The LSK Magazine Arbitration for Justice...4 e t Volume 1, Issue December 2014 - March 2015 2 Volue ssue eceber arch The 5 CoNTeNTS Give us practice tips The Advocate magazine is no

The LSK Magazine

The

The spinning lawyer page 42Calls for improved

land services page 38Why regional lawyers feted Supreme Court Judge

page 34

Volume 1, issue 2 • December 2014 - march 2015

lHeralding new dawn in case management

lRoles for the Bar in Judicial ReformslBalancing academia and legal practicelHow human rights realized

environmental rights in KenyalCalling women lawyers to seek plum

jobslKenyan lawyers elected to lead EALS

CJ's new Practice Direction

page10

Arbitration for Justice

Volume 1, Issue 2 • December 2014 - March 2015 •The 32 • Volume 1, Issue 1 • August 2014

The

E d i to r i a l d i r E c to r:

Godfrey Kitiwa

E x E c u t i v E E d i to r:

apollo Mboya

E d i to r:

Harold ayodo

r E v i s E E d i to r:

sylvia Kooke

P u b l i s H E r:

Noel creative Media ltd

co N t r i b u to r s:

allen Gichuhi, apollo Mboya, Hanningtone amol, Peter Keya,

Kimathi Kamencu, tiberious Ndege, irene Ndegwa, catherine Handa,

Faith simiyu, dorcas Njoroge, Jacqueline ingutia – onyango,

Munyeri levi, betty Wambua, itoto Echakara, carolyne Mugoiri, Karen

Waweru, Gloria chelangat, Ken ashimosi, chris sankara otieno.

G r a P H i c d E s i G N E r:

Noel lumbama

P H oto G r a P H y:

Gilber t Wamalwa

c a rto o N i s t:

stanislaus olonde

cov E r P H oto:

architect's impression of the lsK international arbitration & convention

centre. inser t: chief Justice dr Willy Mutunga

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All correspondence to the editor is assumed to be intended for

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Editorial

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The Council of the Law Society of Kenya, 2014-2016Eric Mutua (Chairman), Lilian Renee Omondi (Vice Chairperson), Grace Okumu (Coast Representative), Godfrey Kitiwa (Up-country Representative), Caroline Khasoa (Up-country Representative), James Mwamu, Allen Gichuhi, Gertrude Angote, Jennifer Shamalla, Alan Kosgey, Eric Theuri and Eric Mosota.

Though historically important for the resolution of non-commercial international disputes, arbitration is not often used in that way currently. Today it is widely used for commercial and investment disputes

by states and private entities.The fact that arbitration allows parties to determine the

rules of procedure is particularly advantageous in cases where companies involved in commercial and investment disputes are founded in and governed by different legal systems. Arbitration allows the parties to determine the seat and rules of procedure through a contractual arbitration clause, and hence pre-empts conflicts over jurisdiction. The UNCITRAL Arbitration Rules, adopted by the U.N. General Assembly in its Resolution 31/98, are a useful guide to parties, as they pro-vide model rules of procedure. The parties' ability to choose an arbitrator guarantees high quality decisions, because they can nominate experts in the field. Furthermore, disclosure of trade secrets is avoided by the traditional privacy of arbitration proce-dures.

Institutions and bodies, which provide facilities and framed rules for the arbitration of com-mercial disputes, exist in practically all countries. Even though these are considered national in-stitutions, international as well as national disputes can be submitted to them. The World Bank developed a mechanism to solve international investment disputes through arbitration or consulta-tion in 1966, in order to foster private investment in developing countries. The International Center for Settlement of Investment Disputes (ICSID) was created to provide a reliable dispute resolution mechanism to private investors who take the risk of investing in countries with unfavourable invest-ment climates.

Justice is enhanced in properly conducted arbitration proceedings, which provide a practical fo-rum for resolution of disputes. Arbitration is quicker, less expensive, and more informal than litiga-tion. Arbitrations conducted under rules that require arbitrators to follow the law, provide a means of securing all substantive legal remedies.

The advantages of arbitration are many: it is usually cheaper and faster than litigation; it can have simpler procedural and evidentiary rules; it normally minimizes hostility and is less disruptive of ongoing and future business dealings among the parties; [and] it is often more flexible in regard to scheduling of times and places of hearings and discovery devices.

The Law Society being the premier Bar Association must be in the forefront in positioning not only its members but the business community and the country at large in promoting, participating and putting the necessary infrastructure for arbitration to thrive.

Arbitration is an extra-judicial mechanism through which conflicts can be solved.

Executive Editor, Apollo Mboya, HSC

Arbitration for Justice

4 • Volume 1, Issue 2 • December 2014 - March 2015The

Volume 1, Issue 2 • December 2014 - March 2015 •The 5

CoNTeNTSGive us practice tipsThe Advocate magazine is no doubt excellent in quality and con-tent that keeps lawyers up to date with developments in the legal profession. I mainly liked the features, human interest articles jokes and columns on various aspects of law. I would however, propose the inclusion of articles on practice tips whereby Senior Counsel (SC) and lawyers write on practical aspects of legal prac-tice like drafting good pleadings, practice directions and the art of good litigation among other areas of law towards professional development of readers. Aisha M, Mombasa

Tribute to Judy ThongoriI applaud and appreciate The Advocate as very informative and educative magazine for members of both The Bar and Bench. Keep up the good work! I enjoyed reading the feature titled Rolling the honour in the August 2014 issue that captured how family lawyer Ms. Judy Thongori has set the pace by being the first woman to be inscribed on the prestigious Law Society of Kenya Roll of Honour. Her passion and zeal in the law is quite admirable and she has also proven gender should not hinder professional development in any career. I encourage my learned sisters to follow in her footsteps and other trendsetters who have defied the gender ‘culture’ to curve a niche in any legal field. Samuel Lemaloe, Nairobi Challenging insurance lawThe article in the previous issue on why the Law Society of Kenya challenged the new insurance law was quite insightful. Of par-ticular interest was the legal argument that Section 5(b) of the Insurance (Motor Vehicle Third Party Risks) Act is unconstitu-tional in so far as it restricts damages to Kshs. 3 million in respect to passengers in any motor vehicle whether private, passenger ser-vice vehicle or commercial. I support the argument by the LSK that the queried Section deprives victims an opportunity for fair judicial evaluation by the courts of law. I also find the Act un-constitutional for the reason that it takes away judicial author-ity from the courts contrary to Article 159 of the Constitution of Kenya. I congratulate LSK for living up to its objectives of protect-ing and assisting the public in all matters incidental to the law. John Warui, Nairobi

Appealing ReadThe new look Advocate magazine is very appealing and no doubt a good read. It is informative, educative and entertaining follow-ing the features and in-depth articles. It is a leap in the right direc-tion for the Law Society of Kenya to have a legal magazine that is not full of legalese and even the non-learned friends can read. Going forward, it would be another step towards the right direc-tion, if the Premier Bar Association in the country publishes the magazine either monthly or quarterly. The LSK Council should also ensure that the magazine is sent via post to all practicing advocates – the same way the LSK Journal is distribute to all.Rebecca Odhiambo, Kisumu

Letters to The Editor can be emailed to [email protected]. They should include the writer’s full name, address and telephone number and may be edited for purposes of clarity, space and legal considerations.

Letters

Mail BoxMail Box 5

dEvEloPMENtThe LSK International Arbitration and Convention Centre 6How members passed motion to fund the International Arbitration and Convention Centre 8

PracticE dirEctioNsHeralding new dawn in case management 10

Emerging areas in the practice of law 12

ExPloratioNExploring intricacies of oil, gas in East Africa 13

ProFEssioNal EtHics

Practice without tears 14

Concerns over increasing professional complaints

dEvolutioNCounty legislative drafting; are lawyers the best down the pike since King Solomon?

Public iNtErEstHigh court judges 18

Public ForuMUsing public forums to deliberate national issues 20

oPiNioNRoles for the Bar in Judicial Reforms 22 The rising of young lawyers 24Do you want to mentor me? 25Of Moi day and fidelity to the law 26Upholding the Rule of Law 28

coMMENtaryOf dead beat dads and online justice 30

Balancing academia and legal practice 31Devolution of Agriculture in Kenya: A Reality or Nonsense on Stilts? 32

How human rights realized environmental rights in Kenya

ProFilEWhy regional lawyers feted Supreme court Judge 34

laW scHoolsMy Barbs, bouquets for law schools 36

court ExPEriENcEMy first day in court

coNvEyaNcECalls for improved land services 38

tEa brEaKWining and Dining 39

advocacyAdvocacy is not activism 40

cHaMbEr brEaK 40

vox PoPuli 41

tHE barThe spinning lawyer 42

GENdEr aGENdaCalling women lawyers to seek plum jobs 44Could Presidential pardon of prisoners be unconstitutional? 45

rEGioNal PracticEEast Africa Law Society (EALS) President takes a bow in style 46

HuMourLitigation rib crackers 48

rEGioNal NEWsKenyan lawyers elected to lead the East Africa Law Society 50

sPortsJustice Cup Tournament spreads wings 50

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1. tHat the Music coPyriGHt sociEty oF KENya (McsK) is licensed by the Kenya copyright board to collect and distribute royalties for performing rights in musical works.

2. tHat under the copyright act 2001, Public Performance and/or communication to the public of musical works requires a license; and further that the license is required to be taken prior to the broadcast, public performance and/or communication to public.

3. tHat all music users reproducing and re-recording musical works and providing musical content for broadcast, public performance and/or communication to the public shall require a license:

4. tHat music synchronization license shall be granted by McsK allowing the licensee to (sync) music with some kind of visual media output (film, television show, advertisements video games, accompanying website music and movie trailers etc.

5. tHat all motor coaches –buses, minibuses, vans, taxis, tuktuk and motor cycles using Musical works shall require a license

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8. tHat all business premises using musical works. all organizations, unions, sacco, public offices, private organizations, hospitals, offices using musical works; in reception areas, waiting areas and common areas require a license.

9. tHat all Event organizers in different venues using musical works require a license

10. tHat all mobile disc Jockeys( dJs )require a license

11. tHat all broadcasting channels tv stations, radio stations, online/mobile who have complied or in arrears require a current license.

Cs Maurice Okothchief executive officer -McsK

NotiCE to USERS of MUSiC

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The LSK International Arbitration and Convention CentreLSK Chairman Eric Mutua speaks exclusively on the Sh1.2 billion ultra-modern project located 20 minutes from the Central Business District, off Mombasa Road in Nairobi

By Harold ayodo

Former President Daniel arap Moi allocated a prime plot to the Law Society of Kenya (LSK) in 1982.

Justice Lee Muthoga was the Chairman of the LSK when then President Moi allocated I.R. No. 209/11280 which, is located off Mombasa Road.

According to senior advocates, what fol-lowed have been false starts to develop the property even after passing resolutions in Annual General Meetings (AGMs).

In one attempt, the Society lost three mil-lion shillings on account of costs payable to professionals before a change of user was later successfully applied for.

Fast forward to 2012 when an AGM held on March 17, 2012 passed a resolution which man-dated the Council to develop a concept or prop-osition on a fitting development on the plot.

LSK Chairman Eric Kyalo Mutua says that the then Council identified the appropriate de-velopment as a combination of an arbitration centre, secretariat offices, other offices and ac-commodation.

“In order to develop the idea in a profes-sional manner there was need to engage an architect and bids were invited,” Mutua says.

The Council reviewed five reputable ar-chitectural firms and appointed M/s Tectura International to undertake the architectural drawings.

“The bids and list of five firms is avail-able for scrutiny to any member at the LSK Secretariat in Lavington,” Mr. Mutua says.

The Chairman says that in consideration of the estimated high costs of the project and in order to manage risks, the Council resolved to hire a Project Manager and a Financial Manager.

“Out of the seven firms that were short –listed and interviewed, the Council appointed M/s Mwanzoni Ltd as the Project Managers and PKF as the Financial Managers,” he says.

Mr. Mutua who says that the list of the seven firms and the bids is available for scru-tiny explains that the Project and Financial Managers undertook feasibility studies.

“The feasibility studies were to establish whether or not the project is economically vi-able - especially the aspect of loan repayment, “Mr. Mutua says.

The Council has circulated the respective reports to members via email which made a conclusion that the proposed project will repay the loan.

“The studies also projected in facts and fig-ure how the Society shall make profits on the third year of completion,” Mutua says.

Before the Project Manager came up with the finance model, the Council circulated to members a questionnaire for their sugges-tions, proposals and input.

“We did not receive a single suggestion of a Special Purpose Vehicle (SPV) for the project,” Mr. Mutua says.

During the AGM held on March 16, 2013, the Council gave members an update of the project and the Project Manager presented

the feasibility study and the financial model.It was resolved at that the Council should

proceed to engage and pay consultants for the project.

“This was necessary to enable Council table a full report on the cost of the project and the proposed financial model,” Mr. Mutua said.

Taking into consideration the importance and urgency of the project, Members demanded for a Special General Meeting (SGM) to approve the financial model to be proposed by Council.

Following the mandate given to the Council at the AGM last year, it instructed the Project Manager, the Financial Manager and the Architect to short list and interview all the re-quired (to be engaged in the detailed design) consultants.

“The team shortlisted and interviewed four firms for Quantity Survey works, two Mechanical and Electrical Engineering firms, two Civil and Structural Engineering firms, two traffic Engineering Firms and two National Environment Management Authority (NEMA) Consultants,” says Mr. Mutua.

Upon evaluation and interview, the Project Manager, Financial Manager and Architect rec-ommended to Council the appointment of the successful firms.

The firms included Quantity Surveyor (Bills Partnership Ltd (TMS), Mechanical & Electrical Engineer (Metrocom Consultants (TMS) and Civil & Structural Engineer (Professional Consultants).Others are Traffic Engineer (Professional Consultants), NEMA (Landmentric Property Associates) and Borehole Contractor (Entox Limited)

“All the contractual documents are avail-able at the Secretariat for perusal and interro-gation,” Mr. Mutua says.

Guided by the Project Manager, the consul-tants have now shortlisted and are in the process of

sending Bills of Quantities to the firms for bid-ding. The firms include Dinesh Construction, Seyani Brothers, China Jianxi, Cementers Limited, NK Brothers and Landmark Holding.

“The consultants have so far been paid Kshs. 23,545,314 for work done on the project so far,” Mr. Mutua explains.

According to available documents, the pay-ment breakdown includes Architects (Kshs. 11,379,631) Project and Financial Managers (Kshs. 5,235,344).

The Quantity Surveyor has been paid Kshs. 2,821,120, Civil & Structural Engineer (Kshs. 2,116,397), Mechanical & Electrical Engineer (Kshs. 1,410,931) and NEMA Consultant (Kshs. 581,891).

“The consultants came up with the report which was tabled before the SGM held on September 27, 2014 at the Hilton Hotel in Nairobi,” Mr. Mutua says.

The LSK Chairman says that all the required approvals from the relevant authorities have been ob-tained towards construction of the Kshs. Kshs. 1,255,000,000 Centre.

“The financial model that was proposed at the SGM was to fund the project by means of a loan facil-ity and members’ contribution,” Mr. Mutua says.

The financial institutions consult-ed by the Project Manager were will-ing to fund 70 percent of the project provided that the Society contributed the remaining 30percent.

“The Project Manager has nar-rowed down to two financial institu-

tions Kenya Commercial Bank (KCB) and HFCK on account of competitiveness and conditions precedent,” Mr. Mutua says.

The Chairman explains that the 30 per-cent (took into account the sum of Kshs. 150,000,000) being value of the land and the building levy of Kshs. 5,000/- that has been collected from members over a period of time) contribution from members amounts to Kshs. 255,000,000/-. “Based on the number of active members (being 6,500) each member is to con-tribute a sum of Kshs. 39,000/- over a period of two and three years depending on the number of years in practice,” Mr. Mutua says.

The LSK International Arbitration Centre & Convention Centre project entails:• LSKSecretariatoffices• 500–Capacityconferenceroom• Fourteen(14)Arbitrationrooms• LSKLibraryandResourceCentre• Sixty(60)roomshotelandaccommodationfacilities• Commercialservicedofficespace

Breakdown of the project costLSKOfficesandLibrary ........................... Kshs.89,000,000/-Conference facilities .............................. Kshs.310,000,000/-Arbitrationfacilities .............................. Kshs.378,000,000/-Restaurant, Bar & Kitchen .....................Kshs.46,000,000/-Hotel & Accommodation ..................... Kshs.243,000,000/-RentalOffices ........................................... Kshs.189,000,000/-Total ....................................................... Kshs. 1,255,000,000/-

Note: The total sum of Kshs. 1,255,000,000/-, is all inclusive. The cost of furnishing the facilities has been factored in (e.g. beds, furniture and other fittings).

LSK Chairman Mr. Eric Kyalo Mutua during the Special General Meeting. Below: The Project Manager Dr. Lawrence Njiru making a presentation during the LSK Annual General Meeting (AGM) last year at the Interecontinental Hotel in Nairobi

Council Members From Left Mr. Allen Gichuhi, Mr. Alan Kosgey, Mr. James Mwamu, Mr. Apollo Mboya, Mr. Eric Mutua (Chairman), Ms. Lilian Omondi (Vice Chair), Mr. Godfrey Kitiwa and Ms. Grace Okumu during the Special General Meeting

dEvElopmEnt



How members passed motion to fund the International Arbitration and Convention CentreMembers to each contribute Kshs. 39,000 within two and three years, depending on years in legal practice

By Harold ayodo

Prof. Peter Kiama Wangai said that the project is a good idea and proposed that LSK proceeds with speed to start its construction.

