🔥🔥🔥SUPREME COURT JUDGE ISAAC LENAOLA SOBER MIND IN WRITING BOOKS ON JUDGEMENT HE HAS MADE, SHINES

Added: 2026-05-10

[00:00:00]this legal writing and encourage many judges and magistrates to write. And what are the challenges that you face in legal publishing? Three questions.

[00:00:12]Well, first um I think there's no doubt that this innovation of a judges book fair is a wonderful thing.

[00:00:21]Um judges have been writing in seclusion.

[00:00:25]They've been publishing in seclusion.

[00:00:27]They've been funding their publishing.

[00:00:30]They have had no support in terms of research.

[00:00:33]Uh they do it personally as I've done.

[00:00:36]So, I think we need to then encourage um uh judges and magistrates and staff to to to put their thoughts together.

[00:00:45]And I like the idea they should not be limited to legal writing.

[00:00:49]Um many years ago when I was still young and energetic, I would write poems at 3:00 in the morning, 4:00 in the morning. The other day I went to do a place where I'd written all those poems and I said, "What was I thinking?"

[00:01:01]But perhaps it's a time that I publish those poems. They may have something to say to the world.

[00:01:06]So, I think this is a good encouragement.

[00:01:09]Um the second question is I'll go to the third then I come back to the second. The the second question about the challenges that we have.

[00:01:17]I think the biggest challenge is time.

[00:01:19]Um you can imagine that uh a lot of us also sitting in court.

[00:01:24]You're writing judgments. You're doing other things. And yet you still need time to write. So, I think we may have to think through this Judwanjala.

[00:01:33]Um when the academy is fully functional, it has space. It has uh um uh uh facilities.

[00:01:41]I think we can give capacity to our authors to start uh to have the the the the time to write. For example, we can say that uh if you've started writing and there's somebody that's seen your your your your outline, you're given at least 3 months uh staggered for you to put together the book then you look for your own time.

[00:02:03]Something to give us impetus to write.

[00:02:06]Uh the second challenge of course is is is research. And I've spoken to that.

[00:02:11]The third is um I had Judge Lebot in the in the meeting we had the other day speaking about a fight with his publishers.

[00:02:21]Uh that's a big fight.

[00:02:23]Um you know, you either put your money into the publication or they do the publication for you and they deduct uh your royalties from the publication.

[00:02:35]It's a very complicated matter. So, how you write your contract how you write your contract with the publisher, how you fund your publishing is an important question. What was the second question?

[00:02:45]Age is catching up.

[00:02:48]How can the judiciary support? I've spoken to that. What was I've spoken to that.

[00:02:53]And why do you think publication Ah, why is it important? I started from three to now I'm going to one.

[00:03:00]Why is it important? I think it's important because one um the the the no I've been told Well, I should let me also brag. I had the Chief Justice bragging about Judge Njala and I said even I should brag.

[00:03:15]When I went to Library of Congress it was very surprising to find this book there.

[00:03:21]And then a lot of my colleagues including Judge Angote who was with me and we have a picture with this book and him at the Library of Congress. Thank you.

[00:03:29]Uh we found this book it's out of print here.

[00:03:33]But at least it's somewhere out there.

[00:03:35]Number two, this book was not written for lawyers alone or students. It's I know they're in libraries.

[00:03:42]It is written for people who have difficulties around these questions. And just like I said just this morning I was pointing this lady to the chapter on surrogacy.

[00:03:53]And she was very surprised. Then I sent her my two judgements, the one on surrogacy and the one on adopted children, which I also covered here. And she was very surprised because her lawyer didn't know about all these judgements and all the things here. So, these are personal questions that address challenges people face.

[00:04:10]So, there's a lot of benefit to the people.

[00:04:14]For this one, so I have By the miracle, where's Miracle?

[00:04:20]So, Miracle, the the session chair, uh for the first panel is my mentee.

[00:04:26]And he's going to Yale to do his masters and PhD.

[00:04:30]And he's the first Kenyan lawyer to go to Yale in 35 years.

[00:04:36]The last one was Dr. Kenneth Kiplagat.

[00:04:38]So, >> [applause] >> I think we need to celebrate our our And thank you for this innovation of bringing these young people to also shine on the stage.

[00:04:47]Arnold Ochieng, who I co-authored this book with, has now become one of Kenya's go-to lawyers in terms of litigation around the Constitution. This book has given him a platform to shine across the region. He now argues his cases in Nairobi, in Arusha, the East African Court, and the African Court of Human People's Rights.

[00:05:09]In terms of content, the content is important for By the way, I was told uh that people who are going for interviews for the position of High Court judge, this was the book.

