1985319914400UNIVERSITY OF NAIROBI
BACHELOR OF LAW
COURT CLINICAL ATTACHMENT REPORT
KIHUMBA COLLETA WARINGA
Milimani Commercial Courts (9th April to 4th May 2018)
Presiding Magistrate: Hon E.A. Nyaloti (MRS.) C.M- (COURT NO.205)
Milimani Law Courts (7th May to 31st May 2018)
Presiding Magistrate: Hon M.W. Mutuku (MS) S.P.M- (COURT NO.6)
DATE OF SUBMISSION: 5th July 2018
Question 1- Narrative Assignment………………………………………………………………4
Siko Douglas Mtingae v Lochab Transport Limited………………………………4
RKM v KNK……………………………………………………………………….5
Margaret Nyambura Njoroge v Phylis Nyambura Nyingi…………………………6
Kiago General Suppliers Ltd v Nairobi City County………………………………8
VWN v PAO……………………………………………………………………….9
Republic v Mohammed Somo…………………………………………………….10
Republic v Chris Jallah…………………………………………………………..12
Republic v George Anyiko Odema……………………………………………….13
Republic v Amaremba Cleopas & 5 others………………………………………14
Republic v Jared Maoro Mayaba…………………………………………………15
Question 2- Reflective/analytical assignment…………………………………………………17
A) Part A……………………………………………………………………………………17
B) Part C……………………………………………………………………………………24
Nature and quality of legal representation/lack of representation………………..26
The Court Clinical Attachment Programme is an intensive eight-week programme that places law students with Kenyan courts. It provides undergraduate law students with the opportunity to immerse themselves into the legal field and get first-hand experience of how the Kenyan legal system operates and under the tutelage of actual legal practitioners.
I was able to carry out my clinical attachment at the Milimani Commercial and Milimani Law Courts in Nairobi where I observed civil and criminal cases respectively. At Milimani Commercial Courts, where I was stationed from 9th April to 4th May 2018, I was pleased to be under the guidance of Chief Magistrate Hon. E.A.Nyaloti (MRS). Similarly at Milimani Law Courts, I was under the guidance of Senior Principal Magistrate Hon. M.W.Mutuku (M.S) from the 7th of May to the 31st of May 2018.
This report that I submit for evaluation contains an account of my time there. It is partitioned into two questions. The first is the narrative question. This includes summaries of selected civil and criminal cases that I was able to observe. The second question involves a reflective analysis of the nature of the Kenyan legal system which includes an analysis of the state of legal representation and procedural fairness. Not to mention, observations and analysis of the roles of the court room players such as the lawyers, witnesses, magistrates and parties.
QUESTION 1- NARRATIVE ASSIGNMENT
A) CIVIL CASES
Parties: Siko Douglas Mtingae v Lochab Transport Limited
Case number: 3933
Date of sitting: 24th April 2018
Presiding magistrate: Hon. E.A. Nyaloti (MRS.) C.M
This was a civil proceeding involving the tort of negligence that was currently in the hearing stage as the plaintiff was presenting his case. The parties had come to court because the plaintiff had filed a negligence claim against the defendant. The plaintiff alleged that while working as an employee for the defendant, he got injured and in the process sustained severe injuries that left him incapacitated. The plaintiff alleged that the incident was as a result of negligence on the part of the defendant who was contractually obligated to ensure the safety of the plaintiff. The plaintiff was seeking general and special damages.
Evidence was adduced in many forms. The first witness who introduced himself as the caretaker for the plaintiff gave testimony saying that he had taken up the role of caring for the invalid defendant on account of his onset disability for a salary of Kshs 30,000. Consequently, an agreement was also produced as evidence further proving the same. The second witness was an expert witness brought in by the defence. He introduced himself as a doctor and had brought a doctor’s report disputing the severity of the incapacity previously claimed by the plaintiff. The doctor said that the plaintiff was only physically handicap but was otherwise mentally coherent. In regards to the first witness I noticed that he had not produced any evidence to prove that he had been receiving the salary. He had failed to adduce any bank statements or even M-pesa transaction messages.
The legal issues at this stage were whether the defendant owed the plaintiff a duty of care and the breach of that duty. The third legal issue was whether the plaintiff had suffered any injury as a result of the negligence. The issues were presented in the form of the evidence that was stated above. Unfortunately, there were no resolutions to the issues. However, the lawyer for the defendant had raised the objection in relation to a third witness that the plaintiff was intending to call on the stand. The defence claimed that the witness was compromised as he had previously agreed to give evidence for the defence. The magistrate did not make a ruling at that moment but said that she would research the matter before deciding as she had never come across it before.
The proceedings were fair and just as the plaintiff was given ample time to present their case before a competent court. However, it should be noted that this case was an anomaly as it was unprocedural. The defendant was permitted by the magistrate to call the doctor as an expert witness despite the fact that the plaintiff had not concluded his case. The reason or this, was that the magistrate wanted to ensure that the trial went on in an expeditious manner as possible as the doctor would not have been able to testify in the future and that would prolong the case. As such, I do did not find that this affected the fairness of the case.
Another relevant observation was that this case involved a witness who was previously claimed by both parties. The magistrate herself was surprised by the same as stated in court. Finally, the magistrate clearly clarified to the court the role of expert witnesses as they are only sought to furnish the court with information outside the court’s knowledge.
