COURT VACATION

Every year there are three Court of Appeal and High Court vacations; April, August and December. Judges of these courts, like school children, go on holiday, during these vacations. The origin of these vacations in rooted in the days of old when the English courts closed business so that judges, lawyers and litigants could attend religious festivals. Thus, court terms were closely scheduled to avoid ecclesiastical holidays like Christmas and Easter. The courts also avoided sitting during lent and harvest time. For the colonial judges, the spring, summer and winter vacations presented an excellent opportunity for them to board ship and proceed on holiday to the UK or South Africa.

Whether this practise should countinue is a subject of debate. Critics of the court vacation feel that the courts should sit throughout the year so as to clear the pressing backlog. Others argue that because of the demanding nature of judicial work, judges should have the vacation to relax and write court judgments. To this argument some counter that magistrates do not go on vacation yet they handle the bulk of the cases in Kenya. Further, there has is no discernable output from judges even after the vacation.

I just love the court vacation. I take time to relax after a gruelling term. One does not get to realise the physical and psychological toll of court work until you take time off. Apart from taking annual leave, I find time to go through all my files and update them. I also find the vacation an important time to catch up with clients. I do not think that dispensing with the court will be a cure all for all the problems we have with the judiciary. It may be necessary for, example, to shorten or do away with the August vacation or have one long December vacation.

Meanwhile and enjoying my vacation .....

PUPILLAGE

It's that time of the year when the firm is deluged with applications from prospective pupils. I think there are about 300 hundred pupils applicants a year from the public, private and international universities competing for a place in a good law firm. As the years go by and as the number of law graduates increases, the competition becomes more intense. No one is assured of a pupillage place as we once were.

On average we receive 80 applications a year yet we can only accomodate 4 pupils a year. The "political" pressure on advocates to take on pupils is considerable. You have clients, politicians and friends calling you to request you to take the son or daughter of so and so ......... It is sometimes difficult to withstand the pressure so my partners and I play the merry-go-round. When say, my Honourable MP calls and requests me to take his daughter for pupillage, I tell him, "Am so sorry, I have filled my quota ... if only you had notified me earlier." When my other partners are called, they state the same thing.

Selecting which applicants merit an interview is the most difficult part because all the students who apply to our firm seem qualified. We prefer to look at the applicants entire academic history, extra curricular activities and computer skills. I tend to prefer an all round student. This year we have interviewed 40 applicants. We have a final interview next week.

More on this subject ....

JUSTICE DELAYED

Am sure most you are familiar with this case of R v. Stajanovic Milan and Others . The accused were charged with the murder of Kamaldin Akasha of the notorios Akasha family in Mombasa on 28th March 2002. The trial commenced on April 2005 and the prosecution closed on 10th August 2006. During the course of the proceedings the judge hearing the case was transferred to Bungoma from Nairobi.

Having called 25 witnessed the prosecution closed it case. In criminal cases when the prosecution closes its case, the defence may submit to the court that the prosecution has not led sufficient evidence for the accused to put on his defence. This is normally referred to as, "submission of no case answer." At this stage if the judge feels that the is sufficient evidence to put the accused on his defence, he will so state and he is not required to give his reasons. If on the other hand he decided there is insufficient evidence, he will write a judment acquitting the accuses. Anyway, the submission of no case to answer was made on 10th August 2006. The learned judge is scheduled to deliver his judgment in 11th January 2007. As murder is a non-bailable offence the accused are still in remand.

This is just a microcasm of the delay experience by person charged with murder in this country. On average it takes 3 years to conclude a murder trial. Most stations outside Nairobi have one or two judges hearing criminal and civil matters leaving very little time for murder cases. This has been excerbated by the constant transfer of judges under the tenure of the present Chief Justice.

The promise of trial without delay remains hollow.

MAGISTRATES COURT

Today was my first day since I returned from SA to attend court. I thought I would proceed with my simple matter I would be out of there by 10.00. Why we can't get stenographers for our courts is beyond me. The magistrate was so slow and we had not been reached by 10.00. No wonder the guy's court in called "the Court of Appeal." By 11.00 I was called my assistant to come and try the negligence case I suposed to do.


Sometimes the cases advocates file shock me. This case is supposed to be a simple negligence case against a major brewing company. This gentleman, who owns a bar at Huruma Estate, claims that some of his customers showed him foreign elements like metal bars and flour like substances in their beer. The gentleman then states that from this time on the customers deserted his bar and as consequence he lost business. He now claims general damages for loss of business. I have defended several cases against this particular brewer and surprisingly even the most pro-plaintiff magistrates have dismissed all the suits. Normally, the plaintiff's advocate draws the most threadbare of pleadings, causation is hardly established and damages are never proved! I think most plaintiff's advocates invetably submit, " We rely entirely Donoughue v. Stevenson ...."

I've been taught that 40% of the succes of a case depends on the pleadings, 50% on the evidence and 10% on the tribunal.....