KENYA SCHOOL OF LAW

ADVOCATES TRAINING PROGRAMME

ACADEMIC YEAR 2025

ATP 104 – TRIAL ADVOCACY

CLASS G FIRM 5 COURSE WORK ASSIGNMENT:

CLASS PRESENTATIONS – DR. ERIC KIBET (LECTURER)

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 FIRM 5 MEMBERS

NO NAME REGISTRATION NUMBER

1 Theresa Mwende 20251184

2 Eric Kinoti 20251281

3 Mitchel Kakai 20251163

4 Maxwel Ruto 20251247

5 Melissa Ikawa 20251176

6 Rosemary Muchiri 20251258

7 Joy Kulola 20251235

8 Edna Wangai 20251201

9 Otiato Phillip 20251273

10 Shyoso Nickson 20251643

2
History of adversarial system
1.​ The Chronological Evolution of the Adversarial System of Trial: A History from
Ancient Greece to Contemporary Kenya
Introduction
The adversarial trial system has a complex and lengthy history, which began in Ancient Greece
and evolved through the Roman Empire, Medieval England, the colonial era and to
contemporary Kenya. Here we will outline how the system evolved over time and how it
continues to adapt to meet new demands of society. Additionally, we will highlight how this
system respects fairness and the right to be heard by allowing opposing sides to state their case in
front of a judge or jury.

Ancient Greece
The Birth of Public Adversarial Discourse in Ancient Athens, which reached its peak in the 5th
and 4th centuries BCE, democratic ideals were valued very much, and this spawned an open
process of dispute resolution. To be more specific, the People's Courts, or Dikasteria, featured
large juries typically 201 to 501 citizens who heard both sides of a dispute.1

Moreover, litigants, or ‘ho boulomenos’ in Greek (any willing citizen), presented their own cases
without the help of legal representation, and oral argument and eloquent oratory were primarily
emphasized. For instance, in the well-known trial of Socrates in 399 BCE, he represented
himself in a charge of impiety and corrupting the young. Additionally, early laws like Draco's
severe laws (621 BCE) and Solon's reforms (594 BCE) provided a foundation for general
principles of procedural fairness despite the fact that the system depended primarily on public
accountability.2

The Roman Empire

From Accusatory Procedures to Codified Law In the Roman Empire, the legal procedure further
developed and included adversarial and inquisitorial elements. At the start, in the Early Republic
(509–27 BCE), the Twelve Tables (coded sometime around 451 BCE) established Rome's

1
R W Wallace, 'Law and Rhetoric: Community Justice in Athenian Courts' in S Hornblower and A
Spawforth (eds), A Companion to the Classical Greek World (Blackwell, 2006) 416–431.
2
D Linder, 'The Trial of Socrates' (2002) SSRN 1021249.

3
earliest codified law.3 In this early period, private citizens known as ‘accusatores’ were entitled
to initiate legal proceedings, and trials were held publicly in which presentations were made by
the two sides before magistrates and juries.4
Additionally, there was the introduction of the Formulary System, in which magistrates gave
formulas specifying the legal questions, and judges then had the duty of inquiring into the facts.
Then, in the Late Empire (3rd–5th century CE), the process moved toward inquisitorial
procedures under Emperor Constantine, and magistrates started to become more directly
involved in investigating offenses. Nonetheless, while the method changed, the civil trials
according to Justinian's Code (529–534 CE) continued to have many adversarial features, thus
influencing medieval European legal traditions.5

Medieval England
The Emergence of Common Law and Adversarial Justice
Following the Norman Conquest in 1066, English law started mixing Anglo-Saxon traditions
with the centralized powers introduced by the Normans. One of the key innovations of the period
was the implementation of the Magna Carta in 1215, which contained a clause ensuring free men
a trial by peers.6 Moreover, as the Court of Common Pleas and the King's Bench developed
during the 13th and 12th centuries as common law courts, the adversarial process was
formalized.

Facts were found by local juries in those courts and judges applied established legal precedents.
Furthermore, Bushell's Case in 1670 was significant because it established the jury's
independence and reaffirmed the doctrine of impartial fact-finding. Furthermore, the abolition of
the Star Chamber in 1641 was England's complete shift away from inquisitorial practices and
toward the adversarial system in place today.

3
A Deac, 'The Twelve Tables Law, the Most Important One from the Roman Law' (2021) 10(1)
Perspectives of Law and Public Administration 5.
4
Ibid
5
O Hekster, Rome and its Empire, AD 193–284 (Edinburgh University Press 2008).
6
K Worcester, 'The Meaning and Legacy of the Magna Carta: Editor's Introduction' (2010) 43 PS: Political
Science & Politics 451-456.

4
Colonial Expansion by England and its introduction into Kenya.
Exporting the Adversarial System In the era of colonial expansion, England exported its legal
system to the outside world through reception statutes. In Colonial Africa, for example, the East
Africa Order in Council of 1897 operated to apply English common law to Kenya, Uganda, and
Tanganyika.7 While the native legal systems remained operative within some of the local courts,
the adversarial system was imposed by the colonial governments to a large degree. For instance,
in Kenya, Indian Penal Code (1860) and Criminal Procedure Code legislation was applied by
colonial courts, introducing adversarial practice to their justice system. Further, the Kapenguria
Trial (1952–1953), in which Jomo Kenyatta was tried for anti-colonial agitation, provides a case
in which the adversarial process was also employed at times for suppressing dissent and
administering justice.8

2.​ Examination of post-independence kenya and how the 2010 Constitution of Kenya
incorporates adversarial system

It is worthwhile noting that the evolution of the adversarial method of resolving conflict has
taken time to develop. This has mainly been a product of the slow evolution of English and
American judicial procedure.

Post-independence Kenya saw the adversarial system embrace the application of customary law
in dispute resolution where it is not repugnant to justice and morality. Common law was made
applicable in Kenya by virtue of Section 3(1) of the Judicature Act.9

The 2010 Constitution of Kenya, has fully embraced the adversarial system. This has seen the
Constitution under Article 159 (1) provide for the judicial authority derived from the people and
vests in, and shall be exercised by, the courts and tribunals established by or under this

7
P Swanepoel, 'Codifying criminal law in East Africa during the Interwar Period' (2019) 37 Stichproben:
Vienna J of African Studies 93-113.
8
A Sehmi, 'Legacies of Colonial Violence in Contemporary Transitional Justice: Memories of Mau Mau,
the “Kapenguria Six” and the “Ocampo Six” in Kenya' (2024) 18(1) International Journal of Transitional
Justice 32-48.
9
Judicature Act CAP 8 Laws of Kenya, s 3(1)

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Constitution. This has also created the recognition of alternative dispute resolution mechanisms
that can be applied in the quest to resolve disputes that arise. This has led to a number of
individuals who seek to resolve both private and public matters by considering the use of
arbitration, this has become a common norm where the courts are readily giving leave to parties
to explore mediation or alternative dispute resolution mechanisms.

Further the Constitution has given the judiciary the mandate to create the office of a judge and
magistrate and grant them the independence to undertake their roles without impartiality.

Article 163 (7) of the Constitution recognizes the common law doctrine of stare decisis, by
requiring lower courts to be bound by the decisions of the Supreme Court.

In recognition of the adversaries rights to a fair hearing the Constitution under Article 50
accords, the accused the right to a fair hearing in consideration that the state has the power and
machinery to win cases against the accused.

The introduction of Civil Procedure Rules 2010, which were gazetted on 17th September 2010,
became effective on 17th December 2010, rules were a deliberately a departure from the
traditional adversarial system of litigation where courts have played the role of the impartial
bystander and arbiter who could not descend into the arena of conflict. Courts are now mandated
and empowered to narrow down issues for determination, and to set time limits within which
activities relating to specific litigation must be undertaken, with a view to enhancing case
management techniques, ensuring that court resources are used efficiently and eradicating
delays.10

3.​ A Study Of How Kenya Is Gradually Shifting Towards A Hybrid System

Kenya’s legal system as seen above has traditionally adhered to the adversarial model inherited
from British colonial rule. However, in recent years, Kenya has shown a gradual shift towards
incorporating inquisitorial elements into its legal framework, creating a hybrid system. This shift

10
The Mechanisms of Case Management under the New Civil Procedure Rules, 2010, By Jeanne W.
Gacheche, Presiding Judge Constitution and Judicial Review Division of the High Court of Kenya.

