alexa Explainer: Commonly used legal terms - Daily Nation

Explainer: Commonly used legal terms

Friday January 3 2020

The Supreme Court.

The Supreme Court. Use of legal jargon can make legal proceedings hard to follow for a layman. PHOTO | FILE | NATION MEDIA GROUP 

AIDAH WANJIRU
By AIDAH WANJIRU
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For the average Kenyan, the language used in courtrooms can seem quite complicated and difficult to understand.

With several high-profile cases hitting the headlines, along with a number being played out live on television, it is easy to feel left out when trying to follow court proceedings.

This is due to use of complex jargon, usually in English and Latin, that makes law and court proceedings sound like Greek to many, including the educated.

You will have an easier time understanding cases if you have a grasp of some of the basic terms.

They include:

Advocate: An advocate of the High Court of Kenya is a professionally trained lawyer who, on top of the four years in university, has gone through a further nine months' training under the Advocates’ Training Programme.

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In Kenya, a person qualifies to be an advocate after they successfully sit their Bar exam at the Kenya School of Law (KSL) and get admitted to the Bar.

Lawyer: A professional who has been trained in law for four years at the university but has not been admitted to the Bar after successfully sitting and passing exams at KSL. Such a person cannot represent you in court but can do legal work for you behind the scenes.

Senior Counsel: A senior counsel is a senior lawyer in some countries that were formerly part of the British Empire, including Kenya.

The title is used in Commonwealth countries or jurisdictions that have chosen to change the title "Queen's Counsel" to a name without monarchical connotations.

In Kenya, the title is conferred on lawyers who have served as advocates of the High Court of Kenya for over 15 years and are of high professional integrity.

Civil Law: This is a branch of law that deals with disputes between natural people such as you and I as well as juristic persons such as companies.

Criminal Law: A branch of the law that regulates the behaviour of the community at large since criminal offences are seen as offences against the State. Criminal law regulates how suspects are investigated, charged and tried before court.

Cause of Action: This is the foundation of a case. It is the reason why the legal action is brought against a person. For example, when someone steals your phone, theft is your cause of action before court depending on how the phone was stolen.

Demand Letter: This is the first document sent by a person who claims that their legal rights have been infringed. A demand letter, as the words indicate, asks an accused person to correct a wrong. The letter explains to the person that if they do not comply, legal action shall be taken against them and they shall be sued.

Summons:This is a legal document used to notify an accused person that a lawsuit has been initiated against them. Summons direct the accused on how and where to answer the accusation or claim.

Affidavit: This is a sworn written statement. It is sworn before a commissioner for oaths to confirm the truthfulness of a matter, for example, that you are the owner of a certain piece of land.

Plaintiff: The person who files a case or sues another person in civil cases.

Defendant: The person who is brought to court to answer to the case filed by the plaintiff.

Adjournment: This is the temporary postponement of a case before court to a later date.

Bail: This is an agreement entered into by an accused person, a third party called a surety and the court. The pact states that the accused person will attend court when required to answer to the case brought against them.

Bond: On the other hand, bond is an agreement between the accused in custody and the court. A bond agreement has bond terms which guide how the accused should conduct themselves while out of remand.

Exhibit: An exhibit is a document or evidence in any other form produced before a court to support a case or claim.

Appeal: This is a request to a higher court to overturn the judgment of a lower court. One can appeal the decision of a chief magistrate's court at the High Court.

Prima facie case: This is a case “at first look,” or “on its face”. Prima facie refers to what can be presumed after the first disclosure.

Accessory: This is a person who, in some manner, is connected with a crime, either before or after its perpetration, but who is not present at the time the crime is committed.

Accomplice: On the other hand, this is a person who knowingly, voluntarily, and intentionally unites with the principal offender in the commission of a crime. In some cases, the principal offender and the accomplice face similar charges.

Capital Offence: This is a crime punishable by a life sentence in prison or death.

Caveat: Simply put, this is a warning or caution. It is also a formal notice to a judge, public officer or court to postpone a proceeding until the merits of the notice are determined. The party who files the caveat is known as the caveator.

Plea Bargain: A negotiation whereby the accused and the prosecutor in a criminal case agree to settle it subject to court approval. Usually, plea bargains involve the defendant pleading guilty to a lesser offence or to a lesser number of offences.

Amicus curiae: A person or organisation who is not party to the litigation at hand, but is allowed to advise the court on a point of law or fact directly concerning the lawsuit. This concept was applied during the 2017 presidential petition filed by Raila Odinga against Uhuru Kenyatta when Attorney-General Githu Muigai appeared as a friend of court.

Nolle prosequi: This is a formal notice of abandonment of a part or the entire case by a plaintiff or a prosecutor. In 2005, the then Director of Public Prosecutions Philip Murgor entered a nolle prosequi (I refuse to prosecute order) in the murder case that faced rancher Tom Cholmondeley. Mr Cholmondeley had been accused of murdering Kenya Wildlife Service ranger Samson ole Sisina.