom leads
to understanding or knowledge.
Data does not equal understanding, and understanding is the key to persuasion.
Henry David Thoreau said ―It takes two people to speak the truth, one to speak it and one
to hear it.‖
4) Tell a Story
The most important advocate‘s rule in the opening statement is to present a ―word
picture‖ of the facts.
Rather than concentrating on the descriptions of the witnesses and what they will say,
counsel should deliver a narrative description of what happened – a story.
Telling a story is one of the most persuasive means of communication.
How this is done is through a story to tell the information, the evidence you have, so that
the judge will understand it, and its relationship to the theme. How we persuade is how we
deliver and tell our story to the judge.
You want to make your opening statement like a good story.
It can make the most complex simple, the boring interesting, and the dull exciting. It should
have a beginning, middle and end.
In the beginning, you grab the judge‘s attention with an impact theme.
The principle of primacy also dictates the need for a strong beginning.
People tend to retain those things they hear first. They are slow to change their view from
what they hear first.
If you can express the essence of your case in the first four minutes, you will take full
advantage of primacy.
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Sequencing of the facts is also important in how you tell your story. Who are you going to
focus on?
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Whose conduct do you want the attention to be on?

When you begin to tell the story, consider starting with the defendant‘s conduct.
Studies have shown that you achieve the most impact if you start with the defendant‘s
conduct.
Consider if you start with the plaintiff‘s conduct, the listeners may question why the plaintiff
did something or failed to do something.
The middle is where you provide the facts and evidence with the theme wove throughout,
using devices to help persuade.
The middle of the story should employ techniques such as rhetorical questions, analogies,
visual aids, and the rule of threes, keeping in mind the principles of persuasion.
Use passion, draw the audience into the story, and use your theme to relate to general
principles and universal truths.
The end or conclusion should be dramatic and powerful and connect to your opening.
It should give the judge a call to action, involving him in the process to make the right and
just decision.
The word picture/story is crucial to advocacy because it allows the advocate to draw
inferences from the evidence without engaging in obvious argument.
It also tends to stamp on the judge‘s mind a ―vision‖ of the facts – almost as if it were
shown on videotape.
Once the judge sees the story in the mind‘s eye, he is more prone to accept it.
The story also provides an overview of the facts that helps the judge understand the
evidence.
With a story fixed in his mind, the judge understands its parts as they are presented through
individual witnesses and exhibits.
Without a word picture, the judge is left to assemble the facts himself and might not see
them in the light counsel hopes to achieve.
5) Use Tools of Persuasion

How we persuade is how we deliver and tell our story to the judge.
Cicero, a great aVorney 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:
I. Understand that what reaches the mind moves the heart. Passion, as well as reason,
must be used.
II. Understand motives to understand human behavior. The defendant‘s conduct is an
essential part of persuasion and should come first.
III. Move from the particulars of the case to universal truths. Social importance of
taking action is an important element in the story.
IV. Draw the audience into the story. Tell the story in the present tense as if the judge
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was watching the events unfold in front of them, rather than hearing a narrative of
something that happened in the past.
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V. Expose the flaws in the opponent‘s position.

VI. Communicate your passion and logic in words the judge will understand.
The content of the presentation and the manner in which it is made is important.
Social scientists have studied the impact of messages related to the three primary channels
of delivery:
i. verbal (words)
ii. vocal (how the message is delivered), and
iii. non-verbal (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.
(a) 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.
(b) Repetition-Repeat words and your theme. Repeat the theme throughout the
opening. Repeating words or phrases can give them more significance and
importance.
(c) Rule of Threes or Use of Trilogies-Social scientists again tells us that information is
best understood when it is presented in groups of threes. It is important that data
be inputted in the form of three pieces of information, for example, the three D‘s -
discrepancy, deception, distortion; three blind mice etc.
(d) Voice Inflection-The change in the tone of your voice or the speed in your voice. The
delivery of your opening. Be careful in opening statements to not go too fast. You
don‘t want to tell your story so fast that it is similar to getting on an airplane and
flying off without the passengers. Be sure that you have connected with the judge
and that he is in the plane before you allow the plane to take off. Opening is not a
race.
(e) 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.
(f) Rhetorical Questions.-QuesUons 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.
(g) Visual Aids-Be careful not to use too many, but several visual aids may be effective
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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.
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(h) Eye Contact-Eye contact with the judge solidifies the bonding process. But do not
stare. Use time efficiently and speak with authority
(i) Choose labels for the Parties-Parties, whether natural or juridical, have names.
6) Primacy
That which is heard first by the judge will be remembered best.
If the judge accepts the belief in the beginning, his belief is more intense.
People tend to believe more intensely that which they hear first.
This is shown by the first impression approach and the four-minute rule.
You can also use this with positioning of facts.
Introduce strong facts first to get the most effect.
7) Recency
That which is said last is remembered best.
Recency relates to the ability to remember.
Primacy relates to the intensity of the belief.
Both can be used throughout opening and the case to present your theme, strongest
witnesses and key points.
8) Avoid Overstating and Reveal Weakness
Avoid overstatement.
Never overstate what your case is or state something that you will not be able to prove.
Credibility is an important factor in any trial, and the loss of credibility will result when you
overstate what your evidence may be.
Reveal your weaknesses.
To defuse or mitigate the known problems or weaknesses in your case, identify those
matters early on and this will cause a judge to emotionally identify with the Plaintiff.
Explain before you have to contradict.
9) Avoid Legal Talk

Avoid legalese and use everyday language.
Car rather than vehicle, before rather than precedent, after rather than subsequent, heart
attack rather than myocardial infarction, brain damage rather than hypoxia ischemia
encephalopathy.
The words should be simple and direct in everyday English.
Richard Leder in “The Miracle of Language” said that 11 words account for 25% of all spoken
English, and 50% of the most common spoken words are one syllable.
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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.
What to have clear before hand
i. Have a theory to your case.

ii. Draw up a theme based on the theory.
iii. Know the strong points of your case.
iv. Know the weak points, and your mitigation strategy.
v. Know the witnesses and the evidence, on both sides.
vi. Remember you are telling a story.
Steps in the Opening statement

By Prof. Naomi Goodno, Pepperdine University, USA
1) Introduction
(a) Grab
(b) Summary of theory of case
(c) What evidence will prove.
2) Story
(a) Personalize client-background facts
(b) Client’s point of view
i. Legally significant facts
ii. Emotionally significant facts
iii. Chronological.
3) List
(a) Avoid argument
(b) Persuasive and focused
4) Address Anticipated Counter-Arguments

(a) Short, focused.
(b) Avoid argument.
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5) Conclusion
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(a) Repeat theme.

(b) Tell what evidence will show.
(c) Be brief.
THINGS TO NOTE
From the National Institute of Trial Advocacy.(NITA)
1. Have and explain a clear theory of the case.
How the facts fit into the law so that your client wins.
For example, a “theory of the case” for a criminal charge of assault might be:
i. Identification-“It wasn’t him.”
ii. Self defense-“He was protecting himself.”
iii. Alibi-“He wasn’t there.”
2. Use a persuasive theme.
(a) E.g., “Nude, but not Lewd”

(b) Some methods to develop a theme:
i. Finish the statement, “This is a case about…” to convey a theme that advances your
client’s cause. But do not actually use the phrase “This is a case about.”
ii. Use a dramatic bit of testimony or statement from an exhibit.
iii. Use an old saying-The “moral of the story”
3. Tell an effective story.
4. Show a clear and effective organizational structure.
5. Effectively deal with the weaknesses of the case

i. Turn them to strengths when possible.
ii. “Judo Law.”
6. Present only what you can deliver during the evidence.
7. Use “primacy and recency” by starting strong and ending strong.
8. Do not use notes.

i. Demonstrate command of the facts and issues in the case.
ii. Show confidence and belief in your client’s case.
9. Other important Points

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i. Be organized
ii. Focus on relevant matters.
iii. Good delivery.
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iv. Passion for the case

Communication techniques
Use appropriate communication techniques of
i. Language and vocabulary,
ii. Demeanor,
iii. Eye-contact,
iv. Voice projection,
v. Pace, cadence and silence,(cadence-rhythmic flow of a sequence of sounds or
words: a slight falling in pitch of the voice in speaking or reading, as at the end of a
declarative sentence. the general modulation of the voice. )
vi. Facial expressions,
vii. Posture and
viii. Avoidance of distracting gestures and verbal habits.
COMMON ERRORS IN OPENING STATEMENTS:

1. Being argumentative
2. Being boring
3. No theme or poor theme or poorly articulated theme.
4. Too much detailed facts
5. Reading from notes
6. Referring to questionable evidence
7. Attempting to hide weaknesses in your case
8. Overemphasizing the weaknesses in your case
9. Failing to exhibit confidence
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EXERCISE
Read the following statement and make an opening statement
Statement: Ace Khumalo

I am a professional soccer player and I live in Kariobangi. On 1 April 1992, a Sunday afternoon at
about 2 o'clock, I was walking in End Street going south towards Kamande Street. I was coming from
a soccer practice which had finished at 1.30 pm.
As I was passing house number 3 End Street I noticed Baby Khuse sitting under a big tree in the yard.
I smiled at her and waved and greeted her by saying "How you doing, Baby". After I had proceeded
about 30 paces further I heard a shout behind me.
On turning I noticed David Mbele coming towards me. He was very angry and was shouting
incoherently. He came towards me in an aggressive manner and was almost running. When he came
right up to me I turned around to face him. He shouted at me and asked me why I was talking to his
girlfriend without his permission. While I was arguing with David Mbele I noticed his sister Clarissa
Mbele standing at the gate of the house about 30 metres away together with Baby Khuse. They
appeared to be watching us. I could add that when I passed the house I noticed three people sitting
under the tree and the male appeared to be lying down looking towards the house away from the
road.
I explained to David, who appeared to be fairly drunk, that I was merely greeting Baby in a friendly
fashion and I greeted only her because I had not seen who the other people were. This did not
appear to satisfy him and he made a movement towards his pants and pulled out a home-made
knife. As he did this I pulled my own knife out and opened it and stabbed him once in the chest
before he could stab me.
He fell down and I immediately started to run away. As I was running I noticed a number of men
pursuing me from the direction of number 3 End Street. I threw my knife into the bushes and ran to
the Umlazi railway station where I hid until nightfall.
Later that night I caught a train to Durban Central and went to my father who was living at Dalton
Hostel. I explained to my father what had happened and early the next morning my father took me
to the CR Swart Police Station where I was taken into custody.
I did not mean to kill David Mbele and have not had any problems with him in the past. I knew that
Baby Khuse was David Mbele's girlfriend, and had no intention of flirting with her.
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Opening Statement
Ace's not-guilty plea statement would have contained the legal basis of his defence (that is,
self-defence), together with a brief outline of the factual basis ('I stabbed the deceased as he
was about to stab me').
In the circumstances of this case, the issues are clear, and not much can be gained by
making an opening statement.
If, however, you were to make a statement in the Ace Khumalo case, it could be along the
following lines:
"My 'Lord, the accused Mr. Khumalo's, defence in this matter is that he acted in self-defence when
he stabbed the deceased. The evidence so far has shown that the deceased was the aggressor and
that the accused was merely responding to an unprovoked attack."
The defence intends calling two witnesses, the accused, Mr. Khumalo, and his father, Mr. Ben
Khumalo, who will testify about the circumstances surrounding the arrest of his so n:"
IMPORTANT POINTS TO NOTE FROM THE ABOVE EXAMPLE
1. In civil trials, the opportunity to make an opening statement gives the plaintiff a
considerable tactical advantage, as the plaintiff's version is accepted as the prima facie
probable version, with the defendant then left with the task of persuading the court that its
version is the more probable one. This advantage does not exist to the same extent in
criminal trials if the accused exercises his option to make a statement outlining the basis of
his defence.
2. Beware of being too specific and detailed in your opening statement, as the contents of the
opening statement is evidentiary material that may be used to cross-examine your
witnesses. For example, if a portion of the defence's opening statement in the Ace Khumalo
case had been as follows: “... [t]he accused will testify that the deceased walked towards
him and stopped about 4 metres from him .. . ", and the accused, when he testifies in-chief.
states that the deceased ran towards him, and stopped one metre from him, the court is
likely to conclude that the accused was lying, and consequently reject his version.
3. The most important aspect of the opening statement is to ensure that the court fully
understands every aspect of your case. The making of an opening statement is therefore
imperative in complicated civil and criminal cases. In such cases. it is useful to support the
opening statement with a diagram, which must be handed up for the guidance of the court.
(Remember to also hand a copy to your opponent).
4. Finally, prepare your opening-statement notes by outlining your opening statement in point
form, using the notes as a memory aid when you address the court - do not read a full
written statement.
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LECTURE 16-17: TUESDAY 24 & 31 MAY- MORNING SESSION (LECTURE HALL

A)
TOPIC 9: EXAMINATION-IN –CHIEF
Definition
Examination-in-chief is the process of calling witnesses to support the elements of your case.
This can be done through the witness's own testimony, or through items of evidence
(objects or documents) handed into court by the witnesses called.
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.
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:-
What is the examination-in-chief?

This is the primary questioning of a witness during a trial. The advocate who calls the
witness asks specific question that provide the foundation of the case.
Essence of Examination-in-Chief
The essence of the examination-in-chief is to lead the witness from a 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 specific events in the
version and lead the witness in more detail on these events.
The court, having heard the full version in outline, will then easily place the detailed
explanation in the context of the overall version.
First tell the whole story - then return to emphasis later.
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Statutory Basis for Examination- in- Chief
a) Under Evidence Act Cap 80

Section 145 (1) of the Evidence Act:-The examination of a witness by the party who calls him
shall be called his examination-in-chief.
Section 146 (1) gives the order in which examination of witnesses occurs, the witnesses
shall first be examined-in-chief, then, if the adverse party so desires, cross-examined, then, if
the party calling them so desires, re-examined.
Part IV of the act provides for the questioning of witnesses and under Section 149,Leading
Questions are defined as Any question suggesting the answer which the person putting it
wishes or expects to receive, or suggesting a disputed fact as to which the witness is to
testify.
Leading questions require a YES or NO answer and Section 150 prohibits the use of leading
questions if objected to by the adverse party during examination-in-chief (and re-
examination) except as permitted by the court.
Section 150 (2) and Section 151 however gives the exceptions;
i. As to matters which are introductory or undisputed, or
ii. Which have in its opinion been already sufficiently proved.
iii. Leading questions may be asked in cross-examination.
There are instances whereby a witness called by a party A gives evidence in court that is
adverse to the party (A) calling him. This witness is defined as a Hostile Witness.
When a hostile witness is so identified, the court has discretion to allow the party calling him
to cross-examine his own witness. Advocate must seek leave of the court to cross-examine
him after declaring his witness as hostile.
Section 161 provides that the court may, in its discretion, permit the person who calls a
witness to put any questions to him which might be put in cross-examination by the adverse
party
The evidence of a hostile witness is admissible but it is for the court to determine what
probative value that evidence has by taking all facts into consideration
Section 167 allows for a witness to look at a writing he wrote at the time of the transaction
or soon after the transaction so that the court is satisfied that the events were fresh in his
mind. This is referred to as refreshing of memory.
NB: It is not what is written that is used as evidence but what you say after refreshing your
memory
According to Section 167(4), an expert may refresh his memory by reference to a
professional treatise
Section 168 provides that where a witness recorded events (e.g. in a diary) as they
happened during or immediately after the transaction and then forgot about the event, the
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document itself may be adduced as evidence (if proved to be admissible as evidence).

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b) Under Civil Procedure Rules

Order 18 the generally deals with Examination of Witnesses
Order 18 Rule 1 provides that the Plaintiff has the right to begin unless the court orders
otherwise.
Order 18 Rule 3: The evidence of the witnesses in attendance shall be taken orally in open
court in the presence of and under the personal direction and superintendence of the judge.
Order 18 Rule 6: Provides that a party has the right to object to a question put to a witness
during examination but the court has discretion on whether or not to allow the objection.
Order 18 Rule 10: Says that the court may at any stage of the suit recall any witness who has
been examined, and may, subject to the law of evidence for the time being in force; put such
questions to him as the court thinks fit.
c) Criminal Procedure Code, Cap. 75

i. Part VI-Procedure of Trials before subordinate courts
ii. Part IX-Procedure of Trials before High court
iii. Section 150 provides that:A court may, at any stage of a trial or other proceeding
under this Code, summon or call any person as a witness, or examine any person in
attendance though not summoned as a witness, or recall and re-examine a person
already examined, and the court shall summon and examine or recall and re-
examine any such person if his evidence appears to it essential to the just decision of
the case Provided that the prosecutor or the advocate for the prosecution or the
defendant or his advocate shall have the right to cross-examine any such person,
and the court shall adjourn the case for such time (if any) as it thinks necessary to
enable the cross-examination to be adequately prepared if, in its opinion, either
party may be prejudiced by the calling of that person as a witness.
iv. Section 208(1)-If the accused person does not admit the truth of the charge, the
court shall proceed to hear the complainant and his witnesses and other evidence (if
any).
v. Section 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.
Objectives of the examination-in-chief
1. To ensure that the evidence present in court should be legally sufficient to meet the
burden of proof.
The legal burden in civil cases rests upon the party who assert the affirmative of an issue.
The rule is ‘he who asserts must prove.’ The plaintiff who sues must prove whatever they
are presenting or moving to court. The standard of proof is on balance of probabilities.
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The defendant generally bears no burden of proof unless he makes a counterclaim or where
the law states that he should discharge burden of proof. Examples of cases where the
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burden of proof lies with the defendant arises in the defense of insanity or intoxication or in
the case a where a public officer did not receive money as a bribe. It is upon the plaintiff to
prove their case on a balance of probability but it is not the burden of the defendant to
prove that they are not liable as per the claims of the plaintiff.
The House of Lords in Constantine vs. imperial smelting (1942 AC 154) said:“The burden of
proof in any particular case depends on the circumstances in which the claim arises. The rule
which applies generally is: the burden of proof lies upon him who affirms and not upon
whom who denies. It is an ancient rule founded on consideration of good sense and it is not
to be departed from without good or strong reasons.”
2. Present a logical, complete and coherent theory of your case.

3. Present each witness in the best possible light;
4. Use the evidence of one witness to support another so that a seamless cloth may be
woven of the proven fact; hence the evidence should
i. Fill in gaps in the evidence and attempt to explain any inconsistencies;

ii. The evidence given should be understood and remembered.
iii. The evidence should be convincing.
iv. The evidence should be able to stand cross-examination.
v. It should be anticipatory and contradictory of the evidence that the opposition will
present.
5. Shut down potential cross-examination thereby limiting the exposure of witnesses.

6. Allow the defense as little room to move as possible by minimizing the possibilities of a
defense being supported through cross-examination of witnesses.
7. The witness must be persuasive and credible.
Role of Examination-in-Chief
To present substance of the case.

i. Introduce undisputed facts
ii. Enhance likelihood of disputed facts.
iii. Lay foundation for introducing exhibits.
iv. Reflect on witnesses’ credibility.
v. Hold attention of trier of fact.
Legal requirements for an examination-in-chief
1. Competency of Witnesses
The first legal requirement is that your witness must be competent to testify.
The Evidence Act at Part V gives the general requirements as regards the competence of
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various witnesses. The general principle is espoused in section 125 (1) that all persons shall
be competent to testify unless the court considers that they are prevented from
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understanding the questions put to them or from giving rational answers to those questions,
by tender years, extreme old age, disease of body or of mind and any similar cause. The
other exceptions are contained in sections 126 and 127 of the same Act.
To qualify as competent, a witness must have:
i. Understanding of the nature and obligation of the oath or affirmation to tell the
truth;
ii. Perception (knowledge) of the relevant event;
iii. Recollection (memory) of the relevant event; and
iv. Ability to communicate.
2. Relevance of your witnesses’ testimony
Relevant evidence is evidence that has some (any) tendency; however slight, to make the
existence of a fact of consequence to the case more or less probable than it would be
without it.
3. Proper evidentiary foundation or predicate for the admissibility of the evidence
In addition to competence of the witness, the evidence must be admissible. The general
principles with regard to the admissibility of evidence depend on the nature of the evidence.
For oral evidence, the only admissible evidence is the so called primary evidence i.e. of the
person, perceived the event to which they are testifying to e.g. one who saw, heard, did etc
For documentary evidence, section 35 of the Evidence Act provides that if the original of the
document is produced by the maker, then the same shall be admissible. However the
requirement of having to call the maker shall be dispensed with if the maker of the
document is dead, cannot be found, incapable of giving evidence or their attendance in
court cannot be procured without an amount of delay or expense that’s unreasonable in the
circumstances.
The above should be read together with Part III of the Act with respect to the standard of
proof for each type of evidence.
However, there are exceptions to this rule which are expounded in part VI of the Act. I.e.
with regard to entries in books of accounts, public documents etc
Certain items of evidence require special foundations to establish admissibility. For example,
if your evidence is hearsay and, thus, presumptively inadmissible prima facie, you will be
required to establish its admissibility under one of the hearsay exceptions. Witnesses are
only relevant if their testimony or if their evidence is admissible. The admissibility of
evidence refers to that evidence which a court of law will receive for purpose of determining
the existence or non-existence of a fact in issue. Admissibility is a matter of law, which will
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be determined by the court. All evidence given by a witness is admissible if sufficiently

relevant to prove or disprove a fact in issue and which is not excluded by one of the
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exclusionary rules of evidence. Evidence of a witness is relevant if it is logically probative or

disprobative of some matter, which requires proof.
4. Bear in mind all the rules of evidence, criminal and civil procedure
For example under section 152 of the Evidence Act, Any witness may be asked, whilst
under examination, whether any contract or grant or other disposition of property as to
which he is giving evidence was not contained in a document, but if he says that it was, or
if he is about to make any statement as to the contents of any document which in the
opinion of the court, ought to be produced, the adverse party may object to such evidence
being given until such document is produced, or until facts have been proved which entitle
the party who called the witness to give secondary evidence of it.)Therefore do not ask
your witness to divulge such information before production of the document or before he is
entitled to give secondary evidence.
Under section 307(1) of the Criminal Procedure Code, you should be prepared in a criminal
case to have your client (the accused) go through a potentially risky cross-examination if you
choose to conduct an examination in chief on him or her. Conversely, if you intentionally
want the accused to be cross-examined so as to give answers to some questions that
damage the prosecution’s case, then you can go ahead and put him through an examination
in chief even if your main concern is for him to be cross-examined by the other party.
If the witness is not an expert witness, you cannot lead opinion evidence. You have to have
all these rules and others to form your examination in chief. If you seek to go against the
rules of evidence the adverse party will object and even if they don’t, the court may overrule
you. Essentially there is an assumption that the officers of the court are armed with rules of
procedure
5. Authenticity of matters of evidence to show that the item in question is what its
proponent claims it is.
6. Use non-leading questions (open ended).(Leading question-that which suggests the
answer.)
7. Not testify in narrative.
8. Generally offer fact, not opinion.
9. Can refresh memory.
TECHNIQUE-LEADING THE WITNESS

Leading the witness is a core skill in examination in chief.
The core skill in leading a witness from a given starting point to a predetermined end-point is
the simple sentence: "What happened next?"
Having outlined the story, repeating this question as your stock phrase, the second stage
would be to return to the important aspects of Ace's version and to baby-step the witness
through these aspects.
Finally, remember the acronym 'D.T.P? A?' (DATE-TIME-PLACE?-ACTION?) as a device for
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starting your examination-in-chief of a witness.