Parties: RKM v KNK
Case number: 252
Date of sitting: 16th April 2018
Presiding magistrate: Hon. E.A. Nyaloti (MRS.) C.M
This case was a divorce proceeding and it was in the application stage. This was an application inter-partes where the applicant was praying for a protection order to be issued against the respondent thereby preventing him from inflicting any physical or psychological violence on the applicant and their four children, who were all minors. The parties had come to court because the applicant had alleged that the respondent though separated awaiting divorce had been inflicting physical harm on her and their children while also hurling disparaging insults. The applicant contended that his actions had damaged the children psychologically.
The applicant acting in person adduced evidence in the form of oral testimony detailing the instances of abuse at the hands of the respondent. She also produced documentary evidence in the form of original birth certificates for the four children. I found the oral testimony by the applicant to be very detailed as it painted a very elaborate picture of the abuse. As for the birth certificates, they were compliant with the evidence act provision on the introduction of documentary evidence. The defendant/respondent also gave an oral statement in defence.
The legal issue in this case was whether the respondent had acted in a manner that would prompt a protection order against him. The issues were presented in the form of oral testimony. There was a resolution in this case as the magistrate ruled in the favor of the applicant and the protection order was granted. The respondent was further ordered to move out of the matrimonial home that he shared with his wife and their children.
The proceedings met my expectations of fairness and justice. In addition to following court procedure, I found that the magistrate was just in granting the order as the applicant seemed very desperate. She testified that had tried to resolve the issue outside court by talking to family members, counsellors and had even sought the help of the police at one point but had no success. It should be noted that both parties in this case had no legal representation and therefore acted in person.
Parties: Margaret Nyambura Njoroge v Phylis Nyambura Nyingi
Case number: 2142
Date of sitting: 11th April and 3rd May 2018
Presiding magistrate: Hon. E.A. Nyaloti (MRS.) C.M
This is a civil proceeding that was in the hearing stage as the prosecution was presenting its case on both dates. The parties had come to court because the plaintiff had filed a claim against the defendant for damages amounting to Kshs 689,760 alleging that the defendant had breached a contractual agreement between the parties. It follows that there was an agreement for the sale of a plot in Juja for Kshs 5,160,000 where the plaintiff was the purchaser and the defendant, the vendor. An agreement was drawn up for the same. However, the plaintiff finalized the payments before the due date which was 31st October 2011. A further agreement was drawn up to allow the defendant to stay in the house upto October because of this. The plaintiff however alleged that the defendant left the premises on 23rd August without informing the plaintiff and had apparently removed all the fittings, electrical and plumbing equipment, an action that occasioned the breach of the agreement. The plaintiff was therefore forced to replace the items at her own costs as the defendant had refused to compensate the plaintiff.
Evidence was produced solely on the 11th of April. On this day, the plaintiff adduced documentary evidence in the form two sale agreements, one dated 2010 and 27th May 2011, both in their original form. Receipts indicating the replaced items were also produced. Similarly, video footage demonstrating the state of the house before after the house was destroyed was played in court. In so far as it relates to the video footage, the medium that was used to play it was inefficient as the screen was very small and the whole court could not observe and most importantly, the defendant. The defence team was forced to stand close to the screen for better viewing. This made for a very inconvenient viewing session.
The legal issues for this case were first to determine whether the defendant had removed the apparatus claimed by the plaintiff and the pecuniary value of that action. These were presented in the form of oral testimony by the plaintiff and also the introduction of the numerous documentary evidence as stated earlier. At this stage, there were no resolutions to the legal issues. However, the lawyer for the defendant raised an objection regarding the production of the valuation report. The lawyer stated that the report could only be adduced by the maker who was not present in court at the time. The magistrate ruled in favor of the defendant and the document was marked for identification.
The proceedings in this case met the criteria of fairness as required by the constitution. I was however surprised when a spectator in the court abruptly interjected mid cross-examination of the plaintiff. She was promptly reprimanded by the magistrate for it. It should be noted that the defence concluded cross-examination of the plaintiff on 3rd May 2018. The plaintiff who was also the complainant was the sole witness for this case.
Parties: Kiago General Suppliers Ltd v Nairobi City County
Case number: 1726
Date of sitting: 25th April and 4th May 2018
Presiding magistrate: Hon. E.A. Nyaloti (MRS.) C.M
This was a civil proceeding. The parties had come to court as the plaintiff, a registered company, had won a tender advertised by the defendant for a work contract. The plaintiff alleged that they had performed the work amounting to Kshs 2,804,889.89 but the defendant had since neglected to pay. In turn, the plaintiff was claiming damages amounting to Kshs 6,234,829.65 as per the interest that accrued on the initial amount. This case had already proceeded for hearing and the parties had previously recorded a consent. This consent stated that the defendants had accepted culpability and agreed to pay the defendant the damages in full. As a result, the garnishee deposited the funds into the account of the firm of Ondabu & advocates, who were appearing for the plaintiff. However, the consent was placed aside by the magistrate as she suspected foul play. The defendant who was the Nairobi County Government duly established by the Constitution of Kenya 2010 alleged that the lawyer (Mr. Momanyi) who had previously recorded a consent had wrongly misrepresented himself as the representative for the county government.
It should be noted that the case was listed as applications on both dates. However, the application was only heard on the first date as the latter was merely a mention to confirm observance of the orders. On the 25th of April, the magistrate heard an inter-partes hearing for an application by the defendant/applicant. The magistrate allowed for the application and ordered for the law firm of Ondabu Advocates who were appearing for the plaintiff/respondent to deposit Kshs 6,234,829.65 in court and that the issue of misrepresentation be taken up by the police. No evidence was introduced on both of these dates.
