NTRODUCTION TO CHAPTER 2 OF TRIAL ADVOCACY

This Chapter has 3 sections to it:

 Cab rank rule: which essentially says that you should take all cases that you can do to the best
of your ability
 Conflict of interest: A rule which states the cases in which an advocate should not act in
 Recusal of judicial officers: which enables an advocate to operate in an impartial judicial
forum
The materials in this handout follow the above order.

A: THE CAB RANK RULE

1. Historical background of the cab rank rule

Origin of the term ‘cab rank’ is British. Operators of the black cabs in London would have their lights
on to indicate that they were available for work or off to indicate unavailability.
Naturally, in the taxi business, the longer the distance, the more lucrative the journey, The cab rank rule
served to impose obligations on taxi drivers to ferry customers to their destinations in disregard of the
distance they were travelling.

Cab rank rule and the legal profession

The term “access to justice by all” is the legal equivalent of the cab rank rule and its application to the
same. Should lawyers and other legal practitioners have the option of choosing more lucrative and
publicity generating suits over less glamorous ones?
The rule when applied to the legal profession imposes ethical obligations on lawyers to take up even
undesirable cases.

Application of the cab rank rule in other jurisdictions

(a) Australia and New Zealand
Rule1.02 of the Australian law society “rules of professional conduct for barristers and solicitors”
under these rules a criminal defence lawyer cannot refuse a case on grounds that they find the case or

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the client abhorrent if they do so, they will find themselves divested of their practising certificate
without which they cannot practice.

Exceptions to this rule is whereby they lack expertise in the field concerned, but are not permitted to do
so on moral grounds.

A criminal defence lawyer is obliged to defend a client they know full well to be guilty. They are
obliged to take a case even if to do so will seriously comprise their integrity.

(b) United Kingdom

Barristers are similarly expected to represent their clients to the best of their ability. However, there are
exceptions to this rule whereby certain circumstances in which a barrister may withdraw from a case.
The UK position ensures that the interests of both barristers and clients are upheld.

(In Britain, barristers do not get to choose who they act for, solicitors do)
Self employed barristers are subject to the cab rank rule in paragraph 602 of the code of conduct which
states “A self employed barrister must comply with the ‘cab rank rule’ and accordingly except as only
otherwise provided in paragraphs 603, 604, 605 and 606, he must in any field in which he professes to
practice in relation to work appropriate to his experience and seniority and irrespective of whether his
client is paying privately or is public funded;-
(i) Accept any brief to appear before a court in which he professes to practise
(ii) Accept any instructions
(iii) Act for any person on whose behalf he is instructed

He /She (barrister) should do so irrespective of;-

(i) The party on whose behalf he is instructed
(ii) The nature of the case
(iii) Any belief or opinion which he may have formed as to the character, reputation cause, conduct,
guilt or innocence of that person.

Paragraph 602 of the UK code of conduct, provides that pursuant to the ‘cab rank’ rule counsel is
obliged to accept any instructions unless one or more of the specified exceptions to that rule applies;-
a) Counsel is entitled to decline instructions or a brief if the fee offered is not a proper one

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 b) Counsel can decline a brief where he is offered two of more hearings where one brief/ hearing
offers a lesser fee.

(c) Kenyan Position

The cab rank rule is not well developed or entrenched in the Kenyan legal system. Part of the reason
for this is that Kenyan lawyers are jacks of all trades and a master of none. That is to say, they
(lawyers) pursue all types of cases, civil, constitutional, criminal commercial etc without regard to
specialization. However the law society of Kenya has general standards regarding lawyers professional
work;-
(i) As soon as practicable after receipt of any brief or instructions a lawyer should satisfy himself
that there is no reason why he ought to decline to accept it
(ii) A lawyer is not considered to have accepted a client’s instructions, unless he has had
opportunity to consider it and has expressly accepted it.
Similarly, a lawyer must exercise due diligence and avoid engaging in conduct which is;-
a) Dishonest or otherwise illegal
b) Prejudicial to the administration of justice
c) Likely to diminish public confidence in the legal profession or the administration of
justice or otherwise brings the legal profession into disrepute.
Ojienda T.O in his book; professional ethics and professional responsibility; the essentials of advocacy
(chapter two) is of the view that unless an advocate is obliged to instructions from any client you need
not refuse on account of colour, ethic, origin, creed, sex, race etc. however, decline instructions if;-
1. You do not want to take that kind of work
2. You don’t have enough time
3. There is personal interest
4. You have previously acted
5. You are a tribunal or a commissioner and the case is triable by these tribunals
6. You are practicing in partnership and your partner is likely to be called as a witness in that case
7. Your client wants you to take a certain action purely to injure somebody else
8. The instructions given are not clear
9. A client does not want to pay fees

