Mukisa Biscuits Co. Ltd. -vs- West End Distributors Ltd

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Discuss the psychology of writing and analyze how it plays a key role in the writing life of an advocate

 Psychology of Writing.

It has been said that words are the dominant tool of trade for a lawyer. Effective communication makes for a good advocate. A legal writer must consider the reader, purpose of writing and conventions of the type of document being written. The main aim of writing is such that the reader understands. Good legal writing can be achieved through;

• Use of plain English as opposed to legalese.

• Clarity, precision, non-ambiguity and conciseness of words

• Good grammar, spelling and punctuation.

• A logical structure and completeness of the work.

Psychology is behavioral science. In this context can be defined as the mental or behavioral characteristics or attitude of a person or group.  The psychology of writing can therefore be loosely defined as behavior or mindset leading up to good writing. Writing improves with experience. A legal writer may not effectively communicate to his readers or achieve his purpose if his writing is not of good quality. This however can be achieved by developing a schedule for the completion of the document being written. This schedule must provide reasonable time to conduct research, drafting, revising, editing and proofreading of the document. 

Below we discuss the essence of each element of the schedule.

1. Research.

This is the systematic investigation into and study of materials and sources in order to establish facts and reach new conclusions. Research plays an important role in legal writing. It involves fact finding and analysis of such facts. For effective legal writing, an advocate may organize research around the law or points they intend to make. Organization of research facilitates good writing. It guides the advocate in making decisions that facilitate effective communication to the reader, achieve his purpose of writing and drafting the document in the right manner.

2. The Outline and Writing Plan.

An outline is an organizational plan to help you in drafting. It allows the writer to categorize the main points, organize sensible paragraphs and ensure that each paragraph is fully developed. It prevents the writer from getting stuck when writing. It helps save on time, prevents back-tracking, repetition and missing out on key points.

1. Read through the research

This is important to ensure that everything in the outline is included in the research and careless omissions and irrelevant additions are avoided.

b)  Organization

In the outline, the research should be divided into an introduction, the body and the conclusion. Outline the topics and sub-topics to be included in the research stating the statutes, cases and authorities which you will rely on. The document should be well structured and logically structured with proper headings and numberings. The paragraphs and sentences should be properly constructed as well. 

3. Talk to a colleague

It is through sharing of the work that you get positive critique for corrections to improve quality of the work. It is also an efficient way of noting weaknesses in the research.

4. Consider the reader and the purpose

You need to consider the reader and the purpose of the document. With your reader in mind, you know the type of language to use; whether to use legalese or plain English.

The purpose of the document is also important to determine the formal structure and the content.

3. Revising

Black’s Law Dictionary defines revision as a reconsideration; second view or examination a consideration for purposes of correction.

After the first draft, the writer is to step back and rethink the entire document. In revision, it is prudent for the writer to develop a checklist. The essence is to focus on the larger issues of writing.

The checklist seeks to ask and answer the following questions:

1. Will the document meet the reader’s needs?

The writer is to establish who their target audience is. For instance, the language used to address persons having legal training is different from that used to address lay people.

2. Is the tone right for the document and the reader? 

3. Is the document well organized?

For instance, grammar; writing should be free from grammatical errors. The rules of grammar that dictate word form, order and sentence structure must be followed.

4.  Are the ideas well developed?

Writing in paragraphs is of essence. This helps the writer to stay focused and in control of their writing. Paragraph unity is paramount; each paragraph must have its own topic the elements of which work together to make a point. Each must have a topic sentence, supporting sentence and concluding sentence.

5. The legal analysis, is it conclusive or superficial?

Superficial in the sense that it partially covers the content, it deviates from the issue at point or it lacks content.

6. What else could be included or omitted in the writing?

7. Is the theme evident in all sections of the document?

Here, paragraph unity and coherence should be adhered to, to ensure that the writer does not deviate from the topic.

8. Read and sum up the point the writing intends to achieve. There should be a logical connection in the paragraphs to achieve this. The writer should avoid repetition.

9. What are the weaknesses? Other than a self-critique of the writing, it is prudent for the writer to view the work from the point of another advocate.

4. Editing

Editing involves an examination of the smaller issues in writing. It entails the following;

1. Stepping out of the role of the drafter. 

2. Looking at the writing with a critical eye. 

3. Looking at: sentence structure, word choice. 

4. Paying attention to the subjects and verbs in sentences. 

5. Making extra effort to edit for precision and conciseness. 

6. Looking out for sloppy word choice and unnecessary verbiage.

5. Proofreading

A writer should always endeavor to present and/or submit neat paperwork that is free from any grammatical and/or punctuation errors. It is upon the advocate to ascertain that the final document does not have fault for missed words, format problems or typographical errors, and to achieve this it is therefore essential to proof-read the final draft. Proof-reading is therefore when an author goes through the final draft slowly with the aim of identifying any errors in the document and rectifying them. This task should be done when the mind is relaxed (do not strain) and it is important to accord maximum concentration at this stage as it will be easy to identify any errors in the document and amend them accordingly.

The author should take note of all the parts of the document. This includes;

• Headings

• Charts

• Captions

• Footnotes

It is also crucial to re-confirm the following:

• Dates,

• Figures and

• Spellings

For an effective proof reading exercise, the writer should consider:

1. Making the first draft.

2. Take some time to relax after making the first draft.

3. Edit from a hard copy.

4. Proofread in bits while editing the draft.

5. Identify the errors in the document.

6. Read through the draft once.

7. Label drafts carefully.

How does Psychology of writing play a key role in an advocate’s writing life?

Psychology of writing may reflect on an advocate’s writing life in the following ways;

1. Organization of thought

Research helps an advocate put his work into perspective. An advocate organizes his work around the law or points he/she intends to make. This helps in organization of thought which translates to clarity of an advocates work.