The legal issues that were presented on the 25th day of April were whether the advocate for the defendant had misrepresented the court when recording the case and whether the money should be repatriated to the defendants on account of that misrepresentation. On this day, there was a clear resolution as the magistrate allowed all the prayers that the defendant sought in the application.
The proceedings was fair and the parties were allowed to fully express themselves. However, I was surprised by the outcome of the case and so was the magistrate. The magistrate expressed her disappointment as this was a serious issue involving public interest and the parties while recording the consent failed to involve the county government. The magistrate contended that the advocates for the case intended to mislead the court. What ensued was a debate between the magistrate and the advocate for the plaintiff who thought that the court ought not to interfere with personal professional matters involving advocates. Still the advocate was respectful in his delivery.
This case was a matter of public interest and it was heard with the utmost expediency. This was also evidenced by the magistrate’s remarks as she kept on reiterating the same in court. She maintained that it was the duty of the court to maintain the integrity of the constitution and to conserve public funds.
Parties: VWN v PAO
Case number: 735
Date of sitting: 18th April 2018
Presiding magistrate: Hon. E.A. Nyaloti (MRS.) C.M
This case was a divorce proceeding and it was in the hearing stage. It follows that the plaintiff had filed this petition dated 21st October 2016 seeking to dissolve the marriage between him and the respondent. The petitioner alleged cruelty and desertion as the grounds for dissolution. He also claimed that the respondent had treated him with exceptional depravity. The parties were married under customary law and were blessed with two issues, one of whom was birthed before the marriage. However the respondent had since relocated to the United States of America and had no contact with the petitioner for over three years and was living with one of the children.
Evidence was adduced in the form of an oral testimony by the petitioner. He had also produced documentary evidence in the form of birth certificates for both children. I found the testimony by the petitioner to be very poignant and detailed. He laid out the events in a well chronological manner. In addition, the documentary evidence was compliant with the evidence act as both were in their original form.
The legal issue for this case was whether the petitioner had proved cruelty and desertion to the specific standard of proof to warrant the magistrate to grant the divorce. This was presented in the in the form of the petition and also the petitioner’s testimony. At this stage, there were no resolutions to the issues.
I found these proceedings to be fair and just as there were no anomalies in the legal procedure and the overall trial process. It should be noted that this petition remained undefended and the petitioner and his lawyer were the only parties who were present in court.
B) CRIMINAL CASES
Parties: Republic v Mohammed Somo
Case number: MCCR 601
Date of sitting: 9th and 28th May 2018
Presiding magistrate: Hon M.W. Mutuku (MS) S.P.M
This was a criminal proceeding that was in the hearing stage as the prosecution was presenting its case. The matter was listed as part-heard in the cause list. The defendant had been charged with the offence of trafficking drugs contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act no. 4 of 1994. The defendant had been brought to court because he was suspected to be the owner of a parcel recovered from City Square Post Office on the 14th of November 2016. The parcel had been found to contain assorted toys and an aluminum foil containing a greyish substance which was later discovered to be 293.9 grams of ecstasy.
Evidence that was introduced on 9th May included a seizure notice, the parcel, and a certificate of weighing for the greyish substance. The greyish substance was introduced on the 28th of May when the Investigating Officer (I.O.) was recalled. The evidence was well preserved as the substance was enclosed in a clear plastic box. The seizure notice and certificate were also produced in their original form.
I found that there were three legal issues. First, whether the defendant was the suspected owner of the parcel. Second, the identity of the greyish substance. The third issue was whether the amount of substance recovered constituted the crime of trafficking that the defendant was charged with. The second issue arose on the second hearing date. The issues were presented during the proceedings through the testimony of the I.O and the government chemist analyst. On both dates the prosecution presented the case against the defendant as the legal owner of the banned substance. During cross-examination of the I.O, the lawyer for the defendant probed the witness about the recovery process of the parcel. The I.O revealed that he had not adduced evidence pointing to the defendant as the owner of the parcel. At this stage there were no resolutions to the issues.
The prosecutor did however raise an objection to the defence referral to a document previously admitted into evidence during cross-examination of the I.O. The magistrate cautioned the defence from cross-examining the I.O on other exhibits as the purpose of the recall was only to adduce the greyish substance.
The proceedings were fair and just. The defendant was appropriately represented and was furnished with all the evidence that the prosecution was intending to rely on. The prosecution was also given ample time to present its case with no interruptions. The prosecution closed its case on the 28th of May. The case was listed to proceed on the 4th of June.
Parties: Republic v Chris Jallah
Case number: MCCR 847
Date of sitting: 22nd May 2018
Presiding magistrate: Hon M.W. Mutuku (MS) S.P.M
This was a criminal proceeding that was listed as a fresh hearing. The defendant was brought to court on the charge of being unlawfully in the country contrary to Section 53 (1) (j) of the Kenya Citizenship and Immigration Act 2011. The defendant was found roaming along Kirinyaga Road when he was confronted by the police. The police discovered that he was a Liberian native who was operating in the country with an expired passport and visa. He was then promptly arrested and escorted to Central Police Station and arraigned in court.
The defendant’s passport and letter from Immigration confirming the charge were adduced as evidence. Both documents were produced in their original form.