6
has been driven by constitutional reforms, judicial practice, and socio-political considerations
aimed at enhancing efficiency, fairness, and access to justice.

a. Active Judicial Case Management and Evidence Gathering

Traditionally, adversarial judges are reactive, but Kenyan judges are now encouraged to take a
more proactive stance in managing cases and even in probing for the truth. Statutory law has
long permitted this to an extent – Section 173 of the Evidence Act (Cap 80) grants a judge broad
authority “to discover or to obtain proper evidence” by asking any question of any witness at any
time, irrespective of the usual rules of relevance or admissibility​.11

This is an inquisitorial power embedded within Kenya’s adversarial system. In the past, it was
seldom utilized, as judges were cautious not to appear biased. But with mounting pressure to
resolve cases justly and efficiently, courts are now more willing to exercise these powers. For
example, Kenyan judges have on occasion summoned witnesses on their own motion or recalled
witnesses for clarification in order to fill evidentiary gaps that the parties left unaddressed.

The Court of Appeal for East Africa as far back as the 1960s approved such hybrid measures; in
Kulukana Otim v R (1963) the court held that a trial judge may exceptionally call or question a
witness not called by either side, as a means of arriving at the truth​.12 This precedent – effectively
blending inquisitorial initiative into an adversarial trial – has been cited in modern Kenyan cases
such as Samuel Letodo v Republic [2016] to affirm that a limited departure from party-control
is permissible in the interests of justice.13 The judicial ethos is slowly shifting from one of pure
arbiter to a more interventionist, truth-seeking role (though still bounded by the requirement of
impartiality).

Furthermore, Kenyan civil procedure has embraced case management conferences and
pre-trial directions (especially after the Civil Procedure Rules 2010 were revised), which
empower judges to shape the course of litigation. Judges can now direct the production of
evidence, mandate discovery, and narrow issues for trial – practices that echo inquisitorial
systems where the court steers the fact-finding process. The overriding objective principle in

11
Evidence Act (Cap 80), s 173.
12
Kulukana Otim v R (1963) EA 253
13
Samuel Letodo v Republic [2016] KEHC 1763 (KLR)

7
civil litigation (to facilitate just, expeditious, and affordable resolution of disputes) encourages
judges to cut through gamesmanship and technical delays, marking a shift from adversarial party
autonomy towards collaborative management of the case by the court. In criminal cases, recent
practice directions similarly urge judges and magistrates to actively prevent undue delays, for
instance by limiting adjournments and insisting that prosecutions disclose evidence in advance.
14
These measures, while still within an adversarial framework, signify a more inquisitorial
mindset of ensuring the court uncovers all relevant material for a fair determination, rather than
leaving everything to the parties’ will.

b. Integration of Alternative and Traditional Justice Mechanisms: As noted, the 2010

Constitution’s call to promote alternative dispute resolution and traditional justice systems has
led the Kenyan Judiciary to formally recognize and integrate these mechanisms. In 2020, the
Judiciary adopted an Alternative Justice Systems (AJS) Policy (following the work of a
Taskforce on Traditional, Informal, and Other Mechanisms for Dispute Resolution).​15

The AJS Policy Framework acknowledges that many Kenyans, especially in rural areas, resolve
disputes through elders’ councils, community tribunals, or religious courts (like the Kadhis’
courts for Muslim personal law). These forums are typically not adversarial: they employ
mediation, inquiry by community leaders, and a focus on reconciliation. By developing a policy
to accommodate and regulate such systems, the Judiciary is effectively building a hybrid legal
order where multiple modes of justice coexist. The policy aims to ensure these traditional
mechanisms operate under the supervision of the formal courts and align with human rights
standards​.16

For example, a customary tribunal must respect principles like non-discrimination and the right
to personal safety, even if it doesn’t follow formal adversarial procedure. This blending can be
seen as the formal system adopting an inquisitorial oversight role: the court may review or
endorse outcomes from an informal process, somewhat akin to how inquisitorial judges might
confirm settlements or investigative findings. As one commentator put it, Kenya is trying to

14
Constitution of Kenya, 2010, Article 50(2)(j)
15
Daniel S McConkie Jr, 'Promoting and Reforming Kenya’s Customary Justice Systems in Criminal
Cases' (2024) 38(2) Emory Intl L Rev https://scholarlycommons.law.emory.edu/eilr/vol38/iss2/2
accessed 05 March, 2025.
16
Judiciary of Kenya, Alternative Justice Systems (AJS) Policy Framework (2020)

8
“reconcile” customary justice with constitutionalism by reforming the former rather than
abolishing it​.17

The result is a pluralistic hybrid, where a land dispute might be resolved through village elders
(inquisitorial gathering facts and brokering a solution) and then recognized by a magistrate’s
court, or where criminal matters might be diverted to restorative processes under judicial
guidance. This development is partly sociopolitical – a response to public demand for accessible
justice – and partly practical, to ease the overburdened courts by handling certain cases in
alternative fora​.

c. Victim Participation and Protection Measures

Another area of embracing a hybrid system is the increasing emphasis on victims’ rights and
participation, which introduces inquisitorial elements into Kenya’s adversarial trials. Historically,
the adversarial model relegates victims to the role of witnesses for the prosecution, with no
independent voice. In Kenya, new laws and practices have started to change that. The Victim
Protection Act 2014 and subsequent victim rights jurisprudence allow victims of crime to have a
say in proceedings – for instance, to make impact statements, or even to seek review if
prosecutions are not carried out diligently. Moreover, for sensitive cases like sexual offences or
child abuse, courts have adopted special procedures that depart from pure adversarialism.18

Courts may hold in-camera sessions (excluding the public and press) and may permit testimony
via video link or through an intermediary to shield victims from direct confrontation with the
accused. The Constitution’s provision for intermediaries (Article 50(7)) has been operationalized
especially in cases of child witnesses, where a neutral figure (such as a children’s officer or
psychologist) can pose questions to the child on behalf of both the prosecution and defense​.

This approach is inherently less adversarial; it resembles the inquisitorial practice of the judge
leading the interrogation in a child-friendly manner. In a child sexual abuse (CSA) trial, instead
of aggressive cross-examination by opposing lawyers, the court may take charge of questioning

17
Daniel S McConkie Jr, 'Promoting and Reforming Kenya’s Customary Justice Systems in Criminal
Cases' (2024) 38(2) Emory Intl L Rev https://scholarlycommons.law.emory.edu/eilr/vol38/iss2/2 accessed
05 March, 2025.
18
Victim Protection Act 2014 (Kenya)

9
to ensure the child is not intimidated and the truth is still obtained. Kenyan scholars have
proposed a “hybrid model” for such cases – retaining the adversarial system’s protections for the
accused while borrowing inquisitorial methods (like detailed pre-trial investigations and active
judicial questioning) to better protect child victims​19 The logic is that the expanded role of the
judge in managing how evidence is elicited can enhance fairness for both sides: it prevents the
re-traumatization of the victim and ensures the evidence is fully explored, without sacrificing the
defendant’s rights​. Kenyan courts have indeed shown willingness to moderate the adversarial
clash in favor of a more inquiry-based, judge-guided process in such circumstances, marking a
clear hybrid approach to trial advocacy.

d. Public Interest Litigation and Amicus Curiae

The move to make the Rules on standing in the 2010 Constitution20 more liberal has given rise to
a wave of public interest litigation in Kenya. In constitutional and human rights cases, petitioners
need not show a personal grievance; they can sue on behalf of the public or a group. This often
means a case is not a classic two-party dispute, but rather an issue brought to court for
determination in the public interest. The adversarial structure strains in such scenarios, because
the matter may involve multiple interested stakeholders and perspectives beyond a simple
claimant vs. defendant. Kenyan courts have adapted by allowing numerous interested parties
and amici curiae (friends of the court) to participate in these cases. For example, in
high-profile constitutional cases (such as those involving electoral disputes, environmental
rights, or LGBT rights), the courts routinely admit NGOs or individuals as amici to offer
expertise or perspective​.This trend dilutes the pure adversarial format by introducing
non-partisan inputs into the court’s fact-finding and decision-making process. A judge in such a
case may end up synthesizing a broad array of evidentiary affidavits and submissions, some of
which were not strictly presented by either the petitioner or the respondent, but by amici or
interveners.21 The result is a more inquisitorial-like richness of information and viewpoints, with
the court actively curating the material needed to reach a just result. Former Chief Justice Willy

19
Victor A O Otiso, ‘An Assessment of the Criminal Trial Process in Kenya’ (2014) 2(5) Journal of
Research in Humanities and Social Science 50
https://www.questjournals.org/jrhss/papers/vol2-issue5/D253056.pdf accessed 06 March 2025
20
Constitution of Kenya 2010, Article 22 and 258
21
International Development Law Organization (IDLO), Friend of the Court & the 2010 Constitution: The
Kenyan Experience and Comparative State Practice on Amicus Curiae (2014)