2. Coherence.

Psychology of writing plays a key role in ensuring an advocate’s work is coherent. It helps an advocate draft his/her work in a manner that is logical and can be easily understood. It helps an advocate create a line of thought that leads to the conclusion he makes.

3. Eloquence

An advocate achieves clarity of expression with clarity of thought. Psychology of writing plays a key role is de-cluttering an advocate’s work. An advocate is able to set out his work in a manner that is straight to the point. This reflects on advocate’s ability to express themselves.

4. Communication

Psychology of writing improves the quality of an advocate'sadvocates writing. In the writing of an advocate, one must consider the reader, the purpose of writing and the type of document being drafted. Putting these into consideration, an advocate’s work must be of good quality and concise for effective communication to occur.   

5. Professionalism

How an advocate relates to his clients differs from how he relates to his colleagues or even judges or magistrates. His writing is dependent on the reader, purpose of writing and the conventions of the document being written. The format and language used in a demand letter differs from submissions in court. Research, drafting, editing and proofreading therefore guides an advocate in the manner of drafting certain documents and plays a key role in the competence of an advocate.

6. Credibility

An advocate’s credibility relies heavily on his ability to represent his client. An advocate is essentially a story teller and in representing his clients, effective communication is key. Writing is a communication tool for an advocate. Writing that is of good quality, concise, void of grammatical errors, with the right choice of words and logical structure ensures that the reader understands what the advocate intended to communicate.

Oral Question & Answers

  Oral Question & Answers:

First Set of Questions

1. What is the difference between:

Verifying affidavit: Verifying affidavit states that the averments made are true. 

A divorce petition is also supported by a verifying affidavit.

Replying affidavit: Replying affidavits are filed in response to the facts raised in the supporting affidavit. You file it together with a notice of motion.

Supporting affidavit: A supporting affidavit accompanies good defence to support the grounds of opposition by the defendant. Generally speaking, ALL applications are accompanied by a supporting affidavit. The affidavits adduce evidence in the form of annextures. 

2. What are representative suits?

Representative suits are suits filed under Order 1 Rule 8 where parties with the same cause of action seeking the same relief/remedy from the respondent institute a suit under one or more plaintiffs (but not all of them) are allowed to sue and the judgement affects them all. It prevents multiple suits on the same matter being heard individually.

3. What is the tarquand rule?

The tarquand rule states that people transacting with a company believe that internal matters are handled properly and cannot inquire as to how the property is run - Royal British Bank v Turquand

4. What are the various ways of attacking a plaint?

You can attack a plaint by:

set off

counter claim

defence

5. What is the nemo dat principle?

Nemo dat non quod habet principle is a Latin maxim which means that you cannot give that which you do not have. In a nutshell, the principle affirms that you cannot pass good title to a third party if you are not the owner of the goods. The principle aims to protect the rights of the true owner of the goods as well as bonafide purchasers.

6. How do you become a member of a company?

One can become a member when you subscribe to the memorandum of association and secondly when your name is entered into the register of companies.

7. Remedies in a contract include:

• Damages

• Specific Performance

• Rescission

• Repudiation

• Addition

8. How do you serve a foreigner?

Provided for under Order 5 Rule 21. You may serve a foreigner as long as he/she is in the commonwealth. You will serve through the High Court

You will seek leave of the court first with an application made by way of chamber summons supported by an affidavit. You will then tell the court the mode of service to use.

9. Difference between special damages and general damages

  

General damages are those damages that can’t be easily assigned a monetary value e.g. pain and suffering.

Special damages represent economic losses e.g loss of earnings.

Generally speaking, general damages can relatively easily be quantified whilst general damages cannot.

Special damages must be specifically pleaded and proved to warrant any award to that effect.

10. Difference between a set off and counter claim

Set off is used as a shield to the plaintiffs claim. For instance if you sue me for 100 bob then I file a defence stating that you also owe me 100 bob, then the debts would just cancel out hence setting off.

Counter claim - under Order 2 Rule 11, if you have a claim against the plaintiff, the defendant has the option of instituting another proceeding if it can be settled in the same suit without delay or inconvenience

11. What are garnishee proceedings?

Garnishee proceedings are those where one has a decree but property of the judgement debtor (the person who lost the case and judgement was passedpass noed against) is not in his hands but in the hands of a third party. The procedure instituted by the decree holder against the third party holding the property is referred to as garnishee proceedings

Second Set of Questions:

1. Name 6 Bills that are currently before parliament?

• The County Government (Amendment) Bill (Sentate Bills No. 11 of 2017)

• The Division of Revenue Bill (National Assembly Bills No. 7 of 2018)

• The Urban Areas an Cities (Amendment) Bill (Senate Bills No. 4 of 2017)

• The Food Security Bill (Senate Bills No.12 of 2017)

• The County Boundaries Bill (‘senate Bill No. 6 of 2017))

• The Assumption of Office of the County Governor Bill (Senate Bill No. 1 of 2018)

2. Name 6 Bills that have been enacted by parliament lately?

• Health Act

• Presidents Awards Act

• Prevention of Torture Act

• Clinical’s Officers Act

• Public Service Commission Act

• Division of Revenue Act

• Appropriation Act

• The Legal Metrology Act

• Kenya Trade Remedies Act

• The Election Laws

• The Insurance Act.

• Breastfeeding Mothers Bill 2017

3. What is considered the 4th arm of the government an why?

Constitutional Commissions and Independent Offices are considered the fourth arm of the government. They are referred to as the 4th arm of government because they are independent and shielded by the constitution against arbitrary abuse of power by other arms of the government. They are only subject to the Constitution and the law with some even having quasi-judicial authority.