The legal issue for this case was to decipher whether the defendant was operating in the country with an expired visa. This case did not however proceed for hearing as the defendant pleaded guilty to the charges and the issue was therefore resolved. Afterwards, the prosecutor read the statement of facts for the case which were confirmed to be true by the defendant. The magistrate promptly delivered a punishment of Kshs 30,000 fine in lieu of one month in prison after which the defendant would be repatriated to Liberia.
I found the proceedings to be fair as the magistrate allowed the defendant to explain his case before delivering the judgement. The fine was fair and reasonable as the magistrate considered the money that the defendant had in his person before issuing the fine. Also the proceedings were conducted in English; a language that he was fully coherent in. It should be noted that the defendant in this case appeared in person.
Parties: Republic v George Anyiko Odema
Case number: MCCR 1455
Date of sitting: 10th May 2018
Presiding magistrate: Hon M.W. Mutuku (MS) S.P.M
This was a criminal proceeding that was in the hearing stage as the prosecution was presenting its case. The defendant was brought to court on a charge of drug trafficking, an offence contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act no. 4 of 1994. It follows that a seizure was conducted on the 19th of September 2013 at Westlands Mkoko Apartments where a whitish substance suspected to be narcotics along with 44,000 U.S Dollars (USD) were recovered. The substance was forwarded to the government chemist where it was confirmed to be narcotics. The suspect was appropriately arrested and arraigned in court.
Evidence that were introduced in this case included the whitish substance confirmed to be narcotics, certificate of sampling and the certificate of weighing for the said substance. The money recovered at the scene was also adduced as evidence. This included 44,000 USD in 100 dollar denominations of groups of 42,000 and 2,000 USD. The substance was well preserved in a clear plastic container and was in clear view of the whole court. The certificates were also produced in their original form. The prosecution however failed to produce certificates confirming the authenticity of the 100 dollar notes. It follows that before foreign currency is admitted as evidence, then it has to be confirmed to true. The magistrate ordered for this to be done.
The legal issues at this stage were the identity of the whitish substance and the culpability of the defendant. These were presented as such during the proceedings as the prosecution adduced evidence in the form of weighing certificates and real evidence in the form of the substance in an effort to prove that it was indeed a narcotic substance. This was also confirmed to be the case as evidenced by the testimony of the I.O, Chief Inspector of Police Ongao. Sadly at this stage, there were no resolutions to the issues. The advocate for the defendant did however raise an objection disputing the amount that the prosecutor alleged was recovered from Mkoko Apartments. Apparently 2,000 dollars was already released to the defendant and yet the Prosecution had in their person the full amount of 44,000 dollars. The magistrate told the advocate that he should reserve that matter for cross- examination as it was the case of the prosecution that they had 44,000 dollars.
This case was conducted in a very fair manner as there were no anomalies to the procedure or the proceedings. There were no other relevant observations for this case. The prosecution was given another date in June to close its case.
Parties: Republic v Amaremba Cleopas ; 5 others
Case number: MCCR 2047
Date of sitting: 30th May 2018
Presiding magistrate: Hon M.W. Mutuku (MS) S.P.M
This was a criminal proceeding that was in the hearing stage. The matter was listed as a fresh hearing. The parties had come to court because the defendants were charged with the offence of breaking and entering contrary to Section 306 (a) of the Penal Code. The defendants were accused of breaking and entering into a warehouse on 11th December 2016 and stealing building supplies that included roofing tiles and accessories such as trays, box cutters and nails. They were also thought to have stolen ceramic tiles. All of which were purchased from China for the construction of a house. The stolen goods were recovered in Machakos County in a school and were traced back to the defendants who were immediately arrested and arraigned in court.
The prosecution introduced paid invoices for the roofing accessories and ceramic tiles as evidence. Two audit reports made on the 14th and 20th December 2016 showcasing the items that were stolen were also adduced as evidence. James Njoroge, who was the project manager, also gave an oral testimony detailing the process from when the goods were first bought to the time that they were stolen. In it, he narrated that he got wind of the incident after the foreman contacted him on 11th December. The prosecution also adduced real evidence of the roofing accessories and ceramic tiles that were recovered in Machakos. Photographs of the same were also admitted as evidence. The invoices and audit reports were all produced in their original forms and the testimony by the project manager was very elaborate and concise.
The legal issue at this stage was whether the items recovered were the same ones that were allegedly stolen at the complainant’s store. This was presented in the form of invoices and audit reports that sought to establish the true owner of the goods. The testimony by the project manager also sought to prove the same as he was the one who had previously purchased those goods from China and was therefore thought to be well acquainted with them. There were no resolutions at this stage.
In reference to the proceedings, I found no discrepancies in the manner in which they were conducted and therefore met the threshold of fairness that is required by the law. It should be noted that in this case, all but the first defendant had legal representation present. The case was set to continue on the 15th of August.
Parties: Republic v Jared Maoro Mayaba
Case number: MCCR 1386
Date of sitting: 30th May 2018
Presiding magistrate: Hon M.W. Mutuku (MS) S.P.M
This was a criminal proceeding that was in the hearing stage. The matter was listed as a fresh hearing and so the prosecution was presenting its case against the defendant. The parties had come to court as the defendant was charged with the offence of stealing by servant, an offence contrary to Section 268(1) as read with Section 281 of the Penal Code. It was alleged that the defendant in his capacity as a manager for Fen Sacco misappropriated over three million shillings of the Sacco’s money. The prosecution alleged that the defendant had been pocketing the cash from rental properties while still recording them in the cash book. He would also falsify cheques and then withdraw money that was meant for members who had taken out loans. The prosecution also alleged that the defendant did admit to stealing the money when confronted by the chairman of the Sacco on two different occasions and had even drafted and signed letters to that effect on both dates. However after the chairman realized the gravity of the crime, he reported the matter to the police and the accused was arrested and arraigned in court.
