Ah, Johny Depp. One of the most famous and notable actors of this century. He has been the face of very many different characters and brought them to life with such skill and such elegance. Truly one of my favourite characters (after I learned that I could have more than one), he once said that you can be anything you want to be, then went on to do exactly that by playing the diverse roles. Hmm, I must say that Benedict Cumberbatch still is my favourite Sherlock Holmes, but Depp too did justice to Holmes in his movie. That said, I must mention his very, very unique and dare I say, brilliant performance in Disney’s Pirate of the Caribbeans. This is where I fell in love with Depp. I am really not sure that we can ever have another release without Captain Jack (the) Sparrow, but fans can hope.

Other than his brilliant execution of roles, Depp has been the topic of discussion by the media, and sometimes, not in a positive light. Arguably, the most controversial piece of headline concerning Depp regards the allegations that had been propounded by his ex-wife and actress Amber Heard. In case you are wondering who she is, Heard is an actress in her own right and has been on the big screens as well in movies like Aquaman alongside Jason Momoa. Other than their divorce a while back, they have been making headlines as bits of footage of their ongoing case in court circulates the media. While I have been trying to follow the proceedings, I could not help but find humour at the conduct of Heard’s attorney during trial. As a matter of fact, I will admit that these proceedings have both surprised and saddened me. I will try and refrain from commenting as to the substance of the matter for obvious reasons. However, the number of objections raised; that, I must comment on.

In law, objections are motions requesting the judge to exclude the evidence that has been tendered or adduced by the opposing side. A litigant can interject during on-going proceedings, especially during examination of a witness. An accused person can also object to their indictment. Furthermore, any litigant can have a motion to object to the entire suit being entertained in court. All of the above can be raised through what is called a Preliminary Objection. From the foregoing, it suggests that objections can therefore be categorised into two; objections as to content and objections as to form.

Objections raised based on the content raise issues regarding substantive evidence. They can be raised either orally or by way of tendering documents. These objections invoke applicable rules of evidence to either exclude a witness’ anticipated answer, or the adduction of any exhibit by the opposing side. This is also the type of objection raised when one seeks to protect information that is privileged. On the other hand, objections as to form raise what is termed as non-substantive issues. These are raised with the view of having opposing counsel remedy the manner in which, either the advocate conducts the examination, or the witness responds to the questions asked by the advocate. They therefore question the procedure in which the trial is being conducted.

Now that we have a little background on objections, the million dollar question then becomes how to raise them. Objections must take form, and in law, we have three forms of objections: Preliminary objections, Trial objections and Post-trial objections. 

Preliminary objections, as the name suggests, are raised before the issues of substance in the suit are heard by the court, and must be on a point of law. In a landmark decision by the Court of Appeal in Mukhisa Biscuits Manufacturing Co. Ltd. v West End Distributors, the Court pronounced itself as follows;

“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if  what is sought is the exercise of judicial discretion. A Preliminary Objection is a pure point of law which is resolved without considering the merits of the application before the court. […] So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. […] The improper raising of points by way of Preliminary Objections does nothing but unnecessarily increase the costs and on occasion, confirm the issues. The improper practice must stop.”

According to the East African Court of Justice in the Hon. Attorney General of the Republic of Kenya v Independent Medical Legal Unit, the Mukhisa case concerned a Preliminary Objection raised to an application for Summary Dismissal of the suit for want of prosecution. The trial court overruled the application after hearing the appellant’s counsel, but without calling upon the opposite counsel to reply, and without reading its reasons in open court. The court then proceeded to give judgement in the substantive suit. Upon appeal of the judgement, the issue of Summary Dismissal raised as a Preliminary Objection was raised afresh. The EACJ stated that the issue ought to have been raised in the form of an application by way of Motion, accompanied by affidavits and a reply by the plaintiff giving reasons for the delay in prosecuting the suit.

Further, the Court in Prof. David Nzele Nzomo v Moses Namayi Anyangu & Competitive Edge Kenya stated that “a Preliminary Objection cannot be supported by evidentiary documents.  It would be necessary to place the witness in the witness box to give sworn evidence and be cross-examined on the documents. 

On the other hand, trial objections are rather self-explanatory; they are raised during the prosecution of the case either on the form of the questions asked, or the evidence that has been adduced. Post-trial objections are rather complex. They are raised when the trial was conducted while the client an advocate represents was not a party to a suit at the time. How can this be so? This is because such objections are primarily concerned with attachment of property during the execution stage of civil proceedings. Here, one can object to attachment of property that, for instance, does not belong to the judgement debtor.

We have indeed established that objections are important, but what is their purpose? They, first and foremost, ensure that the cases are conducted in accordance with the laws (of evidence). Secondly, they allow a witness the comfort of testifying without fear of harassment or intimidation by litigants. Thirdly, they assist the courts in ensuring that they do not entertain matters they primarily ought not to (objection as to the jurisdiction of the court). There are many other functions of objections, but counsel must bear in mind that in deciding whether or not to object, regard must be had of the relevance and admissibility rule. What is admissible is and must be relevant, but it is not always admissible that which is relevant.

REFERENCES:

1. Mukhisa Biscuits Manufacturing Co. Ltd. v West End Distributors (1969) EA 696
2. The Hon. Attorney General of the Republic of Kenya v Independent Medical Legal Unit (IMLU) EACJ Appeal No. 1 of 2011
3. Prof. David Nzele Nzomo v Moses Namayi Anyangu & Competitive Edge Kenya (2009) eKLR
4. Peter Ndukuthyo & 3 others v Lydiah Wang’ondu & another (2013) eKLR