4. Constitution of the:

High Court - Number of judges prescribed by an Act of Parliament. Its headed by a Principal Judge elected by judges of the High Court [Article 165(1)]

Court of Appeal - Not fewer than 12 Judges as prescribed by the Act of Parliament headed by the President who is elected by the Judges  (Article 164)

Supreme Court - Chief Justice, Deputy Chief Justice and 5 other judges headed by the Chief Justice (Article 163)

5. Who are the heads of the above courts?

• Supreme Court - Chief Justice (Justice David Maraga)

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• Court of Appeal - President (Justice William Ouko)

• High Court - Principal Judge (Justice Richard Mwongo)

6. Name 6 parliamentary committees.

• Parliamentary Committee on Health

• Parliamentary Committee on Education

• Parliamentary Committee on Security

• Parliamentary Accounts Committee

• Parliamentary Committee on Legal

• Parliamentary Committee on Agriculture

• Senate Business Committee

• Procedure & Rules Committee

• Liaison Committee

• County Public Accounts & Investment Committee

• Committee on Energy, Roads & Transportation

• Committee on Lands Environment & Natural Resources.

Who is the Att

orney General of Kenya? Justice Paul Kihara

Third Set of Questions (LPM):

1. What are the 5 phases involved in emergency situations?

1. Prevention - 

2. Preparedness - this is a continuous cycle of planning, organising training on activities on response to disaster

3. Response -It includes mobilisation of necessary emergency services and respond to the disaster

4. Recovery - The ai is to recover and restore the affected area to its previous state.

5. Mitigation - Efforts taken to prevent hazards from developing into disasters

2. What is the disaster management cycle? explain each cycle.

3. Disaster prevention measures

4. Four forms of discrimination:

• Direct discrimination

• Indirect discrimination

• Multiple discrimination

• Equal opportunity and differential treatment.

5. What is sexual harassment, forms of it and causes?

The term sexual harassment describes unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature. The conduct is made as a term or condition of an individual's employment with implied or express promises of preferential treatment, threat of detrimental treatment or threat about the present or future employment status.

Forms of sexual harassment includes

• Language of a sexual nature (written or spoken)

• Use of visual material of a sexual nature.

• Use of visual material of sexual nature.

• Show of sexual behaviour of a sexual nature.

Section 6 Employment Act

Causes of sexual harassment:

• Reliance on supervisors for career success / progression.

• Abuse of authority

• Poor management

• Job instability

• Personal problems such as divorce, separation etc.

6. 7 C’s of effective communication?

1. Clear

2. Concise

3. Concrete

4. Correct

5. Coherent

6. Complete

7. Courteous

7. What provision of Occupational Health and Safety Act have on safety and security?

8. Explain the procurement process

Procurement is the act of obtaining or acquiring goods and services by an institution.

The procurement cycle entails the following:

1. Identification of a requirement or need in the organisation

2. After which a plan is put in place emphasising how to obtain the specific need.

3.  & (iv)The organisation involved checks on the availability of funds before proceeding to check the sourcing options

5. Checking the sourcing options

6. (vi)An advertisement on the procurement is then made. (This depends on the company again. A company could choose the open tendering approach or the restrictive approach)

7. (vii)The organisation receives and opens  the bids

8. (viii) Evaluating the bids using a checklist and carry out eliminations (the vendor is identified and a report on the same is put down)

9. (ix)The vendor is then notified of the contract award.

10. A purchase order is issued to that effect wither via mail, fax or personally (the order addresses on the terms of service of the contract, the conditions of product of service, price, timelines for delivery etc)

11. (xi)Administration of the contract (delivery of the goods)

12. (xii) Inspection of purchases (could result to acceptance or rejection of goods depending on whether the products confirm to the prescribed order)

13. (xiii)Issuance of an invoice (which as a receiving document that indicates completion of contract)

14. (xiv)Storing and management of goods

All the above is subject to the Public Procurement and Asset Disposal Act.

9. Principles of a good filing system

1. Cost effective

2. Compactness

3. Simplicity

4. Accessibility

5. Flexibility

6. Accuracy

7. Suitability

8. Safety and security

9.  Cross reference

10. Advantages and disadvantages of centralised and decentralised office functions.

Advantages of a centralised office:

1. Smooth flow of work and easy supervision since staff sit in a pool

2. Work for absent staff is easily distributed to the pool of staff

3. Equal distribution of work at the pool

4. Fewer workers thus cost effective

5. Uniformity of work

6. Encourages specialisation - efficiency of the qualified people

7. No duplication of work

8. (viii) Easy training of new staff by the pool staff

9. Flexibility on job since staff are rotated to do various jobs in the department

10. Better control of office resources and records due to close monitoring

Disadvantages of a centralised office:

1. Too much movement to the department from other departments in relation to the centralised work

2. Boredom and monotony of work

3. Uniform procedures encourages lack of flexibility in the work done.

4. High number of messengers needed to distribute work to the user offices.

5. It takes long to retrieve documents from a central office

6. High probability of misplacing documents due to high volume records

7. There tends to be no accountability incase of mistake.

8. (viii) High risk of loss in the event of a distorter eg fire

9. Lack of exposure to other departments and senior executives; may hinder growth.

Advantages of a decentralised office:

1. More accountable to mistakes

2. Suitable for confidential work

3. Improves the persons contact with staff of other departments and the executive, increasing chances of growth.

4. There is a spreading of risk should a disaster strike

5. Opportunity to learn new talents because staff have different tasks

6. Few messengers required since no work needs to be distributed

7. Minimises movement of staff going to other departments

8. It reduces boredom and monotony of work due to a variety of tasks

Disadvantages of a decentralised office:

1. Duplication of work

2. Lack of flexibility in job rotation

3. Unequal distribution of work leading to increased overtime costs

4. Difficult to train new staff

5. Difficult to handle absenteeism

6. Difficult to supervise since each worker has different tasks

7. Hinders specialisation

8. (viii)Lack of uniformity of work hinders efficiency.

