“When Raila was at Uhuru Park things were ugly. When Kajwang stood there as Chief Justice, where were they?” ...
Sideshows will not capsize Law Society of Kenya's leaky boat: says city lawyer
Dennis Ware, a city based attorney, talks to David Odongo about the flooding of lawyers in the market, drama at LSK and whether it is okay to jail a woman who willingly undergoes FGM.
What do you think about BBI?
If BBI Bill is passed into law, it will bring an improvement to the Constitution of Kenya 2010.Specifically in areas relating to inclusivity in the control of the Government and representation in the Parliament, Devolution of resources, empowerment of the marginalised communities and ensuring there is meaningful sustainable development.
What are your views about selection of a CJ when the incumbent is out of office?
In my humble opinion, it is not prudent to wait for the CJ to leave office to kick start the process of replacing him. It causes so much uncertainty, which affects the functioning of the Judiciary. The need for a smooth transition calls for an early start of the process to replace the CJ. This will ensure proper handover, smooth transition, certainty and independence of the Judiciary.
The Government has not been paying court awards to citizens who win cases against it. What legal remedy can Kenyans be offered from the legal fraternity?
It is wrong and illegal for the Government of the day to disobey Court orders. The Government ought to be on the frontline in safeguarding and ensuring the realisation of the rights of its citizens. The most probable remedy as it stands is for the citizen to commence contempt proceedings against the specific Government official impugning the court orders. Another option is for one to apply for judicial review seeking the prerogative order of mandamus.
Law seems to have lost out to IT as a premier career in Kenya, why is it so and is the high number of lawyers a good thing for the profession?
First, its not true in any aspect and sense that law, as a profession, has lost to IT. That cannot be true. The two professions depend on each other symbiotically. That said, I believe IT needs the law to a bigger extent for protection of Intellectual Property Rights. IT is just a tool for enhancing the law. The more the lawyers in the field, the better and stronger the profession.
What are your views about bail for capital offenses especially murder?
Bail is a right available to any arrested person as enshrined in Article 49 (1)(h)of the Constitution of Kenya 2010. This Article amended the provisions of Section 123 of the Criminal Procedure Code, which barred persons suspected of committing capital offences from being granted bail and bond. It is fair for bail to be granted to all accused persons, who qualify to be granted the same as this is the spirit of the Constitution.
In your legal career, which has been your toughest case?
I have a liking and sound understanding of Tax Law and currently I Head the Tax Department at Miller & Company Advocates. We are pioneers in tax litigation and advisory. We have excelled in a myriad of tax cases but the most exiting case I handled, along side Senior Cecil Miller, concerned charges brought against our client in relation to tax evasion. We managed to set the much celebrated precedent regarding who is the proper office to investigate offences related to tax administration in Kenya and East Africa. We challenged the powers of the DCI and other agencies to investigate offences related to tax administration and the High Court agreed with our submissions and ruled in our favour.
And the elephant in the room...whats going on at LSK?
LSK is more vibrant than it has ever been since I joined it in 2008. Of late, its presence is felt for championing the rights of the less fortunate in the society and keeping the Government and those in power in check. Indeed, this forms part of the objectives of the LSK as enshrined in the LSK Act Section 4 thereof. The little sideshows will not rock the boat and derail the Society from fulfilling its mandate.
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Which two Kenyan lawyers are your role models and why?
That’s a very broad question since I have a number of legal minds I look upon and relish in different fields of law who have inspired and shaped my career in different unique ways.I believe in myself.
Does it make sense to jail adult women who willingly undergo FGM?
It is within the law to jail a person found guilty of committing an offence in Kenya irrespective of the age. Article 2 of the Constitution of Kenya recognises customary law and culture to the extent that the same is not repugnant to justice and/or is not inconsistent with the Constitution and written law. I don’t advocate for legal centralism, but would rather go with indigenous ordering as a better way to solve this.
There was a suggestion about lowering age of consent to 16...your thoughts on this?
The age of majority in Kenya is 18 as stipulated at Section 2 of the Age of Majority Act Cap 33 and I believe Kenya has its own cultures and ways of life that informed the legislature to arrive at the said age. Ways of life worldwide are changing drastically with the invent of technology and science, which drastically impacts on social lives and ways of living. Just as they do, so should the law not remain static. This is one area we need to relook at the parameters considered to settle on the said age of consent of 18 years and see if the said parameters still subsist.This would inform whether time is nigh to lower the age of consent.
And what of this thing of cops arresting people, especially the youth, and slapping a drunk and disorderly charge even if it’s not the case? If they can’t bribe, what’s their legal remedy if taken to court?
It is illegal for the police to charge one with an offence which they have not committed. This flies in the eyes of the Constitution of Kenya, The Criminal Procedure Code Cap 75 and the National Police Service Act 2011. If taken to court, they should take a plea of not guilty and put the prosecution to task to prove its case beyond reasonable doubt.
Lawyers have been accused of abetting/facilitating corruption in courts...your view on that accusation?
A lawyer, as an officer of the court, is required to assist the court in its processes. It’s wrong for one to abet and/or facilitate corruption. If such incidences exist, then, the perpetrators should face the full force of the law and further, be reported to the Advocates Disciplinary Committee.
How did going to Kakamega High School shape your life?
You mean the Government School of Kenya? Well, known for its excellence in academia, play acting and not to forget the formidable Green Commandoes. It all speaks for me. I am all-round nurtured.