Mohammed Muigai LLP

The Golden Jubilee of Giella V Cassman Brown

The problem with centennial celebrations is that 100 years are simply too many. The actors of the events that took place 100 years ago are mostly dead; those who are not, if there are any, do not have age mates with whom they can share the memories; if they do have any age mates, they nevertheless have lost the energy for commemoration; if they don’t have any age mates, the best they can do is to relate those events to the rest of us, but now their cognitive powers have long been consumed, and what little is left is best spent on preservation rather than nostalgia or entertainment. It seems then more sensible to settle for the 50 year celebration, the golden jubilee. The things that happened 50 years ago are within the memory of people still living. They can tell us, in a lively and vivid way, what they recollect of them, and how those events, and they themselves, have contributed to the world that we live in today.

What interesting things then happened 50 years ago, in 1973? In the Middle East, Golda Meir’s State of Israel was fighting a surprise attack on its national day of atonement, Yom Kippur. Egypt’s Anwar Sadat was competing, as before him Gamel Abdel Nasser had done, for pre -eminence among Arab speaking leaders. He thought he might achieve this by reclaiming the territories that had been lost to Israel six years earlier, in the six-day war. The Yom Kippur war ended 18 days later, with the Israeli’s embarrassed by their unpreparedness for it. The relatively easy success of the six-day war of 1967 had made them complacent. 50 years later, there is nothing complacent about Israeli defence; the pendulum has swung the other way, it’s bigger problem is now its ruthlessness, flirting with, when it is not crossing, the boundaries set by international law. Golda Meir’s successor today, Benjamin Netanyahu, has different priorities. He seeks to limit the powers of the Supreme Court and the Judiciary. If he could he would do away with them entirely. Luckily for the rule of law, a robust, if sometimes violent resistance to this has been put up; the streets have been filled with the cries of protesters and the smell of tear gas for months. The rule of law will prevail.

Earlier that year, 1973, in the United States, Chief Justice Warren Burger’s Supreme Court had handed down its decision in the case of Roe v Wade, deciding that a woman’s right to terminate a pregnancy was protected by the constitution. “This right of Privacy” said Justice Blackmun in the leading opinion; “whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

The decision of course was momentous. It was also wrong. At least that what the Supreme Court has
subsequently said. In 2022, when Roe v Wade had reached its 49th birthday, it was overturned. In
2022, in Dobbs v Jackson Women’s Health Organization, Justice Alito gave the leading opinion in
language which suggested 49 years of pent up frustration;

“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had
damaging consequences”

The idea that the right to abortion could be read into the right to privacy was always controversial; it had always troubled the basic rules of statutory interpretation. The Court therefore sought to rectify this;

a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken
tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”

The problem with Roe v Wade is that it took this important policy decision out of the hands of elected representatives, and placed it in the hands of Judges.

“Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”

Roe v Wade then did not survive. But there were productions which did. 1973 was the year in which Bruce Lee died, but he left with us Enter the Dragon, which was released in the same year, and who can say when that will ever cease to be entertaining. It is also the year that Bob Marley’s sixth album, Burnin, was shared with the world, and who can say when we ever stop singing along to “I shot the sheriff” and “Get up Stand Up.”

In 1973 we were celebrating 10 years of independence. The birthday present to the our legal profession, apart from the birth of the future Justice David Majanja, was surely that timeless little case called Giella v Cassman Brown. Wrapped in the 1973 East Africa Law Reports, there it still sits, at page 358, those short succinct passages that everyone cites, but hardly reads, refers to, but hardly talks about. Yet there is much to be said about this case. First, its endurance. In the 50 years since Giella was decided, so many fundamental revolutions have taken place in the law; there have been amendments to the Constitution, and then its replacement, regarded as the most transformative in the world, various new Courts have been introduced, and removed, their various jurisdictions asserted, and then trimmed, the Civil Procedure Act has been amended, and its rules replaced, yet Giella stands intact, resistant to any winds of change in the legal landscape.

Should we also not acknowledge its importance? There is not a law student who has not come across it, or a single Judge or Magistrate who has passed a whole day without a mention of it. When two advocates argue a case in Court, they both say that they rely on Giella. There are probably very few Court files in which a copy of Giella will not be found. Giella takes credit for saving many a home which was shortly, and irredeemably, to be lost to the unscrupulous banker, for many a property that was facing demolition without notice, and for many a contract that was to be terminated with malice and without due process, and yet as it takes this credit must it not also assume responsibility for all the interminable delay in the conclusion of cases, and for all that money and time that has been consumed by litigation?

Giella is also quietly self- confident, yet free from pomposity. Today’s Judgments are often long and full of learning, but sometimes tend toward the ponderous. Giella makes its point in four quick pages, and, the main principle, for which it is now so famous, it establishes in three basic propositions which it reduces to one paragraph. Recently, the Supreme Court, in the case of Westmont Holdings v Central Bank of Kenya, set out to clarify the law on security for costs, and the principles by which the Court of Appeal should be guided in deciding such a question. The journey in search of principle became rather a long one, taking the Court to a number of countries. In the 63rd paragraph of the Judgement, the Court, acknowledging its mandate to “set guiding principles which will assist courts below,” proceeded then to reduce the guiding principles to what seems a rather healthy list of no less than 21 considerations, adding that “we agree with the courts of other jurisdictions that a court should consider several factors” before making an order for security for costs.

Of course, the Supreme Court likes to be thorough. If it should err, it is surely better than it should error on the side of thoroughness than for want of it. However, a difficulty that is presented by a list this long, comprehensive and healthy though it is, is digestibility. It is not easy to consider all these factors at the same time, less still is it to decipher how much weight is to be attached to each. On the other hand, the problem with Giella is the wide latitude that it seems to give to the Court in having to consider only three factors. Whether a prima facie case has been established is largely a question of judgment and discretion; the wider it is the more pliable it becomes, and thus the more liable to misuse.

The difference between the two approaches, it is suggested, is that Giella did not feel the need to exhaust all the factors that would have to be considered. There are undoubtedly others aside from the three it sets out. An injunction being a relief in equity, the Court would have to be concerned about certain characteristics of the applicant such as whether he has come with clean hands, whether he has been indolent or vigilant, whether he has disclosed all that is material and such other factors as would cause him to fall out of favour with equity. The Courts consider all those factors, which Giella does not mention, yet continue to cite Giella as the classic, the land mark, or better still, the celebrated case.

Giella is a classic in the same way that a Land Rover Defender Series 3 (another product of 1973) is a classic. It does not have the thrills and pretensions, or airs and graces, of the current version. The lights do not turn themselves on when it gets dark, the wipers do not swing into action automatically when it starts to rain, it does not tell you that you are too close to the wall when you reverse, or that you are driving too fast. All these matters, in the hands of a good driver, will be decided correctly. If the driver be inept, no number of cameras will save him from scratching the wall. As the Land Rover trusts the driver with good judgment, so does Giella trust the Judge.

Like Giella, the 1973 Land Rover is still on the road, where it is seen doing the most difficult jobs. It will be seen off road acting as the rescue to newer cars which are stuck in difficult terrain, it will then be observed moving soldiers from one barracks to the next, or spreading terror where protestors need to be dispersed. At night you will find it extracting vehicles from the city drains, or some other spot that has gained popularity among drunk drivers, or transporting the latest guests of the state and other persons in whose favour the law for the moment does not presume innocence, to this station or that. A practical vehicle for practical assignments.

You do not make changes to a classic; do not try to improve it. What you do is to raise your glass and you toast to Giella v Cassman Brown.