9. Uneconomical in staffing since every office will need for example a clerk, a typist etc

Fourth Set of Questions:

1. What are contracts of ubberimae fidei?

Uberrimaee fidei contracts are contracts of utmost good faith. The word uberrimae fidei or uberrimae fides is Latin for ‘utmost good faith’. A good example of uberrimae fidei contracts are insurance contracts. At the foundation of these contracts are utmost good faith between the insured and the insurer.

2. What are third party proceedings?

Third party proceedings arise where a defendant in a suit claims against any person who is a co-defendant or who is not a party to the proceedings that the latter is or may be liable to the defendant for all or any part of the plaintiff’s claim against the defendant.

3. What is discovery under Civil Procedure and how is it done?

Section 22 Civil Procedure Act - Discovery is a pre-trial procedure whereby each party investigates the facts of the case by obtaining evidence from the opposing party. It can be done through:

• Delivery and answering of interrogatories

• Admitting documents and facts

• Inspection

• Production

• Impounding

• Return of documents to be produced as evidence

The court may order such documents to be produced or issue summons to persons to produce the documents or order a fact to be proved by affidavit.

4. Difference between substantive law and procedural law

Substantive law details the rights of parties in law whilst procedural law lays down the process by which the right of parties are to be enforced.

5. Judicial Review steps (very examinable in exam and orals, pay special attention to this)

The procedural law relating to judicial review is under Order 53 CPR and requires an applicant to first apply to the High Court for leave to institute the application for judicial review.

APPLICATION FOR LEAVE STAGE- permission of the High Court has to be obtained before a claim of JR can be commenced; this is done by way of chamber summons

• The applicant makes a chamber summons application.

• The application must be accompanied by a statement setting out the name and description of the applicant, the relief sought and the grounds for the relief sought.

• The application must be supported by affidavits verifying and setting out the facts and evidence relied upon.

• The applicant must give notice of the application for leave not later than the preceding day to the High Court Registrar. This notice must be accompanied by copies of statutory statement and verifying affidavits to be used in the application for leave.

• Grant of leave to apply for prohibition or certiorari may operate as a stay of the proceedings in question pending hearing and final determination of substantive application. There can be no stay if the substantive order sought is mandamus since mandamus issues to compel action on the part of an authority which has omitted to act and as such, it logically follows that there is no action to be stayed.

• Leave to apply for certiorari must be made not later than 6 months after the date of the proceeding/decision to be quashed.

• No rules yet to limit time for applying for mandamus and prohibition.

THE SUBSTANTIVE APPLICATION STAGE

• Where leave has been granted, the applicant is required to file the substantive application for judicial review with the High Court and apply for the orders for which leave has been granted within 21days from the date the order for leave is made.

• The application must be made by Notice of Motion.

• The Notice of motion must be served to all persons directly affected by the application.

• All persons affected must be notified of the date set for hearing.

• A return of service must be filed before the hearing.

• The notice of motion must be accompanied by copies of the statutory statements and copies of the affidavits which accompanied the application for leave.

• Copies of any affidavits accompanying the application for leave shall be supplied on demand, and no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the said statement.

• However, the court may allow the said statement to be amended or use of further affidavits to deal with new matters.

6. 5 types of injunctions

• Prohibitory injunction

• Mandatory injunction

• Interlocutory or temporary injunction

• Anticipatory injunction

• Perpetual injunction

• Interim injunctions

• Mareva injunctions

• Injunctions against the government to protect children rights.

Interlocutory or temporary injunctions - limited to apply for this only until final determination by the court of the right of the parties.

Interim injunctions - an order in the nature of interlocutory injunction but restraining the defendant only after a named day or further order and its granted ex parte

Mareva injunction - a pre-trial injunction restraining the defendant and persons with control over defendant’s property or assets from dealing with the assets in ways that will be detrimental to the plaintiff’s interests pending the trial.

Prohibitory injunctions - acts to refrain the defendant from doing certain things

Mandatory injunction - Requires the respondent to do certain things

7. Explain interpleader and the procedure it undertakes

Section 58 Civil Procedure Act - Interpleader proceedings or application occurs in situations a third party is in custody of a property claimed by two or more claimants. The third party will then move to court to determine the true owner of the property. The third party will have to prove to the court that:

• He has no interest whatsoever in the property except for his charges or costs

• That he has not colluded with either of the claimants and

• That he will be willing to surrender the subject matter to the court.

8. Give situations where you use:

1. Notice of Motions

Order 51 Civil Procedure Rules provides for different kinds of applications that can be done through Notice of Motions:

• Order 51 rule 1 CPR - All applications to court are by way of motion unless expressly stated otherwise

• Application for a judgement order where there is an admission

• Application for summary judgment

• Application for stay of proceedings

• Whilst seeking the leave of the court to settle a matter out of court on 

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• behalf of persons with disability

• Applications for lifting or variation of injunctions

2. Chamber Summons

• There are no witnesses and evidence is by way of affidavit.

• Where the existence of the agreement or contract is not in dispute

• If there is a pending suit in court

• Application for land ownership by virtue of adverse possession

• Reconstruction of a file 

3. Originating Summons - Order 37 CPR

• Cases related with contracts for sale of immovable property except where the existence of the agreement and validity of the contract is in dispute

• Summons by mortgagee, mortgagor or others for relief such as redemption, delivery by mortgagor etc

• Application for extension of time under the rules of the Limitation Act.

• Anything to do with Government Lands Act or Section 57 of the Registration of Titles Act

• Application for reconstruction of court files

• Originating Summons can also be applied where specific legislations asks for it e.g. application under limitation of actions, Advocates Act, matters of adverse possession etc.

4. Petitions

Fifth Set of Questions:

1. Explain the M’Naghten Rule

This is the test applied to determine whether the accused person was sane at the time of committing a crime.