Circumventing the cab-rank rule

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The cab rank rule exists in principle this means lawyers and clients can easily overlook it without
batting an eyelid since its enforcement is difficult.

Firstly, it may be abused by wealthy clients who engage all the available legal talent in a certain area
by being the first to brief all the smart advocates.

Secondly, the lawyer’s reputation is not injured if the client is involved in cheating and underhand
manipulation. Infact, high profile criminal case clients tend to raise the profile of the advocate
representing them. This serves to undermine the cab rank rule

The argument that the right of someone’s to associate with persons of our choice also circumvents the
cab rank rule, both advocates and clients have the inherent right to choose who they act and who acts
for them respectively.
Advocates also argue that the pauper brief scheme in Kenya is sufficient reason to set aside the cab
rank rule.

Section 77 (2a) of the constitution embodies the presumption of innocence of every person and allows
such a person representation before he can be found guilty. The pauper brief scheme recognizes the
rights of legal representation at the state’s expense for everyone facing a capital sentence. This
provision is however lacking for people charged with robbery with violence under section 296 (2) cap
63. The scheme allows the court to pass briefs to advocates to appear for such accused persons for a
minimal fee without seeking payment from the accused person.

Normally, only junior advocates take up pauper briefs, since the seniors do not have much time to
spend on such briefs.

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B: CONFLICT OF INTEREST

THE MEANING OF CONFLICT OF INTEREST

• A real or seeming incompatibility between one’s private interest and one's public or fiduciary
duties
• A conflict of interest exists if there is substantial risk that the lawyers representation of the
client would be materially and adversely affected by the lawyers own interests or by the lawyers
duties to another current client or to a former client or to a 3rd person

WHEN CONFLICT OF INTEREST MAY ARISE

1. In a case where an advocate who is a company director; such advocate should not accept
instructions to act for the company
2. In the case of an advocate who are councilors they should not accept instructions to act for the
urban council
3. Commissioners of assize, judges cum advocates – cap12 Comm Assize Act they should decline
briefs to which they are likely to sit as judges
4. Members of parliament who are also practicing advocates must not accept rewards from their
constituents for what they have done for them in their capacity as advocates
5. Arbitrators ; where an advocate is serving as an arbitrator he cannot advice any of the parties

The Advocates (practicing Rules) 1998 provide that an advocate cannot in relation to transactions
relating to land act:
1.In the case of a sale, for both the vendor and the purchaser
2. In the case of a lease, for both the lessor and lessee
3. In the case of a mortgagor charge, for both the mortgagor or chargor and the mortgagee or
chargee

Forms of conflict of interest

• Simultaneous representation – an advocate may not represent two clients who are adversaries in
a case. KING WOOLEN MILLS V KAPLAN AND STRATTON ADVOCATES.

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• Issue conflict – an advocate representing two clients in different cases and urging a legal
position of one which will have negative consequences for another if the cases are pending in
the same court

1. Successive representation
• This occurs when an advocate represents a client in a matter which may be adverse to a former
client. Where matters of the former and current clients are related in some way and the advocate
would risk breaching confidentiality to represent the current client. Note that advocate-client
confidentiality goes beyond completion of a court case. It is infinite. An advocate can be
disqualified for such conduct if the interests of the former and current client are really and truly
adverse in nature and if the past and current matters are closely related in some way.

