Members of the legal profession today went to the ballot to elect a new chairman and council to serve for the next two years. This is the first time in the 60 year history of Law Society of Kenya that members have voted for their officials by way of secret ballot. The historic elections are the first under the new constitution and the out-going council was of the opinion that if LSK was to remain at the forefront of championing rule of law and justice, it must lead by example. The postal ballot was, therefore, shelved despite the clear provisions of the LSK Act for the fact that it is prone to rigging and corruption in favour of the candidate preferred by the incumbent chairman.
In the aftermath of the elections, the incoming LSK leadership will have to decisively deal with, inter alia, the following key issues:-
The escalating costs and the dwindling quality of bar education in Kenya.
The need to revise the LSK Act in tandem with the rights and freedoms of the members under the new constitution.
The devolution revolution, that is, the urgent need to devolve the Society’s mandates to county and regional branches.
The chequered future of legal practice in Kenya and the potential of cross-border legal practice in East Africa.
The quest for better welfare of members and especially the need to develop housing schemes for lawyers.
The poor pay of young lawyers and associates and their frustrations with the overall system as witness by the recent case challenging the two year term.
The diminishing image of the LSK as the vanguard of the rights of all and the objective defender of the public interest in Kenya.
Each of the candidates for Council Chairmanship, Vice-Chairmanship and Council Membership made specific promises on each these issues in the run-up to the elections. Our job here at Lawyer-Kenya is to wish them the very best and look forward to hold them accountable in the best interest of the profession and its membership.
There is no question that business cards are the most popular marketing tools for lawyers in Kenya. At least, I have never met an established lawyer who having no business card failed to say something about forgetting to carry them that particular day!
Business cards are a very versatile marketing tool for business for all seasons. Whether one is starting out or is already an established lawyer or just left bar school, a business card is a must-have. When starting out the firm you need business cards to reach and introduce yourself and your practice to colleagues, potential clients and supplies. Established lawyers and law firm partners use business cards to gain new business and ensure their contacts remain a heartbeat away from their clients. Business cards are also a powerful tool for impressing potential employers if you are a young law graduate just starting out.
A business card helps market your business and skill sets to your target audience. Business cards are also what existing cards give out when the refer prospects to your practice. As such, the design of your business card is a matter of life and death. It speaks volumes about you, what you have to offer and how serious you are at it. Needless to say, it is time to shun laser-jet computer print-out if you are still using such stuff for business cards!
A lawyer's business card ought to be designed in sober colours. Law is a conservative profession and, thus, you are limited in the designs that you can explore for your business card. Given advertising restrictions placed on lawyers in Kenya, one must avoid writing all over card the firm's practice areas except as is necessary. In fact, sloganeering may give the client the impression that you are just out to make a kill and not to offer quality legal services.
Here are tips on how to exploit the powerful marketing potential of business cards for the good of your law firm business:
1.Never leave your office without them. Whether your are going to a client meeting, or the Law Society of Kenya Lunchion, a CLE Seminar, or just for some golf with your buddies on a Friday afternoon, make sure you have your business cards with you. You never know when the opportunity to network with your dream client will come. Keep some cards in your card bonnet, your business folder, you carry home folder and at the office desk. Those cards come in hardy, for instance, when you forget your wallet home. Also, carry some business cards home and everywhere you are likely to meet people you may need to network with.
2.Observe proper business card etiquette. We all know the effects of having your card as the one to be handed out by ambulance chasers. Please avoid the obsession to just hand out the card. The point is to use the card to as an icing to a networking experience. It is advisable you first strike a conversation with the person you target to give a business card. Follow religiously the networking drill about getting to know what the person does and how you can be of help to him before you hand him your card!
3.Make the exchange of cards memorable. Whenever you give anyone your business card, ask for their card in return. Once you get the other person's card, take the opportunity to charm the person. For instance, you may look at the card for some seconds and make comments about the design of it. In alternative, you could comment about something you already know about the person or you have in common. The more sincere the comments, the better! Such comments help as memory refreshers when you decide to follow up on the person. Also, they help demonstrate your interest in the other person.
4.Be generous with your business cards. It is true business cards are a business expense. However, try and give them out to everyone who asks for them. Give your business cards even to family members and friends just in case they need to refer someone to you. When someone asks you for more than one card, just give them. You never know, sometimes all they want to do is refer your services to others.