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According to Ian Morley (QC)-Devil’s Advocate most examination-in-chief question will be

along these lines (WHO , WHAT ,WHY , WHEN , WHERE , HOW , EXPLAIN , TELL US , PLEASE
DESCRIBE)
EXAMPLE
EXERCISE
Read the following statement and make an Examination in Chief
Statement: Ace Khumalo

I am a professional soccer player and I live in Umlazi. On 1 April 1992, a Sunday afternoon at about
2 o'clock, I was walking in End Street going south towards Yegeni Street. I was coming from a
soccer practice which had finished at 1.30 pm.
As I was passing house number 3 End Street I noticed Baby Khuse sitting under a big tree in the
yard. I smiled at her and waved and greeted her by saying "How you doing, Baby". After I had
proceeded about 30 paces further I heard a shout behind me.
On turning I noticed David Mbele coming towards me. He was very angry and was shouting
incoherently. He came towards me in an aggressive manner and was almost running. When he
came right up to me I turned around to face him. He shouted at me and asked me why I was
talking to his girlfriend without his permission. While I was arguing with David Mbele I noticed his
sister Clarissa Mbele standing at the gate of the house about 30 metres away together with Baby
Khuse. They appeared to be watching us. I could add that when I passed the house I noticed three
people sitting under the tree and the male appeared to be lying down looking towards the house
away from the road.
I explained to David, who appeared to be fairly drunk, that I was merely greeting Baby in a friendly
fashion and I greeted only her because I had not seen who the other people were. This did not
appear to satisfy him and he made a movement towards his pants and pulled out a home-made
knife. As he did this I pulled my own knife out and opened it and stabbed him once in the chest
before he could stab me.
He fell down and I immediately started to run away. As I was running I noticed a number of men
pursuing me from the direction of number 3 End Street. I threw my knife into the bushes and ran
to the Umlazi railway station where I hid until nightfall.
Later that night I caught a train to Durban Central and went to my father who was living at Dalton
Hostel. I explained to my father what had happened and early the next morning my father took
me to the CR Swart Police Station where I was taken into custody.
I did not mean to kill David Mbele and have not had any problems with him in the past. I knew
that Baby Khuse was David Mbele’s girlfriend, and had no intention of flirting with her.
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EXAMINATIONIN CHIEF
Counsel : Please can you start by telling the Court your full names; where you live and what you do
for a living
Ace Khumalo: My names are Ace Khumalo;I am a professional soccer player and I live in Umlazi
Counsel: Mr. Khumalo, on Sunday 1 April 1992 (date), at 2 o'clock in the afternoon (time), where
were you (place) and what were you doing (action)?
Ace Khumalo: I was walking in End Street going towards Yengeni Street in Umlazi.
Counsel: What happened next?
Ace Khumalo: [Continue until basic story outline is completed – then return to deal with certain
aspects in detail]:
Counsel: Mr. Khumalo, I want to take you back in your evidence to the point where you were
confronted by the deceased. Exactly how far from you did he stop?
Ace Khumalo: About two to three paces.
Counsel: What did he do immediately after he stopped?
Ace Khumalo: He stood there and shouted at me, asking me why I spoke to his girlfriend, Baby.
Counsel: What did you do at this stage?
Ace Khumalo: I took a step backwards as he seemed drunk and aggressive.
Counsel: What made you think he was drunk and aggressive?
Ace Khumalo: He was swaying a little; his eyes were red and bloodshot; his speech was slurred; and
he was shouting loudly and incoherently whilst waving his arms about wildly.
Counsel: Did you say anything to him?
Ace Khumalo: Yes, I told him I had just greeted Baby.
Counsel: What was his reaction to this?
Ace Khumalo: He stepped closer to me, his right hand reached into his right pants pocket and he
pulled out a knife.
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Counsel: Please demonstrate to the court how this knife was pulled out by the deceased.(Ace
Demonstrates)
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Counsel:[Placing the description on record]:M'Lord, the accused demonstrates that Mr. Mbele's
right hand reached into his right side trouser pocket,... [Evidence continues].
CONDUCTING AN EFFECTIVE EXAMINATION-IN-CHIEF
In order to decide on whom to call as a witness, one needs to identify the issues and
relevant facts in his case, as well as the evidence he needs to make his case. One then needs
to identify which witnesses, documents or other evidence are available to prove it
(preferably through your own witnesses, but it may have to be from opposing witnesses
too). If you have documents or tangible evidence, identify which witnesses can authenticate
the evidence to make it admissible.
Think about the case you want to present and what you will need to ask your client and any
relevant witnesses in order to be able to prove it. What are the issues in the case, and what
evidence can your witnesses (including your client) give relevant to those issues?
Prior to commencement of the Examination-in-Chief, look at the Pleadings and any answers
to Interrogatories, which may have been obtained to identify the areas of contention in the
case?
To be able to derive as much support for your case as possible from any given witness,
prepare a list of topics and if necessary even a list of some of the important questions you
will want to ask your client or witness before calling them into the witness box. It is amazing
how many times when you do not have a clear picture in your mind of exactly what you
want from a witness; it will only dawn on you later that you forgot to ask something which
would have greatly assisted your case.
To be able to obtain as much relevant information from the witness, it is important to
arrange a pre-trial conference with your witnesses. Allow yourself sufficient time to be able
to confer with your client and any relevant witnesses in order to ascertain what helpful
evidence they are able to give. You will always get more out of any witness if you are able to
establish some rapport in a pre-trial conference. One should also attempt to explain how the
court operates and what will happen in the witness box. Tell the witness about the position
of the Judge and how the Judge is to be addressed. Explain the administration of the oath or
affirmation by the court officer, the way you intend asking the witness questions and try to
provide some outline of what the witness is likely to be asked about in cross-examination.
It is a very bewildering and often terrifying experience for most people to appear in court,
especially if it is for the first time and there is a lot of money involved or their future liberty
is at stake. If your case is assisted by a sketch or diagram, have your witness prepare it in
front of you whilst in conference. Many a case has been irretrievably damaged by sketches
nervously drawn in the witness box.
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Try to evaluate the character and strength of your witnesses and determine what sort of
effect they are likely to have on the Judge. If you think that the Judge is likely to be
impressed with a particular witness you can afford to allow the witness to elaborate
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somewhat in their evidence so that they make the most favourable impression.
On the other hand, there are some witnesses whose personality, recollections and/or prior
history are such that you would much prefer to avoid calling them altogether. If, the
importance of their evidence is such that you have to call them, try keeping their evidence
to the bare minimum, and sit down as soon as you’ve got out of them what you wanted
them to say. The more questions you ask, the more likely it is that they’ll say something,
which will devastate your case.
Truthful witnesses with a clear recollection of the relevant events can to some extent be
allowed to tell their own story with only occasional directional arrows from you. The
forgetful, confused or just plain stupid witnesses will need closer guidance with carefully
phrased questions in simple terms. Assess their personality and try to muzzle the long-
winded whilst trying to bolster and quietly encourage the timid and the intimidated.
It is important that questions in the examination in chief confirm the witnesses’ testimony as
recorded in his/her statement and this is especially in criminal cases where persons give
statements and then come to court as witnesses.
SOME GUIDELINES
Controlling the Witness
Despite the fact that court proceedings are sometimes tape-recorded, most judges prefer to
note the evidence down in detail.
This requires the trial lawyer leading the witness to be aware of the judge's writing speed,
and to delay the putting of a question to the witness until the answer to the previous
question has been written down by the judge. Wait until the pen stops writing - some
judge’s give other indications such as nodding their heads.
A useful control technique is to train the witness to glance at your right hand whilst
answering your questions-in-chief (You have already trained you witness to be looking at the
judge while answering the questions)
i. When your hand is raised palm-upwards (discreetly at about waist , height), the
witness must complete the sentence he is busy with and then stop;
ii. When you lower your hand (palm facing down), he must continue with his answer
(until you raise your hand again).
This way you ensure that the delivery of the witness's testimony keeps pace with the judge's
writing speed.
The inability to properly control your witness is bound to irritate the court, with the result
that your witness may become unsettled or nervous.
Remember that 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.
If an interpreter is used, remember to allow time for the interpretation to be completed.
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The 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.
If there can be no prejudice to the State by calling other witnesses before the accused, no
adverse inference may be drawn.
Leading the witness in-chief· a summary of steps
1. Step 1:'D-T-P?-A?' (Date-time-place?-action?)
2. Step 2: Take the witness through his version chronologically, repeating the phrase:
"What happened next?" as your stock phrase.
3. Step 3: After completing the outline of his version (telling the basic story),go back to
specific points in the version and cover these aspects in great detail ('baby-
stepping').
4. Step 4: Deal specifically with any weaknesses in the witness's version ('Defuse
landmines').In the Ace Khumalo case study, possible weaknesses that may be
exploited by the prosecutor are: why he did not run away when confronted by a
drunk aggressive man; why he threw the knife he used into the bushes; why the
knife allegedly in the possession of the deceased was not found at the scene, etc.
5. Step 5: Finally, at the conclusion of the witness' evidence, indicate to the court that
you have finished: "That is the evidence, My Lord," or "I have no further questions,
Your Honor".
NB: Never conclude your evidence with an open-ended invitation to the witness to add to
his testimony, such as: "Is there anything else you wish to tell the court?" This is a recipe for
disaster, as you never know what the witness will come up with.
The Following are key to remember while leading a witness through examination-in-chief
Precision. Be precise, to the point when seeking details and avoid peripheral
approach to matters: go for the real issues at hand.
Take things chronologically. It is easy to settle the witness if you start at the
beginning, proceed to the middle and go through to the end.
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However, when a particular detail is not clear, let it go for the first time then revisits
it to avoid the same issue being raised at cross examination.
In the end be exhaustive in all matters advantageous to your case and leave no
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room for new issues having to be unearthed during cross examination as this will
only prove to be detrimental to the case and at times question the credibility of your
witness. Exhaustion of facts will hugely depend on matter at hand so if it is a robbery
with violence matter, the advocate must exhaust all corners and extract as much
detail from his witness during examination in chief and this might not be necessary
say in a traffic cause.
Usually, when starting a witness in examination in chief, the counsel will request the
witness to state his/her name and to narrate the events that happened leading to
the fact in issue. The exact point at which one should ask a question will depend on
the issue in which the advocate would want to prove, the nature of the case, and the
witness testifying.
As far as witnesses are concerned, it is important to start by asking the witness to
properly identify themselves to the court, and in some cases their expertise,
background, or occupation prior to the commencement of the suit.
As far as explaining facts leading to the fact in issue, the advocate should start asking
their question pertaining to the facts as far back or related to the fact in issue. This
will give an overall background to the case. However, not all facts need to be
narrated, but only those pertinent to the fact in issue.
The narrative form of asking questions is adopted since an advocate is barred from
asking leading questions during examining chief.
As far as interjecting a witness, counsel may intervene:
1. When the witness is divulging information which is damaging to the case. In
such a situation the counsel may ask questions aimed a toning down the
damage caused. Such questions may take the form of a point of reference
question to clarify what the witness said, or to enable him to explain in
greater length what they meant.
2. When the witness is not specifically answering the question directed at them.
In such a situation the counsel will have to either repeat the question again
or reframe the question in order for the witness to properly comprehend it.
3. When a witness seems to be digressing, counsel may take two approaches
aimed at stopping the witness. They may either ask a transitional question,
by asking a totally different question with the objective of stopping the
witness from continuing with the path they have taken; or they may politely
interrupt by asking them specific questions, so as to bring them back on
course. It may happen often than not, if a witness continues digressing, the
advocate should frequently ask questions, whence upon getting the desired
answer proceed to asking the next question.
When stopping a witness one has to do it in such a manner, that it does not seem
that you have lost control over your witness; at the same one should not be afraid
of stopping a witness because it may have an equally damaging effect.
It is therefore imperative during pre-trial conferencing, to remind the witness at
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what juncture to speak and to what lengths.

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Forms and Order of Questions
The novice is usually confused often over whether a question is leading or not and
ends up not asking it at all, while even the more experienced practitioner may
overlook examination in chief in his or her eagerness to plan a devastating cross
examination. Examination in chief is the first opportunity the court has to assess the
witness. A strong impression made at that stage will outlast any in attack in cross
examination.
It is for the aforementioned reasons that the forms and order of questions in
examination in chief ought to capture and fulfill the aims of examination in chief said
earlier.
There are about five forms of questions that can be used during examination in
chief, namely,
1) The leading question;

2) The open ended question;
3) The closed question;
4) The transition question;
5) The point of reference question.
1. The Leading Question
'Leading' questions are not permitted in examination-in-chief. However, do not confuse the
process of leading the witness (that is, taking the witness through his testimony using short,
open-ended questions), with the concept of 'leading' questions - that is, a question that is
phrased in such a way that the desired answer is contained or implied in the question itself.
Open-ended' means the witness has a complete, undirected choice of what to answer, and
nothing is contained in the question itself that may indicate the desired answer.
A leading question may thus be defined as any question that undermines or diminishes the
weight the court may give to the answer elicited from the witness by such a question.
Whether a question is objectionable on the basis of being 'leading' will therefore depend
entirely on the context - the court wants to hear the witness's testimony in his or her own
words: it does not want to hear the testimony of the lawyer, using the witness merely as a
sounding board.
A leading question is one, which suggest or tends to suggest its won answer. It
usually calls for a “yes” or “no” response (section 149 of Evidence Act says that a
question suggesting the answer which the person putting it wishes or expects to
receive, or suggesting a disputed fact as to which the witness is to testify, is a leading
question).
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Example Using the above Statement by Ace Khumalo

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Example 1
Counsel: Now, Mr. Khumalo, is it correct that you pulled out your knife and stabbed the deceased
because he was about to stab you?
Ace Khumalo: Yes.
(Here it is the lawyer testifying, and Ace is merely affirming what the lawyer has said. The court cannot
give much weight to the single word 'yes' - how does it assess the probability of Ace's reaction in the
circumstances, and Ace's demeanour on the single word uttered? The question will not be allowed as the
court can give little or no weight to Ace's answer.)
Example 2:
Counsel: Mr. Khumalo, when the deceased came towards you, what happened next?
Ace Khumalo: He stopped about two paces in front of me, and I stepped back two paces.
Ace Khumalo: He put his hand into his right-side pants pocket and pulled out a knife.
Ace Khumalo: I immediately pulled my own knife out from my belt to protect myself.
(Here the questions are non-directive, giving Ace any unfettered choice on what to reply - therefore the
potential weight of Ace’s answers is not compromised, and the questions are not 'leading').
It follows that it is not necessarily the form of the question that determines whether it is objectionable or
not, but the context - that is, will the potential weight the court may attach to the answer elicited be
compromised?
Example 3
Counsel: Now, Mr. Khumalo, when you stabbed the deceased, did you stab him in the chest or in the
right arm?
(This question is objectionable because the witness is directed to choose one of only two options - a free
choice may have elicited a reply that he stabbed the deceased in the stomach, or head, or any one of
numerous other places on the body.
The correct question would be as follows:

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Counsel: Mr. Khumalo, where exactly on. the deceased's body did you stab him?
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Ace Khumalo: On his right arm.
The extreme form of a leading question is not a question at all, but a statement. It is made to sound like a
question by attaching a 'tail' to the statement which merely seeks the witness's affirmation that he
agrees with the statement:
Counsel: Mr. Khumalo, you stabbed the deceased on the right arm - is that correct?
Ace Khumalo: Yes.
The general rule is that as counsel one is forbidden from using leading questions
when examining their own witnesses. The question might arise then as to why don’t
you want leading questions to be asked. The reason is because such question may
elicit false and unreliable facts especially in cases of witnesses who are afraid of the
court’s process. In fact when one asks a leading question of a witness who is afraid,
many of them will just say yes.
Why not leading Questions
Leading questions do tremendous harm by
a) Destroying the reality of the evidence.

b) Preventing the character of the witness from emerging.
c) Destroying the reliability of the evidence by suggesting the answer to be given by the
witness.
d) Casting a shadow of suspicion on the impartiality of the examiner.
e) Reducing the value of evidence generally.
f) Giving the opponent a chance to object
One of the best accounts explaining leading questions was given by Lord
Ellenborough CJ in a speech in the House of Lords and he stated; “I have always
understood, after some little experience that a leading question means this and only
this, that the judge restrains an advocate who produces a witness on one particular
side of question and who may be supposed to have a leaning to that side of
question, from putting such interrogatories as may operate as an instruction to that
witness on how he is to reply to favour the party for whom he is adduced. The
counsel on the other side may put what questions he pleases, and frame them as
best suits his purpose because the rule is changed, for there is no danger that the
witness will be too complying.”
Remember that counsel should not give evidence. (Rule 9 of The Advocates
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(Practice) Rules).
There are however, at least four basic exceptions to this rule:
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i. Leading questions by consent

You can ask leading questions if your opponent agrees (Section 150(1) says that they
must not be asked if objected to by the adverse party). In any given case there are
parts of the case where little is in issue. In order to save time you and your opponent
may agree in advance that you lead. One needs to take care, however, since
although it may save time and make it easier for you, the judge may regard it almost
worthless. You need to balance the advantages and disadvantages.
ii. Indisputable facts

Some things are so obvious and incontrovertible everybody knows them to be true.
You can lead this and there is no risk involved. Section 150(2) of the Evidence Act
provides that the court shall permit leading questions as to matters which are
introductory or undisputed, or which have in its opinion been already sufficiently
proved.
Example 4:
Counsel: Mr. Khumalo, you are 17 years old and a professional footballer, are you not?
Ace Khumalo: That is correct.
(This question is designed to elicit background information unrelated to the stabbing incident, and
does not undermine the potential weight the court will give the answer - the question is merely cast
in this form to speed up the trial.)
Note, however, that if Ace's age had been in dispute - the State, for example, alleging that Ace is
actually 20 years old, and that he has changed his age in order to be treated as a juvenile offender,
the question would be objectionable. If Ace 's age is in dispute, an open-ended form will have to be
used:
Counsel: Mr. Khumalo, how old are you?
Furthermore, casting the question in a form permitting only a limited number of options may also be
objectionable, as this may reduce the potential weight the court may accord the reply:
iii. Getting a denial

Where you want your witness to deny something you have no choice but to use a
leading question. For example, “Were you drinking on the night of 3rd April?”
The witness answers, “No”.
The rules always permit you to ask a leading question so as to get your own witness
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to deny something.
Other Examples of leading questions
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a) Were you in Nairobi on 6th January?

b) Was it a kitchen knife?

c) Was she driving a white car?
A non leading question in the above circumstances would have been:

a) Where were you on the 6th of January?
b) What type of knife was it?
c) What colour was her car?
It is important to note that a leading question undermines the witness’s credibility. It

leaves the impression that counsel is afraid to let the witness open his mouth. It
allows counsel to give the evidence himself yet this is not counsel’s work. It is for the
witness to tell his account to the court. It is therefore not permitted to elicit
evidence in examination in chief by the use of leading questions.
Formulating the question

The very basic way in framing a non-leading question is to think of the answer you
wish your witness to give and then omit any reference to the answer when framing
the question.
The question should come quite naturally.
Examples:1
Answer: Sunday
Question: What day was it?
NOT: a leading question: was it a Sunday?
Example 2:
Answer: red (hair)
Question: what colour was her hair?
NOT: did she have red hair or was her hair red?
Learn to recognize leading questions and the manner in which they are being used.
Object judiciously when the question in the leading form is likely to harm your case.
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If you want to object do so before the witness has an opportunity to answer. Do so

politely, for example.
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“Your Honour, I am afraid that my learned friend is (seeking to) lead(ing) the
witness”.
If your opponent objects to a question you have asked and either you agree that it
was objectionable or the judge has indicated that it was, apologize and then frame
your question in the proper manner.
2. THE OPEN ENDED QUESTION
This is a question that does not limit the scope of the answer.
The witness will normally give a narrative answer.
Open-ended' means the witness has a complete, undirected choice of what to
answer, and nothing is contained in the question itself that may indicate the desired
answer.
Examples
Question: what happened after he struck you?
Question: why did you telephone her?
Question: how did you cope at work with one arm in plaster?
This type of question is particularly useful when you want the witness to tell the
story or part of it in his or her own words. It helps to move the story along.
3. THE CLOSED QUESTION
This is the question that limits the scope of the answer.