Several pieces of evidence were introduced by the prosecution at this stage. These included a certificate of registration for the Sacco dated 31st May 2011, oral testimony by the chairman and the treasurer as well as a letter addressed to the defendant dated 18th July 2015 confirming his employment. Two letters dated 15th and 17th August were also adduced as evidence where Jared expressly admits to having stolen the money. An audit was also produced confirming that there was a deficit in the Sacco’s account. Finally, a cheque of Kshs 300,000 dated 12th July which the defendant had allegedly falsified was also admitted into evidence. While they had produced the audit report, the prosecution failed to adduce any evidence purporting to show that the Sacco had indeed received the claimed amount. This includes evidence to show the existence of the alleged rental properties. Similarly, no bank statements were produced.
The legal issues at this stage were whether money had been misappropriated and whether the culprit was the defendant. These were presented through all the evidence adduced by the prosecution as well as the cross-examination of both witnesses by the defendant’s advocate. There were no resolutions to the issues at this stage.
These proceedings were fair and just as there were no discrepancies to the law and the legal procedure used in this case.
QUESTION 2-REFLECTIVE/ANALYTICAL ASSIGNMENT
Keep in mind, watch, listen, think and observe – is court different from what you expected? How? Does seeing it up-close change your perceptions? What are your impression of lawyers, the judge/magistrate, the parties to the case and witnesses? Prepare a thoughtful essay about your observations. How has this changed/reinforced your preconceptions, how has it affected you? Has it changed your view of the legal system? How does the reality compare with your theoretical image of the court system?
I have always thought of the law and the legal system in general as a body of rules and the court and its accents as the enforcers who are under strict directions to follow the law religiously with no deviations. After all, the law must remain impervious to external influences such as the society and politics. Procedures and court rules must be observed completely. Judges and magistrates must not be predisposed to human emotions and lawyers are in a constant battle with another. I saw it as kind of an albatross, such that lawyers were always required to see their colleagues as adversaries and their mission was to defeat. As a result of these factors among other preconceptions, I found the legal system to be rigid and somewhat intimidating. However after witnessing the legal system in action I was able to go back from some of these preconceptions while others were reinforced.
In temperament, I found that magistrates and judges are mild mannered in court. They addressed the court very calmly and concisely. When delivering judgements, rulings or any other court orders, they were deliberate and assertive in their speech. When talking to the parties, they were sure to be clear and most importantly audible in their delivery. When hearing cases, I found that the magistrates seldom expressed emotions save for a grin here and there. They resort to writing down the proceedings instead, with their attention alternating between listening to the parties and quickly jotting down the information.
In so far as it relates to the defendants in criminal cases or the plaintiffs and defendants in civil case, I observed that there is little to no interaction with the magistrate. I found that the magistrate would only personally address the parties in a case if there was a matter that required clarification or other ancillary courtroom matters. That being said I observed that magistrates were well in tuned to the needs of the parties.
An incident that I can recall is when a defendant in a theft case came to take plea in court. The man could barely walk and was limping on one leg, he had a large bruise on the right side of his face as a result of the injuries that he had sustained from a mob who had attacked him. When the court clerk called out his name he staggered onto the front. He began to talk but his speech was unintelligible. The magistrate did not allow the man to take plea and she ordered the police to immediately transfer him to a hospital where he could receive medical assistance. Similarly, on other occasions, the magistrate was very vigilant as she would never allow witnesses or accused persons who seemed incapacitated for any reason to stand trial.
I also observed that the magistrates in civil cases practiced caution before awarding divorce decrees. The Chief Magistrate at several times expressed the reservations of the court in granting divorce decrees before the parties had the chance to explore alternative dispute resolution mediums. She would often advise the parties to seek professional counselling or even consult with their religious leaders. Other times she would suggest counselling from family members such as parents or even village elders. If all else fails she would advise the parties to consult a mediator or an arbitrator.
As for the lawyers, I observed that the magistrates were very cordial and very respectful in their courtroom interactions. This was especially true for more seasoned lawyers who were fondly referred to as “senior counsel” or the honorific “Mr.” or “Mrs.” Magistrates would always let the lawyers argue out their case interjecting and would only interrupt when time ran out. However, this was always communicated in a respectful manner. I found the same to be the case with the criminal law magistrates and prosecutors. Other court officials such as the court clerk and the in-house police officers were also treated with respect.
The magistrates demonstrated an exceptional understanding of the law. At several times the lawyers looked to the magistrates to assist in the direction of the case either by asking the magistrate to advise the next stage of the case or the right procedure to take. I found that the rulings and judgements were very detailed and grounded in the law. The magistrates were keen to highlight the most relevant provisions depending on the case. The magistrates were also very reasonable and transparent when it came to issuing out orders or sentences. The criminal magistrate would give ample time for defendants to explain their case before giving out a sentence. She would take into consideration the economic and personal factors of each accused person. One such instance was in the in the case of expectant mothers. She would regularly substitute jail time for fines or community service.
