It is so cold in Nairobi. It is even colder in the corridors of court at Milimani. It is coldest on the waiting benches in the registry and in the court rooms. Advocates in suits of all shades and shoes of all shapes tread the corridors of justice. Litigants who are evidently unused to the court environment tread carefully through this temple of justice.
Mumbi is a young lawyer. She is not as experienced as Kamau. Senior Counsel Kamau. Mumbi has been in practice for a paltry 2 years. Kamau, Senior Counsel Kamau has been in practice for over 30 years. The court room is Senior Counsel Kamau’s playground.
She is nervous. She is uncomfortable. Mumbi has no escape though. She must represent her client. She is an advocate and she was made for this: to appear before judicial bodies and act for an aggrieved litigant as prosecutor or defender. She would not be most nervous if she attended court more often. She would not be most uncomfortable if she was appearing with a peer, one with who she was at the Kenya School of Law.
The court room is packed. What do all these people want? Mumbi keeps wondering. Somehow, she prays that by the time her case is called, it is only her and Kamau, Senior Counsel Kamau who are in the court room. But the crowd seems to only increase. Why can’t people always settle their disputes out of court? Mumbi now understands the purpose of alternative dispute resolution. If all these people practiced it, she would not be as nervous as she feels now; she would be comfortable in a court room with just opposing counsel and the judge.
When senior Counsel Kamau enters the court room, Mumbi does not even notice him. She does not know him, neither has she ever seen him. She does not notice when he later leaves the court room. Ten, twenty, thirty, forty minutes Mumbi’s matter has not been called. She is shivering and she does not know if it is because of the cold court room or the nervousness or a combination of both.
“Civil Appeal number XYZ of 2017, Sweet Fudge Chocolate Company Versus Mellow Bakers and Confectioners” the court clerk announces
Did I hear right? Mumbi wonders. Nervousness deafens. Like a deer in the headlights, Mumbi stands up and addresses the court, “If it may please you, Your Honour; I am Ms. Mumbi for the Plaintiff”
“Ms?” the judge asks
“M-u-m-b-I”, she spells her name in response.
“I appear for the plaintiff”. Must submissions in court always be repeated? She wonders. She must however not get distracted. She must not let her mind wonder to non-issues.
“Who appears for the defendant?” the judge asks
The court is silent. Mumbi looks around the court room waiting to see who opposing counsel is. Meanwhile, the Honourable Justice is perusing the court file.
“Where is senior Counsel Kamau?” the judge asks no one in particular.
“I do not know him or whether he is present today, Your Honour”, Mumbi replies
“You don’t know Senior Counsel Kamau?!” the judge asks, perplexed. Who doesn’t know senior Counsel Kamau? Which litigator doesn’t know senior Counsel Kamau?
“I do not know him” Mumbi confirms, to the utter surprise of the judge.
“Well, we cannot proceed without him. We must wait for him” the judge says as he leans over to hear what the court clerk is whispering to him.
“He is in the next court room. Go and look for him”, the judge authoritatively suggests to Mumbi
“But I do not even know how he looks like”, Mumbi protests.
“Go and ask. Anyone will be able to show you”. Anyone. Everyone knows Senior Counsel Kamau, so any one should be able to point him out.
Mumbi, in her navy blue suit, red high heels tip toes out of the court to go and look for Senior Counsel Kamau. And yes, the first person she asks, points him out.
He is old, as old as Mumbi’s grandfather would be, if she had one. His hair is the colour of dirty white. It is uncombed. He is wearing a black pinstriped suit whose glory days are evidently way over. His shirt is cream and crumpled around the neck. It is as if a cow chewed on the collars before he wore it. His tie is unmatched and looks stained with something oily around the knot, near his chin. His shoes seem too big for his feet, and the leather on the shoes seems to be from the age of renaissance – rugged and rough. A shabby presentation, a poorly set up apparatus. Is this what it takes to be senior Counsel? Mumbi wonders. “I would not pay a penny to look like this” Mumbi thinks.
When she tells Senior Counsel Kamau that he is needed in the next court for an urgent hearing, she is not sure if he has heard her. He seems to be ignoring her, like she didn’t say anything to him. But how could he not have heard what she said, yet when she greeted him, “Good afternoon”, he replied with a similar greeting? But this is how senior counsel treat young lawyers. What do they know about the law? What do they know?
Mumbi’s case is a peculiar one. On the 7th day of May 2017, she filed a suit for her client, the plaintiff who sought remedies from court against the defendant who purported to be the makers of their signature product, the chocolate fudge cake. It is a spongy sweet cake with molten chocolate on the inside. – Yum. At the same time, she filed a notice of motion seeking quick temporary orders from court barring the defendant from producing, packaging and passing off the chocolate fudge cake as theirs, at least until the suit was heard and concluded by the court. In the same motion, she asked the court to allow her get those quick temporary orders without effecting service on the defendant because her client, the plaintiff was most likely to suffer irreparable damage from the illegal activities of the defendant.