LSK Mombasa Branch Chairman Mr. Eric Nyongesa and his Rift Valley counterpart Mr. David Mongeri are also among those who supported Mr. Ohaga’s motion.

Mr. Kimani Waweru had ear-lier sought explanations on how

the project would be of personal beneficial to him.

Ms. Rosemary Chege proposed that members first need to decide whether they are going to pay be-fore voting on the motion on the amount of contribution.

Following concerns raised by a section of members on the passed motion, LSK Chairman Mr. Eric Mutua sent a statement to all

members via email on October 4, 2014.

The statement traced the his-tory (from 1982) of the plot where the Centre is to sit after allocation by former President Daniel arap Moi.

The in-depth statement fur-ther traced resolutions in suc-cessive Annual General Meetings (AGMs) where resolutions were passed to construct the Centre.

By the time of going to press, the Chairman sent another no-tice via email to members over a resolution by Council to form a Committee to look into concerns raised by some members.

“We received proposals on the issue of either converting mem-bers ‘contribution into shares and or identifying a Special Purpose Investment Vehicle for the proj-ect,” Mr. Mutua says.

The Chairman who says that the Council still welcomes pro-posals invited members with expertise on the area of law to express interest to serve in the Committee on Funding Options.

“Membership of the Commit-tee and its Terms of Reference shall be decided by Council at the next Council meeting,” Mutua says.

dEvElopmEnt

Members of the Law Society of Kenya (LSK) passed a motion on contributions towards

construction of the International Arbitration and Convention Centre.

The motion passed following an acclamation vote by majority of the 547 members present at a Special General Meeting (SGM) September 27, 2014 at the Hilton Hotel, Nairobi.

The SGM was convened after the LSK Secretary/CEO Mr. Apollo Mboya issued a notice to convene on August 18, 2014 pursuant to the LSK Act and Regulations.

The sole agenda of the SGM was the LSK International Arbitration

Centre and to ensure good atten-dance, a reminder of the Meeting was later circulated to members via email.

The members voted for the Sh1.2 billion project after a motion moved by Mr. John Ohaga and de-liberations from the floor.

Dr. Lawrence Mbugua who is the project manager, said that two banks agreed to advance a loan of Sh800 million towards financing 70 per cent of the proj-ect.

Dr. Mbugua had earlier made a presentation to members detailing the plan of the seven story ultra-modern building.

“Two banks have agreed to fi-nance 70 percent of the project subject to a resolution passed in this SGM,” Dr. Mbugua said.

Mr. John Ohaga proposed that 7,119 members with current valid Practicing Certificates (PCs) start contribute Sh39, 000 each from on or before February 28, 2015.

“Contributions of lawyers who are below five years in practice make the payments of Sh39, 000 in three installments starting on or before February 28, 2015,” Mr. Ohaga said.

Ohaga also proposed that law-yers who are between 15 and 20 years in practice make the pay-

ments in two installments starting from February 2015.

“I further propose that mem-bers who are over 20 years in prac-tice make a one off contribution of Sh50, 000 next year,” Mr. Ohaga said before Ms. Harriette Chiggai seconded the motion.

High Court Judge Lady Justice Jacqueline Kamau addressed the SGM and underscored the benefits of the International Arbitration Centre.

“Resolution of disputes will be easier and faster through Alternative Dispute Resolution (ADR) methods like arbitra-tion and reduce case backlog in courts,” Justice Kamau said.

Justice Kamau said that 95 per cent of disputes in the US are re-solved through arbitration and a near similar percentage in the United Kingdom too.

“The Judiciary is struggling to hear and determine disputes as backlogs currently stand at slight-ly over 400, 000 matters,” Justice Kamau said.

Senior Counsel Fred Ojiambo, Mr. Njoroge Rugeru and Ms. Beatrice Kariuki lauded the project saying that lawyers should make contribu-tions towards future benefits.

“We should not be concerned with how the Arbitration Centre will benefit us personally or our families…let us grow the Society (LSK),” Mr. Ojiambo, SC said.

The SC spoke after Mr. Nderitu proposed that members buy shares towards personal owner-ship of the project.

High Court Judge Lady Justice Jacqueline Kamau addressing members during the Special General Meeting at the Hilton Hotel in Nairobi

Mr. John Ohaga moving the motion on members' contributions towards construction of the LSK International Arbitration and Convention Centre

LSK Council Members (from left) Mr. Godfrey Kitiwa, Ms. Grace Okumu, Mr. Dennis Mosota, Ms. Gertrude Angote and Mr. Eric Theuri following the motion moved by Mr. John Ohaga

BenefitsoftheInternationalArbitrationandConventionCentre

l Since all the Continuing Professional Development (CPD)eventswillbeheldattheCentre,thecostwillbereducedas LSK currently pays hotels.

l Once the Secretariat moves to the new premises, the LSK NairobibranchwilloccupythecurrentLavingtonoffices.

l Thehotel,officespace,restau-rant,arbitrationandconferencefacilities will generate revenue for LSK. This will guarantee financialsustainabilitytotheSociety without necessarily rely-ingonannualsubscriptions.

l Memberswillenjoypriorityanddiscountsonservicedofficesand hotel.

l Theprojectwillprovidetrainingfacilities for Seminars on ADR.

l Tap the market for commercial disputeresolutionsinceNairobiisthecommercialhubofEastand Central Africa. Currently theKigaliInternationalArbitrationCentretriestooc-cupy that position.

l The LSK Bill provides that the Society shall fully fund the cost of managing the eight anticipatedbranches.Unlesswehavesuchaprojectinplace-whererevenueearnedmaybeused towards costs incurred bybranches-thenwemustbeprepared to increase our annual subscriptions.



Heralding new dawn in case management

ing of the suit. For this purpose, the Judge will expect the advocate who ap-pears on the case management confer-ence to be the advocate having the con-duct of the suit or an advocate familiar with all aspects of the suit.

The advocate should also be fully in-structed to deal with all matters which may arise on the case management con-ference towards avoiding unnecessary adjournments.

According to the Practice Directions, it will no longer be business as usual for advocates holding brief to seek exonera-tion that he/she is not familiar with the matter - you are either fully instructed or simply do not agree to hold brief as the duty imposed is onerous.

The Directions further provide that where appropriate, the Judge will give time for compliance with such directions or orders and fix a further date for the case management conference. The objective would be to record compliance; or where appropriate making a specific “Unless Order” imposing a time for compliance and stating that unless compliance is achieved by the specified time, the Judge will make such orders as are necessary and just, in-cluding striking out where appropriate.

Moreover, in the interest of avoid-ing unnecessary costs and delay, parties are encouraged to consider Alternative

Dispute Resolution (ADR) - conciliation, mediation and arbitration.

All bundles of documents filed will have every page numbered and indexed. It is recommended that numbering be at the foot of the page. Documents should also be set out chronologically and/or in categories - parties should avoid dupli-cating documents.

The Practice Directions also require statements to identify all documents re-ferred to in the respective bundle. Each witness will be sworn and then adopt his/her statement of evidence with only minimal highlighting, if permitted.

Apart from injunctions, all applica-tions should be raised and dealt with at the case management conference. No case may be set down for hearing until the certificate has been signed by the Judge. On certifying the case as ready for hearing, all advocates attending the case management conference must have their diaries available towards fixing a date and have all necessary information regarding availability of their witnesses.

According to the CJ, the Practice Direction shall apply to all cases pending at the date from 28th July 2014.

*Mr. Gichuhi is a Council Member of the LSK, litigation partner in Wamae & Allen Advocates and Convenor of the LSK Court Users and Litigation Committee.

practicE dirEctions

It will no longer be business as usual for advocates holding brief to seek exoneration that they are not familiar with the matter - you are either fully instructed or simply do not agree to hold brief as the duty imposed is onerous

By allen GicHuHi*

The Chief Justice Dr. Willy Mutunga has issued new Practice Directions to-wards expeditious dis-

posal of commercial suits.The Directions will apply to

all suits commenced by Plaint or Originating Summons which are proceeding to the Commercial & Admiralty Division of the High Court of Kenya in Nairobi.

The aim is to have a trial run for about six months and evaluate the efficacy of the Practice Direction before rolling them countrywide, if they bring a positive.

The Chief Justice Gazetted the new Practice Directions on July 28, 2014 and the spirit of the Rules is to bring about case management, efficient use of court resources and eradicating perennial delays that have caused unmitigated suffering to litigants.

The first radical step taken was for exemption from the strait-jacket of Order 11 Rule 1 of the Civil Procedure Rules.

According to the new Practice Direction, any party may file a case management checklist on close of the pleadings. The party filing the case management checklist shall complete page one of the docu-ment. It is a comprehensive check

list that ensures parties put their house in order from the outset.

The checklist summary includes pleadings, statements and bundle of documents, further orders relat-ing to pleadings, supporting state-ments and documents.

Others are objections to ad-missibility of any statement or document, issues, consolidation, case stated and test case, wit-

nesses, evidence, expert reports, chronologies, maps, plans and hearing.

The early identification of is-sues through case management is likely to encourage early settle-ment of disputes and reduce the duration of legal proceedings. Post-trial amendments are also likely to be viewed with greater strictness than in the past

According to the Practice Direction on pilot study in Nairobi, case management conferences and applications under Section 102 of the Companies Act shall be heard on Fridays.

At the case management con-ference, the Judge will complete the case management checklist and give all necessary directions for the expeditious and fair hear-

The PrACTICe DIreCTIonS• Anypartymayfilethecasemanagementcheckliston

the close of pleadings• Casemanagementconferencesandapplicationsunder

Section102oftheCompaniesActshallbeheardonFridays.

• TheJudgewillcompletethecasemanagementchecklistandgivenecessarydirectionsfortheexpeditiousand fair hearing of the suit at the case management conference.

• Whereappropriate,theJudgewillgiveatimeforcompliancewithdirectionsorordersandfixafurtherdate for the case management conference with a view to recording compliance

• PartiesareencouragedtoavoidunnecessarycostsanddelaysbyconsideringAlternativeDisputeResolution(ADR) methods which include conciliation, mediation andarbitration.

• Bundlesofdocumentsfiledshouldbenumberedatthefoot of every page

• StatementsofEvidenceshouldidentifyalldocumentsreferredtointherespectivebundle.

• Apartfrominjunctions,allapplicationsshouldberaisedand dealt with at the case management conference.

• NocasemaybesetdownforhearinguntilthecertificatehasbeensignedbytheJudge.

• Oncertifyingacaseasreadyforhearing,advocatesattending the case management conference must have theirdiariestofixdatesandhavenecessaryinformationregardingavailabilityoftheirwitnesses.

• ThisPracticeDirectionshallapplytoallcasespendingatthedatefrom28thJuly2014.

Chief Justice Dr Willy Mutunga recently Gazetted new Practice Direction.

Judges and Magistrates Association Chairman Justice Fred Ochieng (left) and Senior Counsel Kenneth Fraser during the CPD Seminar on Trial Advocacy at Panari Hotel, Nairobi

Volume 1, Issue 2 • December 2014 - March 2015 •The 1312 • Volume 1, Issue 2 • December 2014 - March 2015

The

Exploring intricacies of oil, gas in East AfricaBy Ken asHimosi*

The discovery of oil and gas deposits in Kenya and East Africa has sparked eco-nomic excitement in the

region.The ripple effect of the find-

ings has reached Europe and the share price in companies explor-ing the treasure has sky rocketed. Prospective investors are currently stumbling over each other to buy stakes towards reaping profits when opportunity sets in.

There is also an obvious prec-edent in the scramble for the re-source by major international oil and gas exploration companies.

The technical stages and pro-cesses of oil and gas exploration are complicated and new to East African states where the natural resources have been discovered. Basically, it does not make sense to an ordinary Kenyan why the price of kerosene remains on the roof!

The discoveries in Kenya and neighboring Uganda are perplex-ing ordinary citizens who cannot understand why Uganda is not listed among leading exporters of the commodity in Africa yet its first

commercial discovery of oil was made in 2006.

For starters, the oil and gas industry comprises three parts: ‘Upstream’—the exploration and production sector of the indus-try; ‘Midstream’—the transporta-tion of the crude to refineries and ‘Downstream’ which is the sector that deals with refining and pro-cessing of crude oil and gas prod-ucts, their distribution and mar-keting.

The companies operating in the industry may be regarded as fully integrated, by having both up-stream and downstream interests, or may concentrate on a particular sector, such as exploration and pro-duction, commonly known as an E&P Company, or just on refining and marketing commonly known as an R&M Company.

For instance, Tullow Oil PLC with interests in Kenya and Uganda which is more concerned with ex-ploration and production is an E&P Company. Before the discovery of oil deposits in Kenya, the country was majorly concerned with the downstream through the Kenya

Oil Refinery Limited, Kenya Pipeline and National Oil Corporation Limited which, can be categorized as an R&M Company. Their inter-ests in oil and gas have not changed although they may have control in the international E&Ps through production sharing agreements.

Back to exploration, the up-stream is a critical commence-ment stage and important stage in the industry because it determines the rest of the stages and process-es. It is here that surveying, explo-ration and drilling takes place - this stage alone can take at least 10 years or more.

The midstream industry pro-cesses, stores, markets and trans-ports crude oil, natural gas and natural gas liquids. The midstream provides the vital link between the far-flung petroleum producing ar-eas and population centers where most consumers are located.

In oil producing countries, trans-mission pipeline companies are a major part of the midstream petro-leum industry.

The Lamu Port and South Sudan Ethiopia Transport (LAPSSET) proj-

ect upon completion will boost the midstream industry because it entails a new road network, rail-way line, oil refinery at Lamu, oil pipeline, Isiolo and Lamu Airports and a free port at Lamu (Manda Bay). This stage could take five to eight 5-8 years if planned and well-structured.

Finally, the downstream indus-try includes oil refineries, petro-chemical plants, petroleum prod-ucts distributors, retail outlets and natural gas distribution compa-nies. It touches every province and territory-wherever consumers are located-and provides thousands of products such as gasoline, diesel, jet fuel, heating oil, asphalt, lubricants, synthetic rubber, plastics, fertilizers, antifreeze, pesticides, pharmaceuti-cals, natural gas and propane.

It is important to note that be-fore the exploration and the subse-quent stages that follow the com-panies enter into agreements with regards to exploration and profit sharing agreements which both parties must honor.

*Mr. Ashimosi is a Partner at Ashitiva & Co. Advocates.

EmErging trEnds Exploration

Why local law firms miss out on global briefsMost high-value legal work is subject to English or New York law, which translates to limited roles for local legal practitioners.

By Harold ayodo

Startling concerns have emerged on how a whopping percentage of legal fees spent

on matters related to Africa are spent outside the continent.

The Law Society of Kenya (LSK) Secretary/CEO Mr. Apollo Mboya, HSC refers to a recent study by Bloomberg detailing how local law firms miss out on major legal briefs.

Mr. Mboya who wrote a paper on the dynamics says that major-ity of legal work related to Africa is not done in the continent.

The paper is titled Cross Border Legal Practice: Prospects and Challenges - Where is Kenya in the prevailing and emerging trend in the provision of legal services?

Mr. Mboya recently presented the paper during two Continuing Professional Development (CPD) Seminars in Kisumu and Eldoret respectivrely.

According to Mr. Mboya, finance providers dictate who their lawyers will be when handling big deals.

“Kenyan law firms may be trusted with some smaller deals or the local law component on a larger mandate,” Mr. Mboya says.

He says that the main work and primary appointment usually goes to a major international law firm.

Mr. Mboya explains that ma-jority of global corporates are based outside Africa and insist on using legal counsel they trust and have a relationship.

“Where a Kenyan law firm is trusted with the mandate, the international firm will frequently “bulk-up” with a global law firm,” he says.

Mr. Mboya says that most other high-value work is subject to English or New York law, which,

means limited role for local legal practitioners.

“Some Kenyan firms have a sprinkling of English, US or other internationally qualified lawyers but cannot match the deep, broad bench-strength of global firms ,” Mr. Mboya says.

According to Mr. Mboya, even though international legal firms are impliedly prohibited from having a presence locally, Kenya corporate work still goes to them

“Alliances and formal net-works are a very effective way of projecting reach into markets where such a collaborative ar-rangement is adequate to meet the strategic objectives of the law firms concerned, or where cross-jurisdictional office openings are impossible,” Mboya says.

The LSK Secretary/CEO says that large law firms compete for a finite number of mega corporate clients as the markets for con-sumer legal services are constantly shifting.

“Legal services consumer mar-kets can be segmented by practice area and client demographics,” Mr. Mboya says.

He says that globalisation and use of technology has tum-bled territorial barriers of prac-tice which requires reposition of practitioners towards competi-tion in the legal market place.

Mr. Mboya says that disciplin-ary processes could be brought in the country of domicile of the Advocate.

“A disciplinary processes can also be in the domicile country of the complainant or where the subject matter of the trans-

action is located,” Mr. Mboya says.

Mr. Mboya referred to the Limited Liability Partnership Act 2012 saying that some local law firms have proposed to register as LLP.

“There are legal questions as to whether you can limit the li-ability of an advocate and register using other names other than the names of partners,” Mr. Mboya says.

Mr. Mboya says that the re-view of the Advocates Act has be-gan under the stewardship of the Kenya Law Reform Commission (KLRC).

“It is envisaged that we shall have a Legal Practictioners Bill at the end of the process ,” Mr. Mboya says.

èSection 12(a) of the Advocates Act provides that advocates qualified in Uganda, Tanzania, Rwanda and Burundi are qualified to practice in Kenya.

èSection 32 (a)(1) provides that a person qualified to act as an advo-cate may be employed as an in-house advocate.