5.Maximize all those accidental meeting. It is not all the time you meet your prospective clients when you expected to meet with them. Sometimes you meet your target clients in the streets while in the company of a friend who knows them and you get introduced. Take that time and hand out your card with a smile. Make a mention of your pleasure at meeting the person and how you would welcome an opportunity to get to know them better. I know the importance of this because as a research lawyer, I meet lawyers everywhere. I always make a point of making a lasting impression by handing out my card. You can imagine how effective the card will be when you have generously been introduced to the prospect.
6.Be at the right place at the right time. Effectively using business cards as a marketing tool is not rocket science. All you need to do is find the best place, occasion or event to meet and network with your target clients. Don't miss out opportunities to network and hand out your business cards. Your right place may be the professional forum that you have been invited or the charity dinner or even a church meeting. Just make sure you don't miss out and you are there at the right time. One of my clients has made it a habit to get to events the earliest. That affords him the opportunity to pitch his tent in a strategic place where the other attendees will find it difficult to avoid interacting with him. Needless to say, he uses those interactions to hand out his business cards. You may also consider soliciting a list of expected participants to a networking event earlier in advance to glean out the persons you wish to network and hand your business card to earlier in advance.
7.Follow up immediately. Whenever you exchange cards with a prospective client, make an effort to follow up immediately. For instance, if from the conversation with the person you gathered that s/he needs some information which is in your possession or available to you, send it out to him/her at the earliest opportunity. That way, you set the ball rolling in forging a give and take relationship that eventually increases your chances at further interaction and eventual client-lawyer relationship. But whatever you do, do not call the next day to 'sell' your services to the prospect! Rather, focus on building a relationship and do it even when you don't expect much in return.
8.Consider Business Cards as a part of wide-variety marketing effort. Business cards alone cannot sustain your law firm's business development needs. The best strategy is to use the business cards to supplement other marketing, publicity and business development efforts. For instance, your business cards will be a more effective marketing tool when handed out after you make a presentation in a seminar. Similarly, if you are a legal columnist in the local daily, more prospects will feel the need to ask for and obtain your business card.
Here is my last word about business cards as a marketing tool for lawyers: make sure your business card looks professional. Include your law firm's name, your name and the abbreviations of your qualifications, your office physical address, contact details and your website. Please leave out the slogan; they make you sound like a salesperson rather than a professional. Instead of listing your practice areas in the business card, make a point of mentioning your specialization every time you hand out your card to a new prospect. Also, consider leaving out your cell phone number from the business card. This could afford you the opportunity to make the recipient of your card feel important when you write down the number in the card before handing it over.
Frequently, especially in applications for summary judgment under Order 35 Rule 1 of the Civil Procedure Rules, the need to add to the supporting affidavit arises. At those times, depending on whether or not the Respondent has filled a reply, a supplementary affidavit or a further affidavit is what is undoubtedly needed. The question is when you need leave to file the same and when to file without.
Recently, a Defendant in a case I was handling raised the ground of inferiority of the goods supplied whose liquidated value we were seeking a summary judgment. It happened that we filed the motion for summary judgment on the same day with the Defence and therefore we could not reasonably cater for it in the supporting affidavit. We thus filled a further affidavit to traverse the claim of inferiority for the purpose of the summary application. Replying to the defence was open to us but not very appealing as to do so would have created the impression that the Defence on record had triable issues when what we were urging in the summary application was that it was a sham.
Whether the court may receive more than one affidavit
The Defendant's counsel raised an objection to the further affidavit arguing that we had not sought leave of the court to file it. The court was therefore called upon to decide the issue raised by the objection, viz. whether more affidavits than one may be received by the Court under Order XXXV rule 1 (2) of Civil Procedure Rules.
For generality, I think the same question can be asked of the Order L Rule 3 of the Civil Procedure Rules. This is the omnibus rule on adducing affidavit evidence in civil applications in Kenya. The general issue would thus become: whether more affidavits than one may be received by the court in applications under the Civil Procedure Rules
The law on the number of Affidavits in Motions
Generally, Order L Rule 3 permits one to adduce evidence by an affidavit in any motion before the court. On summary judgments, Order XXXV Rule 1(2) provides for adduction of evidence to support an application for summary judgment under the rule. The sub-rule (2) states that:
"The application shall be made by motion supported by an affidavit either of the Plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed."