It is particularly useful when you are seeking to elicit a particular piece of
information or detail from a witness.
Examples
Question: what time was it?
Question: what colour was her hair?
Question: in which hand was he holding the gun?

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4. THE TRANSITION QUESTION
The transition is a means of moving the witness from one piece of evidence or topic
to another such as “I would now like to turn to your relationship with Mr. Bob”; or a
question, “after that day did you see the defendant again?”
It is useful way of structuring the testimony, controlling the witness and pruning
irrelevant details at the same time.
5. THE POINT OF REFERENCE QUESTION
This is a method of including in your questions a fact or facts which have already
been elicited from the witness.
It provides a context for the question and is a useful technique for emphasizing an
important fact, clarifying evidence, obtaining greater detail from the witness,
controlling the witness and or providing a transition.
Example
Question: what happened directly after you heard Miss Jones scream? - Emphasis and detail
Question: when you said he left, to whom are you referring? –clarification
Question: describe the knife you saw in the defendants hand-emphasis and detail
AFFIDAVIT EVIDENCE
Where the witness has already sworn an affidavit dealing with the relevant issues, it
is rarely necessary to examine the witness in full on the content of his affidavit.
It is usual to give the witness the opportunity to explain any change in his
circumstances since the affidavit was sworn, expound on any matter not
comprehensively covered, clarify any ambiguity and/or deal with any matters which
have arisen since the affidavit was sworn.
Examples
Question: Did you swear an affidavit in these proceedings on 6th November 2006 dealing with
the defendant company?
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Question: In paragraph six of your affidavit, you refer to Mr. Peter, who is he?
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ALIBI EVIDENCE
It is particularly important in the case of an alibi witness not to lead on the date or
time.
Do not ask an alibi witness, “Where were you on the evening of March 2009? “
Elicit the date from the witness, for example,
Question: Has the defendant ever been arrested?
Answer: Yes
Question: When was that?
Answer: March 2009
Question: Can you recall where you were that evening?
Answer: Yes, I was with the defendant.
EXPERT EVIDENCE
Before leading your expert witness on his findings, you have to first establish the witness's
credentials as an expert. Only once this has been, done, may the court have regard to his
opinion. This opinion evidence (which is generally inadmissible) is rendered admissible by his
expert knowledge on the subject.
His credentials may be established by virtue of his academic and professional qualifications
and previous experience, or by previous experience alone.
When dealing with expert evidence only ask questions that relate to the experts
qualification and expertise. Questions may also be asked as to their findings in their report.
However do not go beyond the script. Always remember your expert witness is either a
doctor, engineer, actuarist, accountant or a specialist in a particular field other than law so
let him be the boss and let him run the show.
Important to note also is that prior to examining an expert witness, let him/her display
his/her credentials to the court. This explains his/her credibility and clears the air as to
admissibility of his/her evidence.
A time may come when the judge questions the findings of your expert witness while on the
dock. In such an event the rule is simple: let him/her answer the questions and do not
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answer or attempt to clarify. This avoids embarrassments, fatal contradictions or injury to

your case in general.
An expert can refresh their memory by reading a treatise related to their field. This is
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provided for in Section 167(4) of the Evidence Act.

Example
In the Ace Khumalo case study, Dr.Pillay, a pathologist, was called to testify on the cause of the
deceased's death. In order to establish his credentials as an expert, he should be led as follows:
Prosecutor: Please state your full names for the record.
Dr Pillay: Peter James Pillay.
Prosecutor: What academic and professional qualifications do you hold, Dr Pillay?
Dr Pillay: I have the MB Ch B degree of the University of Natal, obtained in 1 972, and the Master in
Medicine degree from the University of Cape Town, obtained in 1979. I also completed a Post-
graduate Diploma in Forensic Pathology at the University of Edinburgh in 1986. I have been
registered with the Health Professions Council of South Africa (previously called the South African
Medical and Dental Council) as a specialist forensic pathologist since August 1987.
Prosecutor: Please tell us what experience you have as a specialist pathologist.
Dr Pillay: I have practised as a specialist pathologist for 13 years: from I 987 to I 995 in the employ
of the State as a State Pathologist based in Durban, and since I 995 to the present in private practice
in Durban. During this time I have examined more than.. . [Evidence continues] .
Prosecutor: Thank you. Now, in this matter, is it correct that on 4 April 1992 you performed a post
mortem examination on the deceased, Mr. David Mbhele?29 [evidence continues]
ON THE CHARACTER OF THE WITNESS
The evidence Act at section 128 states that a witness shall not be excused from
answering any question as to any matter relevant to the matter in issue in any suit or
in any civil or criminal proceeding upon the ground that the answer to such question
will incriminate, or may tend to incriminate, such witness, or that it will expose, or
tend to expose, such witness to a penalty or forfeiture of any kind, but no such
answer which a witness is compelled to give shall subject him to any arrest or
prosecution, or be proved against him in any criminal proceeding, except a
prosecution for giving false evidence by such answer. Therefore you can go ahead
and ask incriminating questions in both criminal and civil proceedings as long as
they are relevant to the matter in issue.
Under section 157 of the Evidence Act, the court has discretion to compel a witness
to answer questions that affect his credit by injuring his character. Under section
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158, counsel should not ask those questions unless he has reasonable grounds to
believe that their imputation is well founded.
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Under Section 162 of the Evidence Act it is permissible to ask questions that injure
the character of a witness, such as relating to a previous conviction or a question
impeaching his impartiality. If the relevance of the question is only that it injures a
witness’s character, then no evidence to contradict his answer may be given except
evidence to contradict a previous conviction or his impartiality.
Under section 163(1) the credit of a witness may be impeached by the adverse party,
or, with the consent of the court, by the party who calls him in the following ways:
i. by the evidence of persons who testify that they, from their knowledge of the
witness, believe him to be unworthy of credit;
ii. 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;
iii. by proof of former statements, whether written or oral, inconsistent with any
part of his evidence which is liable to be contradicted;
iv. 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.
Under 163(2) A person who, called as a witness pursuant to sub-section 163(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 be gives cannot be contradicted, though, if they
are false, he may afterwards be charged with giving false evidence. Therefore if you
call a witness to attack the credit of another of your witnesses, do not ask reasons
for this during the examination in chief.
Remember during your examination in chief that the Evidence Act (at section 55(1) )
provides as follows: 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. So you have to make the evidence ‘appear’ from the admissible facts
and not adduce it directly during the examination in chief.
Under 55(2), you can ask questions in a civil case on character where you intend the
evidence of character to affect the amount of damages. It (section 55(2) says as
follows: In civil cases, the fact that the character of any person is such as to affect
the amount of damages, is admissible.
Concerning criminal proceedings under section 56, the fact that the person accused
is of a good character is admissible. This makes evidence brought to show that he is
of bad character admissible under section 57(b).
Section 57(1) provides that 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 in the
following circumstances:
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i. such evidence is otherwise admissible as evidence of a fact in issue or is

directly relevant to a fact in issue; or
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ii. 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. Section 14 relates to state of mind or
feeling while section 15 relates to facts showing system (i.e. a series of similar
occurrences), or
iii. where he has asked questions to the witnesses for the prosecution with a
view to establish his own character or has given evidence of his own good
character or
iv. 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; (In this case
the court has discretion to disallow evidence under this limb if 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.
v. he has given evidence against any other person charged with the same
offence
Under section 57(2), 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.
Section 58 provides as follows: In sections 55. 56 and 57 the word "character"
includes both reputation and disposition; but, except as provided in section 57,
evidence may be given only of general reputation and general disposition, and not of
particular acts by which reputation or disposition were shown
Bear in mind all these rules on character during your examination in chief.
UNFAVOURABLE WITNESS
An unfavourable witness is one whose testimony does not advance the case of the
party who called him, despite the witness's best intentions.
A witness will be unfavourable if they cannot recall some of the facts about their
testimony.
If you come across an unfavourable witness you can ask the court for leave for the
witness to refresh his memory by reading his previous statement. It is very often the
case that cases come to trial many months after the witness has provided a
statement.
Therefore, it is important that before your witness gives their evidence that they
have the opportunity to read their previous statements to refresh their memory so
that when they are being asked questions they are familiar with what they said in
their original statement.
They are then less likely to become an unfavourable witness and will hopefully
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enhance the strength of your case. If after reading their previous statement the
witness still cannot recall the facts then you cannot assist your witness by putting
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leading questions or prompting them. You should instead try to get the witness out
of the witness box as soon as possible.
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 witness is not desirous of telling the truth at the instance of the party who calls
him", is the traditional formulation of the test to determine hostility - this means
that the witness's version in support of your client is being altered or ignored in
order to prejudice your client.
Is a witness that you invite hoping that he will give evidence favourable to you but in
the examination in chief you discover that the witness for some unknown reason has
made an about turn and is giving evidence contrary to what he/she had indicated
they would talk about.
This kind of witness is called a hostile witness and Section 161 of The Evidence Act
gives the court discretion to permit a person calling a hostile witness to cross
examine such witness.
Once you have a hostile witness the court can exercise discretion and allow you to
cross examine your own witness. Once a party cross-examines their own witness
that witness is in the same position as the adverse party and it is going to be
incumbent upon the person seeking to cross-examine their own witness to ask for
the court’s permission to do so after declaring the witness hostile.
The lawyer may ask the court to declare the witness hostile. If the court does so, the
lawyer may thereafter apply leading questions during examination in chief (as this
is now operating as a cross-examination).
The evidence of a hostile witness is admissible but it is for the court to determine
what probative value that evidence has by taking all facts into consideration.
Sections 159 to 160 prohibit asking of certain kinds of questions. Indecent or
scandalous questions should not be asked unless they relate to facts in issue.
The adverse party should object immediately if a scandalous question is asked. It is
also the case where an irrelevant question is asked.
If the objection is overruled by the judge and the adverse party still feels that it is
sustainable, they should ask the judge to record the objection, and the ruling and the
objection on the ruling.
This is helpful should the objecting party wish to appeal against the ruling. Failure to
object as soon as the question is posed estops one from forever objecting that
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questions were asked that should never have been asked.

If one encounters a hostile witness the options are:
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i. To merely stop leading the witness once the antipathy towards your case becomes
apparent; or
ii. To prove the witness's inconsistent prior statement against him;" or
iii. To apply for the witness to be declared a hostile witness, and if the application is
successful, to cross-examine the witness. Cross-examination of your own witness is
only permitted once the witness has been declared a hostile witness.
If a prior inconsistent statement was made, putting the statement to the witness may be
used as part of the evidence to prove hostility. Note, however, that the mere proving of a
prior inconsistent statement does not convert the witness into a hostile witness.
Example
A portion of the statement Baby Khuse made to the police (in the Ace Khumalo case study), reads as
follows:
"As I watched, David Mbele ran up to Ace and stopped about three paces from him. He was
shouting loudly and swaying on his feet due to drink. He was waving his arms in the air. Suddenly,
Ace pulled out a knife and stabbed David in the chest. David was unarmed at the time he was
stabbed, and was in fact waving his arms about. I screamed, David fell down, and Ace ran away."
She confirmed this version in her pre-trial consultation with the prosecutor.
However, when called by the prosecutor to testify, she testified as follows about the stabbing
incident she had seen:
Prosecutor: What happened when the deceased confronted the accused?
Baby Khuse: Well, Ace was waving his arms up and down trying to calm David down, but David just
shouted louder.
Prosecutor: What happened next?
Baby Khuse: David Mbele suddenly produced a large dagger and lifted it up above his head in a
stabbing motion aimed at Ace. Ace stepped back and pulled out his knife, and stabbed David quickly
before David could stab him. There was nothing else Ace could have done.
Baby's testimony is a direct contradiction of the version contained in her police statement, and
which was confirmed to the prosecutor in the pretrial consultation. The prosecutor now realises
that he will have to apply to have Baby Khuse declared hostile, and then try to destroy her new
testimony in cross-examination. Should he fail to do so, Ace would almost certainly be acquitted,
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as one of the two eye witnesses for the State in effect corroborates the defence's version of self-
defence. In the circumstances, the prosecutor would have to take the following steps:
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[Continuation of record]
Prosecutor: Are you sure of your evidence on this point, Miss Khuse? Would you like to refresh your
memory with reference to the statement you made to the police?
Baby Khuse: No, I don't need to refresh my memory - I remember the incident very clearly. In any
event, David was known as a criminal and troublemaker, and Ace has never hurt anyone.
The prosecutor now wishes to discredit Baby Khuse to do so, he will have to take the following ten
steps:
1. The prosecutor should inform the court that he is going to ask questions with a view to
possibly discrediting his witness. This should preferably be done after he has completed the
body of his examination-in-chief in order to enable the defence to cross-examine the
witness on the merits of his evidence and the circumstances surrounding the making of the
statement.
2. The witness should be asked if he has previously made a statement to the police about the
same matter.
3. Sufficient details must be put to the witness about the date, time and place of the making of
the statement and his signature on the statement to inform him about what statement is
being referred to.
4. If the witness admits making the statement to the police then he should be asked if the
statement was reduced in writing in his presence and if so, whether he thereafter read it (or
if it was read back to him, as the case may be).
5. If the witness still answers in the affirmative, he should be asked if he was satisfied with the
contents of the statement and whether he thereafter signed it.
6. If the witness still answers in the affirmative, then he should be shown the statement and
asked if it is his signature on the statement.
7. Once he has admitted that, the statement should be read out to him and he should be asked
if those were the words which he used.
8. If the witness admits saying the words, the statement may be handed in as an exhibit
without it having to be proved by evidence although it might well be unnecessary to hand in
the statement since the admission of the witness would be on record as to the contents of
the statement. Where a witness has made more than one previous statement, whether
consistent or inconsistent with his evidence, it is desirable that all such statements should be
produced.
9. The witness should then be asked which of his two statements (or more) is the truth.
10. The witness must be given the opportunity to clear up the apparent discrepancies. He might
have a good explanation for the inconsistency. When the statement was recorded there
could have been a misunderstanding or mistranslation; the recorder might not have had a
good command of language; he could have made an incorrect translation; words could even
have been 'put in his mouth' by a perhaps over-zealous policeman or he could be trying to
protect someone. It is unfair to assume that such a witness is lying without giving him a
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chance to explain.
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Prosecutor: Miss Khuse, do you agree that the evidence you have just given is not consistent with a
statement you made to the police in this matter on 16 April I 992?
Baby Khuse: The police are lying - they are jealous of Ace because he is a professional football player
and makes a lot of money.
Prosecutor: Miss Khuse, I would like you to look at the statement the orderly will now hand to you
[orderly gives statement to witness] .
Baby Khuse: Yes, I can see the statement.
Prosecutor: Please turn to the last page of the statement, page four.
Baby Khuse: Yes, I see page four.
Prosecutor: Is that your signature at the bottom of page four?
Baby Khuse: It looks like mine - yes, it is mine.
Prosecutor: And do you see that the same signature appears at the bottom of each of the four pages
of that statement?
Baby Khuse: Yes, I see that.
Prosecutor: According to the statement, it was made to constable Reddy at the Umlazi Police Station
at 11 h30 on Monday I 6 April I 992?
Baby Khuse: Yes, that is right.
Prosecutor: Do you recall making a statement to the police on that day?
Baby Khuse: I made that statement to the police on that day.
Prosecutor: Have you read the statement again recently?
Baby Khuse: Yes, I read it yesterday in your company.

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Prosecutor: Was the statement read back to you before you signed it on 16 April 1 992?
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Baby Khuse: Yes.
Prosecutor: I want you now to read paragraph 5 on page 3 of the statement to the court.
Baby Khuse: [Reads paragraph 5 out loud].
Prosecutor: Do you agree that the paragraph you have just read to the court is not consistent with
your evidence in court on that aspect?
Baby Khuse: It is not the same.
Prosecutor: My Lord, the State requests that this statement be handed in as Exhibit F.
Court: Very well - the statement is admitted as Exhibit F.
[The prosecutor can leave the matter there - which will probably have the evidentiary effect of
nullifying Baby Khuse's statement, but leaving him with only a potentially biased single witness on
the stabbing incident -Clarissa Mbhele, the sister of the deceased - to prove this case beyond a
reasonable doubt. If he decides that it would be safer to cross-examine Baby Khuse in order to
discover the motive for her behaviour - perhaps a romantic link with Ace? - he would have to take
steps along the following lines in an attempt to have her declared a hostile witness]:
Prosecutor: My Lord, at this stage the State is applying to have this witness declared a hostile
witness, on the following grounds:
1. Firstly, she conceded that the statement (Exhibit F) was confirmed by her as recently as last
night, yet today she totally contradicts its contents without offering any reasonable
explanation;
2. Secondly, her demeanour is such that she clearly has no interest in assisting the court to
arrive at the truth -she keeps looking down at her feet, and refuses to make concessions that
are obvious;
3. Thirdly, she has attacked the character of the deceased by calling him a troublemaker and a
criminal, whilst praising the accused as someone who has never hurt anyone. She
volunteered these comments without being asked about these matters by me.
In the circumstances, it is my submission that the State has shown that the witness is not desirous of
telling the truth at our instance, and I request that she be declared a hostile witness.
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Court : Yes, Ms Alberts?

[Ms Alberts, the defence lawyer, is now given an opportunity to argue against the State's
submissions].
Court: After considering the evidence, and the arguments on behalf of the State and the defence, I
am satisfied that the witness, Baby Khuse, is indeed hostile to the State's case, and she is hereby
declared a hostile witness. Reasons for this decision shall be given in the main judgment.
[The prosecutor may now proceed to cross-examine Baby Khuse as if she were a defence witness].
REFRESHING MEMORY
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 notebook or other document).
The refreshing of your witness's memory may be crucial to your case, as without the
forgotten testimony you may be unable to establish a vital element of the case.
It becomes necessary where a witness forgets what he or she was called to testify upon.
Importance of refreshing memory:
i. A witness who testifies from a refreshed memory is more persuasive and credible
than a witness that cannot remember the information.
ii. By attempting to refresh the witness’s recollection, you can lay down much of the
foundation to introduce the document if the witness’s memory cannot be refreshed.
An Example of Forgetfulness in a Trial.
In a situation of a hit and run accident, the key evidence will be the license plate number of
the vehicle involved. During the trial, you have a witness who has the key to the mystery.
You ask the witness of the license plate number and he or she answers, “I do not
remember.” You pause and ask, “Don’t you remember that the license number is…”
“Objection, leading.” shouts the opposing counsel.
The judge sustains the objection. As an advocate you try another tactic, “Don’t you
remember in my office yesterday when you told me that the license plate number is…”.
“Objection, leading and hearsay.”
In such as a situation, as an advocate, what will one do?
This leads us to the methods that are generally accepted in refreshing the memory of a
witness. These are:
a) INFORMAL/REFRESHING OF MEMORY
This method is used where a witness has temporarily forgotten a specific detail.
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One can use leading questions, open ended in nature which will enable his memory be
triggered and be able to adduce evidence.
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Though, one has to establish that the witness had prior knowledge of the information such
as;
Q: Mr. Wanjohi, were you able to read and record the license plate number?
A: Yes I did read and record it on my hand but I cannot remember it?
Q; when the police arrived at the scene of the accident, did you read it to them and was your
statement written down?
A: Yes, the police officer wrote down what I read to him and I went through it to make sure it was
accurately recorded and then signed it.
Q: Did the statement truly reflect the information you gave?
A: Yes.
Procedure
1. Ask the witness if he or she had personal knowledge of the evidence required.
2. Ask the witness if he or she recorded the information in his or her statement.
3. Establish whether the events were still fresh when she recorded her statement.
4. Ask the witness whether the information she recorded in her statement is accurate.
5. Let the witness read it silently and retrieve it; otherwise a hearsay objection will be raised.
b) FORMAL/PAST RECOLLECTION RECORDS

This technique is used where a witness permanently forgets a whole block of testimony.
Thus in such a situation an advocate has to introduce documents that have been written by
the witness to enable him remember the evidence.
However, it should be noted that this is a two step process whereby one step leads to the
other whereby with regards to the above example, written evidence can now be adduced
though a procedure is followed.
In R v Simmonds court held that the notes made by the customs officers at their first
convenient opportunity after returning to their office from lengthy interviews were held to
comply with the condition of contemporaneity and the officers were permitted to read them
in court.
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Procedure of Adducing Evidence Using Past Recollection Records
1. Establish that the witness’s memory is exhausted; in this case you need to show that the
witness has insufficient recollection to testify fully and accurately though he once had full
knowledge of the event.
2. Ask the witness if the sworn statement would help him remember; one needs to establish
the veracity of the written document whereby you need to prove:
a) The statement was made by the witness.

b) The statement was made while the matter was still fresh in witness’s memory.
c) One must show that the statement correctly reflects the witness’s knowledge of
events.
3. Mark the document for identification.