Procedure was extremely crucial in courts and both magistrates would reprimand lawyers who would try to ignore civil or criminal procedures. One such process was the pre-trial directions and conferences, otherwise known as order 11 of the Civil Procedure Code. However in an effort to deliver the most expedient form of justice, the magistrates would allow parties to adjourn their case for a brief period, during which they would listen to another case before returning to it. This was very common especially in cases where either parties’ witnesses would delay to come to court. At times, the magistrate would allow the adversary party to present their case if postponing the case will cause unnecessary delay. This was the case in Siko Douglas Mtingae v Lochab Transport Limited. In fact, the magistrates in an effort to clear the immense backlog of cases, would give priority to older cases. Not to mention that numerous applications would be heard at the same time. Similarly, magistrates would caution lawyers who would file timeless applications in an effort to delay justice.
I found that the lawyers despite representing adverse parties were surprisingly friendly with another. It was not uncommon to see lawyers who were appearing in the same case engage in a lively discussion before the case. All of which appeared to be very cordial, respectful and endearing. Some would even try and strategize on the case before the magistrate walked in. In court, they would refer to each other in the most fond and courteous manner; always remembering to call the other their “colleague” or “learned friend”.
They were also very helpful to one another. Some would allow their colleagues to present their case before them if they were pressed for time or if one of their witnesses were running late. The more experienced lawyers were especially helpful in guiding the court. Time and again they would offer their assistance to junior lawyers. One incident that I recall is when a visibly rattled female lawyer who had difficulty navigating the cause list was helped by an older female advocate. In this case the magistrate commended the older woman for her selfless and humble act. Some lawyers would also watch brief for their colleagues if they had other pressing matters to attend to. Similarly, I found that lawyers conducted themselves with the utmost decency when addressing the magistrates. They also obeyed courtroom decorum by referring to the magistrates in their full professional capacity. Lawyers and magistrates alike also adhered to the strict dress code prescribed by the Law Society of Kenya.
I observed that parties in civil cases call more witnesses than those in criminal cases. For civil cases, I found that the plaintiff and defendant would call atleast three witnesses to testify. However in criminal cases, defendants especially those who act in person almost always appear solely for their defence. Most of them choose to not call any witnesses.
Hearings that involve witness who cannot speak Kiswahili or English are generally difficult to conduct because of the unavailability of translators. Even when found, there was difficulty in conveying the message to the court and it would make the whole trial tedious and drawn out. This is because the translator would often have to ask questions repeatedly. Not to mention that the translators have the arduous task of conveying the same emotions as the plaintiff or defendant.
I did not observe any instances where a witness would turn hostile or would refuse to answer questions. Most witnesses were able to deliver coherent evidence as they were guided by their own written witness testimonies. From my observations, only competent witnesses were allowed to give evidence. I was not able to observe any cases in which children or mentally incapacitated gave evidence. Generally, the witnesses were able to give sound evidence and were also co-operative during cross-examination.
In criminal cases, I found that majority of the defendants who represented themselves would often act as their own and even sole witness in a case. It should however be noted that the Evidence Act of Kenya does not prescribe for any specific number of witnesses. Similarly, defendants acting in person would also opt to give unsworn evidence and therefore could not be cross- examined. On the other hand, parties in civil cases would often call two or more witnesses. In addition, parties in civil cases would often also choose to give evidence in their own cases.
Parties were generally observant of court orders. Most parties would strive to ensure that they came to court on time. When given judgements and rulings, I observed that there was a general attitude of acceptance as none of them tried to overpower the magistrates. I did not observe any instances in which the defendants in criminal cases absconded the court. That being said, there were a few instances when the parties refused to carry out orders. In one instance, the civil court magistrate had ordered for a car to be availed in court because she had found that the process in which it was auctioned off was not in accordance with the law. However, the car was never produced. I observed that the general attitude of the magistrate to non-observance was that of reluctant acquiescence. The magistrates were not always able to enforce their own orders because of the lack of resources and judicial police power. Often they had to assign the matter to the independent police.
The parties are appropriately served with all case documents. In civil cases, proceedings do not commence until proof of service is established. Similarly, parties are always provided with witness statements and evidence that either party would intend to rely on. Magistrates also ensure that defendants in criminal cases are supplied with witness statements and charge sheets. Parties could also request to be supplied with court proceedings, which could be hand- written or typed.
Other court aspects
I observed that there was large backlog of cases in both of the courts. Some cases were even more than a decade old. This created a huge problem for the parties and especially the prosecutors in criminal cases as some of the witnesses and even the parties themselves ended up passing away before they could appear in court. In other cases, the parties involved would naturally forget about important aspects of a case; a factor that greatly affected the outcome of the case.
One factor that may have contributed to the backlog of these cases is the lack of funds in the judiciary. The court system is severely underfunded and understaffed. The magistrates often end up having to work extremely long hours in order to catch up with the influx of cases. This is further exacerbated by the fact that parties often choose to draw out their cases for a long periods of time through adjournments.
Is court different from what you expected?
My theoretical image of court was primarily reinforced. I found that the Kenyan legal system is very much guided by the law. A fact that not only preserves the rights of the parties but also guarantees fairness and morality. The judges/magistrates as such are thorough and procedural in their application of the law. The parties in the case are given priority in an effort to ensure fairness. As such, the court is sure to supply the parties with all the relevant documents that they may want or need. If need be the court is able to provide for translators. Parties may also request to be supplied with electronic assistance in the form of televisions and microphones. Witnesses who require special attention such as those in witness protection are accorded the utmost privacy. Such cases are usually heard in close quarters and the identities of the witnesses are always preserved.