10
Mutunga and other jurists have welcomed this as part of Kenya’s “transformative
constitutionalism,” where the court’s role is not merely to resolve bilaterally contested facts, but
to inquire into systemic issues and uphold the Constitution’s objectives – a task that sometimes
requires stepping beyond adversarial limits. The Kenyan Supreme Court’s guidelines on amici
curiae (the “Mutunga Rules” 2013)22 explicitly acknowledge that amici can be admitted to aid
the court in novel or complex matters, illustrating an institutional acceptance of a hybrid
procedure for the greater good of jurisprudence.23

e. Institutional Reforms with Inquisitorial Features

Kenya’s judicial reform processes themselves have embodied a hybrid character. A striking
example is the Judges and Magistrates Vetting Board (established after 2010 to vet all sitting
judges for integrity and competence). The vetting proceedings were not conventional adversarial
hearings; instead, the Board adopted an investigative, interview-based approach. Judges under
review were not confronted with formal charges prosecuted by an accuser; rather, the Board
gathered information from various sources (complaints, asset declarations, past judgments) and
then questioned the judge in person about any concerns. The process was described as “more
inquisitorial than adversarial,” though still with safeguards for fairness​. In fact, several judges
who underwent vetting complained that they were “ambushed” with questions on matters not
disclosed beforehand, arguing that the process should have followed an adversarial format like a
normal disciplinary tribunal (with specific allegations and the opportunity to defend against
each).24​ The Vetting Board, however, justified its methodology as necessary to thoroughly
investigate suitability, emphasizing that it was a unique constitutional mechanism, not a trial for
criminal or disciplinary culpability​.25

The success of the vetting process – which resulted in the removal or resignation of several
judges deemed unsuitable – demonstrated the effectiveness of an inquisitorial approach in
achieving accountability. It set a precedent that certain objectives (like cleansing the judiciary or
truth-seeking in post-conflict situations) may be better served by inquisitorial processes. Indeed,
22
Supreme Court of Kenya, Mutunga Rules 2013
23
Ibid
24
Yash Ghai and Jill Cottrell Ghai, Kenya’s Judicial Vetting Process: Insights from the Kenyan Experience
(2014)
25
Judges and Magistrates Vetting Board, Final Report (2013).

11
in the aftermath of the 2007–2008 post-election violence, Kenya relied on commissions of
inquiry and a Truth, Justice and Reconciliation Commission, all of which used inquisitorial
fact-finding (collecting evidence, interviewing witnesses, and compiling reports) rather than
adversarial trials to establish what happened and who was responsible.26 These mechanisms,
alongside the International Criminal Court’s intervention (itself a hybrid forum blending civil
and common law procedures), signaled that Kenya was increasingly open to multi-faceted forms
of justice beyond the traditional courtroom duel.

Through these examples, it is evident that Kenya’s trial advocacy and judicial process are
gradually embracing a hybrid identity. The hybrid system seeks to capitalize on the strengths of
both adversarial and inquisitorial models: the adversarial tradition’s protection of individual
rights, open hearing, and party autonomy, combined with the inquisitorial tradition’s efficiency in
truth-finding, active judicial oversight, and flexibility in accommodating multiple interests​.27

The shift has been cautious and calibrated – Kenya has not jettisoned the adversarial system, but
rather, has modified it in practice through constitutional values, statutes, and jurisprudence.
Importantly, Kenyan courts remain mindful of balancing these elements. Whenever
inquisitorial-like measures are introduced, there is an effort to ensure procedural fairness is
maintained so that neither party is unduly prejudiced.28 For instance, if a judge calls a witness on
his own motion, the parties are typically given a chance to question that witness as well
(preserving adversarial testing of the evidence). If traditional elders handle a case, their
agreement must be consensual and not violate rights, and the outcome may be subjected to
review to protect against unfairness. This balancing act reflects the influence of
constitutionalism: any hybrid procedure must comport with the fundamental rights to fairness,
equality before the law, and justice. Thus, Kenya’s shift to a hybrid system is a controlled
fusion, aiming to remedy the shortcomings of a purely adversarial system (such as high cost,
delays, formality, and marginalization of victims or the poor) without losing the safeguards that
adversarial justice provides.

26
Truth, Justice and Reconciliation Commission (TJRC) Report (2013).
27
Ibid
28
Ibid

12
Conclusion
Kenya’s transition towards a hybrid system of trial advocacy reflects an evolving legal landscape
that seeks to balance efficiency, fairness, and access to justice. While the adversarial system
remains the foundation, the increasing adoption of judicial case management, alternative dispute
resolution, victim participation, and inquisitorial investigative procedures marks a significant
shift. These changes, largely driven by constitutional mandates and judicial pragmatism, indicate
that Kenya’s legal system is progressively embracing a controlled fusion of adversarial and
inquisitorial elements, ensuring that justice is not only done but is also accessible, inclusive, and
effective.

4.​ Analysis of the advantages and disadvantages of adversarial systems

The adversarial system in Kenya is a method of dispute resolution in legal proceedings. It is

based on the principle where two opposing parties present their cases to an impartial judge or
jury. This system, primarily used in civil and criminal trials, is designed to ensure that each party
has an equal opportunity to present its arguments, evidence, and witnesses. Below is an analysis
of the advantages and disadvantages of the adversarial system in Kenya, with reference to case
laws and relevant footnotes.

Advantages of the Adversarial System in Kenya

1. Ensures Fairness and Justice

One of the core benefits of the adversarial system is the protection of the right to a fair trial. Both
parties have the opportunity to present their cases fully, enabling the judge or jury to make a
decision based on the facts and law presented. The system is designed to ensure impartiality,
where the judge acts as a neutral referee, not actively involved in the investigation or the
presentation of evidence.
In the case of Ndyanabo v. Attorney General [2001]29, the Court of Appeal emphasized the
importance of ensuring fair trials in criminal cases, stressing that the adversarial system allows

29
Ndyanabo v. Attorney General [2001] 2 EA 485

13
the parties to participate fully in their cases. The decision reinforced the idea that fairness must
be upheld in all judicial processes.

2. Promotion of Judicial Independence.

The adversarial system helps to maintain judicial independence by ensuring that the judge
remains impartial. The judge’s role is limited to ensuring the law is followed and the case is
decided based on the evidence presented. This ensures that judges are not overly involved in the
investigation process, unlike in the inquisitorial system where judges take an active role in
investigating facts.
In Republic v. The Judicial Service Commission & 2 Others30 The High Court discussed the
importance of judicial independence and how it is maintained in adversarial legal processes,
where the judge's role is neutral.

3. Encouragement of Legal Representation.

The adversarial system allows parties to be represented by legal counsel, which helps ensure that
both parties have access to professional legal knowledge. This is particularly important in
complex cases, such as corporate disputes or criminal cases, where the intricacies of the law
require expert guidance. This leads to more informed decisions being made in court.
In Republic v. Wycliffe A. Onyango31, the accused was allowed to have legal representation in a
criminal matter, and the court recognized the importance of legal counsel in ensuring a fair trial,
as per the adversarial system.

4. Promotes Transparency.
As both parties present evidence and arguments before the court, the process is inherently
transparent. The public nature of the proceedings and the principle of open justice are essential in
building trust in the legal system and ensuring accountability.
In Ochieng v. Republic32 , the transparency of the adversarial system was underlined, where all
evidence and arguments were placed in the public domain for scrutiny.

30
Republic v. The Judicial Service Commission & 2 Others [2014] eKLR
31
Republic v. Wycliffe A. Onyango [2016] eKLR,
32
Ochieng v. Republic [2019] eKLR

14
5. Encourages the Search for Truth.
The adversarial system allows each party to challenge the other's evidence and arguments,
thereby encouraging the presentation of the truth. Each side is motivated to present the strongest
case possible, which typically leads to the revelation of the most accurate facts.
In Attorney General v. Proparco Limited33 , the court discussed how the adversarial system led
to the discovery of critical evidence that contributed to the final verdict.

Disadvantages of the Adversarial System in Kenya

1. Inequality of Resources Between Parties.

The adversarial system often results in unequal representation, especially between parties with
vastly different resources. Wealthier parties can afford expert witnesses, extensive legal teams,
and other resources, giving them a significant advantage in court over poorer litigants.
In Attorney General v. T. K. & Another34 The High Court recognized the challenges faced by
impoverished litigants who could not afford legal representation, which often puts them at a
disadvantage in the adversarial system.

2. Delay in Justice Delivery.

The adversarial system can sometimes result in prolonged trials due to complex procedures,
extensive cross-examinations, and delays in the availability of witnesses or evidence. These
delays hinder the timely resolution of cases and undermine public confidence in the judicial
system.
In Kenya Ports Authority v. Khato Civil Engineering Limited35 The court acknowledged the
issue of delays in the judicial process and discussed how the adversarial nature of litigation can
contribute to protracted legal battles.

33
Attorney General v. Proparco Limited [2015] eKLR
34
Attorney General v. T. K. & Another [2015] eKLR
35
Kenya Ports Authority v. Khato Civil Engineering Limited [2020] eKLR

15
3. Overemphasis on Winning
The focus on victory in the adversarial system may sometimes undermine the pursuit of justice.
Parties may prioritize winning the case over uncovering the truth, leading to an over-reliance on
technicalities, legal loopholes, or procedural arguments rather than the merits of the case.
In Republic v. Ibrahim S. Osman36 The court discussed how lawyers sometimes prioritize
tactical advantages in criminal cases rather than focusing on the truth of the allegations, which is
a challenge inherent in the adversarial system.