Court refused to grant the quick temporary orders. Court refused to hear Mumbi on her case. The court’s reason for refusal was that Mumbi’s client did not seek remedies from the Bakers Tribunal which is established under the Sweets and Confectionaries Act. Court advised Mumbi to go and seek the tribunal’s remedies before she comes back to the court. As such, the case was stood over generally.
When a case is stood over generally or SOG’d as is commonly known amongst lawyers, it means that the case has been deferred, it has been postponed, it has been delayed until certain conditions as set by the court are complied with. Nothing can be done on that matter, except to comply with the court’s directions.
A lawyer is a hired gun. Ethics lectures at law school dispute this. But ask a person who has hired a lawyer. A lawyer is their hired gun, their ferocious and ruthless dragon who breathes fire in the face of their opponents. So, when Mumbi was hired, the plaintiff spread word around city market that the defendant was officially finished. – amekwisha! A lawyer, a young one at that, not these old ones who are interested in raising fee notes has been hired. She is as sharp as a razor, brilliant like a mullah. She is the type that smells so good, has flawless skin, a captivating smile, and kicks ass in court.
The Swahili say, dawa ya moto ni moto. On hearing the talk, the defendant also hired a ferocious and ruthless dragon to scotch the other’s young inexperienced dragon. Who cares how good you smell in court? Everyone who has attended the magistrates’ criminal court cares about their olfactories. How the accused and arrested stink!
When Senior Counsel Kamau was hired, he immediately went to court and looked at the file. That afternoon, he sent a notice to Mumbi telling her that the defendant had hired him to represent them in the case she had filed. Mumbi did not give much importance to the notice. The court SOGd the matter, refused to give her quick interim remedies and asked her to go to the Baker’s tribunal.
Her client believes in courts, and not tribunals, especially not the Baker’s tribunal. They think that the Baker’s tribunal is biased against them. It was only the other day when the tribunal decided that it was unfair for their shop to be at the entrance to city market, that their location presented unfair competition to other bakers in the market, that therefore, they should get a shop near the other bakers, so that they compete favourably with the others. What? Yes. You read that right!
So, without Mumbi’s knowledge, and without serving her copies of any document they filed, senior Counsel Kamau at a date given by the Court went ahead and addressed the court in the same matter Mumbi had filed, the matter which was SOGd. Mumbi says that she did not receive any notice of any hearing. But how could the court hear someone else in her case, without her presence? Mumbi was told by a peer with whom they studied at the great Moi University Law School that Senior Counsel told the court that he had served and that she didn’t show up. That on another occasion, senior Counsel told court that he could not locate Mumbi’s office.
But what happened to substituted service? What happened to filing an affidavit of service to prove that indeed, one had served the other party?
Senior Counsel Kamau must have had a ball in court – he prosecuted a case, yet he was for the defendant and without filing a counterclaim, he did not have to serve the plaintiff but only had to tell the court that the plaintiff was served and chose not to show up or that he couldn’t find their lawyer’s office, he prosecuted and defended a case where he had been sued.
On learning all the above, Mumbi rushed to court and requested for a perusal of the court file. The file had since grown into a large volume. There was a replying affidavit and a fresh motion with very many annexures seeking the same orders she had sought against the defendant, the orders which were denied. The case was also scheduled for a judgment on Senior Counsel Kamau’s “case” the nest day.
The point at which the court saw it fit to hear the defendant who had also not tabled the case before the Baker’s tribunal, Mumbi could not determine. The court’s decision to hear senior Counsel Kamau’s contentions in the absence of Counsel of his accuser was perplexing to Mumbi.
So, this morning when Mumbi asked for a quick mention so that she can withdraw the case, the court did not allow her to proceed without the presence of Senior Counsel Kamau. The judge said that it was necessary that he be present because he has an interest in the case. But why was Mumbi not given the same opportunity?
Natural justice it is said, demands that no man shall be condemned unheard. No sitting of the court may go on in the absence of the other party, unless it can be proved that the other party willfully refused to attend court.
The Good Book, in John 7:51 asks, “”Does our law condemn a man without first hearing him to find out what he has been doing?”
Conclusively, undoubtedly, there is no condemnation for those who are unheard, who are not given the opportunity to present their case. Justice must prevail!
BY SAMALI BITALA
This article appears in our digital law newsletter, The Deuteronomy Vol 5, Issue 3 of May 19th, 2017
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