èLegal Notice 42 provides for The Advocates (Marketing & Advertising Rules, 2014

LSK Secretary/CEO Mr. Apollo Mboya, HSC



Ms. Kitaa advised that lawyers should be careful and not appear to compete with them when handling their matters.

“Do not get demoralized when dealing with such clients as they mostly will not recognize the quality of your professional work,” Ms. Kitaa said.

Ms. Kitaa said that some clients are naturally anti-social and need to con-trol others to feel powerful.

“There are also clients who are great liars and skimp on information and only reveal what they think their lawyers ought to know,” Ms. Kitaa said.

Ms. Kitaa said that lawyers should maintain their safety when dealing with anti-social clients and also be cautious when scheduling meetings.

“Adopt a firm and direct approach to appear strong and not weak. Be rigid when billing legal fees and other aspects of representation,” Ms. Kitaa said.

Ms. Kitaa warned that most anti-social clients take pleasure in not paying for professional legal services.

“Protect yourself financially with adequate retainers, play to their need to control and show them that you can help them get what they want if they work with you,” Ms. Kitaa said.

Ms. Kitaa advised lawyers to fo-cus on consequences when discussing legal matters and elicit details from them tactfully.

“Experience shows that many anti-social clients turn aggressive when

challenged to offer important details to build on their cases,” Ms. Kitaa said.

She said that written agreements on legal fees must never be over-looked as they prevent professional disputes between advocates and cli-ents.

Ms. Dorcas Kitaa, Advocate said that lawyers must embrace profes-sional virtues towards ensuring they practice law without tears.

Ms. Kitaa noted that verbal agree-ments with clients on professional fees are among sources of disputes with clients.

“Lawyers can avoid the disputes by entering written agreement with clients on professional fees when taking instructions (briefs),” Ms. Kitaa said.

“Section 45 of the Advocates Act provides for written agreements with clients and how emerging disputes can be settled,” Ms. Kitaa said.

Ms. Kitaa said that advocates should notify clients of any funds received on their behalf and obtain their written instructions on disburse-ments.

“Extend professional courtesy to colleagues and the Court. Keep records of all matters according to the statu-tory period,” Ms. Kitaa said.

Ms. Kitaa encouraged lawyers to respond to communications on clients complaints immediately from the Disciplinary Tribunal and Advocates Complaints Commi-ssion.

“Keep clients informed on the devel-opment of their matters – verbal com-munication must be followed by let-ters,” Ms. Kitaa said

Ms. Kitaa said that a complaint of professional misconduct against an advocate may lead to suspen-sion, payment of fine, admonish-ment or being struck of the Roll of Advocates.

“Managing partners must ensure that all associates have valid Practicing Certificates (PCs) in line with the Advocates Act,” Ms. Kitaa said.

Ms. Kitaa encouraged lawyers to master laws regulating practice ranging from the Advocates Act, professional indemnity rules and the Advocate Remuneration Order (ARO) among others.

profEssional Ethics

Practice without tearsBuilding trusting relationships with clients guarantees more future work, referrals, effective, harmonious working relationships and less fee resistance

NAIroBI, KenyA: U n d e r s t a n d i n g clients is a profes-sional virtue that

guarantees successful legal prac-tice.

Ms. Dorcas Kitaa who has practice law actively for 28 years says that effective lawyers under-stand their clients and work with their needs.

“Lawyers must be able to un-derstand, motivate and involve cli-ents professionally after receiving briefs,” Ms. Kitaa said.

Ms. Kitaa who is the immediate former Member of the Disciplinary Committee was presenting a pa-per titled Practice Without Tears III at a Continuing Legal Education Seminar.

The theme of the professional development seminar held at The Hilton Hotel in Nairobi was Managing of Law Firms and Some Life Skills in a Changing World.

“Building trusting relationships with clients leads to many benefits like more future work, referrals of new clients, effective, harmonious working relationships and less fee resistance,” Ms. Kitaa said.

Ms. Kitaa pointed out that narcissistic clients have excessive sense of self importance and are extremely pre-occupied with them-selves without empathy for others.

“Narcissistic clients are very co-operative when you start dealing with them but will lash and blame you when their matter does not go their way,” Ms. Kitaa said.

Ms. Kitaa said that the type of clients will not take responsibility for anything and may storm out of a lawyer’s chamber blaming the lawyer for their predicaments.

“Narcissistic clients should be treated with utmost courtesy and respect - stroke their ego as they want to see you as worthy and of high status,” Ms. Kitaa said.

Lawyers following proceedings during the Continuing Professional Development Seminar in Nairobi. (Below) Ms. Dorcas Kitaa making a presentation during a Continuing Professional Development Seminar on Managing Law Firms at the Hilton Hotel in Nairobi


The

Fifty seven advocates have been struck off the Roll while thirty five others are serving suspension of

not more than two years following professional misconduct.

The Law Society of Kenya (LSK) Deputy Secretary (Compliance and Ethics) Ms. Mercy Wambua says that professional complaints against practicing advocates have been on the increase over the past decade.

“Some of the complaints are filed at the Disciplinary Tribunal after investigations while others are resolved amicably through in-house dispute resolution mecha-nisms,” Ms. Wambua says.

According to Ms. Wambua, mediation is among the com-mon in-house dispute resolution mechanisms.

“Disputes that are not solved amicably are presented before the Disciplinary Tribunal (DT) for establishment of a prima facie case.

However, there are cases that are dismissed if the Tribunal establishes that the complaint does not establish a prima facie case.

“If a prima facie case is estab-lished the case is sent back to the

LSK registry and given a cause number and fixed for plea tak-ing,” Ms. Wambua explains.

The accused ad-vocate/Res-pondent is required to appear in person whether or not they have appointed counsel(s) to represent them before the Tribunal at all times.

“Tribunal proceedings are governed by the Advocates Disciplinary Rules, 1990 and Rule 18 allows it to proceed by way of affidavits,” Ms. Wambua says.

After hearing of a complaint and considering the evidence adduced, The Tribunal - if in its

opinion a case of professional misconduct has been established may issue several orders.

“Advocates may be admon-ished, suspended for a period not exceeding five years, struck off the Roll or pay a fine not exceed-ing five million shillings,” Ms. Wambua says.

Ms. Wambua says that the advocate can also directed to pay compensation or reimburses

amount not exceeding five mil-lion shillings.

“We currently have 57 advo-cates who have been struck off the Roll and 35 others serving sus-pension periods of not more than two years,” Ms. Wambua says.

The Tribunal established un-der Section 55 of the Advocates Act is charged with the respon-sibility of hearing professional misconduct complaints against advocates.

A complaint against an ad-vocate can be brought before the Tribunal by any person. The Tribunal interprets this to include not only clients but any other person,” Ms. Wambua says.

Complaints before the Tribunal can either be filed through the Advocates Complaints Commission (ACC), private prosecution or the LSK.

“The Complaints Commission prosecutes cases on behalf of complainants before the Tribunal,” Ms. Wambua says.

n TheACCisestablishedunderSection53oftheAdvocatesActandchargedwiththeresponsibilityofenquiringintocomplaints against any advocate, firm of advocates, or anymemberoremployee.

n CommonchargesofprofessionalmisconducthandledbytheTribunalinthepast10yearsinclude;withholdingcli-ents’ money and failure to render professional services.

n Others include failure to render adequate professionalservices, honor professional undertaking, respond to cor-respondence, issuingchequesthataredishonoreduponpresentation for payment and practicing without a prac-ticing certificate.

LSK Deputy CEO Ms. Mercy Wambua.

Concerns over increasing professional complaintsAdvocates may be admonished, suspended, struck off the Roll or pay fines not exceeding five million shillings

profEssional Ethics rEgional nEws

Kenyan lawyers elected to lead the East Africa Law Society

KIGALI, RWANDA: The Law Society of Kenya (LSK) Council Member Mr. Godfrey Kitiwa is the new East Africa Law Society (EALS) Secretary

General.The immediate former LSK Kisumu Branch

Chairman Mr. Charles Onyango is also the new Deputy Treasurer while lawyer Ms. Harriete Chiggai a Council Member of the re-gional lawyers body.

The trio was elected during hotly con-tested regional elections in Kigali, Rwanda on Saturday that attracted lawyers from Kenya, Uganda, Tanzania, Rwanda, Burundi and Zanzibar.

The regional polls were held at the Serena Hotel in Kigali, Rwanda during the EALS Annual General Meeting (AGM).

“I am happy to be elected SG of the EALS and I shall ensure that our objectives are met,” Mr. Kitiwa said amid cheers from re-gional lawyers.

Mr. Kitiwa who is also on his second term as a LSK Council Member encouraged Bar Associations in the region to ensure Governments uphold the Rule of Law.

“Lawyers must lead from the front and ensure that constitutions and the Rule of Law are upheld towards democracy and sta-bility,” Mr. Kitiwa who also convenes the LSK Editorial Committee said.

The newly elected EALS Deputy Treasurer Mr. Charles Onyango and Council Member Ms. Harriet Chiggai thanked regional lawyers for their votes.

“My gratitude to the friends of the Bar for the tremendous support exhibited during the EALS elections by ensuring I clinched the Council position,” Ms. Chiggai said.

Ms. Chiggai who is the LSK Co-Convener of the Young Lawyers Committee said that she is passionate in the growth and development of institutions.

“This is one opportunity bestowed upon me to serve the regional membership,” Ms.

Chiggai who is also a member of the LSK Continuing Professional Development (CPD) Committee said.

She said that the key issue at hand is to establish a platform for cross boarder legal practice by championing regional integration.

“It is prudent that lawyers within the re-gion are able to expand their scope of prac-tice and create synergy in the modalities of engagement,” Ms. Chiggai said.

She said that her other objective is to champion for the development of the legal profession within the region and promote good governance and the Rule of Law.

“Good governance and the Rule of Law have in the recent past been a subject of abuse or neglect in the region,” Ms. Chiggai said.

Mr. Nasur Hamisi from Zanzibar also took over the EALS Presidency from LSK Council Member Mr. James Aggrey Mwamu who com-pleted his successful two-year term.

The new EALS Secretary General Mr. Godfrey Kitiwa who has succeeded Tanzanian Mr. Ibrahim Bendera said that he would champion the cause of the regional profes-sional body.

Before the elections, the EALS held its Annual Conference that attracted over 800 lawyers under the theme advancing the Legal Profession in East Africa: Trends and Patterns.

Outgoing EALS President Mr. James Aggrey Mwamu, Rwanda Chief Justice Prof. Sam Rugege, and Attorney General Mr. Johnson Busingye addressed the opening of the Conference.

The AGM also passed a motion to include the Ethiopia Bar Association (EBA) as the sev-enth EALS member.

The other EALS members are Law society of Kenya, Tanganyika Law Society, Uganda Law Society, Burundi Bar Association, Rwanda Bar Association and Zanzibar Law Society.

The EALS is the largest professional orga-nization in East Africa, with a specific focus on the professional development of its mem-bers.

The regional body also has a focus on the promotion of constitutionalism, democracy and good governance, the Rule of Law and the advancement, promotion and protection of human rights.

Newly elected East Africa Law Society (EALS) Secretary General Mr. Godfrey Nathan Kitiwa.

Newly elected East Africa Law Society (EALS) Council Member Ms. Harriette Chiggai



public intErEst

Why LSK moved to Court over JudgesPresident Uhuru Kenyatta failed to Gazette, swear in The Bench following JSC recommendationsBy Harold ayodo

The constitution mandates the President to swear-in Judges following recommendations by the Judicial Service Commission (JSC).

When President Uhuru Kenyatta failed to swear-in, appoint and gazette 14 Judges of the High Court after successful interviews by JSC, the Law Society of Kenya (LSK) moved to court.

The Society instructed Senior Counsel (SC) Mr. Nzamba Kitonga to file a petition at the Constitutional and Human Rights Division over the unconstitutionality of the Executive act.

According to LSK, the President is under mandatory constitutional duty to appoint, swear-in and gazette Judges forthwith as recommended by JSC.

The President is also not mandated or required to conduct any process, approval or disapproval of the recommended names.

For starters, The Judicial Service Commission (JSC) conducted interviews and forwarded a list of 25 out of 76 candidates to be appointed

Judges of the High Court on January 11, 2014.Over five months later, the President

partly performed his constitutional mandate by only appointing, swearing in and gazetting a paltry 11 Judges.

The appointed were Bwonwong’a Momanyi, Onguto Louis, Enock Mwita, Robert Limo, Charles Mutungi, Mrima Charo, Janet Mulwa, Crispin Beda, Farah Mohamed and Margaret Mungai.

Those who were snubbed are Stephen Nyang’au, Olga Sewe, Winfrida Okwany, Patrick Otieno, Robert Limo, Margaret Njoki and Stephen Murugu.

Others are Dorah Chepkwony, Ongeri Nyaboke, Kiarie Waweru, Njuguna Mwihaki and John Mativa.

President Uhuru said that the appointment of the remaining Judges was still being processed and was subject to approval or disapproval in due course.

LSK argued in the petition that the President has no role in processing, approving or disapproving the appointment of Judges but the Judicial Service Commission (JSC).

“The constitutional duty of the President is to appoint, swear-in and gazette names recommended to him by the JSC,” LSK said.

LSK said that the President violated several provisions of the constitution by unreasonably delaying the appointment and in refusing, failing and neglecting to appoint others.

According to the petition, the Head of State violated Articles 1, 2 and 3 which place the constitution above anyone and Articles 48 and 50 as his actions affected access to justice.

Others are Articles 166, 171, 172 and 27 which outlaws discrimination in any form.

The President’s actions and omissions further violated the usage of his Executive authority under Article 129 of the constitution and oath (Articles 74, 141(3), 148(5) and 152(4).

The Attorney General (AG) Prof. Githu Muigai was the first Respondent while the Judicial Service Commission was the second one in the petition.

“Under Article 156 of the Constitution, the first respondent (AG) is under a constitutional legal obligation to advise the President of his duties,” LSK argued.

The AG is the constitutionally designated defender of public interest, promoter of the Rule of Law and under legal obligation to publicly disclose that he advised the President.

“The honourable court is vested with jurisdiction under Article 165 of the constitution to hear and determine any matter where it is alleged that any law, decision or exercise of authority is inconsistent or in contravention with the supreme law,” LSK said.

l Article166(b)oftheConstitutionprovidesthatthePresidentshallappointallJudges(otherthanthe Chief Justice and Deputy Chief Justice) in accordance with recommendations of the Judicial Service Commission (JSC).

lArticle172providesthattheJSCrecommendstothePresidentpersonstobeappointedasJudges.lArticle156providesthattheAttorneyGeneralisunderaconstitutionallegalobligationtoadvise

thePresidentofhisconstitutionaldutiesanddefaultbyomissionorcommission.lTheLawSocietyofKenyaismandatedtoadvisethepublicandGovernmentinrespectoflawand

constitutional matters.

LSK sought declarations in the petition which include that the President is under mandatory constitutional duty to appoint, swear-in and gazette Judges forthwith as recommended by JSC.

The failure and refusal to swear-in the 14 Judges is unconstitutional and the President is not mandated or required to conduct

any process, approval or disapproval of recommended names.

The LSK also sought a declaration that the delay by the President to appoint, swear-in and gazette the 14 Judges is unreasonable and unconstitutional. “We also seek an order that the President forthwith appoint, swear in and gazette the 14 Judges,” LSK said.

The LSK Secretary/CEO Mr. Apollo Mboya, HSC who swore the affidavit said that LSK is mandated to regulate the practice of law and advice the Government and public on legal issues.

Mr. Mboya said that the appointment of Judges is a matter of extreme urgency in view of the severe backlog of cases occasioned by inadequate number of Judges.

“The lives of the 14 persons who were not appointed have been disrupted as they are currently neither advocates nor magistrates,” Mr. Mboya said.

Court of Appeal Judges Emmanuel O'kubasu (left), Philip Waki and William Deverell in a past Judiciary function

Senior Counsel Mr. Nzamba Kitonga at the High Court



mence contempt of court proceedings and appropriate punishment.

It was then that the LSK convened a public forum at the Serena Hotel in Nairobi towards resolving the turf war and battle lines drawn between the Judiciary and Legislature.

Senior Counsel (SC) and lawyers who spoke at the forum were unanimous that Parliament must respect supremacy of the constitution.

They decried disobedience of court orders by the National Assembly at the Forum on the JSC/Judiciary and Parliament Standoff.

Senior Counsel Justice Lee Muthoga, Dr. Nzamba Kitonga, Dr. Gibson Kamau Kuria, Paul Muite and Prof. Tom Ojienda concurred that Parliament must respect the constitu-tion.

The Commission for the Implementation of the Constitution (CIC) Chairman Mr. Charles Nyachae said that Article 2 of the Constitution is clear on the supremacy.

“Parliament should understand the reality that the National Assembly is a creation of the Constitution which is the supreme law,” Mr. Nyachae said.

Mr. Nyachae regretted that some pro-nouncements by National Assembly Speaker Mr. Justin Muturi on disobedience of court or-ders are appalling.

Mr. Paul Muite said that President Uhuru Kenyatta should not form a Tribunal on six members of the JSC following a recent motion passed by Parliament.

“It was unconstitutional for Parliament to pass a motion on the JSC after ignoring an order from the High Court on the matter,” Mr. Muite said.

Dr. Gibson Kuria called for mutual respect between Parliament and the Judiciary towards upholding the rule of law.

Dr Kuria said that the National Assembly is rogue and has passed a series of wanting legislations and even threatened to disband Constitutional Commissions.