4. Potential for Adversarial Behavior.

The adversarial nature of the system can lead to parties focusing on attacking each other's
credibility rather than collaboratively seeking a resolution. This can exacerbate conflicts and lead
to hostile litigation, rather than constructive dispute resolution.
In Moody Awori v. Republic37 The court highlighted the potential for aggressive and
confrontational behavior in adversarial proceedings, especially in criminal cases.

5. Judicial Passivity.
In an adversarial system, the judge plays a relatively passive role, acting only as an impartial
referee. While this is intended to ensure fairness, it can sometimes result in the judge being too
reliant on the arguments and evidence presented by the parties, leading to decisions that may not
fully consider all aspects of the case.
In Gatabaki v. Gikonyo38 The High Court discussed instances where the judge, due to the
passive nature of the adversarial system, was criticized for not taking a more proactive role in
ensuring that all pertinent evidence was presented.

36
Republic v. Ibrahim S. Osman [2017] eKLR
37
Moody Awori v. Republic [2004] eKLR
38
Gatabaki v. Gikonyo [2015] eKLR

16
 5.​ CRITIQUES OF BOTH ADVERSARIAL AND INQUISITORIAL SYSTEMS

Is the Adversarial System Working for Kenya?

The adversarial system works in theory as it ensures that the rights of the parties are respected,
and it facilitates a clear and open process. However, in practice, its effectiveness in Kenya is
debatable. The system faces challenges due to issues of accessibility, delays, and resource
disparities. The legal system, despite being based on principles of fairness, struggles to serve all
citizens fairly, particularly the poor and disadvantaged groups.
There have been calls for reform, including the need to simplify the legal process, improve
access to legal aid, and address corruption within the judiciary. Some argue for the incorporation
of more inquisitorial elements, which would allow judges to take a more active role in
investigating and determining the facts of the case. Incorporating an inquisitorial system into
Kenya’s legal framework could offer potential benefits and address some of the current
challenges in the adversarial system, but the inquisitorial system also presents its own set of
challenges.

Key Features of the Inquisitorial System

In the inquisitorial system, which is commonly used in civil law jurisdictions (such as many
European countries), the judge plays a more active role in investigating the case. Rather than just
acting as a neutral referee between the parties, the judge has the responsibility to:
Investigate the facts of the case (sometimes with the assistance of prosecutors or investigators).
Question witnesses and suspects directly.
Gather evidence and decide which evidence is most relevant.
Determine the truth of the matter through their own investigations, rather than relying entirely on
the parties to present their cases.
This system contrasts with the adversarial system, where the judge’s role is primarily to listen to
the arguments of the prosecution and defense, without actively engaging in the investigation.

17
How Would the Inquisitorial System Work in Kenya?

Potential Benefits

Efficiency and Speed: The inquisitorial system could potentially reduce the backlog of cases in
Kenya’s courts. Since the judge takes a proactive role in gathering evidence, this might lead to
quicker resolution of cases.
Cost Reduction and Access to Justice: In the adversarial system, the need for both parties to
hire legal representation can be prohibitively expensive for those in lower income brackets. In an
inquisitorial system, since the judge actively gathers evidence and investigates, the reliance on
expensive legal counsel might decrease, making the legal process more accessible to
marginalized and low-income populations.
Reduction of Bias and Corruption: With an inquisitorial system, the judge takes a more central
role in determining facts and conducting investigations, potentially reducing the chances of
unfair advantage, especially if the judiciary is reformed to ensure impartiality. It would be
essential, however, to address corruption within the judicial system to ensure that this is
effective.
Less Dependence on Legal Technicalities: In the adversarial system, a case can be won or lost
based on legal technicalities or the skill of the lawyers involved. This could leave justice in the
hands of those with better legal representation. The inquisitorial system places more emphasis on
finding the truth through investigation, which may reduce the reliance on complex legal
strategies and make the process more straightforward, particularly for those who are not
well-versed in legal language.

Challenges that would arise

Cultural Shift and Institutional Resistance: Kenya’s legal system is heavily based on the
adversarial system, which has become ingrained in both legal practice and societal expectations.
Shifting to an inquisitorial system would require a major cultural change in how legal
proceedings are conducted. Lawyers, judges, and other legal professionals would need to be
retrained, and the public may need to be educated on the differences. Resistance to this change,

18
particularly from those with vested interests in the current system, could be a significant
challenge.
Judicial Overload: While the inquisitorial system places the judge in a more proactive role, this
could also lead to a situation where judges become overburdened. In Kenya, the judiciary is
already struggling with a heavy caseload. If judges are required to actively investigate cases, this
could add to their workload and reduce the overall efficiency of the system. The judiciary would
need substantial investment in resources and training to ensure that judges are adequately
equipped to handle this expanded role.
Risk of Judicial Bias or Abuse of Power: In the inquisitorial system, since judges have an
active role in investigating cases, there is a risk that judges might be influenced by their own
biases or external pressures. This could lead to a situation where justice is skewed based on a
judge’s personal views or preferences. Safeguards would need to be implemented to ensure that
judges do not overstep their boundaries or become partial in their investigations. There would
also need to be a strong system of accountability and oversight to prevent abuse of power.
Loss of Legal Representative's Role: In an inquisitorial system, the defense and prosecution do
not have the same active role in gathering evidence or questioning witnesses. This could reduce
the role of legal counsel, which might be seen as a negative in ensuring that the rights of the
accused or the interests of the victim are fully represented. In Kenya, many defendants,
particularly in criminal cases, are already at a disadvantage due to limited access to legal
representation. Removing or reducing the role of lawyers in an inquisitorial system might
exacerbate this issue.

Conclusion:
While the inquisitorial system could offer a more efficient and accessible way to deliver justice
in Kenya, its full-scale adoption needs careful thought. The Firm would recommend starting with
a hybrid approach, incorporating some inquisitorial features into the existing system to test their
effectiveness in improving case management, reducing delays, and increasing access to justice,
while retaining the adversarial elements that ensure fairness and protect individual rights. This
approach would help mitigate risks and ensure that any changes made are beneficial and feasible
in the Kenyan context.

19
History of Trial advocacy

6.​ Definition and Development within the Common Law Tradition of Trial Advocacy

Trial advocacy is the field of knowledge concerned with making attorneys and advocates more
effective in court proceedings. And so can be said to be the practice of effectively representing a
client in a courtroom setting through the application of one’s legal knowledge, persuasive
argumentation, and procedural skills. It encompasses key elements such as opening statements,
witness examination (direct and cross-examination), evidentiary objections, legal arguments, and
closing statements. In common law jurisdictions, trial advocacy plays a central role in the
adversarial system, where opposing parties present their cases before an impartial judge or jury.

Black's Law Dictionary defines the advocate as one who assists, defends or pleads for another;
one who renders legal advice and aid and pleads the cause of another before a court or tribunal.
The litigator is therefore, one who can plead another's cause by means of a legal action before a
court or tribunal. Accordingly, the mark of the trial advocate is very narrow, limited to utilizing
the skills necessary to successfully encounter the adversarial activities endemic to the courtroom.
Mr. Chief Justice Burger views the lawyer in a different perspective. He observed that, "Lawyers
are or should be society's peacemakers, problem solvers and stabilizers. Lawyers are more than
mechanics who profess that they are competently equipped to advocate because of a secure
knowledge of procedure and tactics. Mr. Chief Justice Burger views advocacy as a means by
which justice is preserved and society's needs met-a means by which the needs of individuals are
fulfilled consistent with the dynamics of a changing society.

From time immemorial the principle that a person has the right to select another to plead their
cause has been recognized. Great orators of Greece and Rome, though in a manner differing from
that of modern times, performed the functions of advocates.

Among the ancient Greeks, it was usual custom was for the client to lay his case before one of
the great orators or writers of the day who would then prepare an oration which the client read or
delivered at the trial. Referring to this ancient practice, Judge Sharswood says:

In all countries advanced in civilization, and where laws and manners have attained any degree
of refinement, there has arisen an order of advocates devoted to prosecuting or defending the

20
lawsuits of others. Before the tribunals of Athens, although the party pleaded his own cause, it
was usual to have the oration prepared by one of an order of men devoted to this business, and to
compensate him liberally for his skill and learning. Many of the orations of Socrates, which have
been handed down to us, are but private pleadings of this character.

Among the Romans during the period of the Republic, it was the prerogative of the Roman
patrician to render assistance, and afford protection, to his dependents and even to others who
sought his services and advice. For this purpose, therefore the patrician frequently appeared in
the courts to defend the cause of his client. In this way they gradually developed the highest type
of Roman advocate the patronus causarum, or patron, or, in modern parlance, the barrister. At
this time the patron charged no fee for his services, although it was not considered improper for
him to accept an honorarium or gratuity from the client.