The accused must have been labouring under a defect of reason caused by a disease of the mind at the time he committed the offence. As a result of such disease, he did not know what he was doing or did not know that what he was doing was wrong.

2. Explain the ‘Skull Principle’ in criminal law.

A wrongdoer must take his victim as he finds him. Therefore, the fact that the victim had a previous condition that made the injury more severe is not a defence, even if an ordinary person in perfect health would not have suffered in the same way. case on point R v Blaue

3. Difference between murder and manslaughter

• Murder involves both intention (mens rea) and action ( actus reus) that causes death.

• Manslaughter is causing death without intending to do so

4. Difference between judgement and sentencing 

5. Compare a confession and an admission

Section 17 of the Evidence Act defines admission as a statement oral or written which suggests any reference as to a fact in issue or relevant fact and which is made by any of the parties.

Formal admissions are usually made in the pleadings, a party to a breached contract claim can admit blame and that will be a formal admission

While informal admission may be made before or during proceedings.

Admission is a statement made by any person referencing to the fact in issue 

Confession is an admission made by accused person before a judge, magistrate or police officer (other than investigating officer)

In addition, confessions before a Police Officer have to be before one of the rank of Inspector or higher in rank.

Section 25 of the Evidence Act defines a confession as words, conduct or a combination of both, from which whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence

6. Can spouses testify against each other?

The general rule is that spouses cannot be compelled to disclose any information made during the subsistence of a marriage. There are nevertheless some exceptions:

1. in a case of offence of bigamy.

2. in torts involving persons or property or any child to the marriage.

3. where one spouse is charged with an offence against morality.

See section 130 (1) Evidence Act.

7. Types of pleas and their explanations

• Plea of not guilty - it’s the formal admission in court as to the guilt by the accused. The accused does not admit to the charge and trial has to proceed to ascertain his or her guilt.

• Plea of guilty - the accused admits the charge therefore no need of trial.

• Plea of autrefois acquit - plea by the accused that they have previously been tried of the same offence and acquitted of it.

• Plea of autrefois convict - the accused pleads that they have been convicted of the same offence. This is based on the legal requirements that an accused person should be subjected to double jeopardy.

• Plea of presidential pardon - president has power of pardon and once exercised, the accused person cannot be charged of the offence they have been pardoned.

• Plea as to limitation of time - an accused may plead that the charge is barred by limitation of time and in effect prosecution will terminate. I.e. section 45(d) of the penal code provides that the offence of treason must be prosecuted within 2 years of its commission.

8. What is a voire dire and how is it applied?

Voire dire is a mini trial within a trial. Its purpose is to carry out an investigation of the admissibility of evidence during trial example the evidence given by a minor

9. What is causation in criminal law

Causation involves establishing a link between the act of the accused person and the result crime. It can be legal or factual.

• For legal causation, the harm must result from the culpable act. The prosecution must prove that there was novus acts interveniens.

• Factual causation is established using the ‘But  For Test’ look at the case of R v White 1910 2 KB 124

10. Difference between joint tenancy and tenancy in common

Sixth Set of Questions:

1.Difference between inquest and commission and inquiry?

A Commission of Inquiry is one of many bodies available to the government to inquire into various issues. Commissions report findings, give advice and make recommendations. While their findings are not legally binding, they can be highly influential.

An Inquest is a judicial or official method of investigation of an incident or sudden death.

2.What is an equivocal plea?

Equivocal plea- where the defendant pleads guilty but says something contradictory that indicates a defence.

3.Online sale remedies?

4.Discuss the Kyoto protocol

The Kyoto Protocol was adopted in in 1997 in Kyoto. Kenya ratified it in 2005.

Its main objective is to stabilise greenhouse concentration in the atmosphere. It sets mandatory and binding greenhouse emission limitation or reduction targets for industrialised countries.

Countries trade emission quotas among themselves thus enabling them to meet their emission target.

5 .What is Prima facie

• prima facie means on the face of it or also upon first impression unless proven to be otherwise.

• Can be used to describe how a client might have a prima facie strong case

6.What are debentures

Debentures are typically loans that are repayable on a fixed date, but some debentures are irredeemable securities (these are sometimes called perpetual bonds), which means that they do not have a fixed date of expected return of the funds.

Debentures are therefore medium to long-term debt formats used by large companies to borrow money.

7.How do you institute divorce proceedings

• File a petition to court outlining the grounds under which you're asking for a divorce. 

• Petition should be made at least one year after celebration of the marriage.

• Petition should be accompanied by a verifying affidavit, notice to appear (which should state that appearance is to be made within 15 days) acknowledgment of service, list of witnesses, witness statements & list of documents.

• After filing in court, you need to serve the respondent. 

• Petition should be accompanied by notice to appear & acknowledgment of

• Service

• After respondent responds, petition takes effect.

• Process of serving respondent should be done by a court server to respondent in person.

Through filing a petition to court for a decree of dissolution of the marriage. It has to be on the following grounds

1. Adultery

2. Cruelty

3. Exceptional depravity 

4. Desertion for at least three years

5. Irretrievable breakdown of the marriage

8.Remedies of a purchaser of land upon the National land commission revoking his title

9.Types of petitions and their application/use

10. Is it ethical and morally appropriate to post what you have been asked in orals to WhatsApp groups to other student who have not yet been examined?(whichever your answer) why?

Note. 

Question 10. Only needs 4 answers to avoid irrelevancy(2 for yes and 2 for no)

Seventh Set of Questions:

1. What is the 3 strike principle

The 3 strike principle significantly increases sentencing of persons convicted of a felony and who have previously been convicted of two or more violent crimes or serious felonies and limits the ability of these offenders to receive a punishment other than life imprisonment.

On the 3strike principle if the 3rd strike is not a serious or violent crime, one can appeal and have the sentence reduced or dismissed.

