Pheroze Nowrojee, a beautiful way of life and work

One day, I found a message in my email inbox, sent by a Willy Mutunga. Absolutely certain that an egregious conman had decided to impersonate the then chief justice, I was nevertheless drawn by overwhelming curiosity and opened the email.

It began thus:

“Counsel,

I do not think we have met, but I would be honored to meet you.”

It is not necessary to share the rest of that message. Suffice it to say that it confirmed to me, beyond all doubt - reasonable and otherwise - that indeed, I was, in a manner of speaking, in the virtual presence of the chief justice. For those at sea pertaining the ways and means by which such a scanty slip of messaging sufficed to confirm authorship, the answer is quite elementary.

Advocates of certain vintage, whom we now fondly salute as the senior bar (not to be confused with the Senior Counsel Bar, which is a whole other kettle of fish), bear the distinctive hall marks of a beautiful way of life and work. In fine, they are unfailingly courteous and apparently endowed with inexhaustible reserves of patience, mots justes whatever the occasion and however suddenly and unexpectedly they are called upon to speak, and take great pride in effective and persuasive communication. Their devotion to the old school chivalries, which elevated the law to a noble profession, is otherworldly.

Freshly-minted advocate

To them, “my learned friend” is not just a most decorous salute to the learning and qualifications we are obliged to impute upon our adversaries at all times, especially when a cause escalates to the threshold of acrimony; it is a declaration that the right to address the court is reserved for the few who have acquired the intellectual, professional and ethical capacity - which is the measure of true learning - and who, as officers of the court or, as Lord Denning said, ministers of justice, are solemnly bound to perform their duties in a manner that upholds the authority of the court and the majesty of the law.

In the course of living up to the liturgical imperatives of this secular priesthood, the senior bar, by their mere presence, produce a splendid atmosphere which affirms every participant and makes the tedious drudgery of legal proceedings tolerable or even exciting. I do remember quite vividly as a freshly-minted advocate, appearing before the superior court against Alfred Nyairo, and being warned by my callow colleagues that my goose was well and truly cooked.

However, Nyairo introduced me courteously and most considerately informed the judge that I was still on my maiden run of appearances. As a consequence, I was able to do my bit without feeling terrified by an accomplished senior colleague, a stern judge bedecked in formidable raiment, and the musty, wood-panelled kichinjio in which many had greeted their Waterloo. 

The senior bar is equipped with a dependable sense of fair play, and seem utterly devoid of a propensity to slip a card up their sleeve, steal a march upon the opposition or weaponise informational asymmetry to score victory in place of cogent pleading, erudite analysis, reliance on the letter and spirit of the law and persuasive argumentation. Most, their form of address is extravagantly seductive.

That, ladies and gentlemen, is how I knew for certain that it was Dr Mutunga, and not an online scammer, who interrupted by extended Easter break with those charming words.

Beautiful tradition in legal practice

Another legend of this illustrious cohort – for it seems that along the way, the practice of the law degenerated into a cut-throat helter-skelter which would put any of our rowdiest matatu termini to shame and a clear demarcation emerged, separating the staid, diligent, considerate practitioners and a generation seemingly addicted to clamorous disorder - was the late Kenneth Fraser, SC. Early in my days as a litigation attorney, I filed suit to which Fraser's firm appeared. At the close of pleadings, I wrote them, ‘without prejudice', proposing out-of-court settlement on fairly ambitious terms, and waited for a curt reply advising me to commence travel in the infernal direction. Instead Fraser called to negotiate a modest concession and assure me of settlement in due course. His respectful and considerate manner will forever remain unforgettable.

Shortly afterwards, I instituted action in the High Court against certain respondents who, daunted, travelled to Nairobi and sought the biggest name they could find, in order to put me in my place. Pheroze Nowrojee, the late Senior Counsel, after thoroughly reading the documentation, declined to represent them because, according to him, they were certainly going to lose. He then called to congratulate me for well-drafted pleadings, wish me luck and invite me to call at his chambers whenever I was in Nairobi, for a chat and a cup of tea.

Grace. That, above all other excellences, is what Nowrojee ultimately embodied throughout his career. In thought, word and deed, he evinced the Gandhian philosophy of “simple living, high thinking”. He also epitomised a beautiful tradition in legal practice that is being devoured into oblivion by more predacious ways. Rest in peace.

The writer is the Secretary, Policy Messaging and Speechwriting, The Presidency