Without more, the literal meaning of the above rules of procedure that that only 'an affidavit' meaning a single affidavit is permitted. Importantly, nothing in the rules prohibit expressly or by implication filling of more than one affidavit i.e. a further or supplemental affidavit. But the literal meaning alluded to above is clearly not the law for reasons that are easy to render apparent.
For starters, Order L Rule 16(2) permits filing of a supplementary affidavit with leave of the court. On the face of this sub-rule, it applies where the Respondent has already filed a reply and the Applicant would wish to respond. So that, whenever the replying affidavit or grounds of opposition in response to an application raise issues that deserve to be responded to, the proper way to go would be to seek the court's leave to file a supplementary affidavit. Leave will be granted unless the Respondent shows that it stands to be prejudiced in a way that cannot be compensated.
But the again there does not seem to be a bar against the court receiving more than one affidavit. This is especially the case where the Respondent is yet to enter a reply to a motion. For support the foregoing contention, I have in mind the qualification afforded by section 3 (4) of the Interpretation and General Provisions Act, Cap. 2 Laws of Kenya.
Elevate not rules of court procedure to a fetish
Here, it is important to bear in mind two things. First is the view of Rawal, J concerning Cap. 2 of the Law of Kenya in Dilshad Hassanali Manji-v-Hassanali Vasanji Manji Nrb (Law Courts) HCCC No. 8 of 2005. She statedthat the Interpretation and General Provision Act is a special statute to provide the guidance to the courts on the interpretation of other statutory provisions.
The second and last thing to note is the court's attitude to rules of procedure and the need not to elevate them to a fetish. Osiemo J in Panian Ole Mutua & 3 Others-v-Registered Group Representatives Kimana Tikondo Group Ranch Civil Case 522 of 2006 expressed this approach he stated:
"The rules of procedure are meant to facilitate the administration of justice in a fair, orderly and predictable manner, not to fetter or choke it."
A singular in written law imply a plural
Turning to the provisions of the Interpretation and General Provisions Act on the matter at hand, section 3(4) makes it the law that in statutes the singular for stands for the plural. The effect then is the where the rules of procedure read 'affidavit' the same should also be taken to stand for 'affidavits' as well. The Section 3(4) of Cap. 2 states:
"3(4) In every written law, except where a contrary intention appears, words and expressions in the singular include the plural and words and expressions in the plural include the singular."
We then turn to apply this to Order L Rule 3 and Order XXXV Rule 1(2). The latter, for the record, states that:
"The application shall be made by motion supported by an affidavit either of the Plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed."
The effect of the combination of the above two provisions of the law is that the singular 'affidavit' in Rule 1(2) does not imply that one cannot file several affidavits as there is nothing expressly prohibiting that. There is also no denying that Civil Procedure Rules are 'written law' and therefore section 3(4) of Cap. 2 above apply to them with equal force. Written law is defined in section 3(1) of the Interpretation and General Provisions Act:
"written law" means—
(a) an Act of Parliament for the time being in force;
(b) an applied law; or
(c) any subsidiary legislation for the time being in force;
Case where more than one affidavit were held proper
In Surgipharm Ltd-v-Aksher Pharmacy Ltd & Another [2004] eKLR a further affidavit filed without leave in support of a summary application was under objection. The issue before the court was the one under scrutiny here. That is, whether more affidavits than one may be received by the Court under Order XXXV rule 1 (2) of Civil Procedure Rules.
The counsel objecting to the further affidavit cited the rule 1(2) for his submission that since the rule provided for an affidavit, there could be no room for supplemental or further affidavit once an application has been filed. The object of the submission was to persuade the court to reject the Plaintiff's further Affidavit.
The court concluded that the Counsel could not be right in his submission. It cited the provisions of section 3(4) of the Interpretation and General Provisions Act (Cap. 2 Laws of Kenya) as the reason for the conclusion. The court held that there was no contrary intention in Order XXXV rule 1(2) as to the number of affidavits the Plaintiff or for that matter the Defendant in reply thereto may file. The court thus rejected the contention by the Defendant's counsel objecting the further affidavit.
Conclusion
In a nutshell, a party does not need leave to file nor is there a limitation on the number of further affidavit(s) or supplemental affidavit(s) whether under Rule 1(2) of Order 35 or Order L Rule 3. But where a reply to the application has been filed, it seems that leave to file a supplementary affidavit may be needed. If anything prudence dictates that leave be obtained to avoid unnecessary delay and having the client's application challenged on a matter that could have easily been avoided.