2. what happens when a plaintiff files a case and 2 years on he has not appeared, what options are available to the defendant

The defendant can make an application for dismissal of a case for Want of Prosecution, this is as per Order 17 Rule 2(3) of the Civil Procedure Rules 2010.

It's also a pre-requisite that such an application for dismissal must be brought to the notification of both parties.

3. Difference between judgement, judgement in default and summary judgement

A judgement is the final decision made on the matter after both parties have presented their case and have argued it out. 

Judgement in default is made when one party fails to appear in court after being served with the summons. It is also final but can be set aside if the other party seeks leave of court by giving reasons for his non-appearance

Summary judgement is made by the judge by looking at the facts presented by both plaintiff and defendant.  And deciding that the plaintiff can't prove or the defendant can't prove otherwise. This judgement is interlocutor

4. Sec 2 of the Advocates Act defines a client, what should lawyers be wary about in the definition

The definition includes "...any person who is or may be liable to pay an advocate any costs." The Advocates Renumeration Order defines the remuneration to be paid and the term any costs may suggests any costs deemed fit by the client and not necessarily that which comply with the Advocates Renumeration Order.

5. Suppose the time is of the essence clause lacks in the sale agreement and the seller defaults in meeting their end of the bargain. What remedies are available to the buyer?

The buyer can make an urgent application to the court. This is through certificate of urgency, notice of motion and a supporting affidavit. He will then accompany it with the plaint supported by the necessary pleadings.

Now, and this is what is important, the purchaser will seek the equitable relief of rectification to include the element of time if he is interested in performance of the contract, or orders of mandamus to compel the vendor to perform his end of the contract.

6. Are leading questions allowed in trial advocacy?

Leading questions are usually those so framed as to suggest the answer sought. Questions could also be deemed as leading if so framed as to assume the existence of facts yet to be established. 

As a general rule, evidence obtained by leading questions is not admissible and witness shouldn’t be asked leading questions. 

Exceptions:

• A witness may be asked leading questions on formal and introductory matters, such as his name, address, and occupation.

• Leading questions are also permissible on facts which are not in dispute

• Leading questions may also be put to hostile witnesses called by a party who has been granted leave to treat him as hostile

• Leading questions may be used depending on the circumstance provided it's objectionable. For instance during cross examination an advocate could possibly such questions to a witness to make them testify on a subject they may have been reluctant to.

A leading question is defined is Section 149 of the Evidence Act of Kenya to mean a question suggesting the answer which the person putting it wishes or expects to receive, or suggesting a disputed fact as a disputed  fact as to which the witness is to testify. 

 Use of leading question is only permissible in cross examination( Section 151of the Evidence Act). The Act expressly prohibits use of leading questions in examination-in- chief  and re- examination through the proviso of Section 150(1) of the Evidence.  However, with the permission of the court such leading questions can be asked in both examination-in-chief and re-examination.

7. What is the cab rank rule and its exceptions

The cab rank rule is the principle that an advocate is entitled to accept a clients instructions subject to limited exceptions

Exceptions

1. Conflict of interest 

2. It is not in your area of specification

3. Time- you do not have enough time to effectively handle the clients case due to workload

4. The client has not given clear instructions

5. The client does not want to pay the required legal fees

6. If the fee offered is not a ‘proper one’

7. Another exception will include where there exists another advocate who is acting for the client in question. However, if the client terminates this prior engagement or such advocate has withdrawn himself from the matter, the latter advocate is then at liberty of taking up the matter.

Cab rank rule is the professional obligation on Advocates to accept instructions from a client regardless of any personal dislike of the client or the case.

The general principle is that if you (as a trial lawyer) receive instructions from a professional client and the instructions are appropriate taking into account your experience, seniority or practice, you ought to accept those instructions irrespective of the identity of the client, the nature of the case to which instructions relate, whether the client is paying privately or is publicly funded and any belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.

There are limited exceptions to the general rule, including where there is conflict of interest.

Article 48 of the Constitution on right of access to justice.

Article 50(9) of the Constitution on legal representation as a right to fair hearing. 

Paragraph 38 of the Code of Ethics and Conduct of Advocates, 2015.

Part III, LSK Code of Standards of Professional Practice and Ethical Conduct, 2016.

The term originated from London where the taxi cabs would form a queue leading up to the rank and simply take the next passenger waiting regardless of the distance they were traveling. Naturally, in the taxi business, the longer the distance, the more lucrative the journey was.

Exceptions

Where there exists real or likelihood of conflict of interest.

When an advocate knows or has reason to believe that another advocate is already acting for that particular client unless: the other advocate has given his consent, the other advocate has refused to act further, client has withdrawn instructions from the other advocate upon proper notice to him.

Where the advocate may have been consulted by the other side.

Where the advocate lacks the necessary expertise or experience to conduct the case competently on behalf of the client.

When client can not afford the fee.

The trial advocate may refuse to take up instructions from a client on his own motion or an opposing counsel can apply for an advocate to be disqualified from a conduct of a matter.

8. 10 maxims of equity

1. He who seeks equity must do equity

2. Equity is equality

3. He who comes to equity must come with clean hands 

4. Equity looks at the intent rather than the form 

5. Equity acts in personam 

6. Equity doesn't act in vain

7. Equity aids the vigilant not the indolent

8. (viii)Equity will not suffer wrong without remedy 

9. Equity follows the law

10. Equity looks upon as done and not which ought to be done

11. Equity abhors forfeiture

12. Equity doesn't complete an imperfect gift

13. (xiii)Equity will not assist a volunteer

14. (xiv)Equity will not allow a trust to fail for want of a trustee

15. Equity regards a beneficiary as a true owner

9. What is treason and elements of treason

Treason is the crime of betraying one's country especially by attempting to kill or overthrow the government.

