FACULTY OF LAW

READING LIST AND COURSE OUTLINE

© MUTHOMI THIANKOLU ∗

COURSE NAME: TRIAL ADVOCACY

COURSE CODE: GPR 333
DATE: 21 MARCH 2024
Contact Hours: 45
MODE OF ASSESSMENT: GROUP EXERCISES AND AN INDIVIDUAL SIT-IN
EXAM #
MAIN TEACHING METHOD(S): LECTURES

∗
Dr Muthomi Thiankolu is a Partner at Muthomi & Karanja Advocates and a
Senior Lecturer at the University of Nairobi Faculty of Law. His professional
interests are dispute resolution, public procurement regulation, constitutional
law, administrative law and international economic law. He is an accomplished
legal practitioner, consultant and academic. Dr Muthomi Thiankolu has
published many peer-reviewed journal articles and book chapters. He has
appeared at the East African Court of Justice, the Supreme Court of Kenya, all
other superior courts of Kenya and many specialised courts and tribunals. Dr
Muthomi Thiankolu has provided legal consultancy services to (among others)
the World Bank Group, the UNODC, the GiZ, the JSC, the PPRA, the IDLO, the
LSK and the SUNY.
Dr Muthomi Thiankolu holds a PhD in law from the University of Nairobi. He also
has an LLM in International Economic Law (with distinction) from the University
of Warwick, a Postgraduate Diploma from the Kenya School of Law and an LLB
(Hons.) from the University of Nairobi.
Dr Muthomi Thiankolu can be reached at muthomi@muthomikaranja.com.
#
The Course Instructor(s) may administer closed-book Individual Continuous
Assessment Tests instead of Take-Home Group Essays. All
modules/groups/classes taking the Course in any one semester shall take the
same examination, regardless of their respective campus(es) or dates of
admission or reporting.
TABLE OF CONTENTS

COURSE OBJECTIVES AND EXPECTED LEARNING OUTCOMES ...........................3

KEY INSTRUCTIONAL MATERIALS ...................................................................4

LESSON 1: INTRODUCTION TO TRIAL ADVOCACY............................................9

LESSON 2: INSTRUCTIONS, CASE THEORY, DEMAND LETTERS AND PLEADINGS ...12

LESSON 3: PREPARING FOR TRIAL ...............................................................12

LESSON 4: EXAMINATION OF WITNESSES ......................................................13

LESSON 5: SUBMISSIONS ...........................................................................13

LESSON 6: APPELLATE ADVOCACY ............................................................14

COURSE OBJECTIVES AND EXPECTED LEARNING OUTCOMES

Objectives

The core objective of this Course is to equip learners with oral

advocacy skills and other practical competencies that lawyers

must have to present or argue cases in adversarial legal

proceedings effectively. Specifically, the Course seeks to

introduce learners to the full ensemble of personality, research,

preparation, and presentational factors that make effective and

clumsy courtroom lawyers.

Important Note: This Course is substantially more practical than

doctrinal. Accordingly, the typical law student’s approach to

learning, which generally entails memorising and regurgitating

legal concepts and reading materials, will not achieve the

intended learning outcomes for this Course.

Expected Learning Outcomes

By the end of the course, the learner should be able to, among

other things, (i) adapt the poise, etiquette and grooming

expected of professional advocates, (ii) critically analyse facts

and evidence, (iii) develop a case theory and compelling

narrative for any legal dispute, (iv) examine witnesses, present

documents and items of real evidence in court and (v) make

compelling oral and written submissions in support of either side to

a legal dispute.

KEY INSTRUCTIONAL MATERIALS

Books

Allen Waiyaki Gichuhi, ‘Litigation: The Art of Strategy and Practice

(LawAfrica 2017).

Ambrose Otieno Weda, The Ideal Lawyer (LawAfrica 2014).

Ian Morley, The Devil’s Advocate: A Spry Polemic on How to be

Seriously Good in Court (3rd Edn, Sweet & Maxwell 2020).

Susan Blake, A Practical Approach to Effective Litigation (OUP

2015).

Journals

Irvin R Kauffman, ‘The Trial Lawyer: The Legal Profession’s Greatest

Asset’ (1964) 50 (1) American Bar Association Journal 25.

John M Allan, ‘What Role Does Oral Argument Play in the Conduct

of an Appeal?’ (1955) 41 (1) Cornel Law Review 1.

Lawrence W Pierce, ‘Appellate Advocacy: Some Reflections From

the Bench’ (1993) 61 (4) Fordham Law Review 829.