4. Show the document to the opposing counsel or refer to it by page and line if it is a
deposition. It should be noted that physical document is usually not admissible unless the
opposing party offers it into evidence.
5. Ask the witness to read silently (in the case where he has temporarily forgotten) and aloud
of permanent forgetfulness the specific portion of the document that covers the forgotten
material.
6. Retrieve the document; one must remember to retrieve the document from the witness
before you ask her to testify about the information. If you do not retrieve the document,
the witness is not testifying from a refreshed recollection however, this will not be the case
if point No.2 above have been conducted since it’s the case of permanent forgetfulness
after trying to refresh recollection.
7. Ask the witness if his or her memory has been refreshed.
8. Continue the examination if the witness remembers the information.
Note:
I. Let the witness explain how she knew that her statement was accurate when she made it
although she cannot accurately remember the information now. You need to focus on the
steps taken to ensure the accuracy of the information at the time she made the recording.
II. To preserve the witness’s credibility, you should have the witness explain why her memory
cannot be refreshed.
Legal Basis of Refreshing Memory
With regards to past recollection records, this is well supported by the Evidence Act (sec
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167) whereby it states that; “A witness may, while under examination, refresh his memory
by referring to any writing made by himself at the time of transaction concerning which he
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is questioned, as made so soon afterwards that the court considers it likely that the
transaction was at that time fresh in his memory.”
It goes further to provide in subsection 2 that, “a witness may, while under examination,
refresh his memory by referring to any writing made by any other person and read by the
witness within the time mentioned in sub section1 if when he read it he knew it to be
correct.”
Section 169 provides that, “Any writing referred to in section 167 or section 168 shall be
produced and shown to the adverse party if he requires it and each party may, if he
pleases, cross examine the witness thereupon.”
For efficiency purposes, combination of the two techniques will achieve the best result, that
is, start with refreshing of memory and whereby it fails introduce past recollection records.
Refreshing of memory during examining-in-chief is beneficial since:
i. It will ensure smooth presentation of evidence even when forgetfulness arises.
ii. It will also help in maintaining a rapport with the witness and the court.
Example
In the Ace Khumalo case study, let us assume that the investigating officer, Inspector Letshabe,
cannot recall exactly what he did, and to whom he spoke when he arrived at the scene soon after
the stabbing of the deceased.
The record would read as follows:
Prosecutor: What did you do after you were told of the stabbing?
Inspector Letshabe: I went to the scene of the stabbing in Umlazi.
Prosecutor: What happened when you got there?
Inspector Letshabe: I cannot recall exactly - it was a long time ago -I would like to look at the notes
in my pocketbook I made at the time.
Prosecutor: [Holds the pocket-book in his hand]. I have a pocket-book here - I will now pass it to you
[hands pocket-book to the court orderly who hands it to the witness].
Prosecutor: Is that your pocket-book, and did you make all the entries in it? (To prove authenticity
(the first requirement for the admissibility of documentary evidence).
Inspector Letshabe: [Looks at the book]. Yes, this is my pocket-book, and I am the only person who
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wrote in it.
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Prosecutor: Please turn to the pages dealing with your visit to the scene of the stabbing, and identify
these pages for the court. (Once the witness refers to the pocket-book whilst in the witness-box,
the defence has access to the portions of the book referred to. By limiting the memory refreshing
to certain pages, the defence is prevented from having access to the remainder of the pocket-
book. The prosecutor can take steps to cover up or tape together the pages of the book not
disclosed.)
Prosecutor: Is it your original pocket-book or a copy? (To prove originality (the second requirement
for the admissibility of documentary evidence).
Inspector Letshabe: It is the original pocket-book. My notes to the scene of the stabbing appear on
pages 31 to 36.
Prosecutor: Very well - read these pages to yourself. [Silence for 2-3 minutes while the witness reads
the pages]. (The pages are not read into the record - the witness merely reads them silently to
himself to refresh his memory.)
Inspector Letshabe: Thank you - I have read them. [Closes the pocket-book.] (Note that the pages
do not become a court exhibit, nor are they automatically given to the defence lawyer. The
defence has a right to see the pages concerned, but must request them from the prosecutor.)
Prosecutor: Very well - now tell the court what happened when you got to the scene of the stabbing.
TONING DOWN WEAK POINTS
Toning down weak points in other words is the anticipation of problem areas in your case.
Such problems should be disclosed.
For example, damaging evidence that you may expect to appear at trial.
During examination in chief, one should state out the weak and damaging points, by briefly
addressing them and putting them in the most favorable light.
It is generally good tactics to bring out weak points during the opening statement
examining- chief, rather than risk a damaging impact in cross-examination.
This device is often used when an accused is giving evidence that differs from the one he
gave the police. Counsel uses this for clarification purposes.
The following is an example of one toning down a weak point.
Example
A victim had broken into the accused’s room carrying a beer bottle and a knife. The accused picked up
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a rifle, shot the victim and dragged him back to his room.
Q.After that what happened?

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A. After that I went back to the corridor and picked up the beer bottle and the knife.
Q.What did you do with those?
A. I walked back into flat 5 and threw the knife towards the kitchen sink and placed the beer bottle on
the side table near his door.
Q.At one stage you told the police, I think, you just threw the bottle beer in?
A. Yes, yes. I got it incorrect.
In this case you must give your witness the opportunity to clear up the inconsistency.
He or she may have a good reason for this, e.g. there might have been a misunderstanding
on the language used.
One of the rules that would help in bringing out such problems favorably is if the client is
bold, and is likely to injure your cause by pertness or forwardness, you as an advocate
should observe a gravity and ceremony of manner towards them which may be calculated to
repress their assurance.
If the evidence of your witness is unfavorable to you, which should always be carefully
guarded against, as advocate exhibit no want of composure. This is because many minds
(opposing counsel or judge/magistrate) form opinions of the nature or character of
testimony chiefly from the effect which it may appear to produce upon counsel.
Under section 161 of the Evidence Act, the court may in its discretion permit the person who
calls a witness to put any questions to him which might be put in cross-examination by the
adverse party. This is another way of anticipating and removing the sting off weak points.
ON OBJECTIONS
Under The Civil Procedure Rules Order 18 Rule 8,Where any question put to a witness is
objected to by a party or his advocate, and the court allows the same to be put, the judge
shall take down the question, the answer, the objection, and the name of the person making
it.
This comes in handy especially in case of appeal.
The general rule is only to formally object if it is really necessary.
If your opponent asks leading questions during his examination-in-chief, you should warn
him a few times in a stage whisper before standing up to object.
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The procedure is as follows:

1. As soon as you hear the item of evidence you wish to object to, merely stand up. [Do not
shout out: "Objection!"]
2. In response, your opponent should, as a matter of court etiquette, then immediately sit
down [the judge's attention will then be on you].
3. State the basis of your objection: "My Lord, I object to the admission of the statements on
the legal basis that it is inadmissible hearsay. The reason I say so is ... " [use the 'PRES'
formula]:
P-Point of View -(When asked a question, give it a moment's thought and then state your point of view
on the problem.)
"My point of view on this matter is .. . "
R-Reasons- (Give the reasons why you hold the point of view stated.)
"The reasons I say so are ... "
E-Evidence and Examples – (Support your reasons with evidence (for example, authorities who agree
with your point of view) and, if necessary, use examples to illustrate your reasons.
"Professor X's research provides evidence in support of .. . " or It is Trite that….
S-Summarize – (Restate your point of view, which is now your conclusion.)
"In summary, therefore, I am of the opinion ...
4. Your opponent will then be given the opportunity to reply to your submission.
5. The court may then give you a chance to briefly reply.
6. The court will then announce its decision whether to sustain or dismiss the objection.
Mannerisms
Whilst leading your witness, try to eliminate mannerisms that may irritate or distract the
court, such as:
i. Clicking your pen;
ii. Smacking your lips;
iii. Jingling your keys;
iv. Putting a hand in your pocket whilst leading the witness; or
v. Repeating your witness's answer immediately after it is given.
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ADDITIONAL NOTES
Planning Examination in Chief

1. Content
2. Organization and structure
Content
Ask: Why did I call this witness?

1. What single most important thing are they to say? Look at the theme; reasons for actions;
explanations; credibility.
2. What to exclude: Things which are Clutter; un-provable; implausible; impeachable; door
openers.
Organization and Structure

1. Primacy and recency
2. Apposition-juxtaposing facts to emphasize relationship.
3. Duration-How much time you spend on different aspects.
4. Repetition-To keep emphasizing the theme.
Start strong, end strong

i. In the overall examination.
ii. In the sub examinations.
Guiding factors: Admissibility; contribution to theory; thematic value; dramatic impact; un-
deniability.
Topical organization
1. Be dramatic
2. Be persuasive.
3. Do not interrupt the action (flow of the story).
4. Give each detail separate attention.
5. “Diffuse the bomb” (deal with the weak points in advance).
6. Affirm before refuting.
7. Go to the point.
8. End with a clincher.
Techniques
1. Short, open questions. (Avoid compound questions).
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2. One fact per question.

3. Use transitional questions.(“Piggy back”-Morley, Devil’s advocate).
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4. Use headlines.
5. Explain where are going (e.g. “Let’s talk about the events at the hospital).
6. Use body movements.
7. Make questions incremental.
8. Reflect time, distance, and intensity.
9. Repeat important points.
10. Use visual aids.
11. Avoid negative, lawyerly, complex questions.
Controlling the witness

1. Direct advise (e.g. that Magistrate is writing).
2. Hand gestures (Palmer “Basic Trial advocacy skills-Hand up, stop. Hand down, continue.)
Other Important points-Presentation (Prof. Goodno)

1. Be organized
2. Focus on relevant matters.
3. Good delivery.
4. Passion for the case
Communication techniques
(Adopted from NITA method).
Use appropriate communication techniques of

1. Language and vocabulary,
2. Demeanor,
3. Eye-contact,
4. Voice projection,
5. Pace, cadence and silence,(cadence-rhythmic flow of a sequence of sounds or words: a slight
falling in pitch of the voice in speaking or reading, as at the end of a declarative sentence. the
general modulation of the voice. )
6. Facial expressions,
7. Posture and
8. Avoidance of distracting gestures and verbal habits.
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LECTURE 18: TUESDAY 7 JUNE- MORNING SESSION (LECTURE HALL A)
TOPIC 10: CROSS-EXAMINATION
Definition
Cross-examination is the art of interrogation of a witness called by one’s opponent. It is
always done after direct examination.
Section 2 of the Evidence Act-It also refers to the examination of a witness by the adverse
party.
It entails questioning of a witness by a party other than the one who called him to testify.
DeﬁniUon: Black‘s law dicUonary. ―Cross-examination, --- the rarest, the most useful, and
the most difficult to be acquired of all the accomplishments of the advocate.... It has always
been deemed the surest test of truth and a better security than the oath.‖- Cox
Cross examination is an important step in legal process in Kenya in both civil and 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.
In some instances, cross examination can be followed by re-examination, whereby the
witness is questioned again by the prosecutor or party who called the witness to clarify
points brought up in cross examination which might be damaging to the their case.
The process of cross examination is presumed to be necessary because most witnesses
come forward to support one side or the other. In the case of the defence, a witness might
omit certain information which the prosecution might find interesting or relevant.
A prosecution witness might, likewise, omit information. Cross examination ensures that the
trial is fair and that information is truly out on the table.
Experienced trial attorney Kelvin J. Mahoney explains this exposition of the centrality of
cross-examination to a successful trial further thus;
“For the criminal defense lawyer, there is no more important task than mastering
successful cross-examination techniques. Most experienced lawyers would agree
that 90% or more of criminal trials are devoted to the government’s case. Dissecting,
exposing and crippling the prosecution’s case is, many times, the criminal defense
lawyer’s best or only option for securing an acquittal for his client”.
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Legal Basis for Cross-Examination
a) Constitutional Basis
Article 50 (2) (k) of our Constitution gives the right to adduce and challenge evidence this
provides for protection under the law wherein a party charged with a criminal offence is
given the right to examine and cross-examine witnesses.
This just basically gives an accused person the right to give evidence that supports his case
but most importantly it gives him the right to cross examine any witness called by the
prosecution so as to challenge either its truth or its admissibility.
In acknowledgement of the fact that not many accused persons have the capacity to
conduct an effective cross examination, the Constitution further provides that the accused
has a right to legal representation by a qualified advocate if substantial injustice would be
occasioned by the lack of such representation.
One could therefore argue that incapacity of an accused person to cross examine a
prosecution witness would occasion such substantial injustice.
In the case of Moses Ngichu Kariuki v Republic the Court of Appeal stated,
Moses Ngichu Kariuki v Republic

‘In our determination, the right to cross-examine is the linchpin of the concept of a fair trial in that, it
has a bearing on the principle of the equality of hearing and the equality of arms without which a
trial cannot be said to have been conducted fairly.
In our view, denial to cross-examine in turn means that the defence was not treated fairly and the
two requirements of equality of hearing and equality of arms were not satisfied. Our view on this is
reinforced by the marginal notes in Section 77 in that the entire provision is entitled the provisions
to secure protection of law.
Clearly the failure to recall the complainant for purposes of further cross-examination by the
appellant caused prejudice to the appellant.’
See also Ngura vs Republic (1968) E.A 206
Ngura vs Republic (1968) E.A 206
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.
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The other evidence against both accused was very strong. The appellant was convicted and
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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.
b) Under the Evidence Act
Section 145(2) of the Evidence Act (Cap. 80) defines cross examination as the examination
of a witness by the adverse party.
Section 146(2) of the Act gives direction as to how far cross examination can be taken.
Section 148-A witness to character may be cross-examined and re-examined.
Section 149-Any question suggesting the answer which the person putting it wishes or
expects to receive, or suggesting a disputed fact as to which the witness is to testify, is a
leading question.
Section 151 of the Evidence Act stipulates that leading questions be asked in cross-
examination. Leading questions are questions asked in a trial which suggest an answer.
Section 153 states A witness may be cross-examined as to previous statements made by him
in writing or reduced into writing, and relevant to matters in question…
Section 154-A witness may be asked questions…
(a) to test his accuracy, veracity or credibility;
(b) to discover who he is and what is his position in life;
(c) 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.
Section 156 of the Evidence Act provides that a person charged with an offence and called
as a witness for the defence may be asked any question in cross- examination
notwithstanding that the answer may tend to incriminate him as to the offence charged.
c) Under Civil Procedure Rules

Section 22 Civil Procedure Act allows a person to be questioned on the documentary
evidence produced as evidence.
Order 18 Rule 6: “Where any question put to a witness is objected to by a party or his
advocate, and the court allows the same to be put, the judge shall take down the question,
the answer, the objection, and the name of the person making it.”
Order 19 Rule 2 provides that upon any 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.
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See Fernandesvs Noronha (1969) E.A 506

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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 appellant‘s and respondent‘s cases had been closed to
enable him to be further cross examined on statement given by him to the police.
It was held that the discretion to recall a witness for further examination or cross examination
should be exercised in exceptional cases where an injustice might otherwise result. In this case the
judge was right in not allowing further cross examination.
d) Under Criminal Procedure Code Cap 75
Under Section 150 it states “…Provided that the prosecutor or the advocate for the
prosecution or the defendant or his advocate shall have the right to cross-examine any such
person, and the court shall adjourn the case for such time (if any) as it thinks necessary to
enable the cross-examination to be adequately prepared if, in its opinion, either party may
be prejudiced by the calling of that person as a witness. “
Under Section 302 - it provides that witnesses called for the prosecution shall be subject to
cross-examination by the accused person or his advocate.
Under Section 307-(1) it states “the accused person may then give evidence on his own
behalf and he or his advocate may examine his witnesses (if any), and after their cross-
examination and re-examination (if any) may sum up his case. “.
e) Cross Examination in Judicial Review

Judicial review is a special jurisdiction under sections 8 and 9 of the law reform Act and
order 53 of the civil procedure rules 2010 which is neither civil nor criminal.
The power to cross examine in judicial proceedings in Kenya has been denied by the courts.
In the case of Simon Mbugua Nganga v The Returning officer of Kamukunji and another
(2008) Misc Application No. 13 the court held that they have no jurisdiction to engage the
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court in cross examination of the first respondent and inspection of form 16A as the duty is
reserved for election court.
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In the case of Mohamed Koriow Nur v Attorney General and 2 others the court was of the
view that Cross examination in judicial review was so rarely done that it was only in rare
cases of remarkable character or in very special circumstances that it was allowed.
In other jurisdictions like England cross examination in judicial proceedings has been allowed
but only in exceptional and limited circumstances. In the case of R V Stokesley Justices ex
parte Bartram the court held that it is rare to call for cross examination in Judicial Review
proceedings but it can be done in exceptional cases.
Example of such a case was the case of R v Ealing Where the court allowed examination of
witnesses provided it did not interfere with the rules of the court or procedures.
Objectives
The main objectives in cross examination are
i. To elicit evidence in support of your client’s case.
ii. To weaken your opponent’s case. This is done by attacking the credibility of a witness or
making him or her to detract from his/her statement. In civil cases this is achieved if your
client’s version is shown to be more probable than that of the witness you are cross-
examining.
iii. Cross examination repairs or minimizes the damage to your case during examination in
chief.
iv. It also enhances your case. During cross examination, you seek to elicit positive facts that
can be used to further your claims or defenses.
v. Discredit the witness by obtaining concessions as to inaccuracies, inconsistencies and
obtaining agreement/admissions as to relevant facts.
vi. When acting for an accused person, your aim is to ensure that at the conclusion of cross-
examining state witnesses, your client’s story remains reasonably true. This is done by
obtaining concessions that create doubt in the mind of the court.
THE PURPOSE OF CROSS-EXAMINATION

Whereas it is plain that cross-examination is simply the process of examining your
opponent’s witness by putting questions to him or her, and its critical importance is
acknowledged by statute with the Criminal Procedure Code imposing a mandatory
obligation on the court to invite an unrepresented accused person to exercise it, little
thought seems to go into the important subject of the purpose cross-examination is
calculated to serve.
In treating of this subject, Halbury’s Laws of England states;
“Cross examination is directed to (1) the credibility of the witness; (2) the facts to
which he has deposed in chief, including the cross-examiner’s version thereof; and (3)
the facts to which the witness has not deposed to but to which the cross-examiner
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thinks he is able to depose”
Put another way, the purpose, the aim, the raison d’etre, of cross-examination is two- fold;
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(a) to advance your own case; and

(b) to undermine your opponent’s case.
a) Advancing Your Own Case
You advance your own case during cross-examination by eliciting favorable testimony
from the prosecution witness or, alternatively, using the opportunity to develop your
theory of the case by putting to the witnesses your client’s version of the disputed facts.
Failure to do this would invite an inference that you have accepted the prosecution
version.
Indeed, you may be criticized for failing to give your opponent’s witnesses the
opportunity of commenting on your client’s account of events.
b) Undermining Your Opponent’s Case

Undermining your opponent’s case is the second aim of cross-examination and this
entails successfully meeting the unfavorable testimony given by his or her witnesses.
You undermine the prosecution case by discrediting the testimony given in a number of
ways including testing the limits of the witnesses’ perception; testing the witnesses’
memory and testing the witness’ powers of communication or appreciation of the issue.
This is cross-examination to the issue.
Apart from discrediting the testimony given, you can also undermine the opponent’s
case by discrediting the witnesses themselves.
The two main ways of doing this is by delving, within the bounds of evidentiary rules, into
the witness’ conduct with a view to discrediting it. This is called cross-examination to
credit.
This can also be achieved by showing such inconsistencies and contradictions as there
may exist between his account and that of other witnesses, or his own earlier
statements.
A clear appreciation and awareness of the aim and purpose of cross-examination will give
rhyme, focus and direction to cross-examination which may itself be improved by an
observance of some rules which are essentially commonsensical but which are all too
often observed in the breach which largely explains why a vast majority of cross-
examination efforts are of such little efficacy.
c) Predicate your client’s Summation.