I was however pleasantly surprised by the overwhelming camaraderie and respect that engulfs the court system. This is demonstrated not only among the lawyers and magistrates but also the parties which include the accused in criminal cases and also the plaintiffs and defendants in criminal cases. In addition, I identified with the humanity that the magistrates demonstrated in their work. I found that although magistrates observe strict observance of the law, they still find a way to connect the humanity in the parties. This was well demonstrated in the manner in which they related and even sympathized with the parties in the cases.
However my time in the courts has introduced me to some of the problems that grapple the judiciary. First and foremost is the lack of funding that I believe is a great hindrance to justice. Not to mention that the courts are severely understaffed; that means that the magistrates, court clerks and even personnel at the court registries have a very heavy workload. This is a great hindrance to justice as this only seeks to prolong the trial process. The third problem is that of legal representation. Defendants who are not able to afford legal representation are not assigned to state appointed lawyers and often have to figure out the court system for themselves.
That being said, I believe that most of the personalities that make up the Kenyan legal system strive to administer the most efficient form of justice in the most expedient manner possible and that is something that needs to be celebrated.
Based on your observations in court, discuss what you learnt regarding:-
i) Procedural fairness.
ii) Nature and quality of legal representation/lack of representation
i) Procedural fairness
Procedural fairness is concerned with the procedure that the courts take when arriving at a decision. In Kenya, courts practice the adversarial legal system and so the magistrate or judge is the trier of facts who determines the culpability of the accused after carefully examining the evidence. In doing so, the magistrate/judge is guided by certain rules of procedure. The rationale is that procedure guarantees that a case is conducted as fairly as possible and is in accordance with the rights of the parties. It also provides structure due to the uniformity and the generality of the rules. This also legitimizes the court process and ultimately the decision. Parties are more likely to be accepting of a court’s decision if it is conducted in the most transparent and open manner with due consideration to rights and freedoms. As such, the rules themselves have to be fair and not prejudicial. Therefore, matters such as age, tribe, race or wealth must not be a determining factor.
I learnt that procedural fairness was incumbent on the laws. For instance, each case was conducted in accordance with the relevant rules of procedure. Civil cases were heard in accordance with the Civil Procedure Act of 2010(chapter21) while criminal cases were heard in accordance with the Criminal Procedure Code (chapter 75). These statutes provided the necessary procedure for every stage of the proceedings. Steps such as the pre-trial conferences were especially observed. In conjunction with these laws, I observed that the cases were also conducted with the rules of procedure and justice as prescribed by the Constitution of Kenya in articles 48 and 50 which provide for access to justice and the accents of a fair hearing. Not to mention the principles of equity that is provided in the Judicature Act of Kenya.
Procedural fairness is also embedded in the trial processes. I observed that parties were given ample time to present their case and with no interference by the court. In court, the parties are constantly being made aware of the rights and in a language that they understand. Several times translators were called in to interpret. This included those who spoke Somali, Mandarin, French and even sign language translators. At the beginning, the parties are made aware of their right to legal representation. Parties are at liberty to appoint their own representatives or choose to represent themselves. Similarly, when the defendants are put on their defence, they are promptly reminded of their right to choose to give unsworn or sworn evidence. They are also not restricted to the number of witnesses that they could call to the stand.
Another aspect of procedural fairness that I observed was court room reception. I observed that the parties were supplied with all the relevant case documents which included proceedings, witness statements, charge sheets, plaints just to name a few in order to allow them to efficiently prepare for the case. Time and again, the magistrate in the criminal court would check in with the accused to ensure that he or she is supplied with the necessary documents. Parties in remand could also request the court to supply them with certain items to which the magistrate would willingly provide when possible. For instance those who sought medical care will be promptly transferred to hospital. Also those with peculiar medical conditions such as those with chronic illnesses or those suffering from disabilities were treated accordingly.
Cases were always heard in the presence of all the parties and in full purview of the court except in cases involving sensitive subject matters such as rape or divorce. If one or more of the parties were absent, then the case would be adjourned until all parties are present. Similarly, orders, judgements, decrees or rulings of the court were delivered in open court with all the parties present and in a language that they understand.
What resulted was a general acceptance of the court’s decisions. Most parties seemed content with the verdict of the court whether it was in their favor or not. Even then, the magistrate notified the parties of their right to appeal.
ii) Nature and quality of legal representation/lack of representation
It is a right that is espoused in the Constitution of Kenya 2010. The constitution provides for it under article 50(2) (g). Here, an accused person is guaranteed the right to a fair trial which includes the right to legal representation and the right to be informed of the same. In addition, article 50(2) (h) provides that the state has a duty to assign an advocate to the accused if it is suspected that he or she would suffer substantial justice. It therefore follows that an accused person is not guaranteed representation but only when the court finds that he or she would incur some kind of injustice that would impair an otherwise fair trial. This is established through court practices. Luckily, the Legal Aid Act 2016 comes into satisfy the inadequacies of these provisions. People in need, who are barred by money or any other factor from attaining legal representation can seek to be supplied with free legal aid. Unfortunately, only candidates who satisfy the requirements stipulated by the National Legal Aid Service as guided by the act can be assisted.
Legal representation is always seen as a matter of contention as it is often assumed that the complexities of legal procedure void of professional assistance would deter any litigant from fully achieving justice. Without the technical know-how of the law which includes application and procedure, litigants may find themselves incapable of representing themselves well.