Richard M Markus, ‘Theory of Trial Advocacy’ (1981-1982) 56

Tulane Law Review 95.

Solicitors Regulatory Authority, ‘Drafting a persuasive skeleton

argument’ (2022).

Warren E Burger, ‘The Specialised Skills of Advocacy: Are

Specialised Training and Certification of Advocates Essential to

our System of Justice? (1973) 42 (2) Fordham Law Review 226.

Willem H Gravett, ‘Pericles Should Learn to Fix a Leaky Pipe – Why

Trial Advocacy Should Become Part of the LLB Curriculum (Part 1)’

(2018) 21 Potchefstroom Electronic Law Journal 1.

Willem H Gravett, ‘Pericles Should Learn to Fix a Leaky Pipe – Why

Trial Advocacy Should Become Part of the LLB Curriculum (Part 2)’

(2018) 21 Potchefstroom Electronic Law Journal 1.

Cases

Arthur J S Hall & Co (a firm) v Simons & Others [2002] 1 AC 615. 1

Medcalf v Mardell and others [2002] 3 All ER 721. 2

1 Advocates do not enjoy immunity from negligence suits in respect of their

professional work.
2 Power of courts to make ‘wasted costs’ orders and the personal liability of

advocates to pay such costs.

R v General Council of the Bar, ex parte Percival [1990] 3 All ER

137.

Republic v Ahmad Abolfathi Mohammed & another [2019] eKLR. 3

Rondel v Worsley [1969] A. C. 191.

Videos

Citizen TV Kenya, ‘Case challenging the constitutionality of

Finance Act 2023 begins at Milimani law Court.’

Citizen TV Kenya, ‘The Finance Act 2023 contravenes sections of

the constitution," Lawyer Otiende Amollo tells judges.’

CNN, ‘(RAW) O.J. Simpson defense: 'If it doesn't fit, you must

acquit.'

Court TV, ‘OJ25 EP. 6 - O.J. Simpson Murder Trial True-Crime Series.’

Kenya Digital News, ‘Governor Kawira Mwangaza lawyer's closing

remarks ahead of voting in senate!!’ (November 2023).

Kenya Digital News, ‘SHE IS A PROSTITUTE' Governor Kawira's

Lawyer exposes how Deputy Governor is behind the

impeachment’ (November 2022).

3Counsel making disparaging and contemptuous written and oral remarks

against the Supreme Court.
Muthomi & Karanja Advocates, ‘Facts and Fiction: Supreme Court

Presidential Election Petition No E005 of 2022’ (03 September

2023).

Muthomi & Karanja Advocates, ‘Law, Language and Literature:

Theory Meets Practice’ (03 February 2024).

Muthomi & Karanja Advocates, ‘Lawyers, Litigants and Courts:

Conflicting Duties’ (04 February 2024).

Muthomi & Karanja Advocates, ‘Shylock Meets Portia on the Bond

for a Pound of Flesh’ (04 February 2024).

Muthomi & Karanja Advocates, ‘The Frog and the Scorpion: Meru

County Assembly’s Closing Statement’ (02 February 2024).

Muthomi & Karanja Advocates, ‘The Hydra of Lerna and

Unconstitutional Constitutional Amendments’ (30 July 2023).

Muthomi & Karanja Advocates, ‘The Tragedy of Kondraty Ryleyev:

Meru County Assembly’s Opening Statement’ (02 February 2024).

Muthomi Thiankolu, ‘Milimani CMCC No. 1044 of 2018 Maryanne

Jebet Kitany v Franklin Mithika Linturi’ (2019).

Muthomi Thiankolu, ‘Milimani Divorce Cause No 272 of 2019 Cross

Examination of Maryanne Jebet Kitany on 02 September 2019’

(2020).
Muthomi Thiankolu, ‘Milimani Divorce Cause No 272 of 2019 Cross

Examination of Maryanne Jebet Kitany on 28 August 2019’ (2020).

Muthomi Thiankolu, ‘Milimani Divorce Cause No 272 of 2019 Cross

Examination of Maryanne Jebet Kitany on 02 September 2019’

(2020).

Muthomi Thiankolu, ‘Nairobi Anti-Corruption Case No 36 of 2018

Republic v Jacob Muvengei Ngwele & 5 Others’ (2018).

Nation Media Group, ‘Githu Muigai: Petitioners have failed to

dispute the numbers | Supreme Court’(September 2022).

Nation Media Group, “Get over it, it's over": IEBC lawyer Mahat

Somane quotes Justice Antonin Scalia” (September 2022).

Online Media TV, ‘ConCourt hears impeachment case against

President Zuma| Adv Ngcukaitobi for EFF.’