As early as the 12th-17th Century there was some emergence of Advocacy in England. Providing
the roots of trial advocacy in common law, when disputes were settled through trial by ordeal or
combat. As the royal courts developed, legal representation became necessary. Courts in England
initially were highly local, tied to local systems of property ownership. This could roughly be
related to a feudal system. People were obliged to their lord and the ties they had to the land.
Courts were groupings of lords who would know the issues complained of and apply
understandings of customary right. There was no distinction between legislation, advocacy and
judgment as we see today. Courts were multiple, from the moots to the hundred courts to the
Eyre courts. Around the twelfth Century, the king initiated an attempt to impose a common law
across England, overriding the judicial powers of the local lords. The King imposed King’s
justice by sending out members of his household to sit and hear complaints that had accumulated
since the previous circuit. Most notoriously, the king’s justice was imposed by the Star Chamber
beginning in the fourteenth Century.

From the very start the legal profession in England was divided in two functions. There was a
fore speaker (advocatus or prolocutor) who stood beside a litigant and spoke for him while there
was a representative (attornotus or procurator) who acted on behalf of somebody else in his
absence so as to bind him in his absence. Thus, in English Legal Profession the division of

21
function preceded the appearance of a profession, but the allocation of functions has shifted over
centuries.

The proceedings were informal where the parties to the conflict presented their own cases to the
best of their abilities before the king or the nobles or the clergy. The proceedings resembled a
family dispute, where the disputing family members presented their case in front of an elder. The
king’s intervention, measured by royal writs, was now delegated to a group of courtiers.

In the 18th century, various branches of the legal profession continued to exist side by side.
Subsequently, an act of 1729 made an attempt to impose and regulate the attorneys and solicitors,
while at the same time imposing heavy taxation upon the practitioners.

Codification and expansion in the 19th-20th Centuries saw the Judicature Acts of 1873-1875
streamlining trial procedures and merging common law and equity courts, impacting advocacy
techniques. Advocacy became more structured, with formal rules of evidence and trial
procedures guiding courtroom practice.

7.​ Evolution of trial advocacy over time-

The Evolution of Trial Advocacy.

According to McLachlan, H. (2001)39 the practice of trial advocacy has undergone changes
throughout history due to the impact of customs and systems as well as advancements in
education and technology over time. Its roots can be traced back to the civilizations of Greece
and Rome where influential figures such as Demosthenes and Cicero played roles in convincing
judges and juries through their persuasive oratory skills underscoring the initial significance
placed on eloquent advocacy. In medieval England, the adversarial system began to take shape
with an emphasis on oral arguments and cross-examinations, and the formation of the Inns of
Court provided structured training for aspiring lawyers, laying a foundation for modern trial
advocacy.

39
McLachlan, H. (2001). Trial Advocacy: A Narrative Approach. New York: West Academic Publishing.

22
As the adversarial system matured in the 18th and 19th centuries, legal procedures were codified,
enhancing fairness and professionalism within the courtroom, with figures like defense attorneys
emerging as key advocates for defendants' rights.

The development of trial advocacy in the U.S. is deeply intertwined with the fundamental values
of the Constitution, especially the Sixth Amendment, which secures a defendant's right to legal
counsel. This right became particularly significant following the landmark 1963 case Gideon v.
Wainwright40, where Clarence Gideon, unable to afford a lawyer for his felony charges,
petitioned the Supreme Court after his request for court-appointed counsel was denied. The
Court's unanimous decision established that states are required to provide attorneys to defendants
who cannot afford one, affirming the essential role of competent legal representation in ensuring
fair trials. This ruling not only led to the establishment of public defender systems nationwide
but also ignited ongoing discussions about justice accessibility and the quality of legal services,
ultimately driving towards a more equitable legal framework that safeguards the rights of all
individuals, regardless of their economic status (Rosenberg, G. N., 1992)41.

Throughout the 20th century, legal education underwent a significant transformation, particularly
with the introduction of trial advocacy courses that prioritized practical skills alongside
traditional theory. This shift was notably influenced by the founding of the National Institute for
Trial Advocacy (NITA)42 in 1971, which introduced innovative training focused on key
litigation skills like persuasive storytelling and effective witness examination (Charrow, V. R., &
Charrow, R. P., 2005)43. As technology advanced, so did trial advocacy practices; today’s
courtrooms utilize electronic case management systems and virtual proceedings, making trials
more efficient (Lee, T. A., 2017)44. Additionally, emerging technologies such as artificial
intelligence and virtual reality are enhancing legal research, case strategies, and training
methodologies by providing immersive experiences. Despite these innovations, the core
principles of trial advocacy—persuasion, thorough preparation, and ethical

40
Gideon v. Wainwright, 372 U.S. 335 (1963). Available from: Legal Information Institute
41
Rosenberg, G. N. (1992). The Hollow Hope: Can Courts Bring About Social Change? Chicago:
University of Chicago Press.
42
National Institute for Trial Advocacy (NITA). (n.d.). Retrieved from NITA website
43
Charrow, V. R., & Charrow, R. P. (2005). The Law School Survival Manual: A Complete Guide to
Making the Most of Your Time at Law School. New York: Kaplan Publishing.
44
Lee, T. A. (2017). Technology in Trial Advocacy: A Guide for the 21st Century Lawyer. New York: The
Association of Trial Lawyers of America.

23
responsibility—remain crucial in ensuring fair and effective client representation, highlighting
the balance between embracing new tools and upholding foundational legal values.

8.​ Jurisdictions where trial advocacy has been effectively implemented

Several jurisdictions have effectively integrated trial advocacy into their legal systems, including,
but not limited to:

1.​ The United States

The United States is known for its strong trial advocacy, especially in its adversarial legal
system.45 Lawyers are expected to have excellent courtroom skills for both criminal and civil
cases. Law schools focus on trial advocacy through moot court competitions, practical programs,
and special courses. The National Institute for Trial Advocacy (NITA) also trains legal
professionals. Many important cases in the U.S. have shown how good trial advocacy can greatly
impact the outcome and ensure justice. An example is the O.J. Simpson murder trial, where the
defense team's strong trial advocacy, including effective cross-examinations and memorable
arguments like "If it doesn’t fit, you must acquit," played a major role in securing Simpson's
acquittal.46

2.​ United Kingdom

Trial advocacy is a key part of the UK legal system, especially for barristers.47 They undergo
extensive training through the Inns of Court, the Bar Professional Training Course (BPTC), and
pupillage, where they develop essential skills like cross-examining witnesses and presenting
persuasive arguments. This focus on advocacy ensures high-quality legal representation and
fairness in court proceedings.

45
Kareem Law, 'What Is a Trial Lawyer? Unpacking Their Role in Criminal Defense' (Kareem Law)
https://kareemlaw.com/what-is-a-trial-lawyer-unpacking-their-role-in-criminal-defense/ accessed 24
February 2025.
46
People of the State of California v. Orenthal James Simpson, Case No. BA097211 (Superior Court of
California, Los Angeles County, 1995).
47
Bar Standards Board, 'About Barristers' (Bar Standards Board)
https://www.barstandardsboard.org.uk/for-the-public/about-barristers.html - accessed 24 February 2025

24
Landmark cases such as Carlill v Carbolic Smoke Ball Co (1893) and Donoghue v Stevenson
(1932) demonstrate how effective trial advocacy shapes legal principles. In Carlill, compelling
arguments clarified important contract concepts like offer and acceptance. In Donoghue, strong
legal reasoning established the duty of care principle in negligence, influencing tort law
worldwide.

3.​ South Africa

South Africa has made significant strides in implementing trial advocacy, especially following
the end of apartheid. The adversarial system used in South African courts requires strong
advocacy skills. Legal practitioners undergo training provided by institutions like the Legal
Practice Council and the General Council of the Bar. Trial advocacy has played a huge role in
landmark constitutional cases that have shaped South Africa's legal landscape.48

4.​ Kenya
In Kenya, trial advocacy has gained prominence through legal education reforms and
professional training programs. The Kenya School of Law (KSL) provides the Advocates
Training Programme (ATP), which includes trial advocacy as a core component. Practical
training through moot courts and bar examinations ensures that aspiring advocates acquire
essential litigation skills. Furthermore, initiatives by organizations like the International
Commission of Jurists (ICJ Kenya) and the Law Society of Kenya (LSK) have contributed to
enhancing trial advocacy standards. Kenyan courts have witnessed improved trial outcomes and
access to justice due to the growing emphasis on advocacy skills.