[00:05:23]Uh because without reading this one, when you go to the Court of Appeal, you'll be blank around questions of fundamental rights and interpretation of the Constitution.

[00:05:31]So, a lot of people have come to me to say, "Thank you. I'm a judge of appeal now because I have not understood all the principles which are here." So, that helps people to grow their wealth of knowledge and also to grow in terms of uh, litigation.

[00:05:46]In terms of litigation, um, a student of a Kenyan student, also a mentee of mine, is now finishing his master's degree in in Harvard.

[00:05:58]And he said in his thesis, which he's now submitting before July, he wrote around issues which were in this book, and this book because it became his resource.

[00:06:09]So again, there's value in terms of the academia.

[00:06:12]In terms of advocates who appear before Someone I think it was Kanjama who said, "We need to start quoting texts." This book has been quoted in submissions not more than not less than 10 times so far as I know. So there's a lot of value in writing. There's a lot of joy and satisfaction. There is no money, thank you. So don't look for me after this, Judge Wanjala, and say, "It is Friday, Mzee. You know You know what to do."

[00:06:36]But yesterday, we received an email from Law Africa telling us, "Can we have your PIN number?

[00:06:45]Uh, we are sending you your royalties for 2025." Do you know how good that feels?

[00:06:51]At least I have a drink for this weekend.

[00:06:53]So so so there are many values, but more importantly, I think, it is for these law students who are here.

[00:07:01]Like Judge Musyoka said, when they don't have material that they can quickly run to to gather before they do their term paper, they do their CAT, they do their exams, we are not teaching them well.

[00:07:14]Judge Musyoka then said something which is important.

[00:07:18]Growing indigenous jurisprudence.

[00:07:21]If you look at this book, although we have put material from other jurisdictions, we have as much as possible try to make it a Kenyan jurisprudence book.

[00:07:30]And the reason is we are trying to put together so that judges and lawyers, when they make their submissions and their judgments, they quote what we have at home. We have a lot of information here.

[00:07:43]This book also a lot of the judgments are Kenyan judgments. Not but because of the nature of the subject, we don't have a lot of material on some of the complicated cases.

[00:07:54]I will not because I may not have another opportunity let me just say this.

[00:08:00]Generally around these two books is the question you asked me first.

[00:08:05]These books speak to people.

[00:08:07]And you'll always get an answer about anything in the in the book which may find you which may make you a better person, a better reader, a better scholar, a better student but more importantly a better Kenyan. So so these these these books are just beyond me and Arnold or Professor Mutugi uh being on print. We were speaking a language that people would want to understand for their own good and for the sake of their people. And I thank you again.

[00:08:34]Justice Lenaola Yeah, thank you very much. Uh I think most of the issues have been spoken to by my senior brother Lord Justice Lenaola on the question you've asked. I think we share we share we share we share I share what he has just said. But my take is that we publish mostly because one with when we are sitting in court there are so many issues that arise and they always tick behind our minds. Some of the issues because are not before us we are usually unable to resolve them.

[00:09:09]And and and and and uh those are ideas which for judges when you are sitting down and you want to write something other than the judgment you realize that you need to address that disturbing issue. Because writing, especially academic writing, you are there to generate ideas for purposes of of of debate.

[00:09:29]You are not actually saying that this is a position the way you would do in a judgment but you are raising issues that are bothering people and as much as you are likely to give your opinion, but you do it for the purposes of generating debates and and and and having more discussion towards those kind of conversations. Of course, we also do it for purposes of encouraging reform, but whether it's policy or legislative or even in the in the in the in the in the universities as they teach the students, the lecturers need to know what are the real issues that arise in a real situation out here. And those are the reasons that actually encourage some of us to write because we write after having experience that there's a problem on a particular issue so that you can have further debate and also have reforms in all sectors. And what what what what what what what what what what happens just to point out on that issue is that uh we we as judges even as we do that, behind our minds we still remind ourselves that we are sitting as judges.

[00:10:35]And as I mentioned at the beginning, when it comes to challenges for me, the biggest challenge has always been is someone going to ask for my recusal because I've written on a particular subject.

[00:10:47]As a person that has always been a challenge to me and sometimes I get embarrassed when that objection is raised. Do it for for for purposes of making money, but again, you need to invest.

[00:10:59]For example, the book that I have just displayed, it was published in South Africa. I ferried around 500 copies to Kenya. So, those are issues that we we really have to sacrifice because you first of all, you are bringing it that you want to to to give it out or to sell it at at the lowest possible price and and and and and and it becomes a sacrifice on most of us so that you are able to to to share the knowledge with the with the with the students and and and the practitioners.

[00:11:29]And and and and and lastly, all I can say is that especially for my book and what Justice Lenaola has said, we we we are trying to encourage people to appreciate the jurisprudence and the issues that are arising from within our country.