Eloquent summations are the progeny of diligent preparation and effective witness
examination.
You must plan the examination of witnesses with the understanding that the testimony
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elicited on cross examination is more memorable to the judge and carries more weight
than direct testimony. It is effective to remind the court on summation that several
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defence witnesses gave various testimony that bolstered the Plaintiff‘s case, recognized
the qualifications and integrity of the Plaintiff‘s witnesses, and verified the Plaintiff‘s
theory as a viable alternative theory on the case.
TYPES OF CROSS EXAMINATION

There are at least two different types of cross examination.
1. Supportive (Concession Based) Cross – Examination
This type of cross is employed when you want to ask questions and get
answers that support and advance your case.
In a supportive cross, you won‘t use your questions to attack, pillage and
plunder the witness.
Instead, you use cross examination to obtain favorable 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 tesUmony favorable 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 favorable evidence that you will accrue from
opposition witnesses will come in small increments. Seldom will you receive
a single blockbuster answer that obliterates or skews the opposition‘s
theory of the case; however, it does happen.
2. Discrediting Cross – Examination:

This occurs when you attempt to discredit the believability of a
witness‘factual testimony by showing that it doesn‘t jibe (not matching) with
common sense and/or with what others say.
Cross examination can be used to show what the witness does not know and
to impeach the witness.
Sometimes you can discredit an opposition witness by something in addition
to or other than cross-examination, e.g. where you use another witness to
prove the target witness‘bad reputation for telling the truth.
The Art of Cross Examination
What a lawyer should strive to be:

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1. It requires the greatest ingenuity;

2. A habit of logical thought;
3. Clearness of perception in general;
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4. Infinite patience and self control;

5. Power to read men’s minds intuitively,

6. To judge of their characters by their faces,
7. To appreciate their motives;
8. Ability to act with force and precision;
9. A masterful knowledge of the subject-matter itself;
10. An extreme caution; and
11. Above all, the instinct to discover the weak point in the witness under examination.
Before deciding to cross consider this:

At the close of the direct examination of a witness called by our adversary the first inquiry
would naturally be:
1. Has the witness testified to anything that is material against us?
2. Has his testimony injured our side of the case?
3. Has he made an impression with the jury against us?
4. Is it necessary for us to cross-examine him at all?
GUIDELINES TO EFFECTIVE CROSS EXAMINATION
1. Preparation
Proper preparation is the key to success in cross-examination.

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

3. Have a Goal for Your Effective Cross-Examination
A person carrying out cross examination must identify and keep in mind the goal he/ she
intends to establish in his cross examination.
The goals of cross examination may include pointing out the inconsistencies in the witness
testimony, impeaching the witness, using the witness to corroborate the facts in your
client‘s case etc.
4. 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.
5. 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 quesUon...
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.
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Ask unambiguous questions that are not subject to vagueness objections.

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6. 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.
7. 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 of cross-examining
1. Keep your cross-examination to four points, which support your theory of the case. This will
strengthen your argument.
2. Make your strongest points at the beginning ad end of your cross-examination as these are
the points likely to remain in the mind of the listener.
3. Anticipate what the answer will be before you ask the question. The purpose of cross-
examination is to obtain favourable facts and minimise the impact of the evidence-in-chief.
4. Do not write a script which you follow as this will not allow you to respond effectively to the
witness and will weaken your argument.
5. If the witness says something you do not agree with, do not argue with them as this
undermined your own credibility and will ultimately impact your case. If you are pleasant
and courteous to the witness, the witness should relax an cooperate with you.
6. Do not ask the witness open questions as this gives them the opportunity to say what they
like. You need to ensure that you ask closed questions or leasing questions as this can help
you control the witness.
7. If the witness during the examination-in-chief said something which favours your case, then
during cross-examination you should make the witness repeat it for emphasis.
8. You should put your version of the case to the witness and give them the chance to accept
or deny it.
Cross-examination Skill: Make Statements, Do not Ask Questions
The core skill in cross-examination is to train yourself not to ask open-ended questions.
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Your standard technique when cross-examining is to put statements supporting your client’s
version to the opposition witness, followed by a short request to confirm the statement.
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Example
[With reference to the Ace Khumalo case study: the prosecutor is attempting to show that Ace could
easily have run away when confronted by David Mbele, instead of stabbing him] :
Prosecutor: When the deceased stood in front of you, you could see he was drunk - correct? (Note:
When the deceased stood in front of you, you could see he was drunk [Statement]; - Correct?
-[Request to confirm]).
Ace Khumalo: Yes.
Prosecutor: To the left of where you stood was just open field -right?
Ace Khumalo: Yes.
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.
(Traditionally. the statement plus confirmation 'tail' has been called an extreme type of
'leading· question, but this terminology is not helpful as there is no consensus among writers
about the correct definition of a 'leading' question.
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.
Provided the witness continues to agree with your statements in support of your client's
version, there is no problem.
Should the witness disagree with the statement put to him, you will then have to use other
methods to persuade the court to reject his version and accept yours, by showing, for
example:
i. that the witness is mistaken about the contested point; or
ii. that the witness is untruthful about the contested point; or
iii. that the inherent probabilities (that is, the way we expect things to happen based on
common sense and experience) concerning the contested point favour your case.
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
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proceeding.
Cross examination is both an art and a science which must therefore be perfected so as to
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obtain the desired results in the proceedings.

It is 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
7. Questions should be structured to be short, and do not ask the witness to explain.
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LECTURE 19: TUESDAY 14 JUNE- MORNING SESSION (LECTURE HALL A)
TOPIC 11: RE-EXAMINATION
Definition
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; the lawyer can choose not to re-examine.
The Evidence Act provides a practical definition of re-examination in section 145: “…where a
witness has been cross-examined and is then examined by the party who called him, such
examination shall be called his re-examination.”
The Black’s Law Dictionary defines Re-direct Examination (the American Equivalent) as a
second direct examination, the scope ordinarily being limited to matters covered during
cross examination.
Re examination is a kind of retrieval process. This is when you try to heal the wounds that
were opened up in cross examination.
See Wentworth v Rogers it was stated:
Wentworth v Rogers
“…it is proper in re-examination to elicit from the witness facts which explain away or qualify facts
which have been elicited in cross-examination which are prejudicial to the witness’ credit or from which
prejudicial inferences could be drawn.”
Similarly, See Kosciusko Thredbo Pty Limited v Wilson Projects Pty Limited
Kosciusko Thredbo Pty Limited v Wilson Projects Pty Limited

McClelland J held:
“…counsel is entitled in re-examination of a witness to adduce evidence to explain or qualify matters
which have emerged in cross-examination of that witness from which inferences adverse to the witness’s
credit or to the examining party’s could be drawn.”
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Legal provisions
a) Under the Evidence Act
The right of re-examination is buttressed on statutory provisions.

Section 146 of The Evidence Act provides the order of examination of witnesses as first,
examination in-chief, then cross-examination and finally re-examination.
Most importantly, re-examination is strictly restricted to matters that arose at cross
examination.
Section 146 (3) of the Evidence Act states:“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.”
The court also has powers to ask a witness questions for the purpose of clarifying points. If
the court exercises its discretion to permit a witness to be recalled either for further
examination-in-chief or further cross-examination (as in cross-examination of deponents of
affidavits), the party whose witness is recalled has a right of re-examination. (See Section
146 (4)).
Leading questions must not (if objected to by the adverse party) be asked in re-
examination.(See Section 150)
b) The Civil Procedure Act and Rules
The CPA does not deal with the manner in which the court is to take evidence of the witness.
Order 18 Rule 12 of the Civil Procedure Rules states that the court may at any stage of the
suit recall any witness who has been examined and may subject to the laws of evidence for
the time being in force, put questions to him as the court thinks fit.
It thus applies the provisions of the Evidence Act to re-examination on the discretion of the
Court.
c) Criminal procedure code
Section 302 of the Code reiterates the procedure set out for examination of witnesses set
out by section 146 of the Evidence Act.
Section 150 also mirrors the discretion of the Court to recall witnesses for re-examination
provided for by the Civil Procedure Rules.
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The purpose of re-examination

The purpose of re-examination is to give the lawyer who called the witness an opportunity
to lead the witness again in order to:
i. clarify evidence that has been left in a confused state after cross-examination; or
ii. place in context evidence that may have left the court with a misleading impression;
Example
Consider the tongue-biting case: Let us assume that in his cross-examination the defence counsel
stopped after getting the concession from the eye-witness that he did not actually see the
defendant bite off the plaintiff's tongue:
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 plaintiff's tongue?
Eye-witness: No, Sir, I did not.
Defence counsel: Thank you. - I have no further questions for you.
In re-examination, the misleading impression left by this cross-examination may be rectified as

follows:
[Re-examination by plaintiff's counsel]:
Plaintiff's counsel: You told the court that the defendant bit off the plaintiff's tongue - how do you
know this?
Witness: I know this because I saw the defendant spit the tongue out.
Plaintiff’s counsel: Thank you-No further questions
Objectives (Advantages) of Re-Examination
1. Putting New Facts of Cross-Examination in a Favourable Perspective

Where cross-examination has opened up an area for exploration that you would not
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have been allowed in examination-in-chief, re-examination allows the advocate to

re-examine on that area.
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Evidence that was not admissible in examination-in-chief may be admissible as a

result of the nature of the cross-examination.
2. Repair of a case damaged by cross-examination:
After a witness has been effectively cross-examined, it is desirable to correct any
wrong construction that has been placed on his evidence by the cross-examination.
This renders an explanation or mitigates any point that has been made against the
witness.
It explains any part of the cross-examination which is capable of being construed
unfavourably against the witness.
Re-examination salvages witness’s testimony massacred during cross-examination.
This is often called rehabilitating the witness.
It sets obscurities and enlightens on evidence.
3. Clarifying confusing points:
Re-examination affords the advocate an opportunity to clarify any matters which
arose during cross-examination.
After cross-examination, everyone is confused hence if the advocate does not
intervene, the fact-finder will almost certainly treat the witness’s evidence as
unreliable.
The advocate’s job is to tidy up. This is often referred to as restoring order and
tidiness.
Done properly, re-examination can repair all kinds of cross-examination damage.
Done badly it makes everything infinitely worse.
Limitations
1. Limited in nature:
Re-examination is only limited to matters which were touched during cross-
examination.
Therefore, it is of little use if any points were forgotten during examination-in-chief
and not uncovered by cross-examination.
However, a Court may allow a new matter to be raised in re-examination. If it does,
it must also allow a fresh cross-examination of the witness by opposing counsel.(See
Section 146 of the Evidence Act)
2. Highlights on weaknesses:
Re-examination tends to highlight to the tribunal the areas you think are weakest in
your witness.
That is why it is rarely done.
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Strategies
There are strategies an advocate can employ in order to make the best of the re-
examination:
1. Question along the line of an argument:

Restrict the re-examination to issues dealt with in cross examination.
This notwithstanding, it is not desirable to re-examine on trivial points since doing so merely
gives them an undue prominence.
2. Come out smoking:

In Regina v Lavery the Court explained: “…ambiguity in an answer given in cross-
examination is, of course, an obvious justification for re-examination designed to
resolve the doubt created, but to say that re examination is confined to questions
aimed at removing ambiguities is absurd. For re-examination is allowed for much
wider and more important purposes. It is to be permitted, in my opinion, whenever
an answer or answers given by a witness in cross-examination would, unless
supplemented or explained in the manner proposed by the re examiner, leave the
Court with an impression of the facts, derived from the witness, that is capable of
being construed unfavourably to the side responsible for calling the witness, and
that represents a distortion, or an incomplete account, of the truth as the witness
is able to present it.”
The lawyer should focus on how misleading the cross-examination was and direct
the court to the misleading cross-examination.
He should lay waste to each false impression the counsel in cross-examination
created.
In doing so, the entire courtroom seems to be on your side. David Berg in his book
has argued that even judges seem more tolerant of a little leading during a
passionate re- examination.
3. Quit while you are ahead. Quit while you are behind.
If your witness fared so well in cross examination and there is really no reason to re
examine, quit while you are ahead.
Again if the damage caused by your witness was so much that a re-examination will
not do any good, quit while you are behind since at this time the more effective re-
examination can be none at all.
Ask a few questions if you have to but add none new to stir up a re-cross
examination.
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4. Never re-examine for the sake of it:

At the conclusion of the cross-examination of a witness, you should always first
consider briefly if you need to re-examine.
Always keep re-examination short.
You must take care that re-examination does not have the counter-productive
effect of emphasizing weaknesses in your case.
Re-examination is a minefield and to ask no question is better than to ask the wrong
question.
In Okech v Republic the re-examination of a single eye witness led to self-
contradiction. The Court, having to warn itself on convicting on the uncorroborated
testimony of a single eye witness, therefore was left with no choice but to acquit
the Appellant.
The wiser course is to use re-examination only to correct errors of fact.
Re-examination provides an excellent opportunity to provide a witness’s rationale
for an answer given in cross-examination.
Often questions will be asked in cross-examination that elicit a “yes” or “no”
answer. The value of that answer can often be enhanced in re-examination by the
simple question, “Why?”
5. Confer with the witness when unfamiliar issues are raised in cross-examination:
If the advocate is not able to re-examine because not enough is known about the
subject matter that has received some devastating cross-examination, then it is
preferable that no questions should be asked without first conferring with the
witness.
At least in New South Wales the practice in such situations is that the advocate says
to the judge:“Your Honour, the witness has been asked questions about matters
upon which I have not taken instructions. I would seek to confer with the witness
before re-examination.”
6. Neither merely re-examine on trifling matters nor seek to improve on favourable answers:
As a general rule, it is not good policy to re-examine for the purpose of explaining
unimportant discrepancies, since they seldom do harm.
There is sometimes real harm done by a re-examination on such matters, for a
witness is frequently bewildered by a discovery that there is some discrepancy
which friendly counsel deem so important as to demand an explanation, and as his
confusion increases, he goes from bad to worse.
The books on advocacy are united on these two points.(See Morris E., Technique in
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Litigation,(2nd edition) at p2210

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i. Morris, in his book, observes thus: “Associated unfavourable matters may

emerge or the witness may misunderstand your motives and recant with the
speed of light.”
ii. Morris also warns to “...be particularly careful in trying to reconcile
contradictory answers – you may even get a third version.’
7. The Art of No Re-Examination

Here, one is required to observe closely and exercise clear judgment to determine
whether it is safe to ask for an explanation.
If there is doubt whether a satisfactory explanation can be given, none should be
asked.
If in doubt whether the witness can give a reasonable explanation, but there is
reason to hope that he can, it is expedient to gradually approach the subject, testing
whether the witness has regained his confidence and state of mind sufficiently to
answer with confidence.
However, in every case where there is doubt, approach the subject cautiously, and
do not get so entangled that you cannot retreat by going to some other topic.
8. Avoid the risks of seeking explanations.
Re-examination Procedure
Whilst your witness is being cross-examined, make notes about items of evidence that are
left confused or incomplete during cross-examination.
When you are about to re-examine, it is accepted convention that you may bring the witness
being re-examined to the relevant point in the evidence by way of repetition, or a leading
question.
However, the question itself must be open ended.
See the tongue biting example above:"You told the court that the defendant bit off the
plaintiff's tongue [repetition to bring witness to the point] - how do you know this?" [Open-
ended question on issue to be clarified].
Things to remember
1. Re-examination is confined to issues that were covered in cross-examination.
2. Should you wish to ask new questions beyond this, you have to ask the court's permission to
do so.
3. Choose your words carefully so that the witness knows exactly what the re-examination
intends to focus on.
4. Do not ask questions in re-examination unless you are sure the witness knows the answer.
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Conclusion:
Ultimately, properly done re-examination can repair all kinds of damage caused by cross
examination.
Conversely, badly done re-examination makes everything worse.
Re-examination should thus give counsel a chance to radiate quiet confidence with his case
and restore sanity back to the proceedings, effectively putting him back in charge of his
client’s case.
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.
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LECTURE 21 & 22: TUESDAY 21 AND 28 JUNE- MORNING SESSION (LECTURE

HALL A)
TOPIC 12: CLOSING ARGUMENT

It was stated in Joseph V. Guestaferro
“It is more probable that a well tried case will be lost due to a weak, poorly
organized final argument than it is that a poorly tried case will be won by an
effective argument”
DEFINITION
Also referred to as; closing speeches or closing address or submissions.
This is the summation of the entire case by an advocate. It is here that all the evidentiary
material is brought together and the case is presented in a strong, fluid and persuasive
manner. It is also here that the advocate summarizes whet they had set out to prove at the
beginning of the trial.
A closing argument is the concluding statement of each party’s advocate, or the party
himself, reiterating the important arguments for the court.
Simply put, submissions can be said to be arguments at the close of the trial or on specific
issues that arise during the trial on what a party believes to be the correct legal or factual
approach in the circumstances. Submissions are not limited to the closing of the case; there
are other opportunities before, during and after trial. For instance, in civil cases, submissions
are also made when there are interlocutory applications.
This is the stage of the trial where each of the opposing trial lawyers (advocates) or parties
attempt to persuade the court by inviting the latter to consider the case advanced and hold
in his/her favour (will).
Therefore, the ability to make a good speech is key to persuasion in advocacy, with the term
‘advocacy’ deriving from the latin ‘advocare’, meaning literally ‘to call towards’.
Advocacy is, then, the art of winning the listener over to the advocate’s cause by persuasive
speaking.
By and large, lawyers like the Indian pleaders are expected to be good orators. It is for this
reason that they are retained and which art strongly comes to life when making a speech to
the bench, judge or jury.
The aim of closing argument

The closing argument (also called 'argument' or the 'closing address') is the stage of the trial
where each of the opposing trial lawyers attempts to persuade the court to decide the case
in his favour.
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THE PURPOSE OF CLOSING ARGUMENTS

This is threefold, namely;
1. Persuasion (Rhetorical Dimension of Advocacy).

In an adversarial system, like ours, the findings of fact and the law are based almost entirely
on the opposing views put forth by the respective counsels.
The judge plays a primarily positive and neutral role therefore highly dependent on the
integrity of the lawyers who appear before them.
In that regard, closing speeches avail to the litigant, the last opportunity to communicate
directly and ultimately convince the court on the propriety (merits) of his approach.
Persuasion entails the psychological element of the case that benefits from human
interactions (social economic affairs). Examples include cultural traits, attitudes, forensic
taste, the mood of the court, etc.
In other words, the ability to display the common touch (appeal to emotions) and
communicate effortlessly and politely with people from all walks of life.
A trial litigator will therefore develop a case theory that is convincing, enduring, resilient
and consistent with the legal and factual context as well as the available evidence. Then
convert your case theory into a story told from the client perspective but in a most coherent
(logical) narrative form.
To influence the intelligence and will of the court, one needs to;
(a) Dispel antagonistic feelings or prejudices which will prevent his arguments from
receiving a fair hearing.
(b) Build favourable feelings by causing the facts to speak to the will in the same way
they speak to the intelligence. The main points to stick out, the subsidiary ones to
strengthen key arguments while weak arguments to be avoided altogether.
2. Unfavorable Evidence
Closing speeches avails an integral platform to essentially deal with evidence that
undermines your case concept and trial strategy.
This is by approaching evidence from an angle favourable to your client’s case and is best
achieved by;
(a) Sealing loop holes in your case. Carefully maneuvering around pot holes, that is by
rendering favourable and plausible explanations for any inconsistencies.
(b) Secondly, by contradicting evidence in a more positive (innocent) manner rather
than adopting a mere dismissive and hostile fashion. In the alternative, one can
challenge the admissibility and relevance of the evidence in question or establish a
greater weight of probability on the facts consistent with the client’s case, or even
argue that the overall standard and evidentiary burden of proof have not been
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discharged. This is what is known as toning down weak points by removing their
stinging element.
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NB:This helps to improve your image to the court as one comes out as honest, sincere,
gracious, magnanimous, appreciative of the entire adduced evidence and helps to focus
attention on the real issues to be determined by the court.
Statutory Basis of Closing Statement
a) Closing Statements in Civil Cases

Order 18 Rule 2 CPR lays the basis for parties to address the curt generally, after evidence
has been produced. Therefore the provision suggests a point from which the role of closing
arguments can commence.
Order 18 Rule 2 provides:
i. On the day fixed for the hearing of the suit, or on any other day to which the hearing
is adjourned, the party having the right to begin shall state his case and produce his
evidence in support of the issued which he is bound to prove
ii. The other party shall then state his case and produce his evidence and may then
address the court generally on the case. The party beginning may then reply.
iii. After the party beginning has produces his evidence then, if the other party has not
produced and announces that he does not posed to produce evidence, the party
beginning shall have the right to address the court generally on the case; the other
party shall then have the right to address the court in reply, but if in the course of
his address he cites a case or cases the party beginning shall have the right to
address the court at the conclusion of the address of the other party for the purpose
of observing on the case or cases cited.
From the above a trial advocate can infer the use of closing statements when they are
representing their client. The authority to address the court generally at the close of
producing evidence is provided in points 2 and 3 above. However these are not express
provisions as to whether the trial advocate can close the case using closing statements.
b) Closing Statement in Criminal Cases
Whereas in the interest of expeditious disposal of cases the courts encourage parties to
exchange and to file written submissions in civil cases, the position is different with regard to
criminal cases, where there is no provision for written statements.
S210 CPC provides: if at the close of the evidence in support of the charge, and after hearing
such summing up, submission or argument as the prosecutor and the accused person or his
advocate may wish to put forward…
o From the above the COC does envisage the use of closing statement in criminal
cases. This is compounded further by the provision below.
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S213 CPC provides: the prosecutor or his advocate and the accused and his advocate shall
be entitled to address the court in the same manner and order as in a trial under this Code
before the HC.
o The procedure with regard to the HC is set out in S310 which provides: if the
accused persons or anyone of several accused persons adduces any evidence, the
advocate for the prosecution shall, subject to the provisions of s161 be entitled to
reply.
o S161 limits the right of the prosecution to reply and it provides that in cases where
the right of reply depends upon the question whether evidence has been called for
the defence, the fact that the person charged has been called as a witness shall not
of itself confer on the prosecution the right of reply. The provision to that section
however gives the AG and SG, whenever they appear in person, a right or reply in all
cases.
From the above, it is evident that there is nothing in the CPC that provides for the making of
written submissions.
The nature of closing argument