48
GCBSA, 'The Advocate’s Role' (GCBSA) https://gcbsa.co.za/advocates-role/ accessed 24 February
2025.

25
9. Place of Trial Advocacy in the Kenyan Legal Systems
A critical look at the individual segments would be adequate in analyzing trial advocacy
procedures when practiced in the Kenyan legal system or framework, which include:

(i)​ the codified and regulatory instruments governing such practices

(ii)​ the requisite competencies and proficiencies demanded of legal practitioners engaged
in trial advocacy
(iii)​ the impediments and adversities encountered during the execution of trial advocacy

The following is a detailed explanation of the above mentioned factors:

1. The Framework for Regulation

The Advocates Act

This is the paramount statute that outlines the legal profession in Kenya. It states the roles and
responsibilities of these advocates, the standards of professional ethics expected of them, and
penalties for violation of these standards. It provides the basis that enshrines trial advocacy
within court.49
The Law Society of Kenya (LSK)

The Law Society of Kenya plays a critical role in the regulation of the legal profession in Kenya
being a limb of the profession charged with the duty of ensuring that all its members adhere to
the set code of ethics. This will be discussed in detail later on showing how the Society provides
guidance on trial advocacy practice through the promulgation of LSK Code of Conduct and
Ethics. As the manifestation of competency, truthfulness, and legal accountability, this code
operates as the prescriptive-legal model of how an advocate should/ought to behave in the court
so as to abide by the law and uphold the public image of the society.50

The Judiciary

It also influences the practice of trial advocacy in terms of substance or procedure as well as in
setting precedents or case laws defining practice and procedure in the legal system of Kenya. The

49
Republic of Kenya. (2012). The Advocates Act (Cap. 16). Government Printer.
50
Law Society of Kenya. (n.d.). Code of Conduct and Ethics. Law Society of Kenya.

26
judicial processes follow the procedural law laid down by the judiciary as the rules of evidence
and the permissible issues and stages of the process. As a source of legal opinions that never
ceases to grow, the detailed appeal court judgements’ database also enters into the construction
of trial advocacy rules and guidelines as well as the strategic contexts of the attorneys. Judges
have a great work in doing so because they must ensure that the trial is being done professionally
and properly, and remain loyal to the system.51

Article 50(2) of CoK, 2010

Every person has the right to be provided with an advocate of their choice when denied a right or
suspected of having committed an offense under the law; This is as provided in the constitution
of Kenya 2010 under Article 50(2). In other words, it is a constitutional provision that is at the
root of why an efficient trial lawyer plays a crucial role. Legal representation implies that any
person requires the help and assistance of capable people who will be able to work their way
through the procedural laws, defend the rights of accused, and guarantee that all the parties are
provided with fair trials. Therefore, besides the framing of the legislative right provided by
article 50(2), it is clear that advocacy is pivotal to the formulation and execution of the due
process to enhance the fairness of the legal justice systems in the Kenyan laws.52

2. Key Skills in Trial Advocacy

A significant component within adversary systems of justice trial advocacy involves the use of a
myriad of skills as illustrated below. These are skills which are far more than literacy and as
much fundamental to the practice of law. This means legal professionals who have the necessary
prowess in these three areas are fit for the job of presenting convincing statements on their cases,
formulating proper interrogatories for opposing witnesses and responding aptly to opposing
arguments. These skills are basic competencies in the pursuit of fairness for the tapes, and it is in
the deliberate and intentional development of such skills that the equilibrium pendulum swings.

51
Republic of Kenya. (2010). The Constitution of Kenya, 2010. Government Printer.
52
Kenya Judiciary. (n.d.). Civil Procedure Rules. Kenya Judiciary.

27
Thus, this section will focus on examining concrete skills needed with regard to the complexity
of trial advocacy.53

Case Preparation

Preparation for a case forms part of the critical dimensions of trial advocacy and should be done
systematically and patiently. This simply refers to a structured investigation which involves
gathering as much information as possible on the subject in question before making a report. As
for the requirement of formulating coherent legal arguments to fit the client’s case, legal research
that involves both statutory and case law plays an essential role. This way, the advocate is armed
with lots of information and other materials that will enable him/her to effectively maneuver the
courtroom in order to present the case in a way most beneficial to the side he/she represents. 54

Examination and Cross-Examination

In general, witness examination and, particularly, cross-examination involves the use of leading
questions along with the understanding the personality and conduct of the witness. In cross
examination, they have to ensure the hostile witnesses give unfavorable information while
steering them through a history that presents negative aspects. On the other hand cross
examination is the best method of countering the adverse evidence, drawing attention to the
inconsistencies and impeaching the character of the opponent’s witnesses55. Both to get and to
confront narrative is indeed a fragile element which must be met in order to persuade the
fact-finder and to tell the story that is supposed to be told in court.56

Presentation of Evidence

Trial advocacy involves persuasiveness as well as clear information giving; this may entail
explaining the facts in the trial. This involves the presentation of both documentary and real
evidence, together with documents and other documentary evidence in an orderly and

53
Mauet, T. A., & Wolfson, W. (2016). Trial techniques and trials. Wolters Kluwer Law & Business.
54
https://www.leaders-in-law.com/legal-research-and-writing-essential-skills-for-student-success/#:~:text=
Whether Law,the legal framework handling
55
https://www.ca-nvlaw.com/ArtofX-ExamWellman.pdf
56
https://www.studysmarter.co.uk/explanations/psychology/forensic-psychology/cross-examination-strategi
es/

28
professional manner.57 To ensure that these materials are admissible in court and can be
effectively used to build a proper case, the attorney must be able to properly organize these
materials and present them when and where necessary. the benefits and significance of. Also, the
potential to control the proceedings and get the favorable decision from the court is also based on
admissibility and structuring of legal arguments. Therefore, the presentation of evidence has to
be seen as a type of theater, whose ultimate goal is to change the outcome of a trial rather than be
seen as merely the delivery of facts.

As a reference, it will be relevant to consider the legislation on presentation in trial advocacy in

Kenya. Some of the key areas and sources which need to be more focused in relation to it are:
The Evidence Act, CPC Rules, some case laws.

Oral Advocacy

Litigation mainly involves presenting one’s case verbally in a court with a mastery of the
available evidence, past precedents, and previous decisions of the particular court in question.
This means more than just the simple knowledge of the legal rules; it also includes the capacity
to spin out interesting stories that will appeal to the finder of fact. At the beginning of the case,
the advocate or lawyer has to make legal and factual submissions that will set the manner of the
trial. On the other hand, closing remarks involve re-emphasis of the facts and the legal
procedures that support the case filed, with a loud call for a decision in favor of the party being
represented. Moreover, understanding how to participate in the open debate, how to answer
certain questions a court may ask or on the other side to predict counterarguments shows the
legal knowledge and problem-solving skills of an advocate. This fine balance that is developed
through talent and effort, besides time, helps determine the outcome of the court cases.58

Knowledge of Procedure and Evidence

There is a need to recognize procedural and evidence rules as among the most crucial
fundamentals that have to be complied with to bring a competent case. This means understanding
the positions of civil and criminal procedures and what of it like motions, discovery, and

57
https://www.flcourts.gov/content/download/425827/file/10-steps-for-presenting-evidence-in-court.pdf
58
https://haubadvocacy.blogs.pace.edu/2022/09/15/656/

29
pleadings, the conduct of a trial belongs to each. Therefore, the advocate needs to familiarize
with particular rules like hearsay, authentication, and admission rules to present strong,
meaningful, and reasonable argumentation in legal proceedings. The advocate can be assertive
and focussed in the courtroom, knowing that in theory they are aware of the legal proceedings
and procedures that ensure that all that is done has legal sanity behind it. Lack of accessibility to
this information results in such mishaps as procedural irregularities, and lost files.

Ethical Conduct

As a career, law operates under several principles with more focus being placed on the ethical
bounds during a particular trial. The Advocates Act and the LSK Code of Conduct outlines the
code of conduct for attorneys and in this code, an attorney has duties towards his/her client and
the legal profession. This is not only compliance with legal demands but justice, integrity, and
equity are part of ethical responsibility. Ethically, anything that an advocate does is bounded by
the code of ethics through which a given advocacy does not allow expediency or selfish gains to
take precedence over justice. This ethical base based on honesty and responsibility is crucial
when it comes to building and sustaining the population’s confidence in the legal system to
advance the principles of the rule of law. These ethical issues have implications to the entire
system.

​
3. Challenges in Kenyan Trial Advocacy

However, the Kenyan legal system that is based on the principles of justice and equality has its
merits and demerits that define its efficiency in regard to the trial advocacy. They are
traditionally used when claiming that the goal to achieve equal legal status is an effort stifled by
obstacles, ranging from institutional to inequities. The paper titled: ‘Challenges of Trial
Advocacy in Kenya’ tries to explore the scenario of the different factors that hamper the proper
delivery of justice and analyse how such factors impact on the efforts of the lawyers to defend
their clients as well as uphold justice.

