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SKELETON ARGUMENTS: Kenyan Position On Skeleton Arguments.

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SKELETON ARGUMENTS

Definition of Skeleton Arguments

Skeleton arguments can be defined as an abbreviated note of an argument and in no way usurp any part or function of the oral argument presented in court.

They are an aide-memoire for convenience of reference before and during hearing.   In Kenya it is paramount to note that they are not a home-grown concept but rather borrowed from other jurisdictions such as the UK where the concept is thoroughly described in a sessional papers dubbed “skeleton arguments” written by Lords Justice Mummery, Mr. Justice Hunt and Edmund Lawson Q.C[1].

Scope of Skeleton Arguments

Format and content

  When drafting skeleton arguments, the heading should state the court in which the suit is in, the case number, and the names of the parties to the suit and the title of the ‘skeleton argument/submission on behalf of…’   It must also state:   The nature of the case generally, and the background facts in so far as they are relevant to the matter before the court   A concise statement of the argument(s), which the party wishes to make. These should both define and confine the areas of controversy.   Each argument should be followed by full references to the material to which the advocate will refer in support of it e.g. witness statement, statutes and or authorities.   In respect of each authority cited –ensure,   The proposition of law that the authority demonstrates or the relevance of the authority to that argument is captured;   The parts of the authority (identified by page or paragraph references) that support the proposition is brought out clearly.   The citation is necessary for a proper presentation of that argument.   Any other information the court will need or that which the advocate would expect to be taken down by the court during the hearing. This may include a list of persons who feature in the case or glossaries of technical terms.As a tool to assist the court and save time, it should also be as straight-forward and precise as possible without being detrimental to the argument. If the case that is being dealt with has the likelihood of bearing several skeleton arguments that will require submission, number them; this will not only help you keep track but also it will help the court keep track and most likely aid in ironing out the issues raised without repetition or recurrence of issues for the sake of litigation. Layout   Skeleton arguments follow the following format: –    Start with an introduction-   Under the introduction; Keep it brief and to the pointInclude a statement of purpose, which in essence is a statement born from your introduction giving your position as regards to the matter you are about to raise.Tell the judge what you want, why you want it and why he should give it to you. These three questions are essentially what sums up any submissions.      State the issuesIdentify the key issues that are in contentionIf the issues are several, label them If it is an appeal, briefly and precisely say how the issues were decided below each issueState why that was right or wrong, start swaying the judge to your position from here   State the factsState the facts precisely and conciselyNever misstate the facts for that will lead to a confused documentHighlight your crucial facts. Consult Microsoft word for aid i.e. bolden or underline them but keep it neatKeep the absolute essential facts and do not water down their merit with detailIn instances where the meaning or rather the facts cannot stand out without more detail being added on to them, put them in a separate schedule but still maintaining the precision and conciseness.Help the judge/magistrate identify crucial facts, which he needs to be aware of before the case starts, proceeds or is determined with finality.   State the law Remember the truth is we are all agents of the law, both you and the magistrate/judge, so do not be overwhelmed in stating the law and its statutory provisions. Remember the following:- Stating the law is key text Start with the strongest cases at the highest level. This you will be guided by the court to which you seek to here your case; i.e. if in the high court, start with court of appeal cases. They tend to be more persuasive and rather have a compelling and binding effect to the decisions of the high courtIdentify essential passages from the law  Make their stipulation as few as possible, remember this is not a commentaryIf its essential to include a short extract of the law so as to encapsulate the point you seek to make, put the quote of that extract in the body of the skeletonAdd photocopies, as annexures at the rear of the skeleton arguments with the highlighted key passages for ease of reference by your co counsel, the judge and also your clientThe photocopies should be well done, visible ink without littered work resembling almost the true copy of the original documentAlways endeavour from citing trite law, it is trite law to state trite law in your skeleton argumentsProvide a paginated, flagged bundle of documentAlways add an indexDo not include law or authority that is against you   Your argument/submissions Once you have stated the issues, the facts and the law in a precise concise form, marrying the issues to the facts and consolidating their relevance to the law is the next crucial stage. Writing submissions/ or rather your arguments is the most commonly referred to term in this stage. Under this stage apply the A.S.M.A.D rule: – Arrange the points in a recognizable orderSelect the most crucial and fundamental points.Make the strongest points first and build on that as you progressApply the law to the facts point by point. Do not enjoinder.Discard away all the weak points   Other key issues to observe while writing your arguments:- Be brief and straight to the pointSimplicity in concept, style and presentation is keyConcrete the points in a presentable mannerIf dealing with a complex issue/point, break it down into simpler manageable points, but not bread crumbsApply precise drafting skills, short sentences, short paragraphs.Create a persuasive document one that straight away captures the readerEnsure every sentence that is put down counts in swaying the judge to your side of the storyAvoid unnecessary verbosity, ask whether the sentences you have put in ready for a print out countFirst and foremost, deal with your own case first, the respond to your opponents case if at all any issues that are raised need your attention Make sure your case is clear, concrete and logical, let your opponents case make less senseAt the end of it all ensure that what amounts to your arguments/submissions makes sense in terms of fairness, justice, practicality, principle and policy.   Conclusion   The last nail to your written argument has to count, otherwise all will have been in vain; – Straight to the point conclude strongly as you started.Be specific and say what order it is that you are seeking, do not let the judge determine what you are asking, you have presented your case, the relevant law supporting it now let him determine whether what you are asking for has been supported enough for him/her to grantAlways ensure that the conclusion reflects what you captured in the introduction.Let the conclusion be not an icing on the cake but the long awaited dessert after a nice meal that you have just had, worthy of every single dime that you have spent.   Skeleton arguments in Kenya   Bearing in mind that they are a foreign concept, they are tailored with the intent of helping identify both for the parties and the court, those points, which are, and those points which aren’t in issue, and the nature of the argument in relation to those points which are in issue.   Its main purpose is to persuade the court to make a decision that the issues raised therein are weighty and an impartial referee should be engaged to help determine what is just and to what extent.   In essence they are used to woo the court that the matter in question is one that the courts input, deliberation and determination will be vital to attaining what is just and fair in law and in fact.
       

