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Wednesday, September 2, 2015

Ethics and Tribulations of a Young Lawyer: Sam Akhwale on Integrating Real-World Examples in Advocacy Ethics Training

Sam Akhwale is an Advocate of the High Court of Kenya with 17 years post-qualification experience. He teaches Trial Advocacy at the Kenya School of Law, the Bar School in Kenya. Before that he had worked at Private Law firms, with the Office of the Director of Public Prosecutions and with a Human Rights NGO. Sam is a gifted teacher and advocate. He brings a kind and gentle, yet disciplined, approach to advocacy teaching.

At the 2015 Trial Advocacy course for Kenyan lawyers hosted by the Mombasa Law Society at the Coastal city of Mombasa in Kenya, East Africa, among the items on schedule was a discussion on ethics. To set the discussion going, some hypothetical problem questions were posed to the participants in the training.

One of the questions went: "You are a young advocate, and have been sent by the partner in the firm you work for, to travel to and file a motion in a court 150km away from your head office, for stay of execution of an award of damages against your client, pending appeal. You have travelled all that distance, then just before you file the motion papers in the registry, you notice the supporting affidavit drawn in the partner's name has not been signed by him. You call him and he tells you, "just sign it". What do you do?".

What many in the training at Mombasa may not have known is that this is a real situation that I faced as a relatively new lawyer. I had just three years in private practice with a law firm in Eldoret, in the north western part of Kenya. Eldoret is famed for wheat farming and as the cradle of world famous athletes in long distance races. The firm I was working with mainly represented insurance companies in personal injury claims against companies insured by those insurance companies. Most of the injuries would arise either from road traffic accidents or in industries. Because the law firm was on the panel for the insurance company, they would be given a wide region of courts to cover to avoid instructing too many law firms. That meant that lawyers within that firm traveled quite extensively.

I recall one time I was to go to Kisii High Court, which was the regional court in South-Western Kenya, not far from the Kenya-Tanzania border. I had to file appeals against awards of damages arising from claims by passengers in a public transport bus, then attach the memorandum of appeal to a motion to be filed in another Magistrates court where the awards were made, then travel 70 kilometres to that Magistrates court to file motions for stay of execution pending appeal. So to make it from Eldoret to Kisii by public transport, I hired a hotel room in Eldoret and had to be up by 1am, to board a bus "Nya Ugenya" (literally mean, "Girl from Ugenya"), that would do the 260km from Eldoret through Kisumu to Kisii, and get there by 6am.The courts would open at 8am, for me to file the appeal, then travel onto Migori, 70 kilometres away, where the Magistrate's court was.

The towns on Akhwale's route are circled in red. The small town where he had to take the affidavit is marked with a green cross, just to the right of Kisumu on the map above.

A bus of the type that Akhwale traveled on for this case.

So back to the affidavit that was not signed: This was at a time in Kenya when mobile phones were still very limited in circulation. I therefore went to a public call box, made a call to our office and was lucky to find my boss in the office. He did not seem as panicky as I was about the affidavit he had not signed; he just told me on phone, "just sign it", then he hung up. I was not any better off than before I had made the call. The other dilemma was that the Magistrate who was to have heard the motion was on leave and they were waiting for another Magistrate to come over to the station to mention the cases heard by her colleague. So I made a quick assessment and chose to take a matatu (a 14 seater public transport van) back to Kisumu, the third largest town in Kenya located on the shores of Lake Victoria which was 20 kilometres away. Good enough computers and printers were just becoming a common feature in our towns. I therefore went to a stationery services bureau and got the affidavit re-typed in my name, then signed my part and took it to an advocate in town to commission the affidavit. The cost of getting it commissioned of course ate into my travel allowance that I had taken for the trip but the allowance that remained was still enough for my meals and travel back to our head office. Because all this happened about 14 years ago, my memory has faded a little bit on how the case ended but what I am sure of is that I don't think our client's property was attached by an auctioneer so I must have succeeded in my motion.

Looking back at this experience in the light of the trial advocacy course we had in Mombasa, I find each and every experience an advocate goes through to be a useful and helpful source of examples that trainees, especially young ones, can draw from. Stories from one's early professional life enables trainees see that the advocate or trainer they see at the front of the class did not climb the tree from the top, but went through the normal and ordinary struggles that every young working professional went through. In fact, relating these stories years later can be done with a good helping of humour, because with hindsight, what at the time may have looked like the end of the world, ended up being as yet just another day in the life of a young advocate. In the course at Mombasa, we had among the trainees students from the University of Nairobi, who impressed us with the thorough study of the case file and the detailed ideas they came up with during the case analysis part of the course. To such young people, a snapshot of what to expect when they will begin working when they qualify as advocates, builds in them resilience and an eagerness not to fear the world of advocacy but face it with an aim of excelling .And so maybe at the next trial advocacy course in Mombasa or elsewhere in Kenya, we could consider having Kenyan advocates of over 10 years experience print and wear t-shirts with words detailing that they survived the most difficult experience in their early years of practice. Mine might read, "I survived an unsigned affidavit one hundred and fifty kilometres away from my head office"!

--Sam Akhwale


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  2. I think if you can increase the size of map then it will look a bit interesting. Also some more images can make it awesome.