Table of Contents

LIST OF ABBREVIATIONS................................................................................................ ii
LIST OF STATUTES .......................................................................................................... iii
LIST OF CASES.................................................................................................................. iv
1 Introduction ................................................................................................................... 1
1.1 Definition of Objection ........................................................................................... 1
1.2 Purpose of Objections ............................................................................................. 2
1.3 Factors for Consideration in Objections................................................................... 3
1.3.1 Relevance: ....................................................................................................... 3
1.3.2 Reliability ........................................................................................................ 3
1.3.3 Legality: .......................................................................................................... 4
1.4 Preparation and Procedure of Making Objections. ................................................... 4
1.5 Ethical Considerations on Objections ...................................................................... 6
2 Preliminary Objections ................................................................................................... 7
2.1 Definition................................................................................................................ 7
2.2 The Nature of Preliminary Objections ..................................................................... 7
2.2.1 Lack of Jurisdiction.......................................................................................... 8
2.2.2 Breach of Law and Rules of Procedure............................................................. 8
2.2.3 Lack of specificity in Pleadings ........................................................................ 8
2.2.4 Legal Inaccuracies of Pleadings ....................................................................... 9
2.2.5 Lack of Capacity .............................................................................................. 9
2.2.6 Prior Litigation ................................................................................................ 9
3 Trial Objections ............................................................................................................. 9
3.1 Introduction ............................................................................................................ 9
3.2 Types of Trials Objections .................................................................................... 10
3.3 Common trial objections ....................................................................................... 11
3.4 The Art of Trial Objections ................................................................................... 13
3.5 Making of Trial Objections ................................................................................... 14
3.6 Responding to Trial Objections ............................................................................. 15
BIBLIOGRAPHY ............................................................................................................... 17
ANNEXURE ...................................................................................................................... 19

i|Page
 LIST OF ABBREVIATIONS
HCC High Court Case

LSK Law Society of Kenya

PO Preliminary Objection

ii | P a g e
 LIST OF STATUTES
Civil Procedure Act
Civil Procedure Rules 2010
Criminal Procedure Code
Evidence Act, Cap 80
Law of Succession Act (Cap 160)
Probate and Administration Rules, 1980

iii | P a g e
 LIST OF CASES
1. Avtar Singh Bhamra & Another vs Oriental Commercial Bank Civil suit No. 53 of 2004
2. Hudson Liase Wailbwa vs AG NBI HCC No 2714 of 1987.
3. Kashbhsi vs Sempagawa 1976 E.A 16
4. Mary Wambui Munene –vs- Peter Gichuki Kingara and Six Others [2014] eKLR
Petition No. 7 of 2013
5. Mukisa Biscuit Company vs West End Distributors Limited [1969] EA 696
6. Ndirangu v Republic [1959] EA 875
7. Owners of Motor Vessel “Lilian S” vs Caltex Oil Kenya (1989) KLR 1
8. Quick Enterprises Ltd –vs- Kenya Railways Corporation Kisumu HCCC No. 22 of
1999.
9. Republic v Mark Lloyd Stevenson [2016] eKLR, Crim. Revision No. 1 of 2016
10. United States v Boney 977 2d 624 [D.C CIP 1992]

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1 Introduction

C
riminal trials and civil proceedings rely on the advocates’ submissions,
evidence tendered in support of those submissions, and objections to either the
submissions or evidence, or both.1 You run the risk of being undermined by
your opponent if you do not know when and how to object. As the proponent, you should
be guided by the limits of what you can do or say. Failure to adhere to this principle
means that you run the risk of being overrun by your opponent’s well-timed objections.

It is therefore imperative that every prosecutor and defense lawyer be well-versed in the
rules of evidence, civil and criminal procedure, as well as learned in the skill of effective
legal research and writing.2 Your litigation abilities within the courtroom may well
depend on it, if the judge is to understand and trust your knowledge of the law. 3

1.1 Definition of Objection

Black’s Law Dictionary defines an objection as a formal statement opposing an
occurrence in court, requiring the judge to make an immediate ruling on it.4 The
occurrence objected to may be either a witness’s testimony or evidence that violates
evidentiary rules or rules of procedure.5 Usually, the objecting party must state the basis
for the objection, to enable them appeal an unfavourable ruling.6

The various types of objections are:

a) Preliminary Objections: These are raised before the actual hearing of the case and is
determined based on merit,7 for example, where a pleading is erroneously prepared
and is in breach of a mandatory statutory provision.