“Parliament threatened to send home the Salaries and Remuneration Commission (SRC), JSC and even passed rogue media laws,” Dr. Kuria said.

Dr Kuria said that the country is dealing with a rogue National Assembly that lacks Constitutional legal advisers.

Former Kenya Anti-Corruption Commission (KACC) Director Dr. PLO Lumumba said that the disobedience of court orders by Parliament would lead to anarchy.

“If we begin to disrespect court orders then we are fast moving towards anarchy without a reverse gear,” Dr. Lumumba who is currently a director at the Kenya School of Law said.

Dr. Lumumba said the legal profession was unhappy by the way the JSC washed its dirty linen in public in the run up to sacking then Judiciary Chief Registrar Ms. Gladys Shollei.

“We are further dismayed by the way the JSC is shadow boxing with Parliament in gross breach of the Constitution,” Dr. Lumumba said.

On resolutions, the forum was unani-mous that the constitution is supreme and not Parliament and Parliament ought to have obeyed the High Court Order on JSC.

The lawyers also adopted a resolution that Parliament and the Judiciary should re-solve their differences amicably and involve President Uhuru Kenyatta or any mutually agreed conciliator.

The forum was also unanimous that there must be mutual respect and restraint by all arms of Government – Executive, Judiciary and Legislature.

The lawyers also resolved that in the cir-cumstances, LSK should advise President Uhuru not to form a Tribunal on JSC following disobedience of the High Court order.

The LSK Act empowers the Society to advise and assist members of the legal profession, Government and public in all matters relating to the administration of justice

By Harold ayodo

NAIroBI, KenyA: Public forums have gained popularity as a way of exercising Law Society of Kenya’s mandate of assisting the

public in matters touching, ancillary or inciden-tal to law.

The LSK Act empowers the Society to advise and assist members of the legal profession, Government and public in all matters relating to the administration of justice in Kenya.

It is for similar reasons that the Premier Bar Association in the country has recently held public forums to chart a way forward during constitutional stalemates.

For instance, LSK stepped to the fore and held a forum to deliberate on whether the country needs a referendum as championed by Okoa Kenya and Council of Governors.

It also organised a forum during a stand-off between the Judicial Service Commission (JSC)/Judiciary and Parliament over their con-stitutional roles.

The supremacy wars between the Legislature and Judiciary took a negative turn when the National Assembly disobeyed a series of court orders.

The grandstanding leapt to the fore when Parliament snubbed a High Court order re-straining it from debating a report seeking to eject six JSC Commissioners over alleged im-propriety.

High Court Judge Justice George Vincent Odunga took issue with the National Assembly for defying an earlier order which forbid tabling the report on the floor of the House and going ahead with the process of removing the com-missioners.

Justice Odunga ruled that the Parliamentary Departmental Committee on Justice and Legal Affairs did not have powers to com-mence proceedings for the removal of the Commissioners.

The Judge noted that the natural conse-quence of disobedience of orders was to com-

From Left CIC Chairman Mr. Charles Nyachae, Former KACC Director Dr. PLO Lumumba, Senior Counsel Dr Gibson Kamau Kuria and Mr. Paul Muite during the LSK Forum at The Serena Hotel, Nairobi

Lawyer Mr. Harrison Kinyanjui speaking during the LSK Forum at The Serena Hotel

Using public forums to deliberate national issues

public forum



opinion

Roles for the Bar in Judicial ReformsThe main challenges bedeviling the Judiciary are the backlog of cases, costs of litigation and inordinate delays in rendering justice

By HanninGtone amol*

The Judiciary is a basic te-net of every democratic society. Even in societ-ies where western style

democracy is not practiced, judicial institutions still exists to take care of disputes within the society.

In Kenya, the Judiciary has been at the vortex of the develop-ments witnessed since and before independence. The trial of the Kapenguria six, treason trials fol-lowing the 1982 attempted coup and litany of cases agitating for po-litical reforms in the early 1990s are just among past examples of the important role the Judiciary plays.

Kenya inherited a judicial system replicating the English system. Over time, the stakeholders and the pub-lic have made efforts to reform the Judiciary to make it responsive to the needs of the society.

Sadly, the problems bedeviling the Judiciary are not static. For in-stance, at independence the main concern for Africans was that the Judiciary was packed with imperial-ists which led to the revolution for Africanization. In the pre-multipar-ty era, the main concerns were that judicial officers were not indepen-dent and therefore, made biased decisions.

In modern times, the main concerns are the backlog of cases, costs of litigation and inordinate

delays in rendering justice. A com-mon thread in the three challeng-es is the Bar -none of the chal-lenges would exist if advocates played their part.In order to help reform the Judiciary, advocates may adopt severalapproaches in daily practice.

For instance, plea bargaining was entrenched in the Criminal Procedure Code in the last decade to ensure that criminal cases are quickly dispensed with where the accused thought they committed lesser offences than those pleaded to. Plea bargaining entails the ac-cused person pleading guilty to a lesser offence than the one charged and in consideration the prosecu-tion may withdraw the charges to-wards making him a prosecution witness in a case involving other serious offences, or to receive a le-nient sentence. The mechanisms for effecting plea bargaining are not clear and sadly the office of the Director of Public Prosecution (DPP) has not done much to encourage the use of this procedure.

Plea bargaining is useful in traffic matters where the accused person facing multiple charges could plead to one lesser offence and avoid the inconvenience of being taken to full trial which may take over one year. The practice could also be adopted for anti-corruption and economic

crimes where the accused could agree to return part of the property in exchange for pardon or lesser sentence. If criminal law practitio-ners made use of this procedure then over half of the criminal cases would be resolved without going through the full trial. This will in turn free judicial resources to be utilized for other deserving cases.

Victim compensation and ne-gotiation can also be employed in assault and theft cases with huge success. An advocate, whether rep-resenting the victim or the accused person, should actively reach out to the other side with a view to com-promising the case. More often, the parties are willing to negoti-ate, unless the trial is being fuelled by personal vendetta. Successful negotiations will normally entail some recompense for the victim followed by withdrawal of the complaint. This method should be employed especially by advocates involved in criminal cases dealing with bounced cheques, obtaining goods by false pretence as well as in any other situation where it is ap-plicable.

Pre-action negotiations can also be a leap in the right direction in the wake of catastrophic

suits filed in courts today. A growing number of advocates ad-vise their clients to rush to court to-

wards obtaining leverage in negoti-ating with their opponents. A basic rule of advocacy is never to rush to court unless necessary or nego-tiations have failed. What would necessitate quick court action de-pends on the circumstance of each case. When advocates adopt the slow motion to court action and en-courage pre-litigation negotiations, they will save their clients money and time, and will increase their chances of obtaining more briefs as well as more income. An advocate who strikes the deal without going to court becomes indispensable in the mind of his client.

Separately, Alternative Dispute Resolutions (ADR) is the most po-tent tool to fend off the challenges facing the Judiciary. In commer-cial disputes as well as land mat-ters, it is advisable for advocates

to explore alternative methods to litigation. These methods include arbitration, meditation as well as structured negotiations, and are faster compared to litigation. They also ensure confidentiality of im-portant commercial data which would otherwise be exposed to public in litigation.

In matters that are already pending in court, advocates should make use of the arbitra-tion mechanisms and procedures provided under the Civil Procedure Rules. For instance, instead of counsels adjourning matters and requesting for more time to nego-tiate, parties could make applica-tions to refer the matter to arbi-tration and set timelines within which the arbitral award should be filed in court towards avoiding abuse of the process.

Going forward, matters can also be fixed for hearing only af-ter negotiations are exhausted. Currently, many lawyers appear in court on the hearing date only for both sides to request court to adjourn and give them time to

negotiate. This is unfair to other parties who did not get hearing dates on account that the case had been fixed for hearing. It is advisable for counsels to fix hear-ing dates only when it is clear that the negotiations have failed. In the event that parties intend to take out a matter, they should communicate to each other in advance and write to court before the hearing date to ensure proper case management.

Finally, making use of pre-trial procedures will also go a long way towards reducing case backlog. What was billed as efficient pre-trial mechanism has been watered down by court room practitioners who have reduced pre-trial hear-ing to a mention to confirm com-

pliance with Order 11. A pre-trial hearing should entail full disclo-sure of the materials parties will be relying on at hearing, an ap-praisal of the status of the nego-tiations that the parties have had and a confirmation that indeed the negotiations have failed. As a rule, the court should not confirm a matter for trial unless the parties or the counsels have filed a decla-ration confirming that there is no chance of negotiated settlement.

As a parting short, I wish you well as you prepare your next case; just remember to play your part in decongesting the case backlog and to ensure expedi-tious trials.

*Mr Amol is an Advocate of the High Court of Kenya.

Methodstoreducecasebacklog include:• PleaBargaining• Victimcompensationand

negotiations• Pre-actionnegotiations• AlternativeDispute

Resolutions (ADR)• Fixingmattersfor

hearingafterexhaustingnegotiations

• Makinguseofpre-trialprocedures

Lawyers at the Supreme Court during the Presidential Election Petition last year



The rising of young lawyers Since the new constitutional

dispensation and appoint-ment of Dr. Willy Mutunga as the Chief Justice, it is

evident that there has been an up-surge in admissions to The Bar.

Consequently, the profession is not only increasing in numbers but the new members are also young in age. This is also coupled with the influx of institutions of-fering undergraduate studies in law.

Presently, it can be argued that the structure of the profession is in the form of a pyramid with young lawyers at the base and senior members at the apex. Advocates who are above five years in prac-tice will concur that they rarely have adequate company during professional events like Continuing Professional Development (CPD) Seminars. A keen observation dur-

ing such events will reveal that dur-ing health breaks, members con-gregate on the basis of their years in practice.

However, it is interesting to note that the pyramid structure is temporary as it will develop into a rectangle as more advocates are admitted to The Bar annually from 2011 compared to annual ad-missions from the 1970s.

It is not in doubt that most people getting into the profession are not amused by hurdles to be surmounted including mandatory studies at the Kenya School of Law (KSL), enormous fees payable at the school of law, unregulated nature of pupilage and uncertainty of the profession as a means of livelihood and its attendant expenses once practicing. This has led to a real or illusory first impression from young lawyers that either the senior advo-

cates are not interested with their young counterparts getting into the profession or it may be a de-liberate effort to frustrate young lawyers.

It is foreseeable that young lawyers are realising their poten-tial stake in the present and fu-ture of the esteemed profession and may take appropriate action. The trend from the Coast and upcountry LSK Branches is that young lawyers are increasingly taking charge of the Branches. It is a matter of time before the Nairobi Branch catches up with the trend and the whole profes-sion becomes under direct control of young lawyers.

The legal profession needs to be alive to the fact that a member of the public has an approximately 50 per cent chance of interacting with the profession through interaction with a young advocate. This is so in light of the provisions of Section 50(2) of the Legal Education Act repealing Section 32 of the Advocates Act which required ad-vocates to practice under a senior lawyer for at least two years before setting up their own practice.

It is my submission that young lawyers are not shy in setting up their independent legal practice further exposing the profession to the vagaries of such legal practice by the young lawyers. It is therefore, inevitable that the face of the pro-fession is the young advocate. It will be interesting how this transition is navigated as a profession consider-ing the divergent and sometimes radical approaches adopted by the emerging generation that will have a bearing on the immediate and fu-ture of the profession. This is both the manner in which legal services are rendered and the way lawyers carry themselves out.

*Mr. Keya is an Advocate of the High Court of Kenya

It is not in doubt that most people getting into the profession are not amused by hurdles including mandatory studies at the Kenya School of Law

By Peter Keya*

Chief Justice Dr Willy Mutunga (right) congratulating newly admitted advocates

opinion

Do you want to mentor me? Lawyers being sworn in as advocates of the High Court of Kenya

My pupil master’s boldness, eloquence and support gave me self-confidence, that with my soft-spoken voice, I can project from the back of the courtroom

By Victoria KariitHi*

For the mentor, mentorship provides

satisfaction in knowing that you

are supporting someone to achieve his/her professional

goals.

What do Plato, Beeth-oven, Jung and Einstein have in common, be-sides the fact that they

are dead or if they were alive, they would be extremely old?

These men would probably not have been great, if it was not for their mentors. For instance, Socrates was Plato’s mentor, Hayden was Beethoven’s, Freud was Jung’s and Talmey was Einstein’s.

So, do lawyers need to mentor or be mentored? Yes! With the in-creased incivility in the profession and desire to improve the profes-sion’s public image, mentoring is very important. It is a fundamental component to a lawyer’s human development and success.

You see, if it were not for my pupil master, my maiden address

would probably have panned out like this: My soft-spoken self would have approached the Bench and whispered to the Judge, quietly asking him to grant me the prayers

sought in my Application. But my pupil master’s boldness, eloquence and support gave me such self-con-fidence, that with this soft-spoken voice, I can project from the back of the courtroom. I choose not to...though.

This great man invested his time, energy and personal experi-ence in assisting me to grow into who I am today.

The concept of mentoring has numerous definitions. However, at its most basic level, mentoring is the passing on of skills, knowledge, and wisdom from one person to another. It is an ancient concept yet its interest persists, as it is one of the most effective ways to pass on skills, knowledge, wisdom and train the next generation of profes-sionals.

continued on page 29



opinion

Of Moi day and fidelity to the lawBy mr. KimatHi Kamencu*

The SeConD PreSIDenT of our Republic celebrat-ed his 90th birthday on September 2, 2014. This

did not go unnoticed with some county governments putting up glossy advertisements in main-stream newspapers to wish Mzee Moi good health!

For most of us born into the Nyayo era the most important day used to be Moi Day, which was an-nually commemorated on October 10th.

After the passing of the Kenya Constitution 2010, it has been as-sumed that this holiday was abol-ished. But has it really been abol-

ished? For a number of Kenyans, this question assumes the charac-ter of a “matter of utmost national importance”. Our recent history shows that we are a people always amenable to another holiday on the calendar.

Article 9 of the Constitution rec-ognizes three national holidays –

Madaraka Day (1st June), Mashujaa Day (20th October) and Jamhuri Day (12th August). The aforesaid Article further provides that a na-tional holiday will be a public holi-day. This is not to say however, that there are no other public holidays. Article 9 (5) empowers Parliament to prescribe other public holidays.

Former President Moi

Parliament has indeed already ex-ercised this power under the Public Holidays Act (Cap. 110). The schedule to this Act prescribes a number of public holidays such as New Years’ Day, Good Friday, Easter Monday, Labor Day, Idd – Ul - Fitr. Included in this list is Moi Day. Quite simply put therefore, under Kenyan law, Moi Day is a public holiday.

Might this be considered strange? Maybe. Might the consequences cause discomfort in some quarters? Perhaps. However, let us remember that on August 27th 2010 we proclaimed to the world that from thence, this nation would be ruled not by whim, popular opinion or edict but rather in accor-dance with the law. The law says that Moi Day is a holiday so it is our constitu-tional jukumu to oblige unless the law says otherwise.

That said though, there may be strong reasons for re - consideration of this particular holiday. Seeing that our leaders have told us that we have moved into the era of the Big Mwananchi rath-er than the “Big Man”, it would prob-ably be apt to consider renaming the holiday to something more appropri-ate. Perhaps we could consider renam-ing it Thanksgiving Day (coinciden-tally Canada has Thanksgiving Day on October 10th). In addition, it would be appropriate to carry out a legislative up-date so that Kenyatta Day is designated as Mashujaa Day and Independence Day recognized as Jamhuri Day. This would bring the Public Holidays Act in line with the Constitution.

Articles 37 and 119 of the Constitution enshrine a right to petition Parliament to enact, amend or repeal any legislation. These provisions have been given life by the passing of the Petition to Parliament (Procedure) Act 2012. As citizens, we can now actively participate in the legislative process in the fullest way including pro-posing new laws and suggesting amend-ments to existing laws.

Perhaps the small matter of Moi Day can be considered as deserving of a peti-tion.

*Mr. Kimathi Kamencu is a Partner at Musyimi & Company Advocates

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For the mentor, mentorship provides satisfaction in knowing that you are supporting someone to achieve his/her professional goals. You learn and develop your personal leadership skills and you get the opportunity to give back to the profession, and build an enduring career network. It is also a prospect to gain insights and different perspectives from the future members of the pro-fession, which can then be used in professional and personal de-velopment.

For the mentee, the benefits include exposure to diverse per-spectives and experiences from the mentor, receiving critical feedback in key areas such as communication and change man-agement. The mentee also learns specific skills and knowledge, relevant to personal and profes-sional development and receives impartial advice and encourage-ment. There are also other posi-tive attributes like improvement of self-confidence, increased self-awareness and self-discipline. It also creates a supportive relation-

ship for a guaranteed friendly ear to share both frustrations and successes.

Therefore, mentoring not only benefits the individuals involved but the whole legal profession as a whole. Sole practitioners, advo-cates who are just starting out at law firms, or moving into an emerg-ing area of practice can learn from the experience of others through a mentoring relationship.

As lawyers, we all need to edu-cate our colleagues and the next generation, provide a shoulder to lean on during difficult times and

also a swift kick in the pants - when needed!

If you are an old-timer in the legal practice, find a ‘newbie’ and offer to help them get the knack for legal practice. And if you are a ‘newbie’, ensure that your mobile phone contact list includes a few obliging and accommodating souls who know the ropes.

Let us team up, work together and learn from each other for our own benefit and that of our es-teemed noble profession.

*Ms. Kariithi is an Advocate of the High Court of Kenya

continued from page 25

Upholding the Rule of LawThe Republic must be governed by established rules and not dictates and whims of anyone or group

By tiBerious ndeGe*

The Rule of Law as a princi-ple of Governance has not been defined in the consti-tution of Kenya.