30
​
Case Backlog

The data show that the number of trials that are pending in different courts is still extremely large
– many more cases have yet to be brought to trial. In addition to discouraging the litigants from
pursuing the cases in confusion and without hope that it will be succeeded through obtaining
justice, it also hampers efficiency of conducting the cases and representing the parties since the
cases can be delayed by time and memory of witnesses and evidence erodes.59 One of those
features that are increasing concern that compromises with the principles of prompt delivery of
justice and equity in the legal recourse is the issue of case backlog in the Kenyan trial advocate
system.60

Access to Justice

However, the topic concerning equal access to justice was not raised during the discussions; a
majority of Kenyan citizens, including the poor and those in the rural areas, still have no or
limited access to legal aid.61 This differential system of access works to undermine the principle
of equal protection of the law which is the core of the rule of law as it also fosters inequality.
Since the majority of Kenyans especially those in the rural areas have limited and less access to
legal aid which is an important practice in trial advocacy.62

Evidence Handling

However, while handling evidence, one of the significant challenges is that at times the evidence
may be lost or even switched between different people or locations. One of the dimensions of
procedural reliability is that decisions in court are frequently at risk of losing or altering proofs
that affect the dependability of the evidentiary processes.

59
Human Rights Watch. (2018). Waiting for Justice: Case Backlogs and Detention in Kenya. Human
Rights Watch.
60
https://theimpactlawyers.com/articles/access-to-justice-and-legal-inequality
61
https://www.opengovpartnership.org/members/kenya/commitments/KE0030/
62
Open Society Justice Initiative. (2016). Delivering Justice: Program Report 2011-2015. Open Society
Foundations. https://ieakenya.or.ke/blog/courts-as-monopolies-what-does-it-mean-for-access-to-justice/

31
Resource disparities

The situation where the prosecution has more resources than the defence especially in criminal
cases is a cause for concern to the accused’s right to fair trial; this also speaks to the need to
balance resources in the system. This is famously seen especially in criminal trials; there is a
clear disparity between what the prosecution and defence have at their disposal.

4. Training and Development

From this realization of the complexities of the realities in the trial advocacy practice in Kenya,
efforts have been made by various institutions and organizations seeking to enhance the
professional development of lawyers. They include;

KSL has the key role of training students to sit for the qualifying exam to be admitted to the
Kenyan Bar. This means that the school plays a central role in producing advocates. They act as
a gate-keeping body and executive arm that ensures that an individual who intends to become an
advocate is given sufficient and hands-on preparation. It is also useful for creating a bridge
between the theories in law school and the practice of law.

Some of these training institutions include the National Institute for Trial Advocacy (NITA) and
they have training courses that are targeted at improving the skills of the lawyers. The KSL has
the noble task of preparing future legal professionals with relevant knowledge and skills that are
required in the profession of law.63

Similarly, the LSK has a mandate in their continued legal education that it offers to its members
through the continuing professional development that ensures that members update their
knowledge of the changing legal law and procedures. These have been characterised by
collaboration in developing trained and professional, ethical professional staff in the legal field
with the readiness and capacity to revolutionise and stabilise the Kenyan legal framework.64

63
https://www.justice-defenders.org/news/trial-advocacy-training-kenya#:~:text=Now%2C%20this%20com
munity%20of%20advocates,law%20firm%20of%20Jones%20Day
64
https://lsk.or.ke/events/#:~:text=The%20Law%20Society%20of%20Kenya%20Continuous%20Professio
nal%20Development%20(CPD)%20Program,ensuring%20continuous%20professional%20learning%20fo
r

32
To sum it up, I wish to reaffirm my view that being an advocate and engaging in trial advocacy
in Kenya is quite thrilling. This is not an ordinary activity but one that involves legal learning,
technical know-how and ethical standards. However, there are active campaigns to upgrade the
trial advocacy and make justice easily and fairly accessible to all the citizens of Kenya.

10. Impact of technology on trial advocacy and it's future implications plus the conclusion

In the Digital age lawyers need new proficiencies and abilities that extend beyond their
traditional legal knowledge. Digital literacy is a skill and competency which is becoming more
and more important in the legal profession. It pertains to the aptitude for utilizing and
comprehending digital technologies, such as computers, software, the internet, and other digital
instruments65. It involves the abilities and knowledge required to function in the digital age and
critically assess information. Some of the ways that digital literacy and the legal profession
interact include; the use of virtual court sessions, digital filing through the e-filing platform,
electronic case management systems and digitization of land service.

The integration of technology into law practice in Kenya has transformed the judicial process
which traditionally relied on the physical presence of judges, magistrates, witnesses and
advocates for courtroom proceedings. The interaction has transformed access to justice amongst
individuals and businesses and as a matter of necessity, technology is a critical tool for access to
justice. This shift would therefore imply that lawyers possess digital literacy to navigate these
platforms effectively and effectively present their cases.

The Judiciary has also made strides in the digitalization drive through its E-filing services such
as the Judiciary Integrated Case Management System (JICMS). The E-filing system has become
more prevalent in legal practice since the Outbreak of the COVID-19 pandemic. For example,
the electronic filing service was deployed during the 2022 election cycle in which the Political
Parties Disputes Tribunal (PPDT) and the Election Courts received the election petitions

65
M Spante, SS Hashemi, M Lundin and A Algers, 'Digital Competence and Digital Literacy in Higher
Education Research: Systematic Review of Concept Use' (2018) 5(1) Cogent Education
https://doi.org/10.1080/2331186X.2018.1519143 4th March, 2025

33
electronically throughout the country. In this regard, Chief Justice Martha Koome launched
e-filing in all courts nationwide and directed that no court should print pleadings and documents
from July 1, 2024. In her opinion, the program “marks a giant leap commitment to transforming
the delivery of justice through the strategic use of technology in alignment with the Social
Transformation through Access to Justice blueprint of the Judiciary66.’’

Case Tracking System (CTS) is another aspect of technology that has enabled it to track the
entire details of a case from initiation to disposition. The CTS has automated registry operations
that include processes like case registration, fee assessment, cause list preparation, court order
generation and performance reports. The CTS has been progressively rolled out and
operationalized across all courts and tribunals. Since most services can now be accessed online,
CTS has also made it possible for court registries to become less congested. To enhance
efficiency, the judiciary has already integrated its CTS system with the Uadilifu Office of the
Director of Public Prosecutions system. The CTS has been very crucial in real-time case tracking
and online fee payment significantly reducing registry congestion. Digital literacy is necessary
for effective and secure communication, as well as for understanding the legal implications of
electronic communications.

Virtual law firms such as Imani Law and Lex Afric Consulting deploy technology to provide
cost-effective and flexible legal services across the country, which benefits startups and Small
and Medium-sized Enterprises (SMEs) without the constraints of traditional office space.
Kenyan law firms are also adopting practice management software such as Kenya Legal Wakili
CMS and Clio which aims at streamlining operations, increasing collaboration and client
satisfaction since the legal practitioners can focus on providing their clients with tailored
solutions to their legal issues.

Dispute resolution methods, such as Online Dispute Resolution (ODR), use electronic
communications and information and communication technology (ICT) tools to resolve disputes.
The Kenyan e-commerce industry could benefit from using ODR to resolve disputes online,

66
Judiciary of Kenya, ‘All Courts Nationwide Go Digital’ (Judiciary.go.ke, 11 March 2024)
https://judiciary.go.ke/judiciary-launches-e-filing-in-all-courts-data-tracking-dashboard-and-causelist-portal
-portal/ accessed 4th March, 2025

34
thereby reducing the need for physical interactions and reducing the costs and effort associated
with traditional offline solutions. Parties can settle conflicts quickly and affordably by using
online mediation and arbitration services provided by platforms such as the Nairobi Center for
International Arbitration (NCIA).

Appropriate use of technology to display or play evidentiary material or illustrative aids changes
the dynamic in a courtroom in productive and helpful ways. For judges, technology can increase
opportunities to control the proceedings, set time limits, and decide matters expeditiously. For
lawyers, the faster pace, coupled with the need to respond to visual cues for objections as well as
the traditional oral cues, puts a premium on a concise case theory and thorough preparation; there
is less and less time for “making it up” as one goes along. At its foundation, courtroom
technology is a means for putting evidence before everyone in the courtroom—the judge, the
opposing lawyers, the courtroom support staff, and even onlookers—at the same time. The
displays—usually on monitors or projection screens—convey many kinds of information more
efficiently.

Most lay people can look at a display and follow along with an explanation more readily than
they can find the place in a hard copy document and try to read while also trying to listen.
Courtroom technology is also a means to draw attention to particular points, to emphasize certain
aspects of the evidence, and to make visible that which otherwise would exist only as a mental
picture formed from words spoken by an advocate or a witness. It is these enhancements and
their messages that form the basis for objections concerning the limits of technological displays
and new considerations with respect to the control that judges exercise in the courtroom and in
creating the record.