It may be fairly easy to persuade the court if the judge happens to agree with your
submissions on the evaluation of the evidence. Your closing argument will then amount to
little more than a closing speech (or address).The judge will have no need to challenge your
submissions (since he agrees with them).
Sometimes the judge may be convinced your case has been proved even before closing
argument has begun - in such cases, the judge will invite your opponent to begin even if the
usual convention is for you to start.
Should your opponent's argument fail to alter the court's point of view; you may very well
be informed that you need not address the court at all ("I don't need to hear you, Mr
Jones.")
In most cases, however, there will be issues on which your submissions accord with the
views of the court, and others where they do not. In the latter case, you will not have the
luxury of merely delivering a speech, but will have to debate the contested views with the
judge in order to persuade the court to accept your views (that is, argue the case with the
judge).
Closing argument procedure
The general rule is that the lawyer acting for the party on whom the onus rests argues first.
The opposing lawyer then argues, after which the lawyer who started has the right to reply.
In theory the right to reply is limited to questions of law but in practice the courts invariably
allow the starting lawyer to reply on factual issues as well.
The argument is limited at the evidence at trial no new Evidence or information.
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Preparation of your closing arguments

In essence, during argument the trial lawyer will try to persuade the court to adopt his
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submissions in its judgment on the merits.
It is therefore useful to use the structure of the judgment to prepare your argument.
Start your preparation by taking a number of blank pages and write the following headings
(one per page) at the top of each page:
NO. STAGE CONTENT

1. The issues: List the issues that the court will have to decide to
determine who wins the case as follows:
1. The issue;
2. The onus on the issue;
3. The legal test applicable to the issue.
2. Agreed Facts: List the facts that are not in dispute or are common cause,
due to:
1. Prior arrangement between the parties;
2. Formal admissions made before or during the trial;
or
3. Evidence of both parties on the aspect being
identical.
3. Summary of relevant evidence: Summarize (only a few lines per witness) the evidence that
the court has to consider to decide the case, in the following
categories:
1. Witnesses called for the State or plaintiff;
2. Witnesses called for the Defence;
3. Witnesses called by the Court;
4. Evidence handed in by consent between the two
parties;
5. Circumstantial evidence;
6. Other categories of evidence (for example,
inspections in loco).
4. Evaluation of the summarized The evidence summarized in (3) above is now evaluated –
evidence: submissions must be made on how much weight to attach to
each individual item of evidence. Your submissions on the
testimony of each witness must be made in respect of:
1. contradictions with other witnesses;
2. corroboration of other witnesses;
3. indications of untruthfulness or exaggeration;
4. the inherent probabilities when considering the
witnesses' versions;
5. the demeanor of the witness;
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6. the weight to be attached to objects and documents

handed in by the witness.
Based on these criteria, conclude your submissions with
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your overall assessment of the witness: (‘truthful’;

'untruthful'; 'mistaken'; etc), and your assessment of the

other evidence ('reliable' or 'unreliable').
Note that in civil cases, the most probable of more
than one reasonable inference may be relied upon.
The practice is for a detailed note to be made of all
the agreed observations during the inspection in
loco, and these observations are then read into the
record by the judge on the return to the courtroom.
5. Conclusions of fact: After evaluating all the evidence, the court will
consider its findings on individual witnesses and the
other evidence, and then decide on its conclusions
on the facts.
This assessment entails the acceptance of the
version of either the plaintiff (or the State in criminal
cases), or that of the defendant (or the accused in
criminal cases), or a finding on the facts that does
not fully accord with the version of either party.
Your submissions here must be focused on
persuading the court to accept your witnesses'
versions in preference to those of your opponent's
witnesses.
After stating the facts it has found to be proved, the
next step will be the application of the applicable
legal test, and the overall onus ofproof0 to these
facts.
6. Applying the legal test to the At this stage, the court decides whether the facts it
conclusions of facts, and the has found to be proved are sufficient to justify a
overall onus of proof: finding in favour of either the plaintiff or the
defendant in civil cases, or the State or the accused
in criminal cases.
It is at this stage that the legal test on each issue is
applied to the facts found to have been proved, and
an assessment of the overall probabilities is made to
decide whether the required onus of proof has been
achieved.
Again, your submissions must highlight the aspects
that indicate that the probabilities favour your case.
In summary, follow these steps when preparing a closing argument:

(1) The issues;(2) Agreed facts; (3) Summary of relevant evidence; (4) Evaluation of the summarized
evidence; (5) Conclusions of fact; (6) Applying the legal test to the conclusions of fact, and the overall
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onus of proof.
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Example of a closing address

To illustrate the application of the six-point closing address sequence in the above paragraph,
consider this abbreviated outline of the closing address for the accused, Ace Khumalo, in State v Ace
Khumalo
1. The issues
i. The Issue
(a) Accused's defence is self-defence;
(b) Alternatively, if main defence fails: competent verdict of culpable homicide
(fall-back position)
ii. The Onus

(a) Self-defence: State must prove that the accused acted unlawfully (beyond a
reasonable doubt):
(b) Culpable homicide: State must prove that the accused acted unreasonably
in the circumstances (alternative argument if pressed by the court).
iii. The Legal Test

(a) Self-defence: Had no other choice in the circumstances but to stab
deceased. (Must run away if can safely do so - State's attack?) (Yozefu
Engichu s/o Adiriyano Eduku vs. Reginam (1954) 21 EACA 294)
(b) Culpable Homicide: Even a prima facie 'intentional' act can be viewed
objectively to find negligence (Republic vs. Gachanja (2001) KLR 428)
2. Agreed facts; (Facts not in Dispute)

i. Ace Khumalo (the accused) stabbed the deceased (David Mbele) in the chest;
ii. David Mbele died as a result of the stab-wound inflicted by Ace Khumalo;
iii. David Mbele was an adult, male human being;
iv. Exhibit 2 is the knife used by Ace Khumalo to stab David Mbele;
v. The stabbing took place in End Street, Umlazi, at about 2.15 pm on Sunday 1 April
1992.
3. Summary of relevant evidence;

i. Witnesses called by the State:
(a) Baby Khuse - girlfriend of David Mbele: eye-witness;
(b) Clarissa Mbele - sister of David Mbele: eye-witness;
(c) Dr PJ Pillay - pathologist - post-mortem report: did post-mortem
examination;
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(d) D/Sgt Radebe - investigating officer (SAPS): attended the scene and arrested
the accused.
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ii. Witnesses called by the Defence:

(a) Ace Khumalo - accused: testified in his defence;
(b) Mr. B Khumalo - accused's father: accused's behaviour after incident.
iii. Evidence handed in by consent:

(a) Ace's knife - exhibit 2.
iv. Circumstantial evidence:

(a) No knife found next to Mbele's body by the investigating officer.
4. Evaluation of the summarized evidence;

(a) Baby Khuse: - contradicted Clarissa's version of stabbing ("saw Ace arm
raised and David fell down");
(b) [evaluation of evidence continued ... ]
5. Conclusions of fact;
(a) No coherent version on behalf of the State - two eye witnesses, Baby Khuse
and Clarissa Mbele, contradict each other in material respects, especially
regarding their versions of the stabbing incident itself; thus:
(b) Ace Khumalo's version of events must be accepted.
6. Applying the legal test to the conclusions of fact, and the overall onus of proof.
On Ace's own version, can the court draw the inference that the defence of self-
defence is reasonably possibly true?
(a) Don't be ex post facto armchair critic;
(b) Could not have run away safely:
i) Mbele too close to him;
ii) Mbele fast and aggressive (S v Zikalala).
(c) Had no other choice on the facts but to stab Mbele.

(d) Alternative argument (culpable homicide): Ace at most negligent (acted
unreasonably in the circumstances; see S v Ngubane). 191
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Presentation of closing argument
1. Use the 'PRES' formula

See earlier discussion above for guidelines on how to respond to questions from the
court during the argument.
2. Prepare written main points of argument

If at all possible, always prepare written main points (or 'heads') of argument to
hand up to the court before you commence argument.
Preparing main points of argument in writing will force you to order your thoughts,
and also provide the judge with a structure on which to consider your argument.
Making a habit of preparing written heads of argument for all your cases will
markedly increase your success rate.
Use the six headings above when setting out your argument.
3. Prepare your case file

Label your notes of each witness's evidence, and file them in an A4 lever arch file in
the sequence that the evidence was given.
Keep a separate list of all exhibits in alphabet and number order.
Bring any case authorities you may need to rely upon to court, and ensure that
markers are inserted at the appropriate places in the law report volumes for quick
and easy reference.
In appropriate cases, make use of aids such as laptop computers with linked
projectors, diagrams, charts and overhead slides to support your submissions in
closing argument.
If a diagram was used in the opening address, the same diagram may be used to
support the closing address.
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LECTURE 23: TUESDAY 5 JULY- MORNING SESSION (LECTURE HALL A)
TOPIC 13: OBJECTIONS
Today trial lawyers can find the path of wisdom through the process of lifelong learning
because with humility we can each learn to become better at what we do, practicing the art
of trial advocacy. It has been said that, and indeed if you go into our court rooms and keenly
follow a trial in progress, you will most probably be struck by a disconcerting observation
that most trial advocates seem to make drawn out and poorly worded objections if at all.
These deficiencies range from making poorly worded and drawn out objections, to making
ill-advised or untimely objections and also the failure to make well-grounded trial objections.
The above observations hence necessitate the need for lawyers to understand the purpose
of objections in general, the procedure and the preparation necessary to make a respond to
objections.
Definition of objections
Different definitions have been formulated depending on what kind of objections a party is
dealing with. 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.
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.
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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 XXI Rules 53-58 thereof.
Categories of objections
Objections may be categorized into. Firstly, content objections and secondly, form objections.
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 or 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.
PURPOSE AND FUNCTION OF OBJECTIONS

Generally, objections are utilized in a trial to ensure that parties prosecute and defend their
cases in accordance to the law. This is both on procedure and substance. Some of the
specific purposes and functions include the following:
a) Trial objections invoke the applicable rules of evidence to preclude inadmissible evidence
from being presented to court.
b) Trial objections may be utilized to enable witnesses give evidence without intimidation or
harassment by the opposing advocate.
c) They also help to predicate error on a court’s evidentiary ruling.
d) Preliminary objections help to prevent a court from entertaining a matter that it ought not
to.
e) Preliminary objections in criminal cases guide and ensure that the court does not entertain a
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trial that is otherwise a nullity.

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f) Preliminary objections are also be used to strike out defective pleadings.
TIMING, MAKING AND RESPONDING TO OBJECTIONS

In deciding whether or not to object, the qualities of a good trial advocate will come into play and
more particularly the following: -
a) Clarity of thought and language; an advocate must have clarity of thought and language so
as to be able to put forward and respond to objections clearly and logically in court.
b) Confidence and courage; an advocate should put up a civilized warfare in defending or
raising a trial objection rather than sit back without putting up a fair fight.
c) Alertness; an advocate must be alert during trial so as to point out when to raise an
objection. He/she should also know when to expect objections against his/her client. This
virtue is achieved by keenly following evidence and being alert to the mind of the court.
d) Preparedness; to be able to alleviate situations of surprise in the event that a trial objection
is raised against your client’s case, an advocate needs to be well prepared. Moreover, by
researching the law well, you get to raise informed and timely trial objections.
e) Professionalism; this demands that an advocate knows the rules of practice and evidence so
as to prevent objections against his/her ill advised choice of action. The rules of ethics and
conduct also come in handy to enable one raise well founded objections in a respectful and
professional manner.
Professionalism ensures that advocates do not raise objections actuated by malice. The
advocate should not raise emotions against the other or go personal. The manner and
language to be used in raising the objection is important. An advocate ought to rise up
and politely but confidently say such words as,… ‘your honour/ your lordship counsel is
leading the witness !’
f) Sound judgment; sound judgment enables an advocate make appropriate tactical decisions
as to when to raise or not to raise objections, or how to respond to objections. You ought to
be able to think on your feet. Experienced judgment dictates that you only assert objections
when both a valid objection can be asserted and should be asserted. You should make a
quick cost benefit analysis, to avoid a situation where you win the battle but end up losing
the war.
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Issues to consider in deciding whether or not to object
The following are the factors that may be used to guide an advocate on deciding whether or
not he/she should raise an objection.
a) Relevance: All facts that are relevant should be admissible unless specifically excluded by
law. You should show, or indeed look at the opposing party’s proposed evidence to
determine whether it tends to prove the existence or non-existence of a fact in issue. The
Evidence Act and particularly sections 5-16 guide on relevance and admissibility of evidence.
In a nut shell, facts which are relevant though not in issue include the following:
i. facts forming part of the same transaction,
ii. facts causing or caused by facts in issue,
iii. facts relating to motive, preparation and conduct for any fact in issue,
iv. facts necessary to explain or introduce a relevant fact,
v. fact tending to prove statements and actions referring to common intention,
vi. facts that are inconsistent with facts in issue or affect the probability of
existence or otherwise of facts in issue,
vii. facts that would determine quantum of damages,
viii. facts showing the existence of any right or custom,
ix. facts showing the existence of state of mind or feeling,
x. facts showing system or a series of similar occurrences, and
xi. facts showing the existence of a course of business.
b) Reliability: Second hand information, for example hearsay, would normally be excluded
since it is not as reliable as first hand information. Section 63 of the Evidence Act provides
that oral evidence must in all cases be direct evidence. Direct evidence has been defined to
mean:
i. with reference to a fact which could be seen, the evidence of a witness who says he saw
it;
ii. with reference to a fact which could be heard, the evidence of a witness who says he
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heard it;
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iii. with reference to a fact which could be perceived by any other sense or in any other
manner, the evidence of a witness who says he perceived it by that sense or in that
manner;
iv. with reference to an opinion or to the grounds on which that opinion is held, the
evidence of the person who holds that opinion or, as the case maybe, who holds it on
those grounds.
Provided that the opinion of an expert and the grounds on which such opinion is held,
may be proved by the production of such article in which the opinion and grounds
thereof are contained, if the author is dead or cannot be found, or has become incapable
of giving evidence, or cannot be called as a witness without an amount of delay or
expense which the court regards as unreasonable.
Moreover, evidence, which has not been authenticated, should not be admissible. For
example, it is not proper to admit an analysis of the alcohol content in someone’s breath
if the testing instrument was unreliable or tampered with. The same applies to opinion
evidence given by someone without the credentials or sufficient basis of information to
render an expert opinion.
c) The concept of legality: All evidence that ought to be proved should have been obtained
through legal means. Evidence which is relevant but is obtained illegally may be objected to.
The following examples may give guidance in the concept:
i. An admission will not be admitted if the circumstance under which it was made was that
such admission would not be admitted in court. These are admissions made on a without
prejudice basis in civil cases. 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.
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ii. Another illustration is bad character evidence in criminal cases. By virtue of section 57 of
the Evidence Act, the fact that the accused person has committed or been convicted of or
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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.
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.
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In respect to trial objections on the other hand, the party wishing to raise the objection does
so by simply standing and stating, “Objection, your honour” or “Objection, your Lordship”
whichever is appropriate. You should then succinctly explain why the trial objection is well
founded. The court will either rule on it immediately or require a response from the other
party before ruling. This process should take place with utmost respect and with use of
polite language.
As a trial lawyer, you do not need to know all the evidentiary rules but only the ones that
potentially apply to your case. You need to do a thorough case preparation. Moreover a
lawyer needs to have a rapid cognitive recognition and increasing the “moment of
recognition”. Rapid cognitive recognition entails the following:
i. firstly, researching on the matter or listening to the question/issue raised,

ii. secondly, recognizing a potential objection,
iii. thirdly, deciding whether to make the objection, and
iv. finally, making the objection.
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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 and factual issues. It
will be noted for instance in the case of Republic vs Robert Gilbert Cholmondeley , at the
close of the prosecution’s case, the prosecution moved the court under section 60 of the
constitution for an order directing the defence to make a full disclosure of their witnesses,
their statements and copies of certain forensic reports that the defence intended to
produce. The defence objected to the motion on the ground that such a motion intended to
infringe the constitutional rights of the accused and that no reciprocity existed to warrant
the defence discloses their witnesses and statements as the prosecution was required to do.
The Judge adjourned the proceedings as he retired to consider a ruling.
In objections raised during execution in civil cases, the court by practice makes the decision
after due consideration of the arguments propounded by the parties and the evidence. This
requires more time before ruling. What is important in either case is the weight of the case.
Expediency and the need to make sound rulings must be balanced when any issue is to be
properly addressed.
2. 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
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protecting witnesses is unethical. Basically, if your primary motivation is tactical as opposed

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to legal, then prudence and ethical standards are implicated.
3. 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
Preliminary Objections (PO’s)

Preliminary objections are objections raised before the substantive matter is heard and
determined on merit, only on a point of law. Preliminary objections may be raised where a
pleading is defective for want of form, where a pleading breaches a mandatory statutory
provision, where a suit is time barred, et cetera.
A preliminary objection may be raised by a party in his/her pleading, pursuant to rule 7 of

Order VI of the civil procedure rules. Under order L rule 1 of the Civil Procedure Rules, a
party may nevertheless raise a PO by way of a motion. Section 16 of the Civil Procedure Act
requires that one makes an objection as to the place of suing in the court of first instance
since failure to do so no such objection shall be allowed on appeal.
a) Preliminary objections must be on a point of law.
The courts have held that preliminary objections shall only be based on a pure point of law,
which is clear, and beyond doubt. The court of appeal in Mukisa Biscuit manufacturing Co.
Ltd vs west End Distributors Ltd. (1969) EA 697 observed as follows;
‘A preliminary objection consists of a point of law which has been pleaded or

which arises by clear implication out of pleadings and which if argued as a
preliminary point may dispose of the suit.’
It should also be noted that preliminary objections are argued on the assumption that all the
facts pleaded by the other side are correct. No preliminary objection can be raised if any fact
has to be ascertained or if what is sought is the exercise of judicial discretion. This position
201
was illustrated in Natin Properties Limited vs Jaggit Singh Kalsi & Another Court of Appeal
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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 Kashbhai vs Sempagawa (1976) EA 16.
c) Notice of preliminary objections.
Any party who intends to raise a preliminary objection must give a sufficient and reasonable
notice to the other party. This was the holding in Hudson Liase Walibwa vs Attorney
general NBI HCCC No. 2714 of 1987 (Ringera J. on 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.
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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
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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.1
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.2
d) A preliminary objection may also be raised where a pleading offends the rules of procedure
on form and substance. i.e. where a Notice of Motion is filed instead of a Chamber
Summons, or where a suit is commenced by way of a plaint instead of an Originating
Summons.
e) Under the Limitation of Actions Act. Where a suit is time barred a party wishing to institute
the same must first apply for the leave of the court in the prescribed manner. Once leave is
granted, then the party will be at liberty to file the matter.
Preliminary objections in respect to limitation of time on claims for damages arising out of
personal injuries, breach of duty or nuisance shall not be properly raised but a party may
only be allowed to cross-examine the other party during trial in challenging the leave
granted, or the legality of filing suit without the leave of court. This was illustrated in Oruta
vs Nyamato (1988) KLR590 203
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1
Section 6 of the Civil Procedure Act.
2
Section 7 of cap.21.
Preliminary objections in criminal cases.
Preliminary objections may also be raised in criminal cases. A good illustration is where an
accused raises a motion that the trial be declared a nullity on the ground that his/her
constitutional rights have been violated. This aspect was illustrated in Republic vs William
Chesir Kipkore(2008)eKLR the accused had been held in custody for 107 days before being
arraigned in court. His advocate raised the objection. The High court observed as follows:
That …while it is mandatory for applications raising constitutional issues in

respect of causes of action outside judicial proceedings or which arise in
matters before the subordinate courts, to be by way of petition, in the High
Court when any constitutional issue arising the court may deal with the matter
within the same proceedings as a preliminary point or question.
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.”
On the other hand, section 101 allows evidence to explain a latent ambiguity in a document. It
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states: -
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“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 section 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.
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.
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
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one should be quick to object to the same as misquoting the witness.