However, Article 10 of the su-preme law provides for national values and principles of gover-nance of which, the Rule of Law is among them.

For starters, the Rule of Law means that the constitution and other laws established must be obeyed, followed and enforced.

It implies that the law is su-preme and nobody is above the law – whether a common man in

the street or the President of the Republic.

The Republic must be governed by established rules and not by the dictates and whims of anyone or group.

It is the Rules of Law that must govern our behaviors and ensure that they conform to laid standards. Therefore, the Rule of Law is the most basic principle of governance in any system of law because it calls for the application of law as a golden and universal formula to guide society in solv-ing daily challenges.

The law is a mean to an end and also the means that justify the end and not vice versa. For instance, in courts, the decision must be based on the evidence on record as it is the one that justifies the decision. Any decision made otherwise is contrary to the Rule of Law and bound to be set aside on appeal.

Constitutionally, all state or-gans, State officers, public offi-

cers and everyone else is bound by the national values and prin-ciples of governance. The virtues apply during the interpretation or when enacting of the supreme law or any other law. It therefore, implies that everyone is bound by the Rule of Law.

Article 1 and 2 of the constitu-tion declare that sovereign power belongs to the people of Kenya and it is to be exercised in accor-

opinion

dance with the Constitution, which is the supreme law of the land that binds all per-sons and state organs.

It further declares that all other laws, including custom-ary laws that are in consistent with the constitution are void to the extent of the incon-sistency and that any act or omission in contravention of the constitution is invalid.

Under Article 2 (2), state authority, is to be exercised according to the constitu-tion while Article 3 impos-es upon every person the duty to respect, uphold and defend the constitution. It also declares any attempt to establish a Government otherwise than in compli-ance with the constitution to be unlawful.

All these constitutional provisions among other laws reinforce the prin-ciple of governance and the Rule of Law must be upheld at all times. Those that exercise authority entrusted upon them by law, must respect, follow and obey the laws of the Republic - their actions and decisions must be within the law.

`If you go to Rome, do as the Romans do’ is syn-onymous with this principle. It means that in any society one maybe, he/she must comply with laws of that so-ciety.

Let us govern and be gov-erned by law hence, uphold the Rule of Law.

*Mr. Ndege is an Advocate of the High Court of Kenya.

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The

Emerging Trend: Balancing academia and practiceBy catHerine Handa*

The notion that legal acade-micians and practitioners live and operate in polar-different professional

worlds is as old as the first regula-tions of the legal profession. This emerged when the struggles be-tween the academy and the bar for leadership and control over legal education began, especially as their views of the fundamental purpose of universities’ law departments and schools diverged dramatically.

We have been warned severally that that the distinction between legal education and practice is ever growing. Several arguments ac-count for the phenomena. First is the different visionary and practi-cal aspiration of law schools and law firms. Historically, Professors of law viewed their tasks as vo-cational, detached from the practice of law similar to that of scholarship in theology, where, as Professor Harry T. Edwards, Judge, US Court of Appeals said “one need not be a devotee of a particular reli-gion in order to find its practices or doctrines fascinating…” to which position practitioners chanted out the old mantra – “Those who can - do; those who can’t - teach!”

The second is the pure theoreti-cal approach to teaching of law at the universities’ law schools. The law practitioners accused law schools of teaching too many in-terdisciplinary, impractical courses, producing abstract scholarship that had little relevance to concrete social issues and current problems, or addressed them in a wholly the-oretical manner. The consequence was that Judges, practitioners or even legislators had pintsize direct

utility for much of the scholarly work produced by members of the academy while too many social is-sues were being resolved without the needed input from academic lawyers. Practitioners blamed law schools for failing in their responsi-bility and losing basic focus of train-ing students to become competent and ethical practicing lawyers and producing research work of worth-while practical utility.

Thirdly, many academicians have the attitude that “teaching was and is the be all and end all” and that practitioners were not “the brightest lights” or the “rising stars” in the profession and that engaging in academic discourses, especially those “infused with phi-losophy, was a better use of a good mind than the practice of law…” and pursuing profit above all else. Some suggested that the debate over legal education was simply about practicing lawyers trying to get the respect and recognition they craved from the academics.

The legal education landscape has drastically changed since that time, particularly in Kenya. Several tendencies are observed.

Today, law faculties and schools have adopted Clinical Legal Education programs, established state of the art Moot Courts, de-veloped advocacy-oriented courses, changed curricula to include various practical skill-oriented programs, mounted narrow-specialized post-

graduate courses to engage and attract practicing lawyers and ju-dicial officers and to prepare their students for numerous employ-ment opportunities. However, with all new developments law faculties still see their place primarily as insti-tutions of pure learning, academia and scholarship focused on theo-retical research and pedagogy only incidentally connected to the prac-tice of law.

More and more of practicing lawyers are coming back to the uni-versities to further their legal educa-tion, while legal academicians are venturing into legal practice by join-ing the Bar and the Bench. Economic pressures and commercialization of legal education explain these trends.

Practitioners and partners in big law firms, earn on average a lot more than their colleagues in academia. So, undeniably, com-pounded by demands imposed by law faculties, embracing a career as a full-time academic lawyer is becoming less viable for enhancing one’s financial welfare.

Law lecturers are expected to be as “academic” as their colleagues in other departments of the uni-versity, working as much on their research as others under the con-demnation of “publish or perish!” Legal academics in order to secure tenure, positions and promotions in the law faculty market are forced to expend resources (time and money) to acquire what has become “a kind

of currency in that market” – higher degrees and publications as talis-mans of legal scholarship, or face stagnation of their employment as-sociated with academic growth.

As a result, more Kenyan aca-demics are opting to become prac-ticing lawyers and part-time lectur-ers at the same time. Meanwhile, law firms are becoming more like commercial entities – making prof-its, and less like “the gentlemen professional clubs of yore”. The com-petition for market share in provision of legal services and extra profits has become fiercer, barring new entrants and forcing out inefficient players. In an attempt to stay afloat, survive or continue to prosper law firms are in-creasingly looking for better-trained law school graduates, while individ-ual practicing lawyers are enrolling in postgraduate programs to improve their skills and qualifications, thus expanding already high demand in legal education market. These trans-locations of members of legal pro-fession from academia to practice and back are changing the orienta-tion and structure of legal education.

It is notable that the Kenyan le-gal fraternity is moving from dichot-omy to fusion and before reaching the state of equilibrium will inevi-tably raise the bar of quality of legal practice and education in Kenya as an inadvertent but inevitable event.

*Ms. Handa is an Advocate of the High Court of Kenya and lecturer at the Kenyatta University School of Law

The local social media has recently been abuzz with “deadbeat dads”- a face book page set up for the intention to name and

shame some feckless dads - yes, apparently feckless is an English word.

While some of us will feign total igno-rance and claim to blush and tip- toe past such salacious tittle-tattles, majority have been hungrily devouring these exposes with much relish, vim and vigour. Who doesn’t love to sit and watch a good roasting? A pub-lic flogging? As long as we are not on the re-ceiving end of it, human nature is not averse to public humiliation and oh what secret joy it causes when the object is on the prover-bial wall and has a great big fall, a la Humpty Dumpty.

Naming and shaming can be traced back to the beginning of time - the mark placed on Cain’s forehead which was revived in the

Middle Ages with the wearing of or branding on the person spe-cific letters for sexual deviants. Fast forward to present day and it has been persuasively argued by Jonathan Coad and Sadiq Tajbhai in their article Name and Shame? that social media has become a forum of online vigilante justice and “the 21st Century equivalent of placing a perceived miscre-ant in the village stocks, though the rotten fruit that is thrown is

cyber in nature.” Doubtful? Take a ‘walk’ in cyberspace and encounter sites like mega-phonedad.com, deadbeatdads.uk, name-n-shame.co.uk, crappydads.com, shesahome-wrecker.com….. There are plenty of persons with many axes and machetes to grind and the whole world, it seems, is settling scores in cyberspace.

Any litigator in child maintenance mat-ters will appreciate the futility of the law at times. The filing of plaints, applications, notices to show cause, warrants of arrest, the whole judicial process is thrown into full gear but compliance is a slippery slope. A Sisyphean task. Enforcement is met with a plethora of lamentations: business is bad, lost my job, have more than nine baby mom-mas to maintain, not my spawn…eh! Thus, when there is recourse to self-help/extra-ju-dicial means by naming and shaming and it is

alleged that there have been positive results, one finds it hard to argue with the phrase the end does justify the means.

In the United Kingdom (UK), the Child Support Agency is seeking to have powers to blacklist defaulters of child support from accessing credit. In 2007, there was a spir-ited campaign to name and shame. In South Africa, the defaulters have been named and shamed and blacklisted with the credit ref-erence bureaus. Both jurisdictions are in the process of amending their laws for tougher sanctions on child maintenance defaulters. The Children Act of Kenya does not allow for such sanctions yet it is clear that the en-forcement mechanisms – attachment of sal-ary, property or committal to civil jail are not effective.

The defamation lawsuits filed following this fiasco will need to contend with the fact that truth is a very solid defence and while the injunction issued therein may hold the trickle, it is clear that that there is a mighty flood on the way. As the alleged ‘deadbeats’ sue the administrators of the damning web pages for defamation, they should borrow a leaf from Ryan Giggs and Daquan James and sue the publishers as well-sue Face Book, Twitter, Instagram. Hey, that defamation award will go a long way in paying the child maintenance they were ordered to pay by the courts.

*Ms. Ndegwa (pictured) is an Advocate of the High Court of Kenya.

Of dead beat dads and online justiceChild support defaulters in South Africa have been named, shamed and blacklisted with the credit reference bureaus

By irene ndeGwa*

commEntary commEntary

Prof Kiama Wangai who has a flourishing career as both an Advocate of the High Court and

Medical Doctor making a presentation during a breakfast meeting on reproductive health



Devolution of Agriculture in Kenya: A Reality or Nonsense on Stilts?

The promulgation of the Constitution in 2010 enunciated a plethora of reforms key amongst them being devolution of various sectors including agriculture.

The devolved framework for agriculture is anchored in Part Two of the Fourth Schedule, providing that the national Government shall have exclusive responsibility of agricultural pol-icy formulation whilst the county government shall facilitate, implement and oversee all other agricultural related matters including the imple-mentation of national policies on agriculture.

A key constitutional requirement is that both levels of Government must observe and be guided by the principles of distinctiveness and interdependence encapsulated under Article 6(2) of the Constitution.

Collectively, these principles echo the fact that even though both Governments are au-tonomous institutions, they are interrelated and need to work together; especially when discharging their devolved functions including agriculture. Due to this interrelation, the consti-tution mandates co-operation and consultation between the two levels of Government. None can work in isolation. It is expected that the said principles would serve to ensure that devolved agriculture benefits the Kenyan people.

Strikingly, the constitution largely lacks spe-cific provisions to reinforce a robust regime for the implementation of devolved agriculture. Accordingly, the National Government enacted the Agriculture, Fisheries and Food Authority (AFFA) Act, 2013 as the blueprint for devolved agriculture. A cursory glance of the AFFA Act, however, reveals legislative impediments to the implementation of devolved agriculture.

Specifically, AFFA Act has fallaciously ‘de-volved’ agriculture by creating a national state corporation - Agriculture, Fisheries and Food Authority (AFFA). In turn, the AFFA Authority is inhered with sweeping powers that arguably encroach on and remain aloof of the functional and institutional distinctiveness of counties. For instance, under Section 4 the AFFA Authority is mandated to promote agriculture, monitor and be responsible for determining the research pri-orities in agriculture and advise both National and County Governments of agriculture.

The immediate provision creates confusion and conflict in relation to devolved agricultural functions at the county level.

It is neither apparent nor implied what would be the role of counties in agriculture since the AFFA Authority is seemingly bestowed with overarching roles on all matters agriculture. Notably, the devolved agricultural functions of the National Government is exclusively related to agricultural policy formulation whilst the roles of counties relates to ‘agriculture’ which includes the implementation of national agri-cultural policies, facilitation and the provision of agricultural services. The foresaid provisions imply that the AFFA Authority will overstep and undermine on the functional and institution in-tegrity of counties. It follows, this connotes that the constitutional principle of distinctiveness; that call for equality and autonomy amongst the two levels of Government will remain ob-solete.

Thus, the questions that peg are to what ex-tent can counties exercise their autonomy in the discharge of their agricultural functions viz the mandate of AFFA Authority? To the extent that these questions remain unanswered, devolved agriculture may remain a myth in Kenya.

Ironically, Section 29 of the Act echoes con-stitutional provisions for devolved agriculture, providing that both Governments shall dis-charge their devolved agricultural functions as per the Fourth Schedule.

Section 29 appears to be misplaced and somewhat abhorrent given AFFA Authority’s mandate. Certainly, in the absence of clarity of roles of the Authority, it is deducible that the de-volved agriculture in Kenya will remain a myth and indeed nonsense on stilts.

Accordingly, there must be a shift or decen-tralization of power and control of agriculture from performance management models built around traditional hierarchical authorities with-in State corporations to the recognition of the distinctive role of counties in devolved agricul-ture.

*Ms. Simiyu is a law lecturer at the Jomo Kenyatta University of Agriculture and Technology and Partner at F Simiyu & Company Advocates.

The constitution largely lacks specific provisions to reinforce a robust regime for the implementation of devolved agriculture

By FaitH simiyu*

commEntary

Ms. Milly Odongo and Mr. Maina Kiai, Human rights lawyer at the Supreme Court

How human rights realized environmental rights in KenyaArticle 42 of the constitution provides for environmental rights and further gives legal options individuals whose rights have been infringed as provided in Article 70 and 162By dorcas m. njoroGe*

In recent years, Kenyan laws and mostly the constitution have evolved into entrenching envi-ronmental rights that should

be enjoyed by every individual.The rights culminate from the

human rights as contained in the Universal Declaration of Human Rights (UDHR). Kenya has made a progressive effort to ensure that it adheres to international envi-ronmental laws such as treaties, statutes and regulations which it has ratified.

The UDHR which was adopted by the United Nations (UN) on 10th December 1948 was the first step taken in recognizing human rights. Governments commit themselves

and their people to take progressive measures which secure the univer-sal and effective recognition and observance of the human rights set out in the declaration. The declara-tion is not legally binding but has been adopted in or has influenced most national constitutions since 1948.

In Kenya, the constitution has adopted the stated fundamental rights and freedom. For instance,

Article 42 of the constitution provides for the environmental rights and further gives legal op-tions to an individual whose rights have been infringed as provided in Article 70 and 162. Under Article 69, the State is also given respon-sibilities towards maintaining a clean and healthy environment.

In the old constitution, environ-mental rights were covered under the ‘Right to life’ under Section 71 but in the new constitution the rights are well expounded and elaborated.

The environmental provi-sions are included in Chapter 4 under Rights and Fundamental Freedoms, Chapter 5 (Environment

and Natural Resources) and Chapter 10 (Judicial Authority and Legal System). The inclusion of these elaborate clauses in the Constitution is due to the fact that the environment supports life and requires protection that is stable.

The right to a clean and healthy environment has also been ac-knowledged in the Environmental Management and Coordination Act of 1999(EMCA) and it was im-portant to embed the same provi-sions in the constitution.

Human rights have led to spe-cific environmental rights which have now been endorsed in Kenyan Laws. This has been reflected mostly in EMCA, Environmental Policies and Gazette Regulations among others. EMCA was estab-lished for purposes of having an appropriate legal and institutional framework for the management of the environment.

Some of the human rights rec-ognized under EMCA include the right to a clean and healthy envi-ronment as provided in Section 3. The right to freedom of expression as per Article 33 of our constitu-

tion is well illustrated where pub-lic participation in environmental governance is provided for in the Act. Public participation is also en-shrined under Article 69(d) of the supreme law. The right to access of Justice is provided in Section 31 where a Public Complaints Committee has been formed and in Section 125 which provides for the National Environmental Tribunal.

It is clear that human rights have impacted on the laws of Kenya to be drafted in a manner that will protect environmental rights of each individual.

As a result of the inclusion of the explicit human rights on environmental laws both in the constitution and the Acts of Parliament, Kenya can now be said to be better positioned to manage its environment more ef-fectively and ensure sustainability to the future generation.

*Ms. Njoroge is an Advocate of the High Court of Kenya and a Masters Student (Environmental Law) at the University of Nairobi

commEntary



profilE

Exceptional brilliance in both academia and The Bench earned Honorouble Professor Justice Jacton

Boma Ojwang’ The East Africa Law Society (EALS) Senior Lawyer of the Year Award.

The EALS President Mr. James Aggrey Mwamu said that the regional body resolved to fete the Learned Judge in recog-nition of his unrivalled profes-sional achievement. “The EALS resolved top honour and fete The Hon. Justice Prof Ojwang’ in recognition of his professional achievement and distinguished academic career,” Mwamu says.

Justice Ojwang was announced the winner during the EALS Annual Conference and Annual General Meeting (AGM) at The Sarova Whitesands Beach Resort & Spa in Mombasa last year.

The theme of the Conference and AGM was Raising the Bar: The Changing Environment for the Legal Profession in East Africa.

Despite his achievements, the Learned Judge maintains humility

and says that he is simply profes-sional in both academia and The Bench.

The Supreme Court Judge who recently made a presenta-tion at a Continuing Professional Development (CPD) Seminar at The Panari Hotel in Nairobi de-scribed himself as an ordinary Judge.

“I am just an ordinary Judge of the Supreme Court and my business is professional,” Justice Ojwang’ said when pre-senting a paper titled Principles of Constitutional Law & the Protection of Human Rights.