Elements

1. Wrongful intent

2. Overt act either levying war against the government or giving aid

3. Owing allegiance to the government

Section 40 of the Penal Code - treason is where an individual or persons:

1. compasses, imagines, invents, devises or intends -

1. the death, maiming or wounding, or the imprisonment or restraint, of the President; or

2. the deposing by unlawful means of the President from his position as President or from the style, honour and name of Head of State and Commander-in-Chief of the Armed Forces of the Republic of Kenya; or

(iii) the overthrow by unlawful means of the Government; and.                                  

2. expresses, utters or declares any such compassing, imaginations, inventions, devices or intentions by publishing any printing or writing or by any overt act or deed, is guilty of the offence of treason

Note post concise researched complete answers

Eighth Set of Questions:

1. What is the ejusdem generis rule?

Ejusdem generis is latin word meaning "of the same kind". It is used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. 

E.g. if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, "vehicles" would not include airplanes, since the list was of land-based transportation.

2. Who is an administrator, executor and trustee and how are they appointed?

Executor - personal representative appointed under a will to distribute the property of the testator according to the will. Section 6 of the law of succession Act provides that the testator may appoint the executors by will.

Administrator - a person appointed by the court in cases of intestacy and where there is no proven executor in testate succession.

Trustee - an office in the AG's chambers which is designed to administer the estates of those persons who have appointed it to do so or those who have failed to appoint anyone at all.

3. 7 social sins

1. Wealth without work.

2. Pleasure without conscience.

3. Knowledge without character.

4. Commerce without morality.

5. Science without humanity.

6. Worship without sacrifice.

7. Politics without principle.

4. Procedure of resealing a grant

Resealing a grant by a Kenyan -   If its a Kenyan who dies abroad, his domicile determines where he should apply for a grant. But if he generally resides in Kenya, then the grant would be applied for in Kenya. 

Commonwealth countries allow applications for resealing in any of its Countries. 

The grant is then issued by the High Court.

The issued grant is filed and minuted.

The notice to the Kenya Gazette issued. 

If there are no objections then letters are issued.

If it’s a foreigner who dies abroad but his property is in Kenya, a grant is applied in his country of domicile and filed in the High Court of Kenya for resealing. It must be a certified copy of the grant issued by foreign country. The grant from the foreign country is then filed and minuted. 

The notice to the Kenya Gazette is issued. If there are no objections, letters are issued. 

A grant given by the High Court can be used in the foreign courts for resealing. The forms required are: Form P&A 81 or P &A 83- petition).                                     Form P&A 7- Affidavit…

Application should be made in accordance to s 77 of the Act and Rule 42 of the Probate and Administration Rules of 1980

A person should make an application either in person or through his attorney (empowered in writing to act on his behalf)

Such application should be made in High Court by way of petition by form 81 or 82 supported by an affidavit by form 7 

In making the application one should produce the original/duplicate/certified copy of the foreign sealed grant or a power of attorney if any.

One should then file together with the application; a certificate from the Estate Duty Commissioner evidencing either the payment of all estate duty payable to him or that they will be paid or that no such duty is payable.  

true copies of the grant or power of attorney,

unless the registrar otherwise directs, a full inventory of the assets and liabilities of the estate of the deceased in Kenya, 

evidence of domicile of the deceased and proof of death as may be required.

A notice will be published in Kenya gazette inviting objections within a (period of not less than 30 days as specified in notice) 

Where there is no such objection the Court will order for sealing.

Procedure:

Application should be made in accordance to s 77 of the Act and Rule 42 of the Probate and Administration Rules of 1980

A person should make an application either in person or through his attorney (empowered in writing to act on his behalf)

Such application should be made in High Court by way of petition by form 81 or 82 supported by an affidavit by form 7 

In making the application one should produce the original/duplicate/certified copy of the foreign sealed grant or a power of attorney if any.

One should then file together with the application; a certificate from the Estate Duty Commissioner evidencing either the payment of all estate duty payable to him or that they will be paid or that no such duty is payable.  

true copies of the grant or power of attorney,

unless the registrar otherwise directs, a full inventory of the assets and liabilities of the estate of the deceased in Kenya, 

evidence of domicile of the deceased and proof of death as may be required.

A notice will be published in Kenya gazette inviting objections within a (period of not less than 30 days as specified in notice) 

Where there is no such objection the Court will order for sealing.

5. Completion documents for agricultural land

1. Valuation report

2. The requisite consents i.e. Land Control Board consent, Spousal Consent and if applicable, Railways & Airport Consent.

3. Duly executed transfer forms in triplicate (must be sealed if a company is selling)

4. Passport Photos of the Vendor if it’s an individual and if a company, then 3 photos each of 2 directors of the company

5. Copy of Pin Number of the Vendor

6. Copy of National ID of the Vendor and if a company, copies of National IDs for 2 directors who’ll sign the transfer forms.

7. Copy of the Registration Certificate if it’s a company.

8. (viii)PIN Certificate of Company

9. Rates Clearance Certificate (In Case the tenancy of the land is freehold)

10. Rent Clearance Certificate (In Case the tenancy of the land is leasehold) freehold and rents & rates clearance if leasehold.

• Rates clearance certificates is where the land is within a rateable zone whether or not it is leasehold.

• Rates are levied by the Municipality, now County Government for services rendered. It therefore means that if a person with freehold land along say a highway constructs a local shopping centre which grows to necessitate the County to provide social amenities like toilets, sewerage etc. then the shopping centre can be declared a rateable zone and Land Rates levied. 

• Land Rent is levied on government land which is mostly leasehold and is paid at the Ministry of Lands. So that in our scenario where the land is agricultural, it’s very unlikely that the county government would provide any services.

• Only Land Rent Clearance Certificate is therefore relevant, provided the land is leasehold.

6. Ways of investigating a title

1. Searches -It is effectively the purposeful inspection of title records or register at the  relevant  (Lands)  Registry.