Royal Media Services, ‘Lawyer Elisha Ongoya: The Finance Act

2023 shall go down as the most oppressive piece of legislation’

(October 2023).

United Nations, ‘South Africa levels accusations of ‘genocidal

conduct’ against Israel at UN Int'l Court of Justice.’

LESSON 1: INTRODUCTION TO TRIAL ADVOCACY

Meaning of “Advocate.”

Meaning of “Trial Advocacy.”

History of Trial Advocacy

Role of Advocates in Adversarial Legal Systems.

Legal Professional Etiquette.

Interactions with Peers, Juniors and Seniors.

Interactions with Judges and Judicial Officers.

Interactions with Judicial Officers.

Interactions with Witnesses.

Interactions with Other Professionals.

Interactions with the Public.

Grooming and Dress Code for Professional Advocates.

Grooming and Dress Code in General.

Grooming and Dress Code for Female Advocates.

Grooming and Dress Code for Male Advocates.

Essential Skills and Qualities of Effective Trial Lawyers.

Honour, Dignity and Loyalty. 4

Objectivity, Candour and Integrity.

Reading, Research and Writing/Drafting Skills. 5

Selectivity, Simplicity and Analytical Skills.

Industriousness, Alertness and Diligence.

Humanity, Empathy, and Humanity.

Courage, Resilience and Tenacity.

Professionalism, Judgment and Discernment.

Competence and Continuing Professional Education.

Practice Exercises.

Recommended Readings

Allen Waiyaki Gichuhi, ‘Litigation: The Art of Strategy and Practice

(LawAfrica 2017) 165-208.

Arthur J S Hall & Co (a firm) v Simons & Others [2002] 1 AC 615. 6

4 See, among other sources, Articles 12-15 of the UN Basic Principles on the Role
of Lawyers (1990).
5 Clarity, style, tone, grammar, precision, credibility boost, etc.
6 Advocates do not enjoy immunity from negligence suits in respect of their

professional work.
John M. Allan, ‘What Role Does Oral Argument Play in the

Conduct of an Appeal?’ (1955) 41 (1) Cornel Law Review 1.

Law Society of Kenya, ‘Code of Standards of Professional Practice

and Ethical Conduct 2014’ (Legal Notice No. 21 of 2014).

Law Society of Kenya, ‘Sexual Harassment and Anti-Bullying Policy’

(Law Society of Kenya 2019).

Leslie Chew, ‘Some Basic Truths about Trial

Advocacy’<https://v1.lawgazette.com.sg/2001-11/Nov01-

focus.htm> accessed 04 March 2024.

LSK, ‘Advocates Dress Code’ (Law Society of Kenya, 2013).

Medcalf v Mardell and others [2002] 3 All ER 721. 7

R v General Council of the Bar, ex parte Percival [1990] 3 All ER

137.

Republic v Ahmad Abolfathi Mohammed & another [2019] eKLR.

The Advocates Act, ss 10-13, 55.

The Advocates Benevolent Association Rules.

7Power of courts to make ‘wasted costs’ orders and the personal liability of
advocates to pay such costs.
The United Nations, Basic Principles on the Role of Lawyers (UN

1990).

LESSON 2: INSTRUCTIONS, CASE THEORY, DEMAND LETTERS AND PLEADINGS

Client Meetings and Interviews.

Client Instructions.

Case Theory.

Legal Opinions.

Demand Letters.

Pleadings.

Practice Exercises.

Recommended Readings.

LESSON 3: PREPARING FOR TRIAL

Compliance with Pre-trial Directions.

Pre-empting/Avoiding Unnecessary Adjournments.

Selecting Witnesses.

Preparing vis-à-vis Coaching Witnesses.

Perusing Case File.

Making Trial Notes.

Preparing Trial Questions.

Preparing Opening and Closing Speeches.

Practice Exercises.

Recommended Readings.

Kenga Chea Thoya v Republic [2008] eKLR.

LESSON 4: EXAMINATION OF WITNESSES

General Matters to Note.

Examination-in-Chief.

Cross-Examination.

Re-Examination.

Practice Exercises.

Recommended Readings.

LESSON 5: SUBMISSIONS

Basic Rules of Oral Submissions.

Basic Rules of Written Submissions.

Opening Statements.

Closing Statements.
Practice Exercises.

Recommended Readings.

LESSON 6: APPELLATE ADVOCACY

High Court Appellate Advocacy.

Court of Appeal Appellate Advocacy.

Supreme Court Appellate Advocacy.

Practice Exercises.

Recommended Readings.