Justice Ojwang says that contempt of court is a concept courts use to enforce author-ity. “We need to learn from the experience of others by reading Judgments of Lord Denning on contempt.”

The Supreme Court Judge said that lawyers play massive roles in delivery of landmark decisions.

The Hon. Justice (Prof) Jacton Boma Ojwang said that prec-edents are guided by the quality of submissions from Counsel.

“We (Judges) read in-depth and research following the submissions and cases quot-ed by Lawyers from different Jurisdictions,” Justice Ojwang said.

QualityJustice Ojwang’ said that

the best decisions by Judges are those that have benefitted im-mensely from submissions of Counsel,” Justice Ojwang said.

The Supreme Court Judge said that Courts have an obliga-tion to listen to Counsel when making submissions.

“Counsel should also know that justice in a case is in the main course and rarely on inter-locutory applications although some may be important,” Justice Ojwang said.

The Supreme Court Judge en-couraged The Bar to draft and file well researched submissions to-wards landmark decisions from The Bench.

Justice Ojwang’ joined the Judiciary as a High Court Judge on October 28, 2003 and served for six years and two years respectively at Nairobi and Mombasa stations.

“Justice Ojwang’ has adju-dicated a good variety of cases

and rendered comprehensive judgments that set jurispru-dential directions especially in criminal, civil, constitutional, administrative law, probate and administration of estates,” says the citation.

appointedJustice Ojwang’ was appoint-

ed a Justice of the inaugural Bench of the Supreme Court of Kenya on June 16, 2011 and trusts that his learning, experi-ence and sense of calling in the discipline of law would not ill-match the mandate reposed in that Court by the Constitution and by The Supreme Court Act 2011.

Justice Ojwang’ has par-ticipated in numerous interna-tional fora of scholarly, policy and law-making deliberations and also made contributions to specialized tasks of the United Nations, African Union (AU) and leading foreign uni-versities.

“His scholarly papers have appeared in several leading international law journals, taught a wide range of law courses, conducted research and published in several books and monographs,” says the ci-tation.

careerFor Justice Ojwang’, it has

been a long and extraordinary journey in the legal profession serving in both academia and the Bench.

Justice Ojwang’ attended Homa Bay (1965-1968) and Thika (1969-1970) High Schools before proceeding to the University of Nairobi where he studied Law and graduated in 1974 and Masters in Law (1976).

Justice Ojwang’ proceeded to Down-ing College, University of Cambridge (1978-1981) where

he earned a PhD in Comparative Constitutional Law.

“He spent most of his career in academia though was admit-ted as an advocate of the High Court of Kenya on September 18, 1983,” says the citation.

Justice Ojwang’ was a lec-turer in law, Dean of Law at the University of Nairobi and visit-ing Associate Professor of Law at J. Reuben Clerk Law School, Brigham Young University, Provo Utah, USA.

“His Professorial Inaugural Lecture, Laying a Basis for Rights, delivered on July 9, 1992 was published in Holdsworth Law Review (Birmingham) Vol. 15 No.1 (1991-92), pp.71-113,” says the citation.

Justice Jacton Boma Ojwang (left) receives the East Africa Law Society (EALS) Senior Lawyer of the Year Award from Chief Justice Dr. Willy Mutunga

Why regional lawyers feted Supreme Court Judge

Supreme Court Judge commands glowing academic, Bar, Bench career

“I am just an ordinary Judge of the Supreme Court and my business is

professional.” —Professor Justice Jacton Ojwang’



law schools

I was preparing with gusto for my first day in court after admission to the coveted Bar on March 3, 2013.

I wore a pin-striped black suit, a white shirt and a maroon tie. Everything I donned was new and the designer suit gave me an aura of confidence and class. I moved closer to the mirror and smiled - I looked impeccable!

My first case was a commer-cial dispute which was a hear-ing of an application to dismiss the suit for want of prosecu-tion. Upon quick perusal of the file, it was clear that the matter had not been active for over five years, and our excuse for inac-tion was unconvincing. However, my instructions were to strenu-ously defend the application as the subject matter was well over five million shillings. I planned to file written submissions and also hoped that the opposing counsel would agree. My first day would be easy!

I got to court well on time, and skimmed through the cause list to confirm whether the matter was listed, secretly hoping that it was not. It was listed, so I headed to court and joined my colleagues at the Bar. I could picture myself standing up confidently and ap-pealing to the Magistrate with my polished look and great oratory

skills to boot before the matter was called out, and I froze. My whole body went numb after re-alizing that the opposing counsel was known for humiliating newly admitted advocates. A colleague jabbed me. That was when I quick-ly sprung to my feet, quite dazed, and mumbled the words that would haunt me for the rest of my career.

‘Yes madam,’ I said. The Magistrate was a man and did not take it kindly. The rest of the courtroom burst into laughter crowding my feeble apologies to the Magistrate, who was too irked to listen. I was sweating profusely. I even adjusted my tie. It was chok-ing me, the heat was also unbear-able. I was about to faint when the unexpected happened. The counsel known to ‘bully’ newly admitted advocates whispered that everything would be okay. I was confused, and to my surprise he pleaded with the Magistrate on my behalf. He even placed the file aside until midday. He figured I would have recovered by then. I was mesmerized! It was like a dream. I would forever be indebt-ed to him, literally.

Then my boss called. Had he heard about my embarrassing es-capade? He had not. He wanted me to attend to another matter in a different court. I was to con-

firm that we had filed our submis-sions, then request for a ruling date. That was easy! Opposing counsel was not present and had not sent a representative. Once the Magistrate confirmed that counsel was aware of the date, she allowed me to proceed. I stated the position of the case and sug-gested a specific ruling date to the court, in two weeks’ time. I could hear giggles around me, and the Magistrate was smiling.

I knew I had done something wrong, but could not figure out what it was. Then the Magistrate

politely asked, ‘Mr. Mambo, how long have you been in practice?’ ‘It’s my first day madam…oh…your honour.’ I mumbled’. Not again! Luckily it was a lady. ‘Well, your date is not convenient, so I will give you another date. Is that ok?’ Of course it was okay. Anything was okay. I just needed to get done with and head back to office.

That was my first day in court, and that is how I got the nickname ‘madam’!

*Ms. Wambua is a Legal Officer at the Kenya Forestry Service.

court ExpEriEncE

Lady Justice Mary Ang'awa delivering a lecture to young advocates on approaching The Bench during the mentorship forum organised by the LSK Coouncil at Hilton Hotel, Nairobi

My Barbs, bouquets for law schoolsRaising the intellectual bar required for admission to law school may mitigate the acute intellectual quotient deficiency crisis that currently prevails. This may be achieved by administering a special examination mandatory to applicants towards sieving legal minds

By munyeri leVi*

During my High School days, I thought a uni-versity was accompa-nied by imaginations

of a place where intelligence reigns. I looked forward to joining this epi-center of great minds - a medioc-rity free zone. The furthering of any stupid and irrational acts within the vicinity of a Law School was a too remote, a thought in my mind.

My joy of joining this brainy fraternity met an ugly scene; deep-rooted ignorance and chronic repulsion of knowledge. What I thought was a Law School turned out to be a disgusting den of hedo-nism. The uncontrollable urge to have illicit love affairs and engage in all manners of primitive merry making informed and guided the students’ lives. The library has been relegated to the status of an infa-mous cell, some sought of a prison where only examination panic can confine a vacuum brain.

After a keen observation and lucid meditation, I established that deadly viruses may have infested brains of some university students. Certainly, the most fatal seems to be the illusion of knowledge. Stephen Hawking, a legendary physicist prudently observed that the greatest enemy of knowledge is not ignorance but the illusion of knowledge. It is clear that some students of the law do not know much. The worst tragedy lies in the fact that they have convinced their minds that by sticking to the syllabus and reading all the three

mainstream newspapers a day, they shall gather unfathomable knowledge. In their judgment, only by virtue that they are law students ranks them higher than other stu-dents in the intellectual scale.

It is absurd that institutions have labeled themselves as uni-versities without ever capturing the philosophical foundations of a university. The university as the highest institution of learning must stand out as the pinnacle of research and other scholarly endeavors. The so called Kenyan universities have confined them-selves to a cocoon of syllabus restrictions and senseless exami-nations. Consequently, the high-est honor in campus is emerging the top in examinations not-withstanding whether you have cheated or not. The practical ap-proach of learning has been dis-carded to the dirt bin. Students and their lecturers see no fault in this system. This sorry state of affairs points the incompetence

of both students and lecturers as discoveries and inventions in local universities have become as alien as they are in primary schools.

Perhaps lifting the intellectual bar of joining law school should be enforced to solve the crisis of acute intellectual quotient.

Gone are the days when law students were fearless champions of political change and human rights. University students played a pivotal role towards the restora-tion of the multiparty system in the early nineties and the ultimate col-lapse of the 24-year old Moi regime.

At this age of smart phones, the only compelling circumstances that can send students on rampage are the desire to loot or to force the administration to postpone exami-nation dates. I have no choice but to entertain the thought that the collective intelligence of comrades has hit its all-time low.

I strongly recommend that to tear down this barrier to reason, it is imperative that all students are

exposed to fundamentals in phi-losophy, history and mathematics. There are pregnant academic disci-plines that create sense wholeness in the minds of students and ignite the fire of reason in their otherwise dormant minds. The knowledge may be critical in liberating them from the dogma and indoctrination of culture, tribe and religion that informs their decision as efficient as they inform the decisions of il-literates.

Raising the intellectual bar required to be admitted to law school may mitigate the acute in-tellectual quotient deficiency crisis that currently prevails. This may not be achieved by raising the entry marks but by administering a spe-cial examination that is mandatory to all applicants and shall be the sieve to separate lawyerly minds from non-lawyerly ones.

All reasonable steps should be explored to save the hopeless Kenyan graduates from the shame of incompetence and underper-formance. To be categorical, law schools have turned into legal black holes which absorb legal knowledge but have so strong an anti-intellect pull that no polished legal mind graduates out of them. It is a disturbing trend.

A university does not demand that her suitor must possess the mind of Plato, but at least he should be a reasonable man, or act as one.

*Mr. Munyeri is a student at Kenyatta University School of Law.

My first day in courtMy whole body went numb after realizing that the opposing counsel was known for humiliating newly admitted advocates

By Betty wamBua*


The

Calls for improved land servicesLSK Council Member Ms.

Jennifer Shamallah who passed the vote of thanks reiterated that time is of essence during property transactions.

“Going forward, we (LSK) hope that the Ministry will have made significant steps on areas we have raised during our next meeting,” Ms. Shamallah said.

Stark realities of the decay in land registries sprung to the fore following an exclusive au-dit by the Law Society of Kenya (LSK).

The report exposed insur-mountable challenges prop-erty transactions underwent in Nairobi, Mombasa, Thika and Nakuru land registries.

The exclusive audit exposed missing land rent records, erro-neous results of official searches and delays in valuation of prop-erty as among notorious vices in the registries.

Others included delays in stamping of documents follow-ing missing files, understaffing, inadequate training of staff and rampant corruption.

Surprisingly, property trans-actions also delay when repair-able machines like photocopi-ers break down in several occa-sions.

According to the audit, valu-ation of property was at snail pace as there was only one gov-ernment valuer in district offices – valuation by private valuers is not accepted.

The 156-page report was titled Report on the Audit of the Nairobi, Mombasa, Thika and Nakuru Land Registries: An Assessment of the Business Processes.

At the time of the audit, two years ago, the Nairobi District Registry had only three registrars signing loads of documents but only one was in office during the assessment.

An exclusive LSK audit exposed rampant corruption missing records, erroneous results of official searches and delays in valuation of property as among notorious vices in registries countrywide

By Harold ayodo

NAIroBI, KenyA: Lawyers have raised the red flag over in-surmountable chal-lenges during prop-erty transactions in

land registries.Rampant corruption, poor time-

lines, missing files, delay in exten-sion of leases and incorporation of trusts are among insurmountable hurdles to property transactions.

The fresh concerns came to the fore during a luncheon the Law Society of Kenya (LSK) hosted for the Cabinet Secretary for Lands Ms. Charity Ngilu at The Hilton Hotel, Nairobi.

The theme of the luncheon that attracted slightly over 150 lawyers was Reforming the Land Management System in Kenya

LSK Chairman Mr. Eric Mutua said that several lawyers complain to him over lack of timeliness when transacting property and register-ing documents at land registries.

“Transactions in Kajiado, Thika and Kiambu registries are notori-ous for taking too long which im-pacts negatively on the economy,” Mr. Mutua said.

Mr. Mutua said that lawyers need to know the changes that have happened in the Nairobi registry since files were re-arranged at Ardhi House following a 10-day closure.

“The re-organised registry should do more than the in-creased revenue collection that the Ministry of Lands announced recently,” Mr. Mutua said.

The LSK Chairman said that there were also conflicting instruc-tions from senior ministry officials regulations to operationalize new land laws.

“The friction between the Cabinet Secretary and the National Land Commission has also made it difficult to formulate and imple-ment rules to operationalize new land laws,” Mr. Mutua said.

At one time, Mr. Mutua led a section of the Council to meet members of the NLC towards solv-ing the friction with the CS Ms. Charity Ngilu.

Ministry of Lands Principal Secretary Ms. Mariamu el Maawy assured that Ardhi House was in the process of reorganizing 10 reg-istries countrywide and re-training staff on timelines.

“We are striving to ensure that there are no conflicting records in land registries towards containing fraud,” Ms. Maawy said.

The PS said that the Ministry will soon start issuing new generation title deeds complete with security features and bar codes.

Ms. Maawy said that there is no moratorium in incorporation of trusts in response to a question posed by Mr. Githinji, Advocate.

“We (Ardhi House) have recon-figured Closed Circuit Television (CCTV) cameras in the registries and banking hall which were initial-ly only in the entrance,” Ms. Maawy said.

The PS said that registry staff at Ardhi House must now be au-thorized before working extra hours and during the weekends.

“WE are also in the process of formulating cashless payments to enable clients make payments from portals,” Ms. Maawy said.

“We are striving to ensure that there are no conflicting records in land

registries towards containing fraud.”— Ms. Mariamu el Maawy, Ministry of Lands Principal Secretary

Wining and Dining

Pomp and glamour marks Law Society of Kenya (LSK) annual cocktails, dinners and luncheons in

Nairobi.The grandiose was similar

this year after the Premier Bar Association in the country held its grand Annual Dinner & Dance at The Intercontinental Hotel in the heart of the capital city in March.

A luncheon followed mid-year at The Hilton Hotel ahead of the end year cocktail slated for December.

Judges, magistrates, lawyers, top Government officials and Chief Executive Officers (CEOs) are among guests who grace the three annual occasions.

Dressed befitting the evening, members of the Bar and Bench strode inside the Mara Ballroom at The Intercontinental Hotel Nairobi from 6.30pm for the Annual Dinner and Dance.

Renowned artiste Ms. Linda Muthama and The Atimate Band played Jazz Music before veteran entertainer Mr. Walter Mongare (popularly Nyambane (Baby J) took over as Master of Ceremony.

The clownish clad Mr. Mongare cracked a barrage of rib tickling jokes as Ms. Muthama and The Atimate Band dropped hits during interludes.

“I have never attended din-ner with so many lawyers…I am privileged today to see how Learned Friends eat five course meals,” Mr. Mongare said amid laughter from guests.

As the evening progressed, The Band played instruments and the LSK Vice Chairperson Ms. Lilian Omondi and Mr. Eric Ng’eno invited to sing.

Ms. Omondi sang Gospel hit Napenda originally sang by Ms. Christina Shusho while Mr. Ng’eno crooned Lionel Richie’s blockbuster Stuck on You.

Last year, Chief Justice Dr. Willy Mutunga who was the Chief Guest paid a glowing tribute to the departed Former South African Freedom Fighter and President Nelson Mandela.

“Mr. Mandela upheld the Rule of Law in many ways be-fore and during the 27 years

he spent in prison and also as President,” Dr. Mutunga said.

The Chief Justice who is also President of the Supreme Court called on lawyers to emulate the departed global icon.

“Mr. Mandela believed in the Rule of Law and fought for rights of both the mighty and lowly in society...lawyers should borrow a leaf,” Dr. Mutunga said.

Speaking at the same evening occasion, LSK Chairman Mr. Eric Mutua celebrated members for a good year before introducing Council Members.

“It has been a good year de-spite few insurmountable chal-lenges that we overcame towards implementing our constitutional mandate,” Mr. Mutua said.

During the Annual Dinner & Dance, The Society fetes a Judge for Distinguished Service in the Administration of Justice.

A citizen who has left a mark to humanity is celebrated with The Father Kaiser Human Right Award and a Senior Advocate of the High Court is inducted to The Roll of Honour.

Renowned comedian Mr. Nyambane (Baby J) entertaining during the Annual Dinner and Dance

tEa brEakconvEyancE



Vox Populi

Advocacy is about persuasion. Lawyers must convincingly persuade the Bench when

arguing a case for their clients. – Kenneth Fraser, Senior Counsel (SC) when presenting a paper on the new Practice Directions at a Continuing Professional Development (CPD) Seminar at the Panari Hotel in Nairobi.

Faithful adherence to the constitution and our laws means being guided by

both the letter and the spirit of the law. To realize the promise of the constitution, we need to internalize not just its provisions but the objects of the constitu-tion review, new dispensation and the change it portends to the functioning of our institutions. – Former Justice and Constitutional Affairs Minister Hon. Martha Karua when delivering closing remarks at the LSK Annual Conference this year

In a democracy, all individuals and institutions must obey court orders. The simple and only view

is that an order of the court must be obeyed and those who wish to get rid of it must do so by the proper course of appeal or applying for it to be set aside. – Dr. Gibson Kamau Kuria, Senior Counsel (SC) when presenting a paper at the LSK Annual Conference this year.