_______________________________________ Paul Musyimi is a Freelance Legal Research Consultant based in Kenya. Lawyers may contact him for legal research solutions at pmusyimi@gmail.com
This article is prompted by the not-so-easy-to-explain inclination, very frequent with advocates who rely on precedents in drafting, of praying for orders for exemplary damages in virtually every suit. Recently, I encountered exemplary damages in a suit for compensation on ground of redundancy and unfair dismissal, as one of the prayers for exemplary damages against the Defendant. The Defendant had allegedly failed to give proper notice to the Plaintiffs' trade union and the government of their eminent dismissal of redundancy. On that ground, and in a suit whose cause of action was breach of express and implied terms of an employment contract, the Plaintiff sought exemplary damages ostensibly to punish the Plaintiff and forewarn other like-minded employers against flouting the regulations on pre-redundancy criteria in Kenya.
Definition of exemplary damages
Exemplary damages are damages which are punitive in nature and generally intended to teach the defendant that tort does not pay. They are awarded in addition to compensatory damages. Thus the plaintiff receives a windfall over and above his true loss. It has been said that the distinction between aggravated and exemplary damages that aggravated damages are awarded for the conduct that shocks the plaintiff and exemplary damages are awarded for conduct that shocks the court.
Conditions for award of exemplary damages
As per Halsbury's Laws of England 4th Edition Volume 12 Para. 1190 at page 474, exemplary damages may only be awarded in actions for torts. Exemplary damages may not be awarded in actions for breach of contracts as was held in Kenny-v-Preen [1962] 3 All ER 814, CA.
Where exemplary damages provided for by statute
At one time it was believed that exemplary damages could be awarded in any case where the defendant had behaved outrageously. However, in Rookes v Barnard [1964] AC 1129; [1964] 1 ALL ER 367, the House of Lords held that except where is specifically authorized by a statute exemplary damages should only be awarded in two categories of cases.
Against oppressive, arbitrary or unconstitutional action by government servant
One, in case of a tort occasioned by oppressive, arbitrary or unconstitutional action by servant of the government. In Cassell & Co. Ltd v Broome [1972] AC 1027; [1972] 1 All ER 801, the House of Lords applied the approach in Rookes v Barnard where Lord Reid said that this category did not extend to oppressive action by a private corporation or individual.
For tort calculated by Defendant to yield profit
The second case in which exemplary damages may be available is where the defendant has calculated by him to make a profit for himself by committing the tort even after paying compensatory damage. In Cassell & Co Ltd v. Broome (supra),the court was of the view that thedamages came into this category. The defendant published a book which made defamatory statements about the plaintiff. The book was published in the face of threats by the plaintiff that he would bring a libel action against the defendants. The plaintiff was awarded 15,000 pounds compensatory damages and 25,000 exemplary damages. It was held that the plaintiff was entitled to exemplary damages because the defendant had calculated that it was worth running the risk of the book being held to be libelous because of the profits which they thought they would make from the sales of the book and the attendant publicity. But it should be noted that the mere fact that a tort is committed with the intention of making a profit is not sufficient of itself to bring the case within this category. There must be some evidence that the defendant decided that there was a profit to be made out of the wrongdoing.
Scarcity of case law on exemplary damages in Kenya
There are few direct cases in Kenyan jurisprudence dealing with exemplary damages. To be specific, only two local reported cases make mention of exemplary damages. In the case of Gitau-v-Attorney General [1990] KLR 13, the learned judge found that the actions of two police officers who wrongfully assaulted, battered and falsely imprisoned the Plaintiff were oppressive, arbitrary and unconstitutional and therefore fell in the first category of the instances where exemplary damages may be awarded. That it is, the police officer's actions were oppressive, arbitrary and unconstitutional action by the servants of the Government and therefore warranted an award of exemplary damages. The court awarded Kshs. 10,000 as exemplary damages over and above the awarded general damages of Kshs. 25,000.
In Biwott-v-Mbuguss & Another (No. 2) [2002] 1 KLR 321, a defamation/libel suit, exemplary damages had been sought as an alternative to aggravated damages. It appears the Plaintiff's counsel in the case chose to prefer/insist on aggravated damages in his submissions which were eventually awarded.
