In my recent visit to Machakos law courts the Chief magistrate gave a ruling on a civil matter where two individuals had sued a trade union after being defrauded by the officials of the said union. What baffled me most was the manner in which the plaintiff advocate handled this matter. I was left asking myself if the advocate had done adequate research on the matter before proceeding to court.
The Chief Magistrate stated that the court had no jurisdiction to hear the matter and that the parties to the suit ought to have been the officials of the trade union and not the trade union as a body corporate. He cited several sections of the new civil procedure rules of 2010. Some of which had been raised by the defendant advocate.This showed ill preparedness by the plaintiff advocate and/ or lack of research thereof.
Being an Advocate of the High Court requires hard work and preparation every day and the effective use of the tools of the trade. Unlike doctors, who use thermometers and scalpels, or carpenters, who use hammers and screwdrivers, advocates must use less common tools to build their cases. The tools include the Constitution, case law, statutes, legal encyclopedias etc.
I will only discuss two of the most commonly used tools in our courts.
The Kenyan legal system is based on precedent. This means that prior court rulings, or holdings, guide how current legal issues will be decided. The Kenyan court system is a hierarchy with the Supreme Court at the top, followed by Courts of Appeal, the High Courts and then the Magistrate courts. Generally, decisions of the Supreme Court will guide it in future cases, but occasionally prior precedent will be overturned. Holdings from the Supreme Court also guide the courts of Appeal and the High courts, and the holdings of the appellate courts will guide the High courts. Because of the importance of prior cases in the legal profession, a lawyer must have access to case law as a tool. It can be obtained through a set of books that can be purchased or found in a law library, or through legal research websites, such as Westlaw, Findlaw, LexisNexis, Council for Law Reporting (EKLR).
Lawyers must have access to statutes. A statute is a law, and lawyers must be able to look up the law to determine how a particular legal issue is affected by the existing law of the jurisdiction. For instance, criminal statutes detail the necessary elements for an act to be considered a crime, and the lawyer must apply the facts of the case to the statute to determine whether all of the elements are met. The court system exists through statutes, as do the rules of evidence and the rules of court procedure. Statutes can be found, in most cases, through a state legislature’s website (EKLR), in books at law libraries, and through the legal research websites. They can also be purchased from the Government printers.
Becoming a lawyer takes hard work and dedication. Lawyers serve as advocates or legal counsel to people and companies facing all kinds of legal issues. Extensive education beyond college is needed to work in this field.