2. Pre Contract Inquires - they are preliminary inquiries relating more  to  the  physical condition  of  and  location  of  the  subject  property  as  well  as  the  proposed  contractual  document  itself.    A  Purchaser  will  ordinarily  want  to  know the  physical    and  extent  of  the  property.

3. Requisitions - purpose  of  requisitions  on  title  besides  aiding  the  process  of  investigation  of  title  is  to  help  give  the  Purchaser  title  in  accordance  with  the contract  for  sale.      Requisitions  relate  to  matters  which  arise  not  on  the  basis  of  the  search  or  simple  physical  inspection  of  property  but  through the  inspection  of  the  title  document  or  abstract  availed.    The  requisitions  are  in  the  form  of  questions  arising  after  a  perusal  and deduction  of  the  title  document.

7. What is derivative action?

Derivative action refers to a lawsuit brought by a shareholder of a corporation on its behalf to enforce or defend a legal right or claim which the corporation (directors, management, and/or other shareholders) has failed to do.

A shareholder derivative suit is a lawsuit brought by a shareholder on behalf of a corporation . Generally, a shareholder can only sue on behalf of a corporation when the corporation has a valid cause of action but has refused to use it.  This often happens when the defendant in the suit is someone close to the company, like a director or a corporate officer .  If the suit is successful, the proceeds go to the corporation, not to the shareholder who brought the suit. 

Derivative actions were first established by common law in the case of Foss v Harbottle and claims can now be brought under Part XI of the Companies Act 2015. Section 238 gives the meaning of derivative actions under the Act. An application must be made to the court under Section 239(1) and the requirements under Section 240 must be met. 

The court may refuse permission for the claim under the reasons set out in Section 241.

8. What is a prospectus

A prospectus is a document issued when a company is offering its shares to members of the public to subscribe. It contains information such as:

• the minimum number of shares to be taken up for the subscription to be successful

• the selling price of the shares

• the mode of subscription

• the details of the directorship

• advantages that accrue from the investment in a company among others. 

The Companies Act Cap 486 provides the prescribed information that should be contained in a prospectus. That section of the old law is still relevant.

A prospectus is a document which sets out the advantages that accrue from the investment in a company. It may be issued by a company or a promoter of a company.

9. Meaning of the seriatim clause in a defence

Seriatim is a Latin word meaning ‘in series or one by one’. 

 In every written statement of defence, the defendant must specifically deny every allegation of fact made in the plaint unless of course he intends to admit them.

The Plaintiff is also expected to specifically deny every allegation made in the counter claim unless he intends to admit them.

Order 2 rule 11 of Civil Procedure Rules states as follows: (3) Subject to sub-rule (4), every allegation of fact made in a plaint or counterclaim which the party on whom it is served does not intend to admit shall be specifically traversed by him in his defence or defence to counterclaim; and a general denial of such allegations, or a general statement of non-admission of them, shall not be sufficient traverse of them.

Ninth Set of Questions:

1. Difference between hearing date and mention  date?

Hearing date is a date given by the court to the parties of a suit for purpose of the suit to be heard on that particular date.

Mention date on the other hand is a date given by the court to the parties of a suit for either setting a hearing date or confirming compliance of orders given by the court to the parties i.e filing of submission.

2. Difference between bail and bond?

Bail is an amount of money, usually paid by an accused person in criminal proceedings after they plead not guilty so that they do not spend time in remand during the duration of the trial. Failure to appear in court during a hearing of their case leads to forfeiture and in some instances issuance of fresh warrant of arrest.

Bond is more or less an undertaking by an accused person, it's promissory in nature and where an accused person, should they fail to make an appearance, the security bonded is forfeited.

Bail is an agreement between an accused person or his sureties and the court that the accused person will attend court when required and that should the accused abscond, in addition to court issuing warrants of arrest, a sum of money r property directed by the court to be deposited will be forfeited to the court- according to bail and bond policy guidelines

Types of bail:

• Anticipatory bail

• Police bail

• Pending trial bail

• Pending judgement bail

• Bail pending appeal

3. Explain the concept of objector proceedings

4. What is the current situation in regards to Nakumatt holdings?

Nakumatt as we currently know is facing bankruptcy. In a press statement , the landlords who house the various outlets throughout the country stated that they do not do not support the proposals for recovery advanced by Nakumatt administrator Peter Kahi.

Early this year, the High court allowed Nakumatt to appoint Kahi in a bid to strategise the way forward on coming out of debt owed to the landlords and lool suppliers.

The administrator was expected to meet all Nakumatt creditors in 60 days of his appointment, and address all their concerns. Tuskys had also expressed interest in making a deal with Nakumatt to help bail them out but this is no longer the position. Tuskys want nothing to do with Nakumatt.

5. Which parts of the election amendments laws were declared unconstitutional by the court?

• Sections 2, IEBC Act, 2011

• Section 7A(4), Section 7A(5), 7A(6) of the IEBC Act 2011 Paragraphs 5 and 7 of the second schedule to the Act 

• Elections Act Section 39(1)(C), Section 39(1)(E), 39 (1)(D) & section 83

6. What vitiates a contract?

Vitiating elements of a contract are those factors which make a contract void or voidable. They include:

• Mistake

• Duress

• Misrepresentation

• Undue influence

• Illegality.

7. Name 5 different registries that searches are conducted in under conveyancing

• Companies registry

• Survey departments 

• County government 

• Land registry

• Probate Registry

8. What do you do when your client pleads guilty?

If you're client pleads guilty, you confirm if indeed the client did understand the charges and consequences of pleading guilty. You inquire if the client had legal representation in the first place. If not, the charges will be read a fresh and the client pleads again. If it turns out that the client still pleads guilty, you can ask the court to mitigate on the sentence. If also you are not satisfied with the outcome of the case, there is an avenue for an appeal.