Conclusion
There is no doubt exemplary damages are strict remedy be sought only in those rare occasions when the settled conditions for its award are met. The following are the key points to remember when dealing with award or prayer for exemplary damages. Firstly, the cause of action must be a tort claim (remember exemplary damages are only applicable in tort and never in claims for breach of contract). Secondly, exemplary damages will be granted upon proof of oppressive, arbitrary and unconstitutional action by a servant of the Government but a private corporation. In addition, exemplary damages are also awarded where it is shown that the plaintiff had calculated to gain profit through the tort. Lastly, exemplary damages will be be readily awarded where they are expressly provided for by a statute.
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Paul Ndore Musyimi is a Freelance Legal Research Consultant based in Kenya. Lawyers may contact him for legal research solutions at pmusyimi@gmail.com
Trade marks in Kenya are registered with the Kenya Industrial Property Institute (KIPI). KIPI is the registrar of trade marks in Kenya.
It is open to a person intending to register a trademark to do it himself or use a registered agent. However, foreign applicants, whether individuals or companies, can only register trade marks through registered agents.
The procedure for registering a trade mark is as follows.
1.Search
You contact a search to find out whether the trademark is registrable or not and also whether there exists in the records a trademark which could be confused with the intended trade mark.
2.Application for registration
Once the search is successful, an application is made to KIPI accompanied by seven (7) representations of the mark. The application should be accompanied by address of the applicant.
3.Examination
There are three stages in examination of a Trade Mark. First is the formal examination which occurs upon presentation of the application. This involves close checking to find out whether the right documents are filed, whether the forms included are properly filled, and the required fees is appropriately paid. Then a search may be done where one had not been carried out at the preliminary stage. Lastly, a substantive examination of the proposed mark is undertaken to determine whether the mark is distinctive enough for registration. Incidentally, a trade mark is a distinctive mark that identifies one business, product or services from another of its kind.
4.Advertisement
If the examiner finds no grounds to refuse a trade mark application, then the trade mark is advertised in the Industrial Property Journal or Kenya gazette to allow any interested party an opportunity to raise objections to the pending application prior to registration.
5.Opposition
Any aggrieved party with valid grounds may oppose the registration of a trade mark advertised in the Kenya Gazette. An opposition must be made within 60 days of the publication date by filing a statement of opposition. The Registrar makes a ruling on the fate of the process after hearing both parties. Any party dissatisfied with the ruling may file an appeal to the High Court of Kenya.
6.Registration
If there is no opposition to the trade mark after the statutory 60 days period from the date of advertisement, or if an opposition has been decided in the applicants favour, the application will be registered and the Institute will issue a Certificate of Registration and enter the registration in the Trade Marks Register.
7.Policing of Trade marks
It is upon the owner of the trade mark to monitor the market and to institute legal proceedings in case of infringement of a registered trademark. Infringement may involve using the mark without permission or using a deceptively similar trademark likely to cause confusion.
8. Assignments
A trade mark is a form of property, although intangible, and usually entails considerable value acquired through goodwill. It can be sold, given or otherwise transferred to another party through a transaction referred to as an assignment. A Registered trade mark is assignable and transmissible either in connection with the goodwill of a business or not. This has to be done in conjunction with the trade marks office which only comes in to record and effect the changes of the transaction in its register.
9. Licenses
A person other than the proprietor of a trade mark may be registered as a registered user thereof in respect of all or any of the goods in respect of which it is registered or in respect of services with the provision of which he is connected in the course of business (otherwise than as a defensive trade mark) and either with or without conditions or restrictions.
10. Applicable Fees
The applicable fees for registration of trade marks may change from time to time and thus its best to consult KIPI for a quotation. The applicable fees listed below are merely meant to be a guide on the votes under which fees is payable. The current rates may be different. Also, different fees apply in the case of applications by foreign individuals and companies.
A trade mark registration is valid for ten (10) years from the date of application and the registrar will notify the owner within six months of the imminent expiry of the concerned trademark. The owner is entitled to renew the trade mark every ten years.
12. Registering Trade Marks Abroad
The foregoing procedure secures the trade mark in the Kenyan market only. In other words, it accords protection in Kenya only. If one is selling goods or offering services in other countries, he/she should consider registering the trademark in each of those countries.
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Paul Musyimi is a Freelance Legal Research Consultant based in Kenya. Lawyers may contact him for legal research solutions at pmusyimi@gmail.com