Every person is equal before the law and has the right to equal protection and benefit of the

law as provided under Article 27(1) of the constitution. The supreme law explicitly provides for equality and freedom from discrimination including right to equal politi-cal, economic, cultural and social spheres – LSK Vice Chairperson Ms.

Lilian Renee Omondi during the Gender forum organized by LSK at Laico Regency Hotel in Nairobi.

Advocacy is not activismLawyers must marshal evidence and make cogent and persuasive arguments following importance that proposals made for changes to public policy be supported by sound evidence By itoto ecHaKara, carolyne muGoiri and KariuKi waweru*

advocacy

Advocacy is not Activism’. Activism is concerned with picketing, petitioning, or as we lawyers go about it,

litigation. These methods, all le-gitimate and constitutional ways of raising issues and pressuring the policymakers and lawmakers to act, or not act, beg the question: are they as effective?

So what is advocacy? Simply, it is the ‘changing of a person’s attitude or opinion, convincingly enough to compel them to take action based on a convincing position or opinion.’ In advocating for a change in law and policy, it is the policymakers and the lawmakers whose opinions and attitudes need to be changed convincingly.

It is shown that one’s attitude on an issue will affect the way the issue is legislated upon and therefore, policy and lawmakers’ attitudes are just as important. Policy and law-makers determine our living envi-

ronment by proposing public policy, making laws and regulations, and implementing and/or enforcing them. Once effectively enforced or implemented, these regulations tend to be a norm and an accept-able way of doing things. Think about it: we drive our cars on the left side of the road without even thinking, because of Government regulation! Yet, in the United States of America (USA), they drive on the right side of the road because their Government has decided so.

How do we go about advocacy? The concept of advocacy is simple: identify an issue, gather evidence and a solid understanding of the impact of the issues, develop a con-vincing response, such as a position paper or proposal; then engage the relevant audience for instance, policy makers, law makers or en-forcement agents to do something about it. When the approach for advocacy is based on dialogue and

collaborative rather than adver-sarial, it is more effective and yields better outcomes.

Generally, lawyers are trained on techniques in the adversarial system. Advocacy is an art requir-ing skills for effective dialogue. Advocacy competence is crucial in seeking to change public policy, or change the way that regulations are implemented, or, occasionally, the enforcement of existing leg-islation. In doing so, lawyers have to marshal evidence and make co-gent and persuasive arguments. It is important that proposals made for changes to public policy be sup-ported by sound evidence.

The Law Society of Kenya (LSK) Law Reform and Constitutional Implementation Committee seeks to take part in effective advocacy by identifying issues that are of concern to the public, or even a sec-tion of the public, understanding these issues, including their scale

and depth of impact, developing responses and proposals, influenc-ing policymakers and following up to ensure the change in policy ad-vocated for. The Committee con-tinually seeks to influence policy and law makers in their decision making and the enactment of laws. The Committee has undertaken nu-merous reviews of legislation which have included; the Companies’ Law Bill, Ethics and Anti-Corruption Bill among others.

This requires recognising the policies and laws that need to be changed, repealed or enacted anew. It may also include identify-ing power actors and opinion form-ers as well as their current attitude and opinion on the issue. They are then encouraged and convinced to advocate for the Committee’s

‘

point of view. The Committee also seeks to be a knowledge supplier on various issues.

The Committee considers it important to take a global view of issues. When looking at the impact of a certain legislation or policy on other jurisdictions, the Committee also looks at the impact that the proposed law has had on that jurisdiction. It is also important to under-stand the policy imperative of the Government or Government agencies, which will provide guid-ance on its reasons to legislate. This is the basis upon which ad-vocacy is exercised.

There is vast capability for the legal fraternity, to objectively

and effectively engage with each other, the public, players in other industries and the Government on critical issues that impact the Kenyan society, and also the greater East African society. There is a lot of work to be done and the Committee encourages all mem-bers of the LSK to engage with us in ensuring that the relevant laws are implemented for all public.

*Ms. Echakara is a Programme Officer (Parliamentary Affairs & Legislation) at the LSK, Ms. Mugoiri is an Advocate of the High Court of Kenya and member of the Law Reform and Constitutional Implementation Committee while Mr Waweru is a fund manager with Business Advocacy Fund.

Chamber Break!

A recently admitted young Advocate who had taken over his old father’s

practice rushed home elated and found his dad reading the Law Society of Kenya Advocate Magazine.

“Dad, listen, you will not believe it. I have finally settled that old succession suit that bothered you for the past 35 years.” Shouted the young lawyer. “Settled it!” “Why, you fool! We have been living off of that suit comfortably for 35 years!”

A middle-aged man sat at a bar in Westlands, looked into his shirt

pocket, and ordered a double scotch whiskey. A few minutes later, he peeked into his pocket again and ordered another double. This routine continued until after looking into his pocket, he told the bar man that he’s had enough. The bartender said, “I’ve got to ask you - what’s with the pocket business?” The man replied, “I have my lawyer’s picture in there. When he starts to look honest, I’ve had enough.”

A plane to Mombasa developed engine complications before

the pilot instructed the cabin crew to ensure all passengers are seated and fastened seat belts in preparation for an emergency landing.

A few minutes later, the pilot inquired from the flight attendants if everyone was buckled in and ready.

“All set back here except the lawyers who are still going around dishing out their business cards.” replied the flight attendant.

A young lawyer who set up his private practice at the Central Business District

was anxious to impress potential clients. He picked up his landline phone when a visitor walked in and spoke into it,” Yes, I managed to transfer the Sh20 million property and have the title deed. I will complete the other conveyance after filing a case for the Cabinet Minister,”

The young lawyer then turned to the visitor in his office and asked “What can I do for you?” “Nothing,” replied the man. “I am from the Telecommunications Department and here to fix your disconnected landline phone.”

Lawyers following presentations during a recent CPD Seminar on Trial Advocacy at the Panari Hotel, Nairobi



thE bar

The spinning lawyer

dJ wakili skillfully juggles spinning the decks and legal practice

By Harold ayodo

music for an hour or so. This is like therapy; all the stress of the day just evaporates,”

He does not attend any gigs during the week, unless he is on leave. “My commercial deejaying starts from Friday, after work. In terms of busi-ness systems, I think I now have it right,”

“I have assembled a team that can meet the rigorous quality standards and I also set

and consistently deliver a memorable musical experience,” he says.

According to the learned friend, life is all about striking a balance, and juggling different plates in the air.

“I am due to start my Masters in Law (LL.M) at the University of Nairobi this year. This will be an additional plate to juggle in the air with others,” he says.

He is proud that his professional experience from practice, the United Nations system and the public service have molded him into a ver-satile, multi-skilled advocate.

“I am deeply gratified to be heading the le-gal department of an important and strategic State Corporation (KWS),” he says.

He says that he has also helped shape biodi-versity law and policy at the domestic, regional and international planes.

“I am still a work-in-progress and look for-ward to greater achievements in my career as an advocate,” he says.

However, he is saddened that many people have summarily condemned DJs as ‘losers’

and also frown on his deejaying for the same reason.

“One of my most challenging moments as a DJ was once when an abusive client called me ‘daft’ and said it was not her fault that I had, allegedly, refused to go to school,” he recalls.

Nevertheless, the advocate says that he is gratified to kill two birds with one stone: have a very demanding career and a consuming passion.

“I am living my dream! I tried to quit dee-jaying for a couple of years after I became an advocate, but the passion just refused to go away,” he says.

He is also fulfilled that his brainchild (Beat Clef Entertainment) has provided a source of income for some youths and also nurtures young talent.

Mr. Tom Ochieng Ogola aka DJ Tom/Wakili can be reached at 0721782099

He strikes a professional bal-ance as an Advocate of the High Court of Kenya and renowned Disc Jockey (DJ)

who ensures party animals are on their feet the whole night.

Mr. Tom Ochieng Ogola who as ad-mitted to the Roll of Advocates in 2004 is among learned friends who can walk and chew gum at the same time.

Mr. Ogola who is fondly known among party animals as ‘DJ Tom’ is also the brain child of the cherished Beat Clef Entertainment in Nairobi.

“It took many people to understand how I could appear before the Bench while robed carrying files and play music in clubs on Friday and Saturday nights,” says DJ Tom.

His cap was blown when he ap-peared on mainstream television sta-tions prime time news seated on the advocates’ bench when robed.

“Many of my fans who saw me called me with disbelief. After that, word went round and some nicknamed me ‘DJ Wakili’,” he says.

He explains that the disbelief cuts both ways as some advocates and cor-porate clients he has worked with will be stunned when they read this article.

DJ Tom who is scheduled to start his Masters in Law at the University of Nairobi this year says his interest in spinning was inspired by the legendary DJ Paco Perez - the pioneer of deejaying in Kenya.

“My friends and I would go to Club Boomerang for Jam Session on Sunday afternoons and would stand by the DJ booth keenly observing Paco and his understudies DJ Addamz and the late DJ Tubbz at work,” he recalls.

He was fascinated by how a DJ could be in control of the entire club and keep revelers on their feet.

“Revelers would dance those days unlike today when some have em-braced binge drinking and gazing at screens all night long,” he says.

The Bachelor who is currently the acting head of Legal Services and Corporation Secretary at the Kenya Wildlife Service (KWS) resolved to up-scale his music hobby into a business in 2001.

“I founded Beat Clef Entertainment which specializes in providing public ad-dress systems for all events and occa-sions,” he says.

DJ Tom says that the music business has steadily grown in capacity and han-dles events of up to 1,000 attendees.

“We have provided services for wed-dings, corporate events and end-of-year parties, sports tournaments such as the annual LSK Justice Cup Football Tournament among others,” he says.

He explains that, since 2012, parts of their equipment and some DJs have re-mained residents at the popular Nairobi West Mall entertaining up to 500 pa-trons on Friday and Saturday nights.

“We play music at the Nairobi West Shopping Mall in addition to other events countrywide around the year,” DJ Tom says.

However, balancing between being an advocate of the High Court of Kenya and a DJ is not a walk in the park.

“It begins with perspective: being an advocate is my career and deejaying is my hobby-with-benefits,” he says.

According to him, whenever a con-flict threatens, being an advocate of the High Court inevitably takes priority.

“I look forward to the day when en-tertainment law will develop into a vi-able area of practice in Kenya. This will be a great opportunity to fuse passion and career,” he says.

According to him, all work and no play makes Jack a dull boy as he ex-plains that being an advocate is a very intense and challenging profession.

“At the end of a busy, stress-packed day, I get into my studio when I get home to record some mixes for my website, www.beatclef.com, practice my skills or just recline on the bed and listen to some

Mr. Tom Ochieng Ogola served pupilage between 2002 and 2003 under the latePeterMboya.

He was employed as an associate advo-cate at Kaniaru & Kaniaru Advocates and practiced commercial law, conveyancing, environmental law and civil litigation.

He joined the United Nations HighCommissioner for Refugees (UNHCR) as an Eligibility Consultant, a positionwhichIhelduntiltheendof2007.

He joined the Kenya Wildlife Service(KWS)inDecember2007asaLegalOfficerand is currently the acting Corporation Secretary and Head of Legal Services.

DJ Tom Wakili on the decks during the recent Justice Cup Football Tournalent at the Parklands Sports Club in Nairobi


The

Could Presidential pardon of prisoners be unconstitutional?It raises eyebrows whether Gazette Notice No. 5174 was discriminatory as the list of 47 beneficiaries was exclusively maleBy Gloria cHelanGat*

A recent Gazette Notice granting the Presidential Power of Mercy

to 47 inmates country-wide raises legal concerns.

The names of the pris-oners were detailed in the Gazette Notice No. 5174 dated July 5, 2014 in line with the Power of Mercy Act.

According to Section 23(1) of the Statute, the President exercises the powers to acquit inmates following recommenda-tions of the Power of Mercy Advisory Committee.

Constitutionally, the Preside-ntial Power of Mercy is granted under Article 133(1) of the su-preme law.

Parliament is also man-dated to legislate on the tenure of the members of the Committee, its proce-dure and criteria to be used in formulating the advice. Pursuant to this provi-sion, Parliament enacted the Act to provide for the aforementioned matters.

Therefore, it raises eye-brows whether the Gazette Notice No. 5174 was dis-criminatory as the list of 47 beneficiaries was exclu-sively male!

Section 4 of the Act provides for guiding prin-

ciples that the President and the Committee should adhere to in exercise of their powers. The Section requires the exercise of this power to adhere to the provisions of Article 47 of the Constitution on fair administrative action and to be guided by the values and principles outlined un-der Article 10 of the consti-tution.

Article 10 of the su-preme law outlines several national values and prin-ciples of governance which all persons should bear in mind and adhere to in in-terpreting laws, making and implementing policy decisions.

Among the key values and principles under the constitutional Article are human dignity, equity, social justice, inclusiveness, equal-ity, human rights, non-dis-crimination and protection of the marginalised.

According to Black’s Law Dictio-nary, equality is defined as the condi-tion of possessing the same rights, privileges, and immunities and being liable to the same duties. A plain explanation of the principle of equality under the constitution means any privilege enjoyed by male prisoners should be extended to their female counterparts.

Non-discrimination re-fers to fairness in treating people without prejudice - an important principle and value under the constitu-tion. Its importance is clear based on the number of times it is repeated under the constitution, including under Article 27 that pro-vides for non-discrimina-tion in all spheres.

It is my submission that the President and the Advisory Committee on the Power of Mercy failed to ad-here to important national values and principles of governance as provided for under Section 4 of the Act.

Therefore the legality of the Presidential pardon of

the 47 inmates can be chal-lenged in a court of law.

The process of vetting those who were to be par-doned may have been okay, but the omission of female inmates puts blemish on the process as a whole.

Does it mean that no female inmate countrywide qualified for the Presidential pardon? Or were only men pardoned because male jails are congested and the move was aimed at decongest-ing the prisons? Whatever the reason, the above men-tioned principles and values must be seen to be adhered to when such constitutional actions are taken.

My humble argument is not that an equal number of women and men should be pardoned, but rather both men and women must be seen to enjoy this consti-tutional privilege when the pardons are done.

*Ms. Chelangat is a lawyer

Calling women lawyers to seek plum jobs

NAIroBI, KenyA: Women lawyers have been chal-lenged to apply for com-

petitive national and county va-cancies.

The Law Society of Kenya (LSK) Vice Chairperson Ms. Lilian Renee Omondi Gender Committee Convener Ms. Caroline Khasoa said the Bill of Rights provides for equal opportunities.

Ms. Omondi and Ms. Khasoa said that plum State and private sector jobs are not a preserve of any gender as outlined in the con-stitution.

“Article 27 of the constitu-tion provides for equality and freedom from discrimination including right to equal political, economic, cultural and social spheres,” Ms. Omondi said.

Currently, there are 4,305 wom-

en out of 11, 224 lawyers in the Roll of Advocates.

Ms. Khasoa who is also a Council Member of the LSK said that there are equal employment opportuni-ties regardless of gender.

“Qualified women lawyers should apply for top national and county vacancies following con-stitutional provisions on equal-ity,” Ms. Khasoa said.

Ms. Khasoa said that women cannot be considered for plum jobs both in Government and private sector unless they applied.

Ms. Omondi and Ms. Khasoa were speaking during the LSK Gender Training at the Laico Regency Hotel in Nairobi. Advoca-tes Ms. Mary Njeri and Ms. Kerubo Okioga were the trainers.

The training is among several forums organized by the LSK Public

Interest Litigation (PIL) Department this year.

LSK Secretary/CEO Mr. Apollo Mboya, HSC said that the Gender Committee is striving to ensure the gender debate remains top of its agenda.

“The Gender Committee has several terms of reference includ-ing advising the Council on matters gender” Ms. Khasoa said.

Ms. Khasoa said that the Committee also encourages em-powerment of women in the wake of a comprehensive Bill of Rights entrenched in the constitution.

“Every person is equal before the law and has the right to equal protection and benefit of the law as provide under Article 27(1) of the

constitution,” Ms. Khasoa said.After General Elections last year,

the total elected and nominated members of County Assemblies stood at 2,222.

Approximately 1,450 were directly elected and 772 were nominated (34 percent being women) under Article 90 of the Constitution.

Ms. Khasoa said that there is dif-ficulty in meeting gender quota and threshold of minorities and margin-alized communities in the employ-ment of staff.

“There main challenge is the failure to get women applicants for advertised posts despite their aca-demic qualifications and befitting experience,” Ms. Khasoa said.

Every person is equal before the law and has the right to equal protection and benefit of the law under Article 27(1) of the constitution

gEndEr agEnda gEndEr agEnda

LSK Council Members Ms. Gertrude Angote and Ms. Jennifer Shamalla during a recent LSK luncheon

LSK Vice Chairperson Ms. Lilian Renee Omondi (right) lawyer Ms. Jacqueline and LSK Council Member Ms. Caroline Khasoa (right)


The

The Guidelines and Regulations shall be part of the conference documentation at the upcoming EALS Annual Conference/AGM for the benefit of the members’ knowl-edge.

“Our Executive Council has turned its attention to realign-ing the strategic focus of the EALS through the review and develop-ment of a new strategic plan,” Mr. Mwamu says.

He says that the EALS has em-barked on the consolidation of ef-forts to ensure increased financial sustainability through enhancing the existent fiscal responsibility measures.

“We are also sourcing for more funds to buttress the financial posi-tion of the EALS as we continue on the path to full financial self-suffi-ciency,” Mr. Mwamu says.

