Mohammed Muigai LLP

Courtroom Traditions

It is alleged that one day, nobody knows exactly when, but probably some time in the year 2019, someone, nobody knows exactly where, but probably in some place called Wuhan, some man, nobody knows exactly who, but some man, ate a bat. Nobody knows why he ate a bat; maybe he was hungry, maybe adventurous, maybe trying to prove a point. It is useless to speculate. We do not know what his other options were. He might have eaten something else, and everything would have been as it was before. But he ate a bat, and everything changed.

As he was enjoying, or enduring this interesting meal, he was unlikely to have been paying any attention to the impact this would have on our court room traditions.

On the other side of the world, it is 9 o’clock in the forenoon, and the advocates are gathered in the Courtroom. The room is quiet, the silence broken only by Senior Counsel trying to catch his breath; it is the fourth floor of the venerable Milimani Law Courts, a building of heavy dignity. It has a lift, but lifts are for he faint of heart. Senior Counsel is made of sterner stuff. He would not have had to run had it not been for the long queue at the gate which delayed him. The queue is long because it is a busy day at the Court this morning; the new Constitution has increased the appetite for justice. But the justice seekers must be searched, and searched thoroughly. The security guard at the gate subscribes to the view that the right to privacy is not an unlimited one[1]; the public interest must give way to petty private ones; on balance, he believes, some mild morning molestation is a small price to be paid to protect the public interest.

The officers at the gate did not recognize Senior Counsel; if they had they should have let him through. He regards this as shameful but does not want to argue with them; that is not an argument which he has prepared himself for; and it was only yesterday that he taught his pupil about the importance of preparation. He also thinks the security officer a bit of a fool for not being more attentive, but quietly cautions himself of the dangers of arguing with fools; the officious bystander might not spot the difference, and what not.

Anyway, back to the fourth floor. Senior Counsel is panting, but at least everybody here recognizes him; what a relief. Junior Counsel vacate the front bench. They are not permitted to sit on it when Senior Counsel is present. The clerk then bangs the door to alert all in attendance that the Judge’s arrival is imminent; one bang for one Judge, two for two, three for three. All rise, and together solemnly bow, the members of the bar to the bench, and the bench to the bar. The solemnity of the occasion thus mutually acknowledged, all resume their seats, except of course pupils; they can stand at the back of the room.

Senior Counsel’s case is then called out, and he is back on his feet again. He introduces the coram. The coram sheet has been filled out by the pupil, and copies of it are in the Judge’s hands. Everybody knows who represents whom, but that does not stop him announcing the coram; it is his privilege and his responsibility. He then begins his address, which, as he relates it to his colleagues at chambers later on, it is a most distinguished display of advocacy, mellifluous, if he could say so himself. The pupil agrees. As he is getting into his stride, his learned friend interrupts by rising to his feet. Senior Counsel sits immediately. He respects this. There is an objection to be made, and objections cannot be taken from a sedentary position. He responds, and the case proceeds. It is a long case. As he proceeds, a fellow Senior Counsel walks into the room; he is late. The Learned Judge spots his opportunity to break the tediousness of the proceedings with a joke about Counsel being late for his own funeral if he goes on at this rate. Members of the bar had heard this joke the day before; that does not matter; they burst into laughter. The laughter is uproarious; almost uncontrollable as members of the bar compete in their appreciation of judicial humour. The Learned Judge allows them a long moment to compose themselves, and the case thus may be resumed.

When the last case is disposed of, Counsel remain at the bar until the Learned Judge is ready to leave.[2] They exchange bows, and the Court retires to write decisions. The business of the day is done. As he leaves the Court Senior Counsel addresses the journalists there gathered; this is a ground breaking case, he tells them, then, reaching for the appropriate sound bite, he declares that it is upon the outcome of this case that the rights of the people, the rights of liberty and the pursuit of happiness, must depend. He is proud of himself for that one. He smiles for the cameras; quietly wondering whether this is the day that he will be described as a prominent city lawyer.

Now it is March 2020. The man who ate a bat became sick. His sickness has travelled all around the world. Even the venerable Milimani Law Court building is not safe from the sickness. His Lordship the Chief Justice says that it must be closed at once. Proceedings will be conducted online.

And with that, all the drama of the courtroom experience is terminated. There ended the hustle and bustle, the rushing in and the rushing out of the courtrooms, up and down the stairs, the requests to hold brief as you attend another Court, the banter in the corridor, the gossip in the coffee shop next door, the meet and greet, the flirting and quarreling. All gone.