Legislation

Being that this is procedure we are dealing with, the disclaimer here is that there is no express provision providing for skeleton arguments/submissions in Kenya. From the civil procedure rules to the periodically published substantive rules of procedure and practice; The issue of skeleton arguments is more of like a customary practice that litigants seek to the court to entertain to have an issue that arises before and/or after the determination of the substantive suit.

The discretion here is purely at the court’s leave for they can ask for them or they can decide to follow procedure, at the end of the day what matters is expeditious settlement of issues raised in a matter and that’s where the issue of skeleton arguments/ submissions weighs in heavily. Its grounding in law is more of an expression of “may”

Criminal procedure code     

Under the criminal procedure Code section 65(1) indirectly allows for a form of submissions to be filed. It states that; “65 (1) An appellant or, where the appellant is the State, a respondent who does not intend to appear in person or by advocate at the hearing of the appeal may lodge with the Registrar ………………a statement in writing of his arguments in support of or in opposition to the appeal, as the case may be”   This provision is limited in its scope. It only applies to appeals and in relation to a people who do not intend to appear in person at the hearing, furthermore, section 65(3) prevents a person from addressing court during the hearing if he/she has filed such a statement in writing without leave of the court.   Civil Procedure act 2010   In the Civil procedure Act, sect. 97 mirrors the above situation in that it applies to appeals only, …a party who does not intend to appear in person at the hearing and once filed a party cannot address the court without leave of the court.   It would therefore be unwise for person to file such a document, as they would lose their audience with the court. They would be entirely at the mercy of the court.   There is no specific provision either under the criminal procedure or civil procedure that deals with filing of skeleton submissions in subordinate court.   However, through Gazette Notice No. 8167 of 20081 that came in on September 1, 2008, the Chief Justice Gicheru in exercise of the powers conferred to him by sect. 10 of the Judicature Act and pursuant to recommendations by the Expeditious Disposal of Cases Committee of the Judiciary, made the following Practice Directions among others that; Rule 1. All courts are encouraged to permit the filing and exchange by the parties of written submissions to supplement or replace oral arguments.   Rule 16: All courts are required to generally exercise discretion in favor of expeditious disposal of cases pending before them.   In Jet link Express Limited vs. East African Safari Air Express Limited Civil Case 73 of 2007, as concerns the skeleton submissions counsel for the Defendant submitted that the court had powers under Order 50 rule 18 of the Civil Procedure Rules to direct the proceedings and that the skeleton submissions were simply intended to shorten the time taken in arguing the application and therefore the applicant was not going to suffer prejudice in any way.   Okwengu J. held that;   “…With regard to the skeleton submissions, it is true that there is no specific rule, which provides for the filing of skeleton arguments before the hearing of an application.  The learned judge was of the opinion that the filing of skeleton arguments is not an unacceptable procedure.  Indeed it is important to note that while there is no rule in our Civil Procedure Rules providing for the filing of written submissions the procedure has consistently gained root, with approval of the courts particularly in the Civil Courts where both parties are represented…   …The bottom line is that filing of skeleton arguments does not prejudice a party in any way.  It assists the court by clearly bringing into focus the issues and the parties’ submissions thereon.  This is desirable particularly in suits where numerous documents and affidavits have been filed and there is a risk of the real issues being clouded. Moreover as submitted by the defense counsel in the above case the court has powers under Order 50 Rule 18 of the Civil Procedure Rules to limit the time allowed for submissions by the parties or their advocate…   …It is therefor within the court’s discretion and in exercise of the powers under Order 50 Rule 18 of the Civil Procedure Rules, to order parties to file skeleton arguments so as to shorten the time taken in arguing the application before the court…    …In this case the judge also held that she could not by any stretch of imagination see any prejudice that is likely to be suffered by a party by the exercise of such a procedure…   To that effect therefore she could not find any good reason to strike out the skeleton submissions filed by the Plaintiff.  To the contrary she went ahead and ordered that the Plaintiff’s counsel shall also file skeleton arguments to facilitate the convenient hearing and speedy disposal of the application dated 15th February 2007…”           Conclusion   These directions are not court specific but they are substantive enough for that daunting soul that is a stickler for procedure. Whether subordinate appellant court or even tribunals.   Therefore, all courts in Kenya as it currently stands can ask for skeleton arguments/submissions to be filed at whatever juncture to facilitate the court to expeditiously dispose of cases and assist the court to reach a ruling, judgment or decision.

REFERNCES

  1. Criminal Procedure Code.
  2. Civil Procedure Act, Rules 2010.
  3. Gazette Notice No. 8167 Of 2008.
  4. Kenya Law Reports, www.eklr.com

[1] Skeleton arguments- a practitioner’s guide MICHEL KALLIPETIS Q.C. GERALDINE ANDREWS Q.C. August 2004

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