The area of concern during a trial while technology has been employed is in trying to really
determine the demeanour and picking out physical cues such as body language as a measure in
discerning the honesty or lack thereof of witnesses. The introduction of increasingly
sophisticated technology into the courtroom is transforming the process of litigation. These
transformations can be both observed and felt throughout the trial process, beginning with the
electronic filing of documents through the e-filing platform. More important than simple changes

35
in procedure, however, are the ontological transformations in substance. These transformations
stem in large part from the increase at trial—made possible by new courtroom technology—of
lawyers’ reliance on images, graphs, animations, and other visual aids. As these visual aids
replace what once would have been only the advocate’s spoken words, the perception of the
information is altered.

In a similar way, one observer has noted that “courtroom display technologies shift the criteria by
which effective communication is assessed by fact-finders67.” One consequence of this shift in
communication criteria can be that “effectiveness may be determined by the context rather than
by factors intrinsic to the technical details.” As a result of all of these changes, lawyers must in
fact “strategize their cases differently.” although the preparation time for trial might in fact be
longer, the efficiency provided by technology generally decreases the length of the trial itself.
This acceleration has many causes. For one, exhibits can be more effectively organized and
presented. Similarly, in the words of one commentator, it takes a lot less time and mental effort to
see a picture than to read [or hear] a thousand words.”

Courtroom technology also provides many other time-saving devices. For instance, deposition
transcripts can be searched to locate any given statement within seconds; exhibits can be
instantly annotated on a monitor screen. Moreover, a white noise generator can be used to mask
conferences at the bench, sparing the jury from multiple trips in and out of the courtroom. As to
the presentation of exhibits and illustrative aids, the present digital age poses novel challenges
due both to the ease with which images can be manipulated and the range of possible
manipulation. Prior to any technological display, therefore, a court may require representations
from counsel relating to the nature of the equipment as well as the subject of the
exhibits/illustrative aids. Similarly, any electronic display brings with it the possibility of
particular objections. Because of their potentially prejudicial nature, those exhibits and
illustrative aids that contain motion or sound are particularly likely to draw objections.

67
Gordon Bermant, The Development and Significance of Courtroom Technology: A Thirty-Year
Perspective in Fast Forward Mode, 60 N.Y.U. Ann. Surv. Am. L. 621 (2005).

36
In addition to reducing the amount of time necessary for trial, there are of course many other
advantages to making use of modern technology in the courtroom. In particular, with devices
such as the evidence presentation system, advocates are able to instantaneously place visual and
audio evidence before the entire courtroom, including the judge, opposing counsel and
onlookers. As noted, this use of visual and audio aides can help to maintain the judge’s interest
by quickly presenting and coordinating the exhibits to the witness on the stand. In addition,
memory is improved by showing and not just telling—retention has been found to be increased
significantly following the presentation of video evidence.

Nevertheless, the exact relationship between these techniques and the judges’ comprehension
and judgment is still subject to ongoing study and debate.

Modern technologies are especially useful in document intensive cases. The ability to quickly
and efficiently bring up documents and video clips speeds up trial time immensely. Judges have
also found that trials are more interesting and efficient, as judges get to see the evidence as it is
presented. Adoption of IT in the legal profession has often been faced by a myriad of challenges.
Advocates have, often, lagged behind in adopting new technology due to the conservative nature
of the legal profession. However, this is no longer tenable in this era of Information Technology.
Emerging technologies bring with them substantial changes that threaten current social, political
and economic orders and the often-conservative legal profession is not immune. To this effect, it
has been argued that:

…lawyers who are unwilling to change their working practices and extend their range of
services will in the coming years struggle to survive. Meanwhile those who embrace new
technologies and novel ways of sourcing legal work are likely to trade successfully for many
years yet, even when they are not occupied with the law jobs that most law schools currently
anticipate for their graduates.68

68
Susskind. R., The End of Lawyers? Rethinking the Nature of Legal Services (Oxford University 2008)

37
Statutes

Constitution of Kenya, 2010

Judicature Act Cap 8, Laws of Kenya

Evidence Act Cap 80, Laws of Kenya

Victim Protection Act, 2014 Law of Kenya

Advocates Act Cap 16, Laws of Kenya

References

1.​ R W Wallace, 'Law and Rhetoric: Community Justice in Athenian Courts' in S

Hornblower and A Spawforth (eds), A Companion to the Classical Greek World
(Blackwell, 2006) 416–431.
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3.​ A Deac, 'The Twelve Tables Law, the Most Important One from the Roman Law' (2021)
10(1) Perspectives of Law and Public Administration 5.
4.​ Ibid
5.​ O Hekster, Rome and its Empire, AD 193–284 (Edinburgh University Press 2008).
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(2010) 43 PS: Political Science & Politics 451-456.
7.​ P Swanepoel, 'Codifying criminal law in East Africa during the Interwar Period' (2019)
37 Stichproben: Vienna J of African Studies 93-113.
8.​ A Sehmi, 'Legacies of Colonial Violence in Contemporary Transitional Justice: Memories
of Mau Mau, the “Kapenguria Six” and the “Ocampo Six” in Kenya' (2024) 18(1)
International Journal of Transitional Justice 32-48.

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9.​ The Mechanisms of Case Management under the New Civil Procedure Rules, 2010, By
Jeanne W. Gacheche, Presiding Judge Constitution and Judicial Review Division of the
High Court of Kenya.
10.​ Daniel S McConkie Jr, 'Promoting and Reforming Kenya’s Customary Justice Systems
in Criminal Cases' (2024) 38(2) Emory Intl L Rev
https://scholarlycommons.law.emory.edu/eilr/vol38/iss2/2 accessed 05 March, 2025.
11.​ Judiciary of Kenya, Alternative Justice Systems (AJS) Policy Framework (2020)
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Journal of Research in Humanities and Social Science 50
https://www.questjournals.org/jrhss/papers/vol2-issue5/D253056.pdf accessed 06 March
2025
13.​ International Development Law Organization (IDLO), Friend of the Court & the 2010
Constitution: The Kenyan Experience and Comparative State Practice on Amicus Curiae
(2014) Supreme Court of Kenya, Mutunga Rules 2013
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Kenyan Experience (2014)
15.​ Judges and Magistrates Vetting Board, Final Report (2013).
16.​ Truth, Justice and Reconciliation Commission (TJRC) Report (2013).
17.​Black's Law dictionary
18.​Origin and Development of Advocacy as a Profession E. W. Timberlake, Jr.Virginia Law
Review, Vol. 9McLachlan, H. (2001). Trial Advocacy: A Narrative Approach. New York:
West Academic Publishing.
19.​Gideon v. Wainwright, 372 U.S. 335 (1963). Available from: Legal Information Institute
20.​Rosenberg, G. N. (1992). The Hollow Hope: Can Courts Bring About Social Change?
Chicago: University of Chicago Press.
21.​National Institute for Trial Advocacy (NITA). (n.d.). Retrieved from NITA website
22.​Charrow, V. R., & Charrow, R. P. (2005). The Law School Survival Manual: A Complete
Guide to Making the Most of Your Time at Law School. New York: Kaplan Publishing.
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New York: The Association of Trial Lawyers of America.

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 24.​M Spante, SS Hashemi, M Lundin and A Algers, 'Digital Competence and Digital
Literacy in Higher Education Research: Systematic Review of Concept Use' (2018) 5(1)
Cogent Education https://doi.org/10.1080/2331186X.2018.1519143 4th March, 2025
25.​Judiciary of Kenya, ‘All Courts Nationwide Go Digital’ (Judiciary.go.ke, 11 March 2024)
https://judiciary.go.ke/judiciary-launches-e-filing-in-all-courts-data-tracking-dashboard-a
nd-causelist-portal-portal/ accessed 4th March, 2025
26.​Gordon Bermant, The Development and Significance of Courtroom Technology: A
Thirty-Year Perspective in Fast Forward Mode, 60 N.Y.U. Ann. Surv. Am. L. 621 (2005).
27.​Susskind. R., The End of Lawyers? Rethinking the Nature of Legal Services (Oxford
University 2008)

Case Law

Kulukana Otim v R (1963) EA 253

Samuel Letodo v Republic [2016] KEHC 1763 (KLR)
Ndyanabo v. Attorney General [2001] 2 EA 485

Republic v. The Judicial Service Commission & 2 Others [2014] eKLR

Republic v. Wycliffe A. Onyango [2016] eKLR

Ochieng v. Republic [2019] eKLR

Attorney General v. Proparco Limited [2015] eKLR

Attorney General v. T. K. & Another [2015] eKLR

Kenya Ports Authority v. Khato Civil Engineering Limited [2020] eKLR

Republic v. Ibrahim S. Osman [2017] eKLR

Moody Awori v. Republic [2004] eKLR

Gatabaki v. Gikonyo [2015] eKLR

40
41