• Simba Hills Farm Ltd v Sultan Hasham Lalji & 5 Others [2006] eKLR
In an application for the disqualification or barring of advocate or advocate's firm from conducting
suit, on the ground that advocate for the plaintiff, Mr. Birech of Birech & Company, Advocates had
previously acted for the 3rd and 4th Defendants before, it was held that there was conflict of
interest and Mr. Birech could not be allowed to act for the plaintiffs as it was possible that as
former counsel for the said defendants, he could have come across some knowledge that would be
prejudicial to the Defendants.

2. Expected witnesses

• When it is expected that an advocate will be called as a witness in the case, then the said
advocate may be disqualified from acting in the matter. This is to protect the client’s interest
because of the probability that the testimony could harm his client’s case.
Francis Mugo & 22 Others v James Bress Muthee, Alex M. Ndirangu, Gilbert Kabage T/a Pata
Commercial Enterprises, John Muthee Ngunjiri T/a Tango Auctioneers & General Merchants.
[2005] eKLR
• The firm of Mukite Musangi &co. Advocates was disqualified from conducting the suit because
the Defendant intended to call the advocate as their witness. The said advocate had drawn and
witnessed a lease which was relevant to the case.
• See also the case of UHURU HIGHWAY DEVELOPMENT LTD.AND OTHERS V.
CENTRAL BANK OF KENYA AND OTHERS Civil Appeal No.286 of 2001.(2003)KLR 62

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• Rule 9 of the Advocates (Practice) Rules provide that an Advocate who beliefs that he or she
shall be called as a witness in a matter should not appear before a court or a tribunal presiding
over the same matter.

• A judge presiding over a matter, in which one of the parties was a former client, i.e. had acted
for one of the parties.
Trust Bank Ltd v Midco International (K) Ltd, Ciem Investments Ltd, Piyush Manubhai
Patel, Pankaj Vankaj Somaia & Ajay Shah [2004} eKLR
• This was application for review and setting aside of a court order on grounds of conflict of
interest on the part of the presiding judge. The defendant found out the presiding judge had
acted as advocate for the plaintiff while in private practice after judgment on admission was
given in favour of the plaintiff. Prior to this, no disclosure had been made of that fact in the
proceedings. The applicant alleged that the non-disclosure denied him an opportunity to raise
the issue of disqualification of the presiding judge. The issue was whether there was a
miscarriage of justice. The order of the presiding judge was set aside

Ways to mitigate conflict of interest

 Removal - to avoid them entirely
 Disclosure – disclose an actual or potential conflict of interest
 Recusal – those with conflict of interest are expected to rescue themselves from (i.e., abstain
from) decisions where such conflict exists

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C: RECUSAL OF JUDICIAL OFFICERS

THE RULE AGAINST BIAS

Judicial Independence is a human right. It is recognised by International Treaties as well as the Kenyan
Constitution.

International Treaties:
1. Article 10 Universal Declaration of Human Rights
“All people are entitled to a fair public hearing by an independent tribunal.”
2. Article 14.1 International Covenant on Civil and Political Rights
“Everyone shall be entitled to a fair hearing by a competent, independent and impartial tribunal
established by law”
3. Basic Principles on the Independence of the Judiciary endorsed by U.N in 1985
“Judges must have security of tenure and be free from pressure, whether direct or indirect in the
performance of their duties.”

Section 77(9) of the Constitution of Kenya

“A court or other adjudicating authority prescribed by law for the determination of the existence or
extent of a civil right or obligation shall be established by law and shall be independent and impartial;
and where proceedings for such a determination are instituted by a person before such a court or other
adjudicating authority, the case shall be given a fair hearing within a reasonable time.”

BIAS
Definition: A state of mind which prevents the judge from making an objective determination of the
issues he has to resolve

The rule is embodied in the Latin phrase “nemo judex in re causa sua” meaning ‘no man shall be a
judge in his own cause.’

The rule is immutable i.e. it cannot be curtailed even by statute. An Act of Parliament made against the
rules of natural justices so as to make a man a judge in his own cause is void
Dary v Savadge [1615] Hob 85, 87

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It is no defence to argue that even a totally disinterested tribunal would have to come to the same
decision.