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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. 3The Evidence Act gives exceptions to the hearsay rule.
These include evidence of dying declarations, expert opinions, and documentary evidence of
official records e.t.c. where such an exception does not exist, an advocate should object to
questions inviting such evidence.
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.4 The trial advocate
3
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.
206
4
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
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issue, and of any other fact declared by any provision of this Act to be relevant.”
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.5
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.
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 Act6 provides for the
preservation of state secrets and state security. An advocate may object to evidence which
207
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5
Section 48 of Evidence Act.
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. 7
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.8
6
Cap. 187 Laws of Kenya.
7
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, re-examined.
(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.
8
See section 55-57 of the Evidence Act.
208
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
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otherwise admissible.
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.9
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
(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.
209
(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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9
Sedivy, Common Trial Objections Highlands Ranch Colorado, available at sedivy.tripod.com.usgov-9.html
professional employment, or to disclose any advice given by him to his client in the
course and for the purpose of such employment:
Exceptions to such privileges are given where the communication is made in furtherance
of any illegal purpose or where the information relates to any fact observed by any
advocate in the course of his employment as such, showing that any crime or fraud has
been committed since the commencement of his employment, whether the attention of
such advocate was or was not directed to the fact by or on behalf of his client. It should
also be noted that the protection shall continue after the employment of the advocate
has ceased.
Section 142 of the Act further provides that no person who is entitled to refuse to
produce a document shall be compelled to give oral evidence of its contents. As such, an
advocate may not be compelled to give evidence of the contents of any agreement or
document prepared by himself for a client in that capacity. This issue is illustrated in H.F.
FIRE AFRICA V A. M. R. GHARIEB (2005)e KLR.
This was an application to have one Saleh El-Din, an Advocate or his firm of Omar K.
Amin & Co. Advocates disqualified from representing the plaintiff. The grounds
propounded were that the said Advocate and/ or his firm were potential witnesses in
the case and that there existed a conflict of interest in such representation.
The advocate opposed the application on grounds inter alia, that he could not be
compelled to testify as a witness in the proceedings as to require him to give evidence
would be tantamount to forcing him to betray the confidentiality he owes to his clients
and thereby his professional and ethical duties owed to his client would be violated.
The court dismissed the application and observed that:
Under the Evidence Act, the standard of confidentiality of an Advocate as

opposed to any other confidential agent or employee is regarded so high that
the relation of client and Advocate is protected. The Advocate being so
privileged as provided under section 134 of the Evidence Act, cannot be
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compelled to give Evidence on any of the three agreements which the

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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.
This was illustrated in Felistus Wanjiru Kongi v Republic. 10 The accused had been
charged with the offence of receiving and assisting Simon Matheri so as to enable
him escape punishment after he had committed a number of robberies within
kiambu district. She was later convicted and sentenced to two years probation.
On appeal to the High Court, Justice J.B. Ojwang’ held that the special relationship of
wife and husband, which accords the two partners an inherent obligation of
communion and consortium, dictates that even if one of the couple may have run a
foul of the law in one respect or another, he or she still remains a consort to the
other, and so, neither of them is to be perceived as habouring an offender and so is
liable to prosecution as an accomplice, or an accessory after the fact.
The exception is given where,
• the suit is between the parties to the marriage,

• where one of the parties is charged with bigamy ,
• where the suit is in relation to an offence against morality ,
• where the offence relates to the person or property of either spouse or
• where the suit relates to children to the marriage.
iv. Privilege of official communication. By virtue of section 132 of the Evidence Act, no
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public officer shall be compelled to disclose communications made by any person to

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10
Criminal Revision Case No. 459 of 2007.
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
person’s privilege of self incrimination.
6.2.1 The tactical approach in making and responding to objections

Making objections
One needs to move from spotting skills to become a top-tier trial advocate by not just knowing when
you ‘CAN’ object, but also determining whether you ‘SHOULD’ object and ‘WHEN’ it is appropriate to
do so.
‘CAN’ involves issue spotting which require prior vast knowledge in the law and more particularly the
Evidence Act since you will definitely not have the time to go through statute in trial.
‘SHOULD’ entails knowing that not every issue really matters. Just because it is objectionable does
212
not mean you should object. Why object if it does not hurt your case? If you object and prevent the
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judge from hearing some information, for example, hearsay, it is only natural to be curious11about
the ‘forbidden fruit’. You had better make sure it stays out of the evidence since if not it will gain
more attention and significance than it ought to have had, had you not objected. One also ought to
skim through the consequences of the objection either being sustained or overruled. Ultimately,
read the mood of the court and the court’s response to the objections you raise.
‘WHEN’ entails the right time to object. It may be before trial by notice or during trial. You may also
want to read the mood of the court before doing so. Ultimately, object before the evidence is
introduced. This you do in a split second. Once you fail to make a proper objection in time, then it
might be too late to fix the damage; just the same way you cannot ‘unring’ a bell or stuff toothpaste
back in a tube12.
In summary: -
1) Know your Evidence Law.

2) Raise the right objection (Be specific).
3) Know how to object (Say ‘objection’, think as you rise to your feet, stand up and give your
ground, wait for the court to give a ruling and if necessary approach and proffer your argument).
4) Practice.
6.2.1.2 Responding to objections
If your opponent objects, just pause, think, respond, wait for the ruling and probably rephrase your
question if the matter is absolutely or obviously necessary so as to avoid the objectionable material.
It may also be prudent to smoothly transition to another section of the testimony. Think like a
burglar, of course not literally, in terms of having the evidence admitted if extremely vital. If your
opponent’s objection is overruled, repeat the entire question for the witness for clarity purpose.13
6.3 Post Trial Objections
Objections during execution proceedings
A trial may have been conducted in which your client was not a party to but the same affects your
client’s property in the execution stage. You definitely will have to object.
213
11
How to Successfully Make and Meet Objections (www.trialtheater.com)
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12
Supra note 17.
13
Ibid.
These are objections that arise during execution proceedings of a civil case. They are brought under
order XXI rules 53-59 of the civil procedure rules. The party who objects to the proceedings is called
an objector. Rule 53 of Order XXI of the CPR provides that any person claiming to or to have a legal
or equitable interest in the whole of or part of any property attached in execution of a decree may at
any time prior to payment out of the proceeds of sale of such property give notice in writing to the
decree holder and the court of his objection to the attachment of such property.
Upon receipt of such notice, the court shall order a stay of the execution proceedings and shall call
upon the attaching creditor by notice in writing within fifteen days to intimate to court and the
objector in writing whether he proposes to proceed with the attachment and execution there under
in whole or in part.
The objecting party takes out an application by way of summons in chambers in the same suit in
which the application for attachment was made. This must be supported by an affidavit. The
application once filed must be served upon the judgment creditor and if the court so directs, upon
the judgment debtor. Such summonses operate as a stay of attachment unless otherwise ordered.
Once this is done, the parties will argue their case if the judgment creditor still desires to proceed
with execution and the court thereafter makes a ruling on the same.
The purpose of these objections is to ensure that attachment and execution of decrees are not done
on goods, which are not otherwise the judgment debtor’s. It enables parties with equitable interest
over a judgment debtor’s property to protect those interests.
There are also objection proceedings in succession matters particularly where people entitled to be
co-applicants in an application for grant of letters of administration of a deceased person’s estate
are left out of the same. This is provided for under section 68 and 69 of the Law of Succession Act.
Section 68-5(1) provides for Notice of Objection to an application for grant while subsection (2)
provides for notice to objector to file answer. Section 69 provides for the Procedure after notice and
objections.
Conclusion
214
A good trial advocate should be conversant with the rules of evidence. One ought to be well
equipped and think on his or her feet to be able to raise timely and merited objections or respond to
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any objection raised against a case. Wisdom is the ultimate quality needed in making and responding
to objections. It is attained through the compliment of knowledge and skill with actual trial
experience resulting in experienced judgment.
215
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TOPIC 14: APPELLATE ADVOCACY
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.
Legal Advocacy and Drafting Skills Lecture 9 10th July 2007
TECHNIQUE OF APPELLATE ADVOCACY
There is a distinction between trial advocacy and appellate advocacy.

In appellate advocacy there are no witnesses, it is about arguing a brief based on records, this calls
for ability to argue. In practice by the time has argued a brief in the court of appeal the judges know
the case, more often they have an idea on how they are going to rule unless where there are grey
areas
216
Page
One ought to make their case simple. This is a technique that starts from the time one decides they
want to appeal, what was the case in the lower court? What was the law, this helps one to
formulate concise grounds of appeal.
Having read the Record of Appeal in advance, the Appeal Judges have already consulted the law and
will usually know more than you and therefore a good grasp of law which will involve intense
research is necessary on the part of the lawyer. One will find themselves being stopped by the
Judges to explain on the points of law. Being well read on the relevant law is critical in the appellate
court. One has to be well versed and persuasive.
Tact, persuasive, understanding the politics of the judiciary, being able to read the judges and their
jurisprudential inclinations. The point of having deference and politeness to judges apply, the rules
of making a point ones apply, rules of brevity, making eye contact to see whether one is a making a
point is crucial.
To have the confidence of appearing at appellate level, as a matter of practice it is incumbent upon
one to be able to distinguish between an appeal to the High Court and an appeal to the Court of
Appeal. Distinguish between 1st appeals and 2nd appeals.
It is important to distinguish between an appeal to the High Court and an Appeal to the Court of
Appeal, firstly the law is different in the High Court the rules of the High Court are to be found in the
Civil Procedure from Section 69 while the law in the court of appeal is under Appellate Jurisdiction
and the Court of Appeal Rules.
The original appeal from High Court to Court of Appeal, where there is second appeal, it is an appeal
emanating from the subordinate Courts, via the High Court and on to the Court of Law. Second
appeals are always on matters of law. Before going on appeal a good lawyer will firstly think on
whether the decision of the High Court is appealable. Does the law allow an appeal, is it an appeal
as of right or one needs leave to appeal.
Appeal is a creature of statute, Section 3 of the Appellate Jurisdiction and the Section 75 of the Civil
Procedure
Where the decision is appeal, then seek client’s directions
COMPETENCE OF APPEALS
For an appeal to be competent, one must lodge a notice of appeal. That notice must be lodged
within 14 days of the decision. If the appeal is to be competent one must serve the notice of appeal
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on every person who is directly affected by that appeal; Rule 76 of the Appeal Rules.
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The notice must be served on persons directly affected within 7 days of lodging the notice of appeal.
If one must serve everyone directed, then it is possible that one might need to serve people who are
not even parties, who determines who is directly affected? The Leisure Lodge Case – if a supplier
sues a company for goods sold and delivered in an action for the price, if the company goes under,
during the subsistence of the suit and up to the point when judgment is delivered, if the decision
goes against you and within the time allowed to file the company goes under, in such
circumstances, the appeal is already a decision that exists but things have changed and the notice of
appeal has to be served on the Debenture Holder who has caused the company to go under
receivership.
Competence of appeal lies on proper lodging of notice of appeal and serving the parties concerned.
Instituting the appeal one is guided by Rule 81 and within 60 days of lodging of appeal, an appeal
must be lodged; the appeal itself must be lodged within 60 days. The appeal itself constitutes of:
Memorandum of Appeal which is filed in quadruplicate
Record of Appeal also in quadruplicate
Prescribed fee for lodging the appeal.
Understanding the nature of judgment, summary of evidence, application of law to evidence is

crucial.
The Memorandum of appeal sets out the grounds of appeal and Rule 84 is to the effect that in
Drafting a Memorandum of Appeal one must be concise about what they are appealing about.
They grounds must be drafted under distinct heads. The grounds must not be argumentative or in
the narrative. In drafting a memorandum one must specify the points that they allege were wrongly
decided matters of law or fact, in second appeal specify only matters of law. The Memorandum
must state the nature of the Order which one proposes to ask the court to make.
A record of Appeal; its contents are specified by Rule 85. It must contain certified copies of primary
documents. The settled law is that if any of those primary documents is missing in its certified form
or present but not certified, the appeal is certified and will be struck out and one would have to
appeal to lodge another record.
Primary Documents:
1. Pleadings;
2. Trial Judge’s notes of the hearing;
3. Affidavit read and all documents put in evidence at hearing’
4. Judgment or Order;
5. Certified copy of Decree or Order; - where leave to appeal is required, enclose order
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giving leave.
6. Notice of Appeal.
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APPELLATE ADVOCACY-SUMMARY
The guiding statutes/Rules;
1. Supreme Court -Rules

2. Court of appeal-Appellate Jurisdiction Act/Court of Appeal Rules
3. High Court-Civil procedure rules
Various activities in the appellate court;-
1. Enlargement of time
2. Stay
3. Leave
4. Bail.
Forms of pleadings;
1. Memorandum of appeal
2. Notice of appeal.
Form:
-Oral
-Written.
Content;
The law
The authorities
The principles of the law
Duty to the;-
1. Court
2. Colleague
3. Client
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HINTS/TIPS;
1. Preparation
2. Persuasion
3. Know the issues.
4. Know your record
5. Clarity of mind
6. Courage/confidence
7. Brevity/Succinctness written/oral
1. -Compress
2. -Clear
3. -No verbosity
8. Forthright/Candour -Ready to concede
1. -Honesty
9. Courtesy / civility
10. Know when to stop.
11. Know Courts jurisdiction
12. Know the bench.
13. Know the reliefs.
14. Prepare for questions
15. Listen
16. Have a theme.
17. demeanour
a. -Smile when needed.
b. -Eye contact
c. -Think before answering
18. Do an outline of your argument
19. Audio visual aid.
20. Get to court early
21. Good communication skills
DON’TS/PITFALLS
When its too good, take a step back and reload
1. Be overconfident
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2. Don’t read your argument

3. Don’t interfere with your opponent.
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4. -Misquote the law, the record.

5. -Don’t say ‘.....I will get to that in a minute’

6. -Don’t rush
7. -Dress appropriately.
8. -Don’t call witnesses.
9. Be boring.
10. Leave it to the court.
11. Don’t talk after the court rises
DIFFERENCE FROM TRIAL;
1. -The forum
2. --The stage of the case.
3. -The scope
4. Witnesses
5. The number of judges.
6. -The pleadings
7. -The rules.
8. -The reliefs.
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TOPIC 15: SKELETON ARGUMENTS
The purpose of skeleton arguments is to set out the main arguments on key issues in advance.
Essentially to provide advanced reading to help focus trial. It is NOT a substitute to advocacy. It
provides the main points to be argued and the basis of the arguments is identified. The arguments
however are NOT to be set out in full. It is notable that it is not necessary to set out every point to be
raised. Unlike written submissions where all arguments are fully written out. Well crafted skeleton
arguments are the hallmark of an effective lawyer and shows her/his ability to analyse a case and be
clear and concise.
In Kenya unfortunately there is no legal requirement for skeleton arguments. However advocates
and courts sometimes request their use and to do this they have normally evoked Section 3 of the
Civil Procedure Act as the legal basis for doing so, which section provides:
“In the absence of any specific provision to the contrary, nothing in this act shall limit or otherwise
affect any special jurisdiction or power conferred, or any special form or procedure prescribed, by or
under any other law for the time being in force.:”
However, through Gazette Notice No. 8167 of 2008, Chief Justice Gicheru in exercise of the powers
conferred to him by Section 10 of the Judicature Act and pursuant to recommendations by the
Expeditious Disposal of Cases Committee of the Judiciary, made the following Practice Directions
among others that;
Rule 1: All courts are encouraged to permit the filing and exchange by the parties of written
submissions to supplement or replace oral arguments.
Rule 16: All courts are required to generally exercise discretion in favour of expeditious
disposal of cases pending before them.
These directions do not state which courts these rules apply to, be it subordinate courts, courts
of first instance, appellate courts or even tribunals. Therefore, all courts whether criminal, civil,
subordinate or appellant in Kenya as the law currently stands, can ask for skeleton arguments to
be filed at whatever juncture to facilitate the court to expeditiously dispose of cases and assist
the court to reach a ruling, judgment, award or decision.
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Skeleton arguments should provide a structured framework for arguments. They should be as
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concise as possible, identifying key issues in dispute and outlining the overall nature of a case,
ensuring that the key facts relevant to be decided by court are highlighted. Essentially summarising
legal arguments and making brief reference to the authorities to be used and pointing out relevant
evidence in key documents.
If there is a test to be met for the order being sought, it should be set out in such as manner as to
show how the test has been met. Finally skeleton arguments should clearly set out the conclusion
that the court is being asked to reach and decision it is being asked to make.
Although the style used is not formal, any abbreviations used must be understood and paragraphs
should be numbered for ease of reference and finally the details of the advocate who prepared
them, the date and place where signed and the advocate to be served should be clearly indicated.
Skeleton arguments
A skeleton argument is a document summarizing what will be said at the hearing by either of the
parties. It is based on the bare undisputed facts, that is the bare bones of the argument and it does
not dissent in detail. It is not a formal document but simply a tool to be used in the interests of
greater efficiency, for convenience of reference before and during the hearing.
Purpose of Skeleton Arguments
Their purpose is to identify and summarize the points not to argue them fully on paper. Hence they
are intended to identify both for the parties and the court those points which are, and those that are
not, in issue, and the nature of the argument in relation to those points which are in issue. Skeleton
arguments are, as their name implies, a very abbreviated note of the argument and in no way usurp
any part of the function of oral arguments in court. It is therefore not a substitute for oral
arguments. Formand content of skeleton arguments
Every skeleton argument should therefore:

(1) identify concisely:
(a) the nature of the case generally, and the background facts insofar as they are relevant to
the matter before the court;
(b) the submissions of fact to be made with reference to the evidence;
(c) the propositions of law relied on with references to the relevant authorities; the
skeleton argument should state the points of law and cite the principle authorities in
support of it with reference to particular pages where the principle authority concerned
is enunciated.
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(2) be as brief as the nature of the issues allows ;

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(3) be in numbered paragraphs and the name and contact details of the advocate(s) who
prepared it be typed at the end of the skeleton argument ;
(4) avoid arguing the case at length; the argument should contain a numbered list of the points
the advocate proposes to argue stated in no more than one or two sentences the object being
to identify each point not to argue it or to elaborate on it.
(5) avoid formality and make use of abbreviations, e.g. C for Claimant, A/345 for bundle A page
345, 1.1.95 for 1st January 1995 etc.
(6) the correct case reference number should be shown on the front page of the skeleton
argument.
SAMPLE LAYOUT
IN THE HIGH COURT (FAMILY DIVISION)

CASE NUMBER 1 OF 2012
FAITH MUENI V ALPHONCE MUOKI
SKELETON ARGUMENTS OF THE CLAIMANT
1. Introduction
1.1
1.2
2. Background
2.1
2.2
3. The test to be applied

3.1
3.2
4. Matters to be taken into account by the court

4.1.
4.2
5. Reliefs being sought

5.1
5.2
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Dated in NAIROBI on this………… day of………………………………………….………..2012

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________________________________________________________
ABD & CO ADVOCATES

FOR THE PLAINTIFF
Drawn By To be Served Upon

ABC & Co Advocates XYZ & Co Advocates
The Royal Heart Plaza The Heartless Plaza
West Wing Chambers Suit 1
1st Floor Basement
Queensway Avenue Koinange Street
P.O Box 123-00100 P.O Box 789-00200
Nairobi Nairobi
REPUBLIC OF HIPPO
IN THE COURT OF APPEAL AT HIPPO CITY
CRIMINAL APPEAL CASE NO 23 OF 2012
DESMOND PETERS …………….……………….…………….APPELLANT

AND
CITY OF HIPPO…….…………………………………...RESPONDENT
SKELETON ARGUMENTS OF THE APPELLANT

(DESMOND PETERS)
1.0 Background:
This is an appeal by the Desmond Peters (appellant) against the decision of Kindiki J. ,who convicted
the minor without proper and conclusive investigations on the alleged theft that occurred on 5th
January 2010.
1.1 Issues
1. The rules of natural justice were not adhered to, as he was not accorded a fair hearing as
stipulated in Article 50 of the Constitution;
2. The rules of evidence as per CAP 80 were not adhered to;
3. Desmond Peters rights under the Constitution were violated in regard to his arrest and
225
remand, as provided in Article 49 (1);

4. Desmond Peters rights under the Children Act, no. 8 of 2001 were also violated, where he
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recorded a statement without his guardian and advocate.

1.2 Applicable Law:

• Desmond Peters should have been accorded a fair hearing, with due regard to his age as well
as the valued consideration of the facts as laid out before the puisne judge and the court as
a whole.
• The constitution provides under Article 49(1), An arrested person has the right:-
(a) to be informed promptly, in language that the person
understands, of—
(i) the reason for the arrest;
(ii) the right to remain silent; and
(iii) the consequences of not remaining silent;
(b) to remain silent;
(c) to communicate with an advocate, and other persons whose
assistance is necessary;
(d) not to be compelled to make any confession or admission
that could be used in evidence against the person;
(e) to be held separately from persons who are serving a
sentence;
(f) to be brought before a court as soon as reasonably possible,
but not later than––
(i) twenty-four hours after being arrested; or
(ii) if the twenty-four hours ends outside ordinary court
hours, or on a day that is not an ordinary court day, the
end of the next court day;
(g) at the first court appearance, to be charged or informed of the
reason for the detention continuing, or to be released; and
(h) to be released on bond or bail, on reasonable conditions,
pending a charge or trial, unless there are compelling reasons.
• Section 18(1) and (4) of the Children Act, Act No.8 of 2001 also stipulates that:-
(1)No child shall be subjected to torture, of cruel treatment or punishment, unlawful arrest or
liberty, deprivation of liberty.
(4) A child who is arrested and detained shall be accorded legal and other assistance by the
Government as well as contact with his family.
• The fifth schedule, section 4(1) of the Children Act also states that; where a child is
apprehended with or without a warrant on suspicion of having committed a criminal offence he
shall be brought before the court as soon as reasonably practicable. Provided that no child shall
be held in custody for a period exceeding twenty four hours from the time of apprehension,
without leave of the court. Section 4(3) of the fifth schedule also clearly states that, “the police
shall ensure that the parent or guardian of the child or an advocate appointed to represent the
226
child is present at the time of any police interview with the child.”Lastly, section 9 (1) of the
same schedule provides that, “where a child is brought before a court and charged with an
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offence, the court shall inquire into the case and may release the child on bail on such terms as
the court may deem appropriate.