Mwamu who is also a former LSK Vice Chairman says that the institution is also able to meet its administrative and running costs from its locally generated funds.

“Over the past two years we have managed to raise the base of EALS’ collections from USD495,000US to USD595,000US,” Mr. Mwamu says.

According to Mwamu, the regional body has continued to champion the just Rule of Law and good governance within the East Africa by calling attention to areas we felt errors had been made.

“Our successes also continue to draw interest from beyond the region with the Ethiopian Lawyers’ Association; the Law Society of South Sudan and the Somaliland Bar Association all applying to join the EALS,” he says.

The EALS has also managed to interface with Bar Associations in the region and its Executive Council has resolved to bring on board the

Ethiopian Lawyers’ Association as Observer Members of the EALS upon endorsement by the mem-bers at the 14th of November 2014, Annual general meeting in Kigali.

“My term has also seen the EALS continue to work to provide a fit between the needs of our profes-sion and needs of our society,” Mr. Mwamu says.

He says that the EALS has been at the forefront of standing up for learned friends who have been vic-tims of Government excesses as a result of trying to fulfil their obliga-tions as lawyers.

A case in point is the defence of Mr. Isidore Rufyikiri at the East African Court of Justice. “We fought for the visibility and integrity of the East African Court of Justice (EACJ) by urging partner States to have non-political nomination of Judges to the Court,” Mr. Mwamu says.

The EALS also capacitated mem-bers to actively participate in the Court process and through the in-stitution of Public Interest Litigation cases at the Regional level.

“We actively called attention to State excesses that would other-wise go unchecked,” explains Mr. Mwamu.

In a bid to facilitate timeliness and continuity to interventions at the Court, the EALS constituted a world class litigation team that has been on hand to achieve various Court victories and continues to add to the good jurisprudence com-ing out of the EACJ.

“My team leaves the EALS a stronger institution than we found it and not only due to our efforts but because our contribution has been made by standing on the shoulders of giants,” he says.

As a parting short, the outgo-ing EALS President pays a glowing

tribute to all the Executive Councils that came before he took office.

“Tribute is due to them for set-ting the foundations of what we have managed to achieve in this

term,” Mwamu says as he calls on members to attend the 19th Annual Conference and General Meeting due in Kigali on 14th and 15th November, 2014.

“I thank my colleagues who trusted in my ability and voted for me to head this great regional institution that I have been very

passionate about.” — Mr. James Aggrey Mwamu

EALS President Mr. James Mwamu addressing an EALS Continuing Legal Education Seminar in Nairobi

From left: LSK Council Member Mr. Allen Gichuhi, Presidential Advisor Mr. Abdikadir Mohammed and EALS President James Aggrey Mwamu arriving at the EALS Annual Conference in Mombasa

East africa law society (Eals) President takes a bow in style

rEgional practicE

Mr. James Aggrey Mwamu has fast-tracked a Memorandum of Understanding under the Common Market Protocol where lawyers can cross borders and practice to expand their jurisdiction

By Harold ayodo

The term of the East Africa Law Society (EALS) President came to an end on November 15, 2014

after being at the helm for two years.

Mr. James Aggrey Mwamu con-tested for the regional top seat in the elections held during the 2012 Annual General Meeting (AGM) in Kampala, Uganda.

Mr. Mwamu who is also a long serving Council Member at the Law Society of Kenya (LSK) has no regrets for exiting office after a fruitful regime.

“I thank my colleagues who trusted in my ability and voted for me to head this great regional in-stitution that I have been very pas-sionate about,” Mr. Mwamu says.

Mr. Mwamu says that he came on board with a desire to see the growth of the regional lawyers’ body in both size and position.

“The past two years have been a hive of activity with the EALS growing from strength to strength and I am grateful to members of the EALS for their unwavering sup-port,” he says.

According to the outgoing President, among the major suc-

cesses during his regime is the ability to conclude the process of amending the EALS Memorandum and Articles of Association.

“The process was begun by my predecessor (Dr. Wilbert Kapinga) before we took the baton to the fin-ish line,” Mr. Mwamu says.

The changes that were ushered in by the amendment process set the EALS on a firm footing through incorporation of best corporate governance practices.

“We managed to accommodate the varied nature of the legal sec-tor stakeholders seeking affiliation with the EALS,” Mr. Mwamu says.

Other notable successes in-clude providing for online and other electronic proceedings and meetings for the Society and in-tegrating gender equity within the EALS administrative and policy in-stitutional frameworks.

Following the conclusion of the MEMARTS, EALS also instituted Rules of Procedure for Conducting EALS Meetings.

“The Guidelines on Nomination of Persons to serve on the EALS Executive Council as well as sus-pension of a Council Member who misses three or more Council meet-ings,” he says.


The

humour submissions

litigation rib crackersThere is a public perception that lawyers sleep in their dark designer suits and do not laugh at jokes. Noteworthy is also the hue and cry the stud adorned by the Chief Justice caused

By cHris sanKara otieno*

The general per-ception that lay-men have about lawyers is that

they lack a social life and have no sense of humor. That they eat, sleep and walk law, are always seri-ous and their conversa-tions begin and end with a quote from a section of the law. Noteworthy is the hue and cry caused by the harmless ‘stud’ adorned by the Chief Justice (CJ) Dr. Willy Mutunga. Some even imagine that we sleep in our dark coloured designer suits! In fact it is said that lawyers do not laugh at lawyer jokes and the populace do not think that they are jokes.

Humor is no laugh-ing matter in litigation because it affects being liked and believed ...or not. In the courtroom (or your own home), it is hard to believe someone you do not like. Since credibil-ity depends on likeability, and humor enhances like-ability (or detracts if used inappropriately), it makes sense to take a serious look at humor in litiga-tion.

In a recent high-profile murder case, defense coun-

sel opened cross-examina-tion of the prosecution’s star witness by saying, “No questions, your honor.” But then he quickly added, “just kidding.” The court-room filled with laughter. Everyone had anticipated a character assassination instead. The legal levity not only eased tensions, but softened the blow of the attack to come.

Humor makes attor-neys less “lawyerly,” more human and animated, rather than talking heads. Appropriate humor also provides other important benefits, besides likeabil-ity. Within judicial systems where jurors play an inte-gral part in the outcome of the case, humor allows jurors to see you smile, relaxes them, disarms the

authoritarian setting of a courtroom, makes you more accessible, makes jurors want to listen to you, creates bonding (if it uses a common de-nominator or is universal), helps jurors identify with you, enhances jurors’ at-tention and memory, and lightens things up when jurors feel oppressed or stressed. Evidence of ju-

rors’ need for comic relief comes from the fact that they often come up with playful nicknames for key players in the case, includ-ing counsel, as revealed in post-trial jury interviews.

Here are a few one liners; 1. I never forget a face,

but in your case, I would be glad to make an exception.

2. The last thing I want to do is hurt you. But it is still on the list.

3. Life is unsure; always eat your dessert first.

4. Marriage is one of the chief causes of divorce.

5. Smile, it makes people wonder what you are thinking.

6. If I agreed with you, we would both be wrong.

7. I did not say it was your fault, I said I was blam-ing you.

8. Never try to teach a pig to sing. It wastes your time and annoys the pig.

9. Never interrupt your enemy when he is mak-ing a mistake.

10. History will be kind to me for I intend to write it.

Sometimes the most humorous moments are acted out in court. For in-stance, take a recent case at the City Hall Law Courts when a man was presented for plea taking in a charge of being drunk and disorderly.

The Magistrate said to him,” You have been brought here for drink-ing....’’ to which the accused promptly replied,’’ ahsante sana Boss, mimi nipatie Tusker baridi na tafadhali nisaidie na kiti, sipendi ku-nywa kama nimesimama.’’ (Thank you very much Sir. Give me a cold Tusker (beer) and kindly help me with a seat – I do not like drinking while standing)

Separately, in a US courtroom, a man is facing murder charges wherein the prosecution proceeds to present an extremely damning case against him.

Everyone is eager to hear how the defense will get out of that one. His lawyer gets up and says,’’ mem-bers of the jury I put to you that the alleged deceased person is indeed alive and well. In fact he is about to walk through that door in the next two seconds.’’ All the jurors turn around to look at the door but nobody walks in. The de-fense lawyer then calmly adds ‘’the fact that you all turned to look expect-ing to see the deceased person walk through that door shows that you have reasonable doubt and as such you must acquit my client.’’ The jury recesses to deliberate on the case and come back in a record two minutes and declared that the accused is indeed

guilty. The defense lawyer shoots up and questions the finding to which the head Juror replies. ’’We did turn to look but your cli-ent did not.’’

Be that as it may, humor is sidelined when in their quest to dispense justice to clientele, lawyers may find themselves at the risk of almost being named as a party to the suit. A re-cent scenario arose when a disgruntled lady sought legal counsel for purposes of defending divorce pro-ceedings brought against her by her husband, one of the grounds being adul-tery/infidelity. The smartly dressed and curvaceous lady switched her charm on the unsuspecting lawyer who zealously proceeded to represent his client. He

fortunately snapped out of the spell just in time when it downed on him that so far he had not received a single penny in legal fees despite the matter having reached an advanced stage - payment in kind is a no-no for any astute lawyer but I digress.

Now looking at ‘our very own’ in more ways than one, did you know that request-ing President Obama’s birth certificate may be illegal!? Apparently, if a proposed law in Hawaii was to get passed, requesting a copy of the Barack Obama’s birth certificate would be ig-nored. The Hawaiian State House Judiciary Committee heard a Bill permitting Government officials to ig-nore people who won’t give up.

The States got 20-50 requests for a copy of his birth certificate a month! The law would allow the Government workers to ig-nore requests from repeat requesters. If the law was passed, the State Office of Information Practices could declare an individual a “vex-atious requester” and re-strict rights to Government records for two years.

Many people did not believe that he was born in that country and there-fore was ineligible to be President! Any heads up on whether this law ever came to be?

Laughter is timeless, imagination has no age and dreams are forever.

*Mr. Otieno is an Asso-ciate at Otieno Arum & Company Advocates

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sports

Justice Cup Tournament spreads wings

NAIroBI, KenyA: The competitive Justice Cup Tournament has grown in leaps and bounds

over the past sixteen years.Over the past two years, the

annual one-day football tourna-ment has attracted at least 40 teams drawn from several stake-holders.

The common participants mainly include stakeholders in the administration of justice, Parliamentarians, human rights organizations and mainstream media houses.

A carnival mood engulfs the Parklands Sports Club during the tourney as Dj Tom of Beatclef Entertainment plays music while children are entertained with a titanic bouncing castle.

This year, Chief Registrar of the Judiciary Ms. Ann Amadi hailed the tournament for bring-ing together major players in the administration of justice.

“The Justice Cup has proved to be a unifying sport amongst us and we thank the Law Society of Kenya (LSK) and all spon-sors for making it a reality,” Ms. Amadi said.

Approximately 40 teams par-ticipated before Igeria & Ngugi Advocates clinched the prestigious trophy after edging out Mwadumbo, Amol and Ngome Advocates 5-4 on post-match penalties.

The finalists played to an en-tertaining barren draw at regular time before spot kicks decided the champions at the Parklands Sports Club in Nairobi.

Igeria & Ngugi Advocates and Mwadumbo, Amol and Ngome Advocates romped into the finals after beating The Law Society of Kenya (LSK) Secretariat and

Muthaura Mugambi Ayugi & Njonjo Advocates in the semi-finals.

LSK Secretariat Head Coach/Captain Mr. Philip Ouma said that his team played good foot-ball and will polish up on minor errors next season.

“We played 10 matches and won six, drew two and lost two including one-nil at the semi-fi-nals…we will be there next year,” Mr. Ouma said.

The LSK Secretariat displayed entertaining football following dribbling and scoring skills by Mr. John Kisia, Titus Gitu and Levi Munyeri.

The victors burst into song and dance and blew vuvuzelas when Chief Registrar of the Judiciary Ms. Ann Amadi presented then with the winner’s trophy.

Ms. Amadi had earlier kicked off the 16th annual football tour-ney under the theme Security, Rights & Justice.

Muthaura Mugambi Ayugi & Njonjo Advocates were second runners up after beating the LSK Secretariat 1-0 in an entertaining match.

Kenya Law won the LSK Plate while Sichangi Advocates lifted the Bowl Plate as Mr. Collins Daniel of Mwadumbo, Amol and Ngome Advocates and Vivian Akinyi of Kenya Law were the best male and female players respectively.

The VIPs who presented awards to the victors included Senator Ms. Judith Sijeny, LSK Chairman Mr. Eric Mutua and Ombudsman Mr. Otiende Amolo.

The other award presenters were Chief of Staff of the Judiciary Mr. Duncan Okello, LSK Council Members Mr. Godfrey Kitiwa, Ms. Jennifer Shamallah, Ms. Caroline Khasoa and Secretary/CEO Mr. Apollo Mboya.

Last year, Prof Tom Ojienda & Associates clinched the cov-eted trophy after trouncing Mwadumbo, Amol and Company Advocates 4-3 in post-match pen-alties after drawing 1-1 in regular time at the Parklands Sports Club.

Lethal striker Jacob Mulee scored the winning penalty for Prof Tom Ojienda & Associates sending the victors into wild cel-ebrations.

Kituo Cha Sheria emerged third in the annual football tour-nament after trouncing Law Society of Kenya (LSK) Sacco 2-0 at the play-offs.

Kenya School of Law won the Plate, Best Player Dam Weche (LSK Sacco), Best Female Player Mural Auma (Mwadumbo Amol & Company Advocates), Spirit Award (The Senate) and Recognition Award (Bunge FC).

Chief Registrar of the Judiciary Ms. Ann Amadi presents the Justice Cup to Mr. Benson Ngugi a patrner at Igeria & Ngugi Advocates

Legislative drafting: are lawyers the best down the pike since King solomon?My concern is whether advocates are taking up work out of their practice area because they cannot turn down a good brief

By jacQueline inGutiaH- onyanGo*

Since the establishment of County Governments, lawyers have strate-gically placed themselves to benefit from devolved opportunities.

Opening of offices across the counties, cre-ation of impressive letter heads and websites are among the few visible changes that have witnessed in the past year. A key function of the County Assembly under Article 185 (1) and (2) of the Constitution of Kenya 2010 is to enact county legislation and many lawyers have turned draft-ers overnight to tap into this opportunity.

I have had an opportunity to scrutinize vari-ous county laws across the counties and some of the contents of the proposed and enacted laws left me baffled. Certain county legisla-tions disregard the provisions of the Fourth Schedule of the Constitution on functions of the National and County Governments.

For instance, most counties have the Bursary Fund Act, the question is will the bursary funds go towards the functions of the county govern-ments on education i.e. assisting the needy in early childhood education and village polytech-nics? Whilst the Bursary Fund for secondary and tertiary education may be a popular idea at the grassroots, is it a function of the county government? Further, counties are developing laws on expenditures and these laws go further to create offices that require running costs. Few counties have laws on service delivery and rev-enue collection.

There are counties that replicate laws from other counties without analyzing the unique fea-tures and needs of the county; I have noted that replicating of Bills without changing the county names is not a peculiar occurrence.

Lastly, legality of certain laws is question-able for example a certain county law defines a tourist to include ‘… a person who visits a rela-tive…’ How authentic is this law and can it be enforced? The most unfortunate thing is that

behind these laws, a lawyer was involved at the drafting stage. My concern is; are lawyers taking up work that is out of their practice area because they cannot turn down a good brief?

Legislative drafting is an important and rig-orous legal task and the drafters of the County Government Act recognized this by providing under Section 5 (3) for county governments to seek assistance from Kenya Law Reform Commission in the development or reform of county legislation.

However, the provision is not mandatory and many county governments have chosen to ignore it. I do not presume to ascribe to myself any superior expertise in legislative drafting, but it occurs to me that a drafter is required to understand the mischief intended to be cured by the proposed legislation or amendment to existing legislation, or at the very least the goal intended to be achieved by the said enactment and to analyze the same vis’ a vis’ existing poli-

cies and legislation (including the Constitution). A drafter should not follow instructions

blindly and if a suggested approach is wrong the drafter needs to say so. The general prin-ciples of quality legislation include clarity, end user, uniformity, simple sentence, consistency, gender neutrality, translations and organiza-tion must also be adhered to.

Drafting requires wisdom and King Solomon is considered as the wisest man to have ever walked the surface of the world. The Kenya School of Law and Training and Consulting Associates (TCA) offer trainings on legislative drafting where budding drafters can build their skills and capacities. By providing quality service at the county government level, lawyers can confidently say they are the best to come down the pike since King Solomon.

*Ms. Ingutiah-Onyango is the Federation of Women Lawyers (FIDA) Senior Legal Counsel based in Kisumu.

dEvolution

Ms. Jacqueline Ingutiah-Onyango

Law Society of Kenya

Agloballyrespectedbarassociation,fostering advocacy and advancing

thejustruleoflaw

Toempowerandprovidequalityservicestoourmembers,

promote good governance and thejustruleoflaw

n To maintain and improve the standards of conduct and learning of the legal profession in Kenya;

n Tofacilitatetheacquisitionoflegalknowledgebymembersofthelegalprofessionandothers;

n To assist the Government and the courts inallmattersaffectinglegislationandtheadministrationandpracticeofthelawinKenya;

nTorepresent,protectandassistmembersofthe legal profession in Kenya in respect of conditionsofpracticeandotherwise;

nToprotectandassistthepublicinKenyainallmatters touching, ancillary or incidental to the law;

MISSION

www.lsk.or.ke

VISION

OBJECTIVES