Senior Counsel is now receiving a crash course from his pupil on this creature called Microsoft Teams. The pupil can presently see, given the clear light that has now been shed on the matter, something that he has long suspected but dared not say; that this great oracle has a learning disability. In happier times Senior Counsel would be schooling the pupil; now the roles are reversed; and the happiness is reversed too. When he logs on there is no clerk to tell him how splendid he looks today; no Junior Counsel to be seen scampering from the front seat to make space for him, a spectacle in which he had always taken much joy and reassurance, for it is the best evidence, to him and to others, of his importance and his success; no pupils carrying his heavy briefcase, the weight of which was commensurate only to the gravity of his case; no courtroom gallery to turn to when making a profound submission, for why should such a thing of beauty not be enjoyed by a wider audience; no court corridor, the place to which the Judge would send him and his learned friend to discuss the matter, and from which they would invariably return with a

Is there not a loss to Junior Counsel too? Should we not be sorry for him? Has not his great stage been swept from under his feet? Look at him with some sympathy as he wonders where he shall display the skills that he has taken so long to cultivate. The Courtroom was the place in which he would make the thunderous oration that would attract the notice of the senior bar; he would prepare carefully constructed sentences, the evidence of his wit and learning; he would attempt the long pause for dramatic effect, for he had seen this done in the movies; having done so he would retreat to the corridor, whence Senior Counsel had just settled his case, and there try to find someone to settle down with, for is the court corridor not the place where many a good wife was to be found? If the conditions in the court corridor make it conducive to the settlement of a case, it is only because they are also conducive for courtship. The romantic advantages of the setting will be obvious even to the casual observer. First, notice the dim light of the court corridor; so dim that it produces a certain kind of darkness on this tropical morning. Admittedly, darkness is not ambience. Ambience would be better; but ambience is expensive. The darkness we have here is a close cousin of ambience, a cousin of lesser pedigree, but a cousin who carries some of the essential properties, disburdened of the corresponding costs. The second obvious romantic benefit is to be observed in the atmosphere about the court. The court room experience is always a nervous and anxious one, with its formalities and stuffiness; but therein lies its magic. For there is no better time to make an impression than when the damsel is in distress. The impact of a diversion under such circumstances will be amplified; it is a relief and may even incite a sense of thankfulness. Now notice the narrowness of the corridor and the shortage of bench space; there presents an opportunity for Junior Counsel to stand up and offer her a place to sit; his chivalry has been established. He is on the way to victory and not a word has escaped his lips. Better yet, if there be space on the bench, he might shift and create room to share it. Now he has physical proximity, the most valuable currency in such an enterprise. Now he is in position. At this moment, he must recognize that the substance of what he says is not of the greatest consequence; what matters is form and delivery. As to substance, the latitude is wide; on the matter of form, there is really no margin for error. It must be perfect. The delivery now needed must take the form of a whisper; a whisper, the reply to which, if the execution was done skillfully, will also be in the form a whisper, thus setting a tender tone for the remainder of the conversation. If anyone should question his motive for whispering, he need only point at the sign on the wall, which requires that silence in the corridor be maintained; a direct and unequivocal order of the Court; by this simple expedient he thus disposes of rivals and busy bodies. At this moment our man reminds himself of his three ‘c’s; competence, concentration and composure, for this is the easy-to-remember catchword to which he habitually turns when faced with a delicate task. As you can see, our man is a simple man; and simple men like simple solutions. The point is, in such convivial conditions only total ineptitude can account for failure. But now, in a virtual court, success is beyond the reach of all but the most calculating and experienced suitor.

Pity also the poor Learned Judge. His Lordship was for years greeted every morning by a standing ovation. His entry was imperious; majestic; his juristic heroism celebrated even before uttering a word. The grand entry is now replaced by the humble switching on of a computer screen, unannounced and unacknowledged, only to be met by spiritless, inanimate things. His first step is the strange new ordeal of being admitted to his own proceedings. He has no idea whether he has a crowded courtroom or not, nor whether he has eminent Counsel before him, something which would have helped him prepare his mind for the quality of submissions that he should expect. Now he turns on his computer screen and what does he see? He is confronted by the top of someone’s head in this corner, the dirty ceiling in the other corner; here he is looking up someone’s nostrils, there he perceives only one half of a human face; the half that is violently assaulting the undefended end of a maize cob. The first case is called out and Counsel is addressing him from the inside of a moving vehicle; how impertinent, his opponent from his home; another impertinence. In the next case the litigant harangues him about this case raising the most profound question on constitutional law; she is in bed. More impertinence. Our Learned Judge’s patience is now strained to its limits. His Lordship tries to remind himself about judicial temperance, about not descending into the arena, the vision being clouded by the dust of conflict, or something like that, but this supplies no comfort. As he turns the matter over in his sagacious mind, the proceedings are interrupted by the unmistakable sound of a flushing toilet; the deterioration is building speed; our dear Learned Judge has to mute everyone, the dreaded judicial ‘shut up’.