• In the case of Victor Lumbasi Muge v Republic[2006]eklr, the learned judge, Ombija J. in his
ruling granted the applicant, a minor, bail on the offence of murder as per the provisions of
section 9(1) of the fifth schedule as cited in the Children Act.
1.3The Submissions/Arguments:
• On January 5th 2010, Louisa Singano in her statement stated that she puts on eye glasses to
see long distances, but on the day she was robbed, she was not wearing her glasses. In
addition, Louisa admits that during the robbery she saw two boys who were either 12 or 13,
but could not see their faces. The law of evidence, section 7, provides that, “Facts which are
the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or
which constitute the state of things under which they happened or which afforded an
opportunity for their occurrence or transaction are relevant.” Thus it is relevant to note that
in the victim’s statement, Louisa Singano had improper vision and also admitted to not
seeing the two boys who stole from her.
• Said Mohamed the third witness stated in his statement that when he ran after the two boys
alleged to have stolen the purse, he lost sight of them. However, he caught up with
Desmond who was walking and not out of breath. Further, Desmond did not have the stolen
property in his possession. The Evidence Act, section 8, provides that:-
-8. (1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in
issue or relevant fact.
(2) The conduct of any party, or of any agent of a party, to any suit or proceeding, in
reference to such suit or proceeding or in reference to any fact in issue therein or relevant
thereto, and the conduct of any person an offence against whom is the subject of any
proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or
relevant fact, and whether it was previous or subsequent thereto.
(3) When evidence of the conduct of a person is relevant any statement made to him, or
in his presence and hearing, which affects such conduct, is relevant.
(4) The word "conduct" in this section does not include statements, unless those
statements accompany and explain acts other than statements.
Therefore, the court should have considered that the alleged thieves were running, while
Desmond Peters was walking and importantly he did not have in his possession the alleged
stolen purse. His conduct was contrary to the expected.
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• On the day of the robbery, Desmond after his arrest denied grabbing the purse but admitted
to having been arrested once on the charge of negligence and loitering. He further admitted
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that he has a habit of pick pocketing and stealing food when he had no money. He also knew
the person who stole the purse known as Mole. However, he did not know the boy who was
with Mole. Additionally, he had never been charged of the act of stealing.
Desmond should have been read to his rights as an accused person upon arrest, as well as
presumed innocent until proven guilty, clearly provided under Article 50(1) and (2) of the
constitution. Moreover, he should have not been denied his rights as stipulated in Article
49(1) of the Constitution.
1.4 Conclusion:
It is imperative to note that the defendant did not possess the stolen purse when arrested. My client
seeks to be released as he is innocent of the crime he has been accused of arbitrarily. He who seeks
equity must come with clean hands to the court as well as equity aids the vigilant not the indolent.
Desmond Peters is a young boy who is growing up with difficulties of being an orphan and such
miscarriage of justice will not only make his life more difficult but also make his future bleak. It is our
plea that the accused is acquitted and have his name expunged from the criminal record, so as to
not deter his future prospects.
DATED at Hippo this day of 2012
________________________
FIRM THREE B
ADVOCATES FOR THE APPELLANT
DRAWN AND FILED BY:

Firm 3 B Advocates
KSL Towers, 5th Floor
Langata Rd
P.O. Box 33-00200
NAIROBI
TO BE SERVED UPON
City of Hippos
P.O. Box 22 - 00100
NAIROBI

228
TOPIC 16: CONTEMPT OF COURT

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Contempt has been defined as the act or state of despising the court; defying the authority
or dignity of a court or the legislature. It is conduct that interferes with the administration of
justice. It constitutes disregard or disobedience to the rules or orders of a judicial or
legislative body, or an interruption of its proceedings by disorderly behavior or insolent
language, in its presence or so near thereto as to disturb the proceedings or to impair the
respect due to such a body.
Contempt of Court is categorized into two - civil contempt and criminal contempt.
Civil Contempt occurs when a person refuses to obey a court order. A fine, confinement in
jail, or both can be imposed for civil contempt.
The sanctions are meant to coerce compliance with the court's order rather than to punish
the person.
The person guilty of the wrong conduct can be committed to civil jail, if jailed; the person
will be released from jail when he/she complies with court order.
Criminal Contempt on the other hand involves conduct that hinders or obstructs justice.
Examples of criminal contempt include threatening or insulting a judge or witness and
disobeying court to produce evidence.
Criminal contempt is punishable by fine, jail or both. The punishment is imposed to
vindicate the court's authority.
The difference between the two types of contempt is that with criminal contempt, the act of
contempt has been completed and the contempt cannot be "purged" unlike civil contempt
which can be "purged" by obedience to the court order.
In civil contempt, it is the parties that move to court for punishment, while in criminal
contempt it is the Attorney General who charges the alleged contemnor.
The purpose of the law of contempt is to empower the courts to protect the rights of the
public by ensuring the administration of justice is not obstructed or interfered with.
It is not designed to buttress the dignity of the judges nor to protect them from insult.
We will examine contempt of court in three categories which include the Subordinate
Courts, High Court and lastly in the Court of Appeal.
Contempt in Subordinate Courts.

Subordinate courts are established under Section 3 of the Magistrates Court Act 4 and
consist of all courts that are subsidiary to the High Court; this will also include all Tribunals
from which an appeal lies to the High Court.
In Civil matters, the jurisdiction to punish contempt is by virtue of section 5 of the Judicature
Act5, which is similar to that of the High Court in England and the court is vested with similar
powers to punish for contempt as those vested with the latter.
It is worthwhile to note that the aforementioned provision does not expressly vest the
Subordinate Courts with jurisdiction to punish for contempt.
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However, Section 4 of the Magistrates Court Act6 confers the Magistrates Courts with wide
powers which enable the Court to punish for contempt in a manner that may be provided
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for under any written law or the Criminal Procedure Code.

Additionally, Section 5 of Cap 8 has the operative word ‘court’.

The Interpretation and General Provisions Act7 defines a court as ‘any court of Kenya with
competent jurisdiction’.
The reference to the word court therefore means that Subordinate Courts by extension also
have the power under this Section to punish for contempt.
It is our humble submission that since Subordinate Courts have jurisdiction conferred upon
them by Cap 10, then the authority to punish for contempt under Section 5 of Cap 8 then
extends to the subordinate courts.
Contempt of Court in Tribunals

In some instances however, contempt can occur in Tribunals which are part and parcel of
the subordinate courts. In such instances, it has been conclusively determined that Tribunals
do not have the power to punish for contempt since the definition of ‘court’ under Cap 2
does not extend to Tribunals and other quasi judicial bodies.
This is mainly because of the reason that these Tribunals are not manned by Judges or
Magistrates since Section 38 of Cap 8 establishes the Court of Appeal, High Court and
Subordinate Courts which are to be manned by Magistrates and Judges of various ranks.
In Travel Planners Limited vs. Managing Director, Kenya Railways Corporation and
Another the Court was of the opinion that a Tribunal does not have the power to punish for
contempt in the same way as subordinate court mainly because of the sentiments we had
alluded to earlier regarding staffing and the subsequent exclusion under Section 5 of Cap 8.
The foregoing however begs the question whether orders emanating from these Tribunals
have any force of Law and can be flouted with impunity.
There must be safeguards aimed at protecting the Tribunals orders from being flouted since
again it would not have been the intention of Legislature to set in motion a procedure for
the benefit of litigants which was not meant to be taken seriously.
A Tribunal does not have the powers to enforce its orders since this is vested with the
Subordinate court of the first class.
Procedurally, for orders of such tribunals to attract penal consequences for disobedience,
they must be filed in the subordinate court for enforcement.
Failure to follow requisite procedure means that the orders of Tribunals in raw form cannot
be enforced and as such, it is impossible to try a person for contempt in these Tribunals.
Contempt in the High Court

The High Court is vested with inherent and unlimited original jurisdiction in civil and criminal
230
matters and any other jurisdiction and powers as may be conferred on it by the constitution
and any other law under section 60 of the Constitution.
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As we had stated earlier, the Jurisdiction of the High Court to punish for contempt stems
from Section 5 of Cap 8 which grants the Court express jurisdiction to punish for contempt.
This is the substantive law.
Since Cap 8 makes reference to similar power as may be vested in the High Court of Justice
in England, the procedural provisions are to be found in the Supreme Court of England Rules.
Procedure in the High Court.

Order 45 rule 7(2) of the supreme court of these rules states that a copy of the order
requiring a person to do or abstain from doing something must be served on him and
endorsed with a notice informing him that in the event of disobedience he is liable to the
process of execution to compel him to obey that order (penal notice).
Secondly, Order 45 rule 5 provides that an application for leave must be filed before the
application for committal for contempt of court.
However in Kenya, this requirement is often a case of practice rather than mandatory law.
Many practitioners opt to obtain leave first.
In Isaac Wanjohi v Rosaline Macharia,Bosire J., expressed the view that there was no such
legal requirement.
Application for committal is made by way of Notice of Motion supported by an Affidavit. The
Motion contains details of the breaches of the court and the person upon whom the order is
sought.
Order 39 of the Civil Procedure Rules also creates another regime of law relating to
contempt of court. It deals with a situation where there has been breach of an injunction. In
the case of Isaac J Wanjohi and Another vs Rosaline Macharia the court was of the opinion
thus:“The power donated to the court by Order XXXIX Rule 2(3) of the civil procedure rules is
independent of the provisions of sections of the Judicature Act”
The court went on to state that an application made under section 5 of Cap 8 precludes one
from applying under the civil procedure rules.
As we had seen earlier, there is no requirement for leave to bring an application for
contempt.
An applicant must show however that a copy of the order of injunction was served on the
persons to be bound by it.
An application under these rules is often in an ongoing suit and therefore brought by
Chamber Summons supported by an affidavit.
Parties may attach these documents to a certificate of urgency.
The jurisdiction under Order 39 is civil but the consequences are penal hence the standard
of proof is beyond reasonable doubt.
A contemnor is sent to jail for not more than six months or an order of attachment is made
on his property or assets.
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Can the High Court Act on its own motion?

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An examination of the procedural requirements only elucidates instances where there are
opposing litigants. We should however ask ourselves whether the Court can act on its own
motion without being moved by a specific party.
Chief Justice Evans Gicheru in a paper where he reviews Contempt of Court in Kenya as
compared to England16 answers this question as to whether the court may act on its own
motion and initiate prosecution for contempt.
He finds no problem in such a situation and further contends that a court can issue proper
summons, notice to show cause & even a warrant of arrest for the alleged contemnor.
Regardless of the contemnor being a senior government official or the lowest litigant.
It matters not that the alleged contemnor is not a party to the present proceedings if his
conduct or statement is likely to affect due administration of justice generally.
In 2005, the Chief Justice of Zambia Hon C.J Earnest L.S.Akala summoned the vice president
of the country Mr. Enoch Kavindele to show cause why he should not be committed for
contempt in the matter of prejudicial remarks regarding the presidential petition then
pending before the court.
The vice president appeared in court and apologized stating that he had not intended to
injure the court or bring it into disrepute.
The court then directed the Attorney General to issue a statement to correct the impression
created by the vice presidents remarks.
The Court of Appeal in England in the case of Balogh v crown court of Albans Held that at
common law a judge had jurisdiction to punish summarily of his own motion for contempt
whenever there had been gross interference with the cause of justice in a case that was
being tried, was about to be tried or was just over whether the judge had seen the contempt
with his own eyes or it had been reported to him.
Standard of Proof.
Contempt of court proceedings are often of a criminal or quasi-criminal nature thereby
bringing in the question if standard of proof which is beyond reasonable doubt. This is
according to English jurisprudence.
The Kenyan position is different as is shown in the case of Gatharia Karanja Mutitika and
others v Baharirni Farm Limited where the court stated that such a standard of proof is too
high as contempt of court ipso facto is not a criminal offence and that the standard of proof
must be higher than proof in a balance of probabilities and almost but not exactly beyond
reasonable doubt.
The striking of a delicate balance between proof in a balance of probabilities but below
proof beyond reasonable doubt is quite hard since before a person in contempt of court is
punished, it must be proved that the offender had notice of the court order and willfully
disobeyed it.
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Lord Denning stated in Re Bramblevale, “Contempt of court is an offence of criminal

character. A man may be sent to prison for it. It must be satisfactorily proved beyond
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reasonable doubt. It is not proved by showing that, when the man has asked about (his
failure to produce certain books belonging to the company as ordered by the Registrar), he
told lies. There must be further evidence to incriminate him. Once some evidence is given,
then his lies can be thrown into the scale against him. But there must be some other
evidence.”
At Common law, a judge had jurisdiction to punish summarily, of his own motion, whenever
there was gross interference with the course of justice in a case that was being tried, was
about to be tried or was over, whether the judge had seen the contempt with his own eyes
or it had been reported to him and the jurisdiction was not limited to contempt committed
“in the face of the court”.
This power has been inherited by judges of the High Court. It maintains the dignity and
authority of the judge as well as ensuring a fair trial.
Punishment for Contempt.

Section 5 of Cap 8 provides that a contemnor can be jailed for a fixed term or have his
property attached.
This can be suspended if the contemnor complies with conditions of the order made against
him which is known as purging the contempt.
In instances where contempt also amounts to a criminal offence, section 121 of Penal Code
provides that the same may be prosecuted as a criminal charge in the usual manner. It is
important to note that this section does not reduce the powers of the court to punish for
contempt but rather provides additional powers for the High Court to punish the same.
The High Court also has jurisdiction under section 77(8) of the constitution to punish for
contempt ex facie curiae which consists of acts which scandalize the court for example
attacks on the personal character of a judge.
The most common form of ex facie curiae contempt is through publication of statements
likely to be prejudicial to the trial process.
The court will need to strike a balance between the right of the public to be informed and
the right of the criminal suspect to have a fair trial.
Appeals from Contempt Decisions.

Sec 5(2) of the Judicature Act23 expressly confers a right of appeal to the Court of Appeal to
any offender who has been convicted by the High Court on a charge of contempt of court
and, if a conviction was recorded by a magistrate’s court, the convicted person has a right of
appeal to the High Court.
The case of Tony Gachoka was said to be the most unfair trial ever in particular the fact that
he was not tried before an impartial tribunal, that he was not allowed to give testimony in
his defense and that there was no possibility of appeal.
The contempt case was heard before seven judges of the Court of Appeal, rather than the
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High Court, which has the power to hear matters of contempt made outside a courtroom.
This meant that there was no possibility of an appeal.
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The court also rejected his application to give oral testimony in his defense or to call
witnesses whom he had said could prove the criticisms made in the articles.
Contempt in the Court of Appeal.

Jurisdiction
The Court of Appeal is established under section 64 of the constitution.
The Constitution creates the court to be purely of appellate jurisdiction in nature.
It is therefore debatable whether or not, in matters of contempt of court, the court of
appeal can exercise original jurisdiction.
Although the Kenyan Constitution doesn’t give the court of appeal jurisdiction on matters of
contempt, the Judicature Act purports to give the court original jurisdiction in contempt
matters under Section 5 of the Act.
It is notable however that there is no statute in Kenya that donates the power to punish for
contempt, and the courts have to be up to date with contempt law in England at any
particular time.
This position was articulated in the case of William Mark Shipiri v James Ngengi Muigai and
another it was stated that,“… It is necessary to lament that this court (the High Court) and
the Court of Appeal have not their own power to punish for contempt of court. It is difficult
,to say the least, for this court or for the Court of Appeal for that matter to know at any one
time the power for the time being possessed by the High Court of Justice in England. There
should be a provision here giving this court and the Court of Appeal independent power to
punish for contempt. To relate the power of the two courts, this is undesirable.
The Court of Appeal’s power to punish for contempt was reasserted in the case of R v. David
Makali where the respondents had published a story in the papers titled, “Court of Appeal
ruling on Dons case reeked of state interference.”
The Attorney General cited the respondents for contempt and they challenged the Court of
Appeal’s jurisdiction to try for contempt.
The court dispensed of this issue without difficulty. It held that the story in question was
indeed contemptuous.
Standard of Proof.
As we had seen when examining Contempt of court in the High Court, civil or criminal
contempt, is a crime sui generis which is prosecuted by summary process. The standard of
proof is that applicable to criminal cases so that breach must be proved beyond all
reasonable doubt.
As we saw earlier, the Court usually departs from this position and tries to strike a delicate
balance between proof beyond reasonable doubt and proof in a balance of probabilities.
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Punishment for Contempt.

The Court of Appeal will not condone deliberate disobedience of its orders and will not shy
Page
away from its responsibility to deal firmly with proved contemnors.

In Hadkinson v. Hadkinson, the Court stated, “It is plain and unqualified obligation of every
person against or in respect of,who an order is made by a court of competent jurisdiction to
obey it unless and until that order is discharged. The uncompromising nature of this
obligation is shown by the fact that it extends even to cases where the person affected by
anorder believes it to be irregular or even void.
The Court is particularly under the duty stated above where the alleged contemnor is a party
in proceedings and is affected by the orders granted by the court. The court treats
applications for committal for contempt of court orders with seriousness and urgency and
more often will suspend any other proceedings until the matter is dealt with.
It is in pursuance of this that a party who is in contempt may be denied the right of audience
until such time as he has purged himself of the contempt.
The fact that the party has disobeyed a court order is not in itself a bar to his being heard,
unless its continuation impedes the course of justice.
Proposals for Reform.

Having examined the legal provisions regarding contempt in our Kenyan Judicial system, it is
very clear that the system is quite flawed and is bedeviled by various ills.
This is primarily premised on the fact that we inherited these laws on contempt from the
British in 1966 and they have continued to be a splotch to the administration of justice.
We will advance various reforms which we feel are requisite for the judicial system to
expedite justice.
Firstly, the absence of local legislation on this area is quite limiting. We have noted that
there is still neither legislation dealing comprehensively with the committal jurisdiction of
both High Court and Court of Appeal, nor procedure and practice rules to regulate the
committal proceedings in the country.
As a starting point, we would propose that the Rules Committee undertakes a study of the
applicable rules with a view of publicizing appropriate local rules of procedure on this area;
Legal reform would then follow from this point of departure.
Since there is no express provisions regarding the punishment for contempt , we are of the
opinion that courts should be guided by the sentence provided in Section 121 (2) of the
Penal Code - in the first instance, a fine not exceeding Sh1,400 or in default imprisonment
for a term not exceeding one month.
This should however be an interim measure as the Judiciary awaits the legislation of
appropriate laws on this area.
It would also be prudent to repeal Section 5 of Cap 8 which makes reference to the English
courts. This is for the most important reason of upholding the sovereignty of our country.
The enactment of a substantive Contempt of Court Act is the best response, whereby we
235
can have a single piece of legislation dealing exhaustively with Contempt in all Courts and
Tribunals and providing clear procedures to be followed in all instances.
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LECTURE 27: TUESDAY 2 AUGUST- MORNING SESSION (LECTURE HALL A)

236
TOPIC 17: ALTENATIVE DISPUTE RESOLUTION

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Trial Advocacy - Revision Notes

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ATP 104-TRIAL ADVOCACY

TAUGHT BY: MR.MWANIKI

FROM FEBURUARY 2016

1. INTRODUCTION TO TRIAL ADVOCACY

History of Trial Advocacy

2. QUALITIES OF A GOOD TRIAL LAWYER.

3. GENERAL ETHICAL DUTIES OF TRIAL LAWYERS.

The Trial Lawyer and Conflict of Interest.

Judicial officers and Conflict of Interest.

6. DIMENSIONS, RULES & PSYCHOLOGY OF ADVOCACY

7. PREPARATION FOR TRIAL (PRE-TRIAL ADVOCACY)

Research and Documentation.

The Demand Letter.

8. THE OPENING STATEMENT

10. CROSS- EXAMINATION.

12. CLOSING ARGUMENT.

14. APPELLATE ADVOCACY.

1. Palmer,R. & McQuoid-Mason,D. (2000) Basic Trial Advocacy Skills Durban:

LECTURE 1: TUESDAY 9FEBRUARY 2016- MORNING SESSION (LECTURE HALL

TOPIC 1: INTRODUCTION TO TRIAL ADVOCACY

What is Trial Advocacy?

What is the basis of advocacy?

Is advocacy about establishing the truth of an issue?

1. Never mislead the court or the Coram whether it be a court or tribunal.

Like going back on ones word, or hiding files

What then is the history of Trial Advocacy?

ii. The Romans

cause of his client.

iv. The Kenyan Chapter

should be established under a system of articled clerkship which was to be embraced as an

alternative to a university degree followed by one year practice training.

The UN Basic principles on the Role of Lawyers

Access to lawyers and legal services

Special safeguards in criminal justice matters

Qualifications and training

languages or have been the victims of past discrimination, Governments, professional

Duties and responsibilities

Guarantees for the functioning of lawyers

written or oral pleadings or in their professional appearances before a court, tribunal or

other legal or administrative authority.

Freedom of expression and association

Professional associations of lawyers

Key Skills in Trial Advocacy

Trial Advocacy and Formal Sources of Law (Tools)

These sources can be further categorized as substantive, procedural or ethical.

Statutory Sources of Law

a) Constitution of Kenya, 2010

b) Acts of the Parliament of Kenya

c) Treaties and Conventions

for part of the law of Kenya.

d) County Assembly Legislation

e) Certain Specified Statutes of the United Kingdom

(a) Substance of English Customary Law& Doctrines of Equity

(b) International Customary Law

(d) African Customary Law

Places for Practice of Advocacy - Courts and Tribunals

GENERALLY ROLE OF A LAWYER

INTER-RELATIONSHIP OF TRIAL ADVOCACY WITH OTHER FIELDS

Civil Procedure Act and Rules

Order 18 Rule 2:Unless the court otherwise orders—

Criminal Procedure Code, Cap. 75

Sec. 300-Case for the Prosecution