COUNCIL OF LEGAL EDUCATION
EXAMINATION FOR ADMISSION
TO THE ROLL OF ADVOCATES
ATP 104: TRIAL ADVOCACY
FRIDAY 16TH NOVEMBER, 2012
DURATION: 3 HOURS
Instructions to Candidates
(a) Candidates should attempt FOUR questions
(b) Answer questions one and two and any other two questions
(c) All questions carry 15 marks each
(d) Marks may be lost for illegibility
PLEASE TURN OVER
1. During the absence on leave of its Managing Director, White Horse Corporation (WHC), a state
corporation, ordered three Toyota Landcruiser Lexus 4WD 4500cc petrol at Shs.9 million each;
two Range Rover HSE 4WD 4000cc petrol at Shs.12 million each and one Mercedes Benz 350 at
Kshs.15 million, for its new Directors. The LPO was signed by one Peter Pesa, the Finance
Manager at WHC.
The vehicles were duly delivered by Dee Dee Motors Ltd, on the date stated in the LPO, against a
5% deposit. Dee Dee agreed to the delivery upon Peter Pesa having ordered, in the letter
acknowledging receipt of the vehicles, another fifteen 1300cc saloons each at Shs.2 million, “to be
effected immediately the MD is back”.
Dee Dee’s delivery/invoice note, signed by Peter Pesa, read:
“Goods once sold not returnable except as with regard to the one year guarantee conditions.
Interest charge: 14% per annum on payments made after 21 days
Terms and conditions apply against signature of recipient.
E&OE.”
After the MD’s return the audit department queried the transaction and caused its cancellation.
The MD was transferred to another state agency.
Dee Dee now demand payment of Kshs.54.15Million plus interest at 14% p.a and reject return of
the cars, except as re-sale items. They argue that the internal weaknesses of WHC are none of its
business, and seek “general damages for breach of contract, plus another Shs.30Million for lost sales in
the second contract”.
The WHC Company Secretary declines to pay, and seeks refund of the 5% deposit, stating that
the sale was illegal and invalid, and pointing out that at the back of the LPO were the words:
“Not valid unless signed under a vote head confirming availability of funds by the Director.”
The statute establishing WHC provides as follows at sections 2 and 10 of the Act:
“2. The Board shall be a body corporate with perpetual succession and a common seal, capable of suing and
being sued….
10. (1) all deeds, instruments, contracts and other documents shall be deemed to be duly executed by or on
behalf of the Board if-
a) Sealed with the common seal of the Board and signed by two members thereof; or
b) Executed on behalf of the Board by one member of the Board appointed by the Board for that purpose
and the Director appointed under this Act…
(2) A deed, instrument, contract or other document executed in accordance with sub-section (1) shall,
subject to any exception that may be taken thereto on any ground other than the competence of the party
executing the same on behalf of the Board, be effectual in law and bind the Board and its successors…..”
The dispute has now gone to court and the suit is ready for trial.
a) You are the lawyer for Dee Dee Motors Ltd. (the plaintiff). Prepare your opening statement
based on the above narrative. (7 marks)
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b) You are the lawyer for WHC (Defendant). Prepare a closing argument based on the above
narrative.
(8 marks)
2. “Most lawyers never analyze cross-examination like this. They learn by trial and error, but never
focus on these underlying principles. They are so important. Have them somewhere in your
mind at all times….Remember these….fundamental truths about cross-examination. Set them up
like giant sign posts in your advocate’s mind. Keep glancing at them. Be aware they are there. If
your forget these, you’ll start to wander, and a wandering cross-examiner is a sorry sight” – Keith
Evans; Common Sense Rules of Advocacy for Lawyers.
Discuss this statement, noting to identify the true purpose of cross-examination and to distill
practical rules the observance of which would avoid embarrassment.
(15 marks)
3 “Of course there’s a search for truth going on in a trial, but it’s not the main objective. Watching
and listening to the witnesses, the fact-finder is bound to be on the lookout for the liar. But trials
often end up – usually end up, indeed – without any liars being unmasked. What the fact-finders
normally have to do is decide which parts of the evidence they prefer. An advocate’s job is to
lead his or her fact-finder to a preference and thus to an opinion.”
Keith Evans, The Golden Rules of Advocacy, p.51
a) To what extent, if any, is the above statement a correct reflection of the purpose of a trial in
adversarial judicial systems?
(7 marks)
b) In addition to a thorough grasp of the rules of substantive law and procedure, a trial lawyer
is expected to bear in mind certain aspects of psychology that are critical in trial advocacy.
Discuss these aspects and show how they impact on the trial process.
(8 marks)
4.
a) Using appropriate examples, discuss the qualities essential to good trial advocacy.
(8 marks)
b) “What it comes down to for the lawyer is this: if you have correctly understood the situation, if
you know what you are doing and if you believe in it, your body, voice, emotions, and intellect
will work together in the act of communicating with other human beings….congruence of
feelings and words is necessary for a communication to be accepted as potentially true…..
Congruence is achieved through integrity, not technique”
John Stefano (As quoted in Effective Speaking, British Columbia Skills Materials)
Using appropriate illustrations, critically comment on this observation.
(7 marks)
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5.
a) Discuss the meaning and procedure of raising preliminary objections in civil proceedings in
Kenyan courts.
(5 marks)
b) Discuss the manner in which trial objections are raised in the Kenyan courts and provide FIVE (5)
detailed illustrations of valid objections that are supported by the Evidence Act (Cap.80, Laws of
Kenya)
(10 Marks)
6.
a) Describe in detail the specific procedure of producing documentary evidence in civil and criminal
trials in Kenyan Courts.
(10 marks)
b) You are a prosecutor conducting a case in which one of your exhibits is a handwritten document.
Set out TEN questions that you would put to a handwriting expert that you have called to testify
in the case.
(5 marks)
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