TYPES OF BIAS
 Pecuniary bias
 Personal bias
 Policy bias

1. Pecuniary Bias
-A direct pecuniary interest in a case however smaller insignificant automatically disqualifies a
person from acting as a judge in his own case
Dimes v Proprietors of Grand Junction Canal [1852] 3 HL cas 759
London and North Western Railway Company v Lindsay (1858) 3 Macq 99
London and North Western Railway Company v Lindsay (1858) 3 Macq 99
Facts:
Lord Wensleydale refused to participate in hearing the appeal on the ground that he was a shareholder
in the appellant railway company

Serjent v Dale (1877) 2 QBD 558

Lush J
“The law does not measure the amount of interest which a judge possesses. If he has any legal
interest in the decision in question…he is a disqualified, no matter how small the interest may
be…one important object at all events is to clear away everything which might engender
suspicion and distrust of the tribunal and so promote the feeling of confidence in the
administration of justice which is essential to social order and security.” (page 567)

2. Personal Bias
It may involve matters as:
 Personal friendship
 Relationship between the judge and one of the parties
 Where a judge has some personal animosity or hostility against a party
 Expression of views on earlier occasion which might be thought to affect his ability to give both
parties a fair hearing

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Kamlesh Masukhal Damji Pattni and Goldernberg International Limited v R
Civil appeal number Nairobi 301 of 1999 (115/99) (UR)

Facts:
Kamlesh instructed his advocate to request Judge Moijo Ole Keiwua, a judge of the High Court of
Kenya, to disqualify himself from presiding over this matter. This was on the ground of personal bias
as deducted from the statements of the judge:
 A man who had “stuffed himself full from public resources”
 A “pilferer and looter”

In ruling that the judge ought to have disqualified himself, the Court of Appeal stated:
“ For a judge or a judicial officer to say publicly of someone in such derogatory terms shows…
an appearance of bias- such a description is not merely injudicious and insensitive but bound to
be interpreted as a gratuitous insult…the applicants do not allege that the learned judge was in
fact biased…it is alleged that there’s an appearance of bias, not actual bias…Public confidence
in the administration of justice requires that the judge must withdraw from the case if there is a
real danger of bias. It is no answer for the judge to say that he is in fact impartial and that he
will abide by the judicial oath.”

3. Policy Bias
This may arise from particulars circumstances which, for logical reasons predispose a judge towards or
against a particular view of the evidence or issues before him. A judge should disqualify himself on the
ground of strongly held beliefs which he fears might affect his judgement.

TEST FOR BIAS

The decided cases draw a distinction between ‘actual bias’ and ‘apparent bias’.

Actual bias is hard to prove because it is difficult to explore the actual state of mind of a decision
making authority.
“Bias is or may be an unconscious thing and a man my honestly say that he was not actually
biased and did not allow his interest to affect his mind although nevertheless he may have
allowed it unconsciously to do.” Devlin J
R v Barnsley Licensing Justices ex parte Barnsley and District License Victuallers Association
(1960) 2 QB 167

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Thus the more common approach is to test for apparent bias through these tests:
 Reasonable suspicion of bias/Reasonable apprehension of bias
 Real likelihood of bias/Real danger of bias

“In the overwhelming majority of case, we judge that the application of the test would anyway
lead to the same outcome.”
Lecabul (UK) Ltd v Bayfield Properties Ltd [2000] QB 451

1. Reasonable suspicion/ reasonable apprehension of bias

R v Sussex justice ex parte McCarthy [1924] 1 KB 256

Facts:
The case arose from the prosecution of McCarthy before lay justices for dangerous driving. Unknown
to McCarthy and his solicitors the clerk to the justices was a member of the firm of solicitors engaged
in the conduct of proceedings for damages in a civil claim against McCarthy arising out of the accident
that had given rise to the prosecution. The clerk retired with the justices, who then convicted
McCarthy.

On learning of the clerk’s relationship with the firm, McCarthy applied to have the conviction quashed.
The justices swore affidavits stating that they had reached their decision to convict the defendant
without consulting the clerk.

