Law lives on experience not logic!

"... the life of the law is not in logic, but rather in experience”

-Justice Oliver Wendell Holmes Jr.-
'The Common Law'

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'The smartest man in the world'

A doctor, a lawyer, a little boy and a priest were out for a Sunday afternoon flight on a small private plane. Suddenly, the plane developed engine trouble.

In spite of the best efforts of the pilot, the plane started to go down. Finally, the pilot grabbed a parachute, yelled to the passengers that they had better jump, and bailed out.

Unfortunately, there were only three parachutes remaining.

The doctor grabbed one and said "I'm a doctor, I save lives, so I must live," and jumped out.

The lawyer then said, "I'm a lawyer and lawyers are the smartest people in the world. I deserve to live."

He also grabbed a parachute and jumped.

The priest looked at the little boy and said, "My son, I've lived a long and full life. You are young and have your whole life ahead of you. Take the last parachute and live in peace."

The little boy handed the parachute back to the priest and said, "Not to worry, Father. The 'smartest man in the world' just took off with my back pack."

-Unknown

When the court will order execution by detention

Recently, a decree holder made an application against one of our clients for execution by issue of warrant of arrest and committal to civil jail. The application was in respect of execution of a decree for a specified sum of money that our client, owing to lack of funds could not settle. We managed to save our client from detention. I hereby share the story for posterity and information.

 

Law on execution by detention in Kenya

The court's powers to enforce execution by way of detention where the decree is for payment of money is provided for in section 38 of the Civil Procedure Act. The law is clear that the orders shall not issue unless the court is satisfied of the following matters.

 

First, the judgment-debtor ought, in attempt to obstruct or delay the execution of decree, to be likely to abscond or leave the jurisdiction. For instance, in cases where there evidence of intention of the judgment-debtor to travel abroad for undisclosed mission, the court may be persuaded to enter execution by detention. But prove by the judgment debtor that the travel is important say for medical treatment and commitment to be back will be enough to counter such persuasion.

 

As an alternative to the above ground order for execution by detention will issue where the judgment-debtor has, after the institution of the suit dishonestly transferred, concealed or removed any part of his property. The same case applies where s/he has committed any other act of bad faith in relation to his property. Thus where the judgment debtor has purported to give gifts of his property to relations, execution by detention may be successfully sought.

 

Secondly, execution by detention may be ordered where the court is satisfied that the judgment-debtor has, especially since the date of decree, had the means to pay the amount of the decree or substantial part of it thereof and has refused or neglected to pay the same. The rationale here is that courts abhor frustration of realization of fruits of its judgment especially where such frustration is not as a result of genuine by inability.

 

Finally, order for execution by detention in civil jail will issue where the decree is for a sum for which judgment-debtor is bound in fiduciary capacity. Breach of trust is to be discouraged at all costs hence the detention for breach their fiduciary duties as a deterrent measure.

 

The condition were not satisfied against our client

Luckily, neither of the foregoing conditions had been satisfied against our client. The decree was for a debt amount and therefore not in relation to a fiduciary sum of money. The third condition, therefore, failed prima facie to be met at all.

 

On the first strand of the first condition i.e. on the likelihood of the judgment-debtor to abscond or leave the local limits of the jurisdiction, it was proved that there was no such likelihood. The client is permanently resident in Nairobi, together with his close-knit nuclear family and his extended family as well. It was established that he was born and bred in Nairobi and all his interests are located here. Incidentally, the does not have a significant attachment to any other Place in Kenya or around the word. In view of that, the court accepted the contention that there was not the remotest likelihood of the client absconding the jurisdiction.

 

Further, the client had and continued to consistently appear in court, both in person and through us (his advocates), whenever required by the court. The argument was then urged that, he (our client) had not so far given the court any reason to apprehend a likelihood of absconding the jurisdiction.

 

On the second strand of the first condition relating to dishonest transfer, concealment or removal of defendant's property, there was no evidence forthcoming from the decree holder. We submitted an inventory of the client's scanty properties before and after the judgment to support our contention that the client had not unduly interfered with the same.

 

In essence, our argument on this strand was that the client had not since the issue of the decree and/ or after institution of the suit dishonestly or otherwise, transferred, concealed or removed any part of his property from the jurisdiction of this court. Further, we contended that the client had also not at all committed any act of bad faith whatsoever in relation to his property. We submitted that the first condition thus stood unsatisfied as a result.

 

The client's failure to satisfy the decree was then attributed to his lack of wherewithal to pay. We argued that given the embarrassment accrued by the client to pay his debts both to himself and his family, had he the means, he would have been more than willing settle the decree. At least, if not for anything else, to avoid the predicament that was facing him. We thus argued that the client had failed to settle the decree for lack of monetary means.

 

It was a significant plank of our case against the application that the client was then unemployed and/or not engaged in any activity earning any regular and/or consistent income. This went to justify the inability to settle the judgment debt in full and/or at once. The client was willing to settle the amount of the decree in installments upon employment was then voiced. In addition, we expressed the view that our client was ready and willing to comply with any such terms and conditions, as the court deemed necessary to issue in securing and safeguarding the interests of the decree holder.