In the next case the Defendant, who is at home, has finished his case but has forgotten to log off. On seeing this our Learned Judge immediately freezes. His heart rate shoots up! He braces himself for the terrifying scene that is about to unfold in this his Court, for experience has taught him that a man has two sides to him, the one that he portrays to the world, and the one that he reserves for himself, when he is alone, and in private. His Lordship’s mind quickly turns to the celebrated dictum of Sir Edward Coke, that “a man’s house is his castle’; and he reflects nervously on the implications thereof; that in his house a man is free to do as he pleases, and that this right is protected by the constitution, and that in deciding what pleases him he need only consult his own conscience; and that nothing in our great constitution, the most transformative in the world, requires him at this moment to have any regard for taste or for decency; that even the looser constraints of societal norms, which we find operating beyond the reach of the law, are not in control of this inner sanctum. His Lordship shudders. His Lordship’s incisive mind wonders if the home is the man’s castle, doesn’t he have a duty to draw the curtains? But now is not the time for philosophical musings. His mind therefore transports itself to the last time he visited the zoo. Our Learned Judge has thus fortified his formidable faculties; he knows not what will happen next, only that the possibilities are endless, and that it is not going to end well, because it has never ended well. In this state of anxiety, blood pumping furiously, His Lordship wonders what became of the symbols of the dignity and majesty of the Court; there is no high seat, the commencement and adjournment of proceedings is unceremonious; there is neither bowing nor standing; the loud reverent silence of the courtroom is gone and its substitute is no equal; and what would he not give to have a bailiff to deal promptly with the impertinences he has suffered this morning?

Sympathize also with the pupil, overworked and underpaid, regarded as the darling of the profession, then as its wretch, then again its future. The Courtroom was the place he would receive his training, free of charge, watching all the great advocates of the day present their cases. There he would sit, listening to the sonorous voice of a John Chigiti SC before his elevation to the before his elevation to the bench, he would be mesmerized by a mercurial Chacha Odera, he would go into the next room and observe the trained advocacy of a Wanjirũ Ngige, then yield to the seductive persuasion of a Kethi Kilonzo, then imitate a methodical Geoffrey Imende, or attempt the smoothness of a Pheroze Nowrojee SC or an Emmanuel Wetang’ula. He would learn as much from the bad advocate as he would from the good one; listen to Mr……………….as he goes on and on, repeating himself endlessly, and learn the importance of succinctness, or to Mr………………….as he makes an embarrassing application for an adjournment, and learn the importance of preparation, or to Mr…………………so quarrelsome, so vexatious. Of the latter, he is presently vexing His Lordship’s spirit. His Lordship, exasperated, has recommended that he read Desiderata before the next hearing. He wonders if Counsel might benefit from its soothing influence. “It is not in the bundle of authorities,” is his reply. The point has been missed. In fact, the point has flown so far above Counsel’s head that the space between head and point cannot be closed. But as His Lordship reflects on it further, he wonders why he had even attempted this in the first place. His Lordship is now a little embarrassed; for he
ought to have judged the situation better. This sort of message, he privately confesses, is not for this sort of person. If he was the sort of person who could get it, there would be no need for the message in the first place. His Lordship wonders if the same might be said of nations. He remembers Justice Learned Hand’s wisdom on the futility of a constitution if the people lack the spirit of liberty;

I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there no constitution, no law, no court need save it.

His Lordship is about to share this parallel with Counsel, but stays his tongue instead. Counsel cannot be helped. This one he keeps to himself, the lesson from the first attempt was salutary. There is nothing to be gained from further prolongation of that experiment.

Back to the pupil. Now the oratory is done away with; the Court has moved to written submissions. Why do you need to highlight, the Learned Judge asks, isn’t it all in your written submissions? Those submissions have been filed electronically. The officious bystander pupil cannot see them. But he has no right of audience. He cannot say this. This learning opportunity has now been surrendered for him; as has the customary coffee after Court, where he would be regaled with anecdotes, and would get nourishment and mentorship, both much needed; and with that he wonders too whether his future has also been surrendered, for what place is there for the untrained and untutored, the half baked and the unmentored? Now you see him seeking comfort amongst his fellow pupils; the mood is despondent, morose. He finds them gathered round the pupils’ room, reminding each other that the meek shall inherit the earth, and that it is harder for a rich man to enter the gates of heaven than it is for a camel to pass through the eye of a needle, and such like things, the sort of things in which pupils seek solace. So all has changed. We talk of the new constitution as being revolutionary and transformative. In doing so should we not also recognize other revolutionary forces? Our ways of doing things have changed so drastically, for reasons with which the constitution has nothing to do. It is important to ask what impact this new way of doing things has had on our traditions and on our rules of etiquette. Should we not ask ourselves whether our customs are safe or whether we should declare them redundant? And if they are still relevant, why are they relevant and how should we protect them? These are portentous questions. Part of the answer is the various practice guidelines which the Court issues from time to time,[3] and which try to preserve, mutatis mutandis, as much of the customs of the bar as it is possible to retain, while accepting that with progress some things will inevitably be left behind, and that the clock can probably not be turned back, nor need be.

But these are questions that must be asked all because of a man who ate a bat.

Michelle Njuguna

Michelle holds a Bachelor of Laws degree from the Strathmore University Law School. She is currently undergoing the Advocate’s Training Program at the Kenya School of Law and has been part of the Firm for the past year, taking on an active role as part of the business development team.