Lord Hewart CJ delivering the leading judgement held, inter alia, that:
“ There is no doubt that it is not merely of some importance but of fundamental importance that
justice should not only be done but be manifestly and undoubtedly seen to be done…the rule is
that nothing is to be down which so much as creates even suspicion that there has been an
improper interference with the cause of justice.”

He proceeded to quash the judgement. Note that he accepted the evidence that the clerk had not
intervened in the justice’s discussions. His decision was reached on the premise that what actually
transpired between the clerk and the justices behind the closed door was not relevant. The fact that the

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clerk had retired with the justices gave an appearance of the possibility of bias and injustice and that
was enough to lead to the quashing of the verdict.

Real likelihood/ real danger of bias

Metropolitan Properties Co (FGG) Ltd v Lanon (1968) WLR 815

“In considering whether there was a real likelihood of bias, the court does not look at what the
mind of the justice himself…or whoever…who sits in judicial capacity…The court looks at the
impression which would be given to other people. Even if he was impartial as he would be,
nevertheless if right minded persons would think that in the circumstances there was a real
likelihood of bias on his part then she should not sit.”

PROCEDURE AND PRACTICAL ASPECTS Re RECUSAL OF JUDICAL OFFICERS

An application for disqualification can be oral or made formally, by way of Notice of Montion.

Such an application is made to the judicial officer against whom such apprehension of or actual
bias is alleged and who is called upon to decide whether or not to disqualify himself/herself. In
considering such an application, the court as a starting point, presumes that judicial officers are
impartial in adjudicating disputes. This, therefore, means that, for this presumption to be
rebutted there has to be cogent or convincing evidence by the applicant. However, should such
an application be objected or fail, the applicant has the option to appeal in the usual manner of
appealing. Consider the case of JAO v. Homepark Cartels Limited. The respondent’s
advocate applied to the presiding Judge to disqualify himself on the basis that he was a member
of a Task Force on HIV together with the applicant’s advocate. The judge (J. B. Ojwang)
objected the application by the respondent and went ahead to adjudicate on the matter.

An advocate making an application needs to demonstrate certain qualities:

1. Tact
It is important to make the judge understand that you have nothing personal against him/her-In
fact the application is being made so as to protect the integrity of the judge’s court.
A good example of such tact is to be found in the trial of Nelson Mandela during the Apartheid
era in South Africa. In his book, No Easy Walk To Freedom, under the heading of ‘Black man

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in a white court’, Mr Mandela is shown to be tactfully asking a judge to disqualify himself in
the case. Consider the following extract:

“I have an application to address Your Worship. At the outset I want to make it perfectly clear
that the remarks I am going to make are not addressed to Your Worship in his personal
capacity, nor are they intended to reflect upon the integrity of the Court…I might also mention
that in the scope of this application, I am frequently going to refer to the White man and the
White people. I want at once to make it clear that I am not racialist and I detest racialism
because I regard it as a barbaric thing, whether it comes from a Black man or a White man.
The terminology I am going to employ will be compelled on me by the nature of the application
I am making. I want to apply for Your Worship’s recusal from this case. I challenge the right of
this court to hear my case on two grounds. Firstly, I challenge it because I rear that I will not
be given a fair and proper trial. Secondly I consider myself neither legally nor morally bound
to obey laws made by a Parliament in which I have no representation. In a political trial such
as this one, which involves a clash of the aspirations of the African people and those of Whites,
the country’s courts, as presently constituted, cannot be impartial and fair. In such cases
Whites are interested parties. To have a White judicial officer presiding, however high his
esteem and however strong his sense of fairness and justice, is to make Whites judges in their
own case. It is improper and against the elementary principles of justice to entrust Whites with
cases involving the denial by them of basic human rights to the African people…”

2. Firmness
An advocate should never give the judge the impression that the application is being made for
the sake of it. Otherwise they will dismiss the application and the interests of your client will
suffer, or your application could be deemed as contempt of court. Hence the judge will see that
you’re willing to fight to the bitter end.

In a number of cases some judges will not disclose that they have an interest and/or refuse to
step down.

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