[00:11:49]The ELC case digest just addresses the issues that the courts have addressed within. And we are doing this because we appreciate that we are now moving away from the common law principles and all those other principles learned in school many years ago. And therefore it's a very good exercise when judges actually do this on behalf of advocates and students because they use our materials for purpose of research and that actually develops jurisprudence. Thank you.

[00:12:17]>> [applause] >> Thank you, my brothers of Said Macharia for perhaps what I would have said.

[00:12:25]But let me say this that writing is a learning experience in its own way because it it takes you beyond what you even know as a person because you're researching, you're getting into uh cases that you've never heard of or never knew existed.

[00:12:48]Uh and and therefore the beauty with it is that at the end of the day you're able to bring out gaps in the law.

[00:12:54]Um gaps in policy and in a way you you can influence, you know, policy change and law reform.

[00:13:05]Uh because there's a lot out there in terms of judgments that are being churned from the courts every day on different areas bringing in different perspectives.

[00:13:16]And writing, I I believe from my experience, is the best way of really growing the law because that bring it you bring out, you know, what our colleagues are doing in terms of jurisprudence.

[00:13:35]You may not be aware that Judge Ang'ote has made a decision in this area. It could be the only decision.

[00:13:41]You know, and practitioners out there may not be aware of it.

[00:13:45]But the moment you put it in print, um as part of the narrative of the the the the law you're discussing, you know, you are able to enlighten as students and practitioners. A point or platform that law gets to be developed.

[00:14:08]Uh Um I'll only speak to one issue, which is the challenges in writing.

[00:14:17]Um I've just seen a friend of mine walk in. She's the author of a book I really enjoy reading, Till Court Do Us Part, uh Honorable Lady Justice Koome. When you read a book like the one she's written on marriage, divorce, family issues from a different perspective.

[00:14:38]I was taught by Judge Musyoka on the law of succession. And when I learned about the law of succession at that time, it looked like something which I would use to make money as um a lawyer.

[00:14:54]I did not know that it could also entertain me because of how my sister has written the book. So, the idea is write. If you can write, please write because your perspective can help bring out an issue clearly for someone. When I wrote my book, I believe one or two other judges in my court had been toying with the idea of writing, but none had taken the step. So, this has been a reference point for most of us uh in the court.

[00:15:24]I know since I wrote there have been other authors who have written on employment law.

[00:15:29]But this is the only book from the bench since Justice Koka wrote his book many years ago. And I tried to simplify things so that it's not purely academic so that anyone who approaches the court can read. And I've given a slice of everything from the Supreme Court to the court where I sit.

[00:15:53]If it were to make money, I'd be very happy.

[00:15:57]But it's not because of money. I did it so that I could have knowledge out there.

[00:16:02]So write even when it's challenging.

[00:16:06]Write even when it's difficult. You've heard of my second edition. It's not yet out because I have judgments to write. I have work to do. So I don't get to dedicate as much time to the book.

[00:16:20]Justice Lenaola has already read the first copy. So he's already aware of what is going to be out there. But I am still feeling like I need to correct a few typos I have noted because with his signature on the book as the one forwarding, I cannot issue it with those mistakes. So nikimaliza kukorrect, mtaiona. Asante. Thank you, Judge Honorable Rawal.

[00:16:45]Thank you very much.

[00:16:49]Yeah.

[00:16:50]Like the way I said when I was starting, the folly of being the last one to speak is that majority of the things you want to say have already been said. But be that as it may, I'll speak to the challenges.

[00:17:05]If you look at this pages here, the forward was written by Chief Justice Mutunga the time that he was still in office.

[00:17:14]Unfortunately, there were some challenges I had with the academic printers. Because for them the issue that they will market the book so they say that you have to wait until the market is ready.

[00:17:26]Yeah, to have the clientele base on IP.

[00:17:30]I think we are saying that IP is an area that is This area is not new. The area is just evolving. So that's why I had to pay back the copyright in this.

[00:17:42]Very interesting. And then the other issue that I I'd like to say is that uh to be a writer to be a legal writer of this nature, it is more out of the passion. And the fact that we feel like there's something that we have to communicate out there.

[00:17:58]Because like uh my lord uh Justice La Dona has said there's no money in doing this.

[00:18:06]Actually, it is your own funds that you're going to spend in doing it. Yeah.

[00:18:11]But because today Judge Smoking was my lecturer at the University of Nairobi. Judge Musyoka was also a lecturer at the University of Nairobi. There is a challenge which I'd like to give to the KJA.

[00:18:25]Please KJA, if today you would say that that you're going to buy 200 copies of this book for each of the writer, you have assisted us a lot. Thank you so much.