 

Lastly, we brought to the court's awareness the fact that the decree was pursuant to a summary judgment and that an appeal was already in top gear, the memorandum of appeal having already been filed. We then contended that the appeal was arguable on points of law and fact and had very high probability of success.  The execution, therefore, we argued, if it were undertaken by way of issue order for detention in civil jail as prayed, it will visit the greatest prejudice to our client's appeal and had the potential to render the same nugatory. Our reasoning was that the client, if detained will incur irreparable loss of personal liberty. In addition, we contended that he will be unable to steer the appeal from behind bars. We thus closing with the argument that the application for execution by detention smacked of intent to obstruct the course of justice by derailing the appeal.

 

Court's ruling

The court rewarded our submission and dismissed the application. The execution by detention against our client could not be allowed as there was, in the court's view, no sufficient cause in law and fact in view of our arguments, why our client should not be committed to civil jail in execution of the decree. Unfortunately, the matter was in subordinate court. There is thus no authority to show for winning the application.

Should Kenya and Africa be grateful for colonialism?

A British-born South African Columnist, David Bullard, was recently fired by his South African Weekly newspaper editor for asserting that Africa should be grateful for colonialism. The final straw that dissipated the patience of Bullard's Sunday times editor, Mondli Makanya, to cancel his "Out to Lunch" column was an article titled "Uncolonized Africa Wouldn't Know What It Was Missing."

 

The gist of the 'offensive' column was that it took colonization for Africa to gain some modicum of consciousness! Well, Bullard had hitherto succeeded to cloak his prejudicial statements in the name of satire. His followers believed that his was a tongue in the cheek way of attacking happenings of the day. Even when Bullard, with enviable audacity, called the President of the South Africa's ruling party ANC, Jacob Zuma, "stupid"! Needless to say, Zuma sued.

 

Colonialism is reality everywhere

But, according to Pusch Commey in the Pan-African Magazine New African (May 2008 Issue), Bullard's offensive merely stoked the embers of what has been smoldering: the race question. But I see it differently. Without purporting to hold brief for Bullard and his ilk, my take is that it is time Africans ceased wishing colonialism away as a bad dream. It happened. Not only to Africa, but also to US, Canada and Australia.

 

The more we would rather not appreciate it as a life changing fact, the more colonialism will unnecessarily continue to be a source of shame to Africans. And the shame will merely yield Africans who feel inferior and small towards their White contemporaries. That is, even in key professions like lawyering. For instance, many a law students apply to law firms merely because the same bear an exotic name and churn those with African names. I would rather acknowledge colonialism and feel grateful that Africa's heroes and heroines helped purge it out of the continent!

 

The context of the question offending

There is no denying that the question whether Africans should grateful for colonialism can be offending depending on the context in which it is voiced. Some people genuinely see the question as analogous to asking whether a home owner should be grateful to robbers, who, after ransacking his hitherto unfenced compound and house drive him to fence and therefore keep future happenings at bay. Those persuaded to such line of thinking find the fitting answer to the question as no-there is nothing to be grateful for!

 

But the colonialists did contribute to the advancement of Africa and Africans. If one is honest and opts not to interrogate 'why', then it is a given that colonialists advanced Africa. But a neocolonialism activist quips quickly: they did so in the same way a mining company builds a road up to the mining site. The development i.e. the road is here merely a means to an end. And the end is to extract the mineral resources with minimum ease. To the colonialist, so was the purported civilization of Africa by the colonialists. They had to yield people who thought and subscribed to help them achieve their goal in colonizing Africans in the first Place.

 

Who was a colonialist?

But can one say that all the whites in occupation during colonial times were pre-occupied with the urge to exploit Africans? This boils to one question: Who is/was a colonialist? Was it the colonizing state, or the administrators the state deployed (including their collaborators), or the settlers, or a blanket term for the whites who occupied our territories after scramble for Africa?

 

To me colonialists embody the state and its administrative machinery. That leaves honest settlers, missionaries and others out to civilize Africa, The latter whites' mission was to eke a living or preach the gospel within our frontiers. Some of those men did not see Africans or empowering Africans as a means to an end. Others were totally misguided by the anthropologists' exaggerations of the backwardness of Africa and Africans and were driven by desire to save the Dark Continent. Without splitting hairs to unearth who was and who was not, those motivated by desire to better Africa are people we have to be grateful for whatever their motivation.

 

There is also need to appreciate colonialism as a phase that our continent Africa went through and a reality we cannot wish away. There is no need to massage deep held resentments against colonialists or even colonialism. The truth is, at least, colonialism brought a new way of doing things. That is not to say that the colonialists' way is the superior way as white supremacists would have us believe. To say so would be to ignore the fact that a people do not adopt a way of life blindly-and Africans way of life before the white man had its logical motivations.

 

Lets interact with whites without historical baggage

In a nutshell, the way to go is to appreciate that by interacting with the early whites, our ancestors changed their world view. It is debatable whether the change was deliberate or a matter of coercion: but the interaction changed us. Whether for the better or for worse is an academic question. But there is no argument that we are possessed of the resultant culture that came out of the interaction.

 

For instance, political seats in the rural areas go to those who convince the folks that, even though schooled in the western education, they have not lost sight their immediate relations and have the respect of the clan earned by illustrious actions. The same people are individualists to the court and will not hesitate to feather their nest. This mix of the communal approach and individualist culture is the new reality in Africa. That is regardless of whether we are grateful or not for colonialism!