In regards to the nature of legal representation, I found that most litigants in civil cases have legal representation with them with only a few of them choosing to act in person. I found that in regards to family law and especially in divorce cases the latter rang true. Being that all divorce cases are heard in-camera, in that the public are barred from sitting in court, some prefer to represent themselves in court. This trend may also be attributed to the sensitive nature of these cases as they involve familial matters that parties may not be willing to share with others. This can be found in cases involving domestic abuse or infidelity such as the aforementioned case of RKM v KNK where both parties acted in person. However, in other cases such as those involving intellectual property, contracts or the tort of negligence, litigants generally had legal representation present. I suppose this is due to the immense legal knowledge that this fields command that may not be as present in divorce cases.
In so far as it relates to quality of legal representation, there is a clear disparity between the parties who choose to act in person and those who have legal representation. This is a result of the obvious lack of legal experience. This manifests itself in intellectual capacity as it relates to law and even other courtroom matters such as drafting of plaints and the proper service of those suits to adverse parties. A lot of the time, magistrates find themselves having to help those unrepresented parties navigate the trial process. This may be by advising them to consult the court clerk or even reminding them where and when to submit case documents.
I did not notice any clear disparities between the quality of representation by the advocates in the different areas of civil law. Despite a few cases where the advocates were outstanding in the manner of presentation, most of them approached the cases with the same level of intellectual ability regardless of whether the case involved an intellectual, contractual or even tortious matter. This is to the exclusion of the obvious legal approaches that these different fields command. In high-profile cases or those that are matters public interest such as the case of Kiago General Suppliers Ltd v Nairobi City County, the advocates were significantly more coherent and skilled. This was demonstrated during witness examinations as they asked questions that would invoke the most relevant responses or that would highlight the shortcomings of the adversaries’ cases. They were also meticulous as they were quick to point out mistakes in court documents or when another advocate attempted to void legal procedure.
It should be noted that although most of the parties had legal representation, the advocates themselves were not immune to mistakes. Leading questions were a common occurrence especially in the examination-in-chief and almost always proceeded undetected. Several times the magistrate had to reprimand the advocates when they ignored pre-trial procedures or when they wrongly quoted a legal provision in court.
In regards to the nature of legal representation, I found that although most parties did have advocates present, the percentage was lower than that in civil cases. There were more instances of the defendants opting to act in person. This ranged from petty theft cases to felonies such as defilement, assault and rape. I did not observe any instances where the accused were awarded state-appointed advocates. I also did not observe any instances where the accused persons requested for an advocate and were denied. From what I gathered, this was not a common practice. As for the prosecution, the prosecutor was a constant fixture who appeared on behalf of the Republic for all the cases.
As for quality, I did not notice any significant disparities between the quality of representation between the defense and the prosecution. Both demonstrated a good understanding of the law and expressed themselves in a coherent and elaborate manner that almost mirrored one another. This also can be said to be the same for the manner in which both questioned a witness. Just like the civil cases, the high-profile criminal cases were defended by exceptionally skilled advocates who demonstrated an extended knowledge of the law.
Surprisingly, a number of defendants who represented themselves were equally conversant with the law to the advocates. Some of them showed exceptional cross-examining skills and were even able to keep up with the prosecutor. One such case was that of Republic v Bernard Njenga; 3 others (MCCR/1145/2017) where the defendants were charged with the assault of a man by the name Josiah, who was the complainant in the case. All of them had appeared in person in open court. I thought that the defendants had been successful in their cross-examination of the I.O as they were able to bring out several crucial inconsistencies in the investigating process. For instance, the I.O was not only able to remember the name of the complainant in the case but also those of the defendants. She also could not remember the circumstances that led to the drawing up of the P3 form and whether or not the complainant had indeed sustained the injuries previously claimed by the prosecution.
Aside from exceptional cases such as the one above, there was a clear disparity between the quality of legal representation of the prosecutor and the defendants. Some were not able to keep up with the court procedure or would end up not showing up for mentions or would have to be reminded to file submissions and witness statements. In addition, their cross-examination skills were limited as they often lingered on one question or were unable to correctly question the witnesses. At times, the prosecutor would interject when they would ask questions outside of the realm of the case.
In our discussions with the magistrate, I was able to discover that the type of legal representation did not have any bearing of the case. Defendants were not held to a lower standard just because of their inexperience as all parties whether represented or not were deemed to be equal. Although the magistrate would try to help the defendant from time to time, they remained generally impartial and would just let the defendants find their own footing. While this is the seemingly correct approach to take, I found myself sympathizing with the defendants who could not afford to hire lawyers and who instead had to struggle to present their case. I thought of the presumption of innocence that the accused were accorded and what seemed like a derogation of this right. However with the heavy workload of the court system and the availability of limited resources, I found myself sympathizing with the court.
Overall, the Court Clinical Attachment Programme was a wonderful experience as I was able to immerse myself into the legal process. It has taught me several life skills such as patience and respect, all which I observed in the relations within the court. It has equipped me with practical understanding of the law, rules, procedure and even decorum. With the guidance of Hon E.A. Nyaloti (MRS.) and Hon M.W. Mutuku (MS) S.P.M, I am now able to draft judgements and rulings. I am also more conversant with the legal issues and several elements of court room procedure such as the admittance of evidence and examination of witnesses.
Finally, this experience has also opened my eyes to the state of our judiciary and the several steps that needs to be taken in order to cure the inadequacies of the law. However, what I observed was a system in recovery trying to amend the state of our judicial system and our country; and a major component in that journey is the law which has provided the foundation to true justice.