[00:18:37]>> [laughter] >> Thank you so much. I am certain that the Director General of KJA has noted your concern, Honorable Radin. Now we are going to take questions. Uh certainly you've been hearing from the panelists and the areas have been varied from intellectual property, land law, succession, and all those. So we could take a few Yes. Um we have a mic going round, please.

[00:19:13]We could take five questions, let them answer and see if we have another round.

[00:19:18]Uh thank you very much.

[00:19:20]Uh my inspiration comes from uh Judge Lenaola who is on his feet uh who as a university together Judge Musyoka is also our our contemporary. Um I just want to make two one observation and one question. The observation is this.

[00:19:40]Interestingly enough, because of what uh Emeritus CJ was saying and what uh uh about indigenous knowledge and jurisprudence, I am actually receiving and uh this is not fiction. Yesterday I received a phone call from an international judge.

[00:19:58]So, you know ICJ and ICC.

[00:20:02]He wants to bring his daughter for education in Kenya. Not Yale, not Harvard. Here.

[00:20:10]So, I think our jurisprudence is making waves somewhere.

[00:20:15]And I think this initiative it should should will further that effort. Actually, it was very flattering. I've never uh uh received that kind of uh acknowledgement. Then uh and we are of course trying to process it. The barrier is that do these external educational qualifications permit admission? Because we have regulators here who who want a KCSE, you know, and say and then those people have been educated in Amsterdam. Somebody of course and from an African country but in that Hague environment. But that's just a an observation for a pat on the back.

[00:20:53]The second thing of course is the the difficulty of constitutional issues and um I just throw it out there for for food for thought. I was thinking of the Samuel Mutemi Mbuvi case where the Supreme Court was split 3-2 and we still need clarification because that was a case of a case against a former president who a former attorney was complaining you took my 1 billion shillings and of course when the Supreme Court is split 3-2 it appears we need a a review because there's debate distinguished minds were not in consensus on it and this kind of forum which can review jurisprudence coming out of the the highest courts can we don't seem to have the capacity there seems to be no Supreme Court review to to to to re-look at the the interesting cases coming out and then preserve them for posterity so I wanted to congratulate also the the juridical science book that was being mentioned by Director General at the beginning so thank you very much.

[00:22:08]Thank you. My name is Lillian Gisessa. I serve as an academic librarian at Kisii University.

[00:22:15]At the same time serving the Kenya Library Association as a secretary and I'm an IFLA copyright fellow.

[00:22:22]So if you had all issues of copyright basically I'm asking a question on intellectual property rights.

[00:22:29]And one of the challenges we have always found as information workers is copyright on indigenous knowledge.

[00:22:40]And I would tell us for free that even amongst us professionals or even among the legal documents that we have it is very unclear on how to deal with indigenous knowledge so I don't know whether your book addresses that or if your second edition we look closely into that because we are losing a lot of intellectual property rights of our indigenous communities because we don't have laws that are covering that.

[00:23:12]Secondly, I've just looked at all these scholars, the panelists here.

[00:23:17]One of the You will be told that I am wrong. I went further and checked if Professor Smokin is a scholar account.

[00:23:26]A forum that brings all these works together, I have not seen any. Kindly just tell your librarians to help you in doing that. Lastly, is there a possibility that we can have a package whereby we are getting recommendation of these texts such that as they come to our libraries, like now the first thing I'm going back Kisii University trains law, the first thing I'm going to meet the Dean School of Law.

[00:23:54]Do you know these books are available?

[00:23:56]Have you given us the request to the library? I If I didn't come here, I could not have known the wealth of authorship that is coming from our judicial system. So, kindly look into that and tell us. Then there's the issue of the human library. This is just a suggestion. Human library is just whereby you sit and somebody's talking is recorded. It is gaining traction in Of course, it's not very common in Kenya, but I know there's a there's a professor in Kenya who's doing on that. That is Professor Tom K'onyango from Technical University of Kenya. These judges or these authors, whatever they have just spoken is just recorded and how we look forward that the li- >> library of the judiciary will be able to access those recordings. You know what people talk. At times some of us may not have the ability or the time or even the passion to write, but we can talk. So, also consider that that we have the recordings of these judges, the recordings of the whatevers that we can access them from our judicial library, and especially when we are having this digital platform or the maktaba kind of thing that platform that you're giving us. So, some of the information you'll get are the oral presentations that they have given us.

[00:25:55]THANK YOU.

[00:26:01]THANK YOU VERY MUCH. MY NAME IS TEDDY MUSIGA. I work at the National Council for Law Reporting, and part of our work is actually disseminating public legal information. So, I'm very happy to be here this morning, and especially this is not a question, but just a comment about the role of judicial writing.