b) Trial Objections: These are divided into form and content objections. 8 They are
objections to the form of questions as well as the evidence proffered within the
courtroom setting. 9
1
Dan T Coenen, ‘Free Speech and the Law of Evidence’ (2018) 68 Duke LJ 639.
2
Gary Goodpaster, ‘On the Theory of American Adversary Criminal Trial’ (1987) 78 J. Crim. L. &
Criminology 118.
3
ibid.
4
West Group, Black’s Law Dictionary, 7th Ed (Bukupedia 1999).
5
John C Busby, ‘Objection’ (LII / Legal Information Institute, 2 November 2009)
<https://www.law.cornell.edu/wex/objection> accessed 8 May 2019.
6
Carlton Fields, ‘The Keys to Preserving Error for Appeal’ (Carlton Fields)
<https://www.carltonfields.com/insights/publications/2018/the-keys-to-preserving-error-for-appeal> accessed 8
May 2019.
7
Hari Shankar, ‘The Concept of Preliminary Objections in Law’ <http://harishankar.org/blog/entry.php/the-
concept-of-preliminary-objections-in-law> accessed 8 May 2019.

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 c) Post-trial objections: These are predominantly objections that are made in the course
of executing court orders, for example, where a party was not privy to the trial but
their property is affected during.10

1.2 Purpose of Objections

1) To prevent evidence that is inadmissible evidence from being tendered in the
courtroom. 11 Objections limit the evidence to testimony that is of specific
specifically relevance to the case.
2) To expedite the overall trial process by placing responsibility of invoking the rules
of evidence, in the spirit of excluding inadmissible evidence at trial, on the trial
advocates.
3) Objections help maintain order in the courtroom and preserve the right to appeal
any issues in contention later on.12 The only issues eligible for hearing during
appeal are errors of law. 13 Failing to oppose an issue or questionable evidence is
akin to acceptance.
4) Objections help impose a limitation of the opponent’s speeches and evidence.14
The focus shifts from the presentation of facts to actual legal discussion.
5) Objections curb the harassment and intimidation of witnesses by the opposing
advocate.15
6) Preliminary objections are used to strike out defective pleadings. 16

8
John C Conti, ‘Trial Objections’ (1987) 14 Litig. 16.
9
Craig Lee Montz, ‘Trial Objections from Beginning to End: The Handbook for Civil and Criminal Trials’
(2001) 29 Pepp. L. Rev. 243.
10
Order 22, Rule 51, Civil Procedure Rules, Laws of Kenya.
11
The Legal Seagull, ‘OBJECTION! Master These 18 Essential Courtroom Objections (Making Objections)’
(The Legal Seagull, 5 June 2018) <http://www.thelegalseagull.com/making-objections-trial/> accessed 8 May
2019.
12
ibid.
13
Michael Murungi and Monica Achode, ‘Court of Appeal Land Mark Jurisprudence: An Analysis of Decisions
Issued by Extra-Ordinary Benches of the Court of Appeal Between October 1993 and October 2013 | Kenya
Law’ <http://kenyalaw.org/kenyalawblog/coa-landmark-jurisprudence/> accessed 8 May 2019.
14
Manu Sala, ‘Kinds of Objections | Witness Impeachment | Confrontation Clause’ (Scribd)
<https://www.scribd.com/document/330805651/Kinds-of-Objections> accessed 8 May 2019.
15
Peter Callaghan, ‘Dealing With Objections To Evidence’ 7.
16
Kenya Law Resources, ‘GENERAL RULES IN DRAWING UP A DEFENCE’
<http://www.kenyalawresourcecenter.org/2011/07/general-rules-in-drawing-up-defence.html> accessed 8 May
2019.

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1.3 Factors for Consideration in Objections

1.3.1 Relevance:
This is determined by analyzing whether the evidence has any tendency of making the
existence of any fact relating to the case at hand more or less probable than it would be in
the absence of that evidence. All relevant evidence is admissible, unless specifically
precluded by law.17 The question to answer is whether the proposed evidence tends to
prove the existence or non-existence of a fact in issue.

Sections 5-16 of the Evidence Act guide on relevance and admissibility of evidence, and
the general rule is that evidence shall not be tendered in any court proceeding unless used
to prove the existence or non-existence of a fact in issue, or has been declared relevant by
any other provision of the Act.18

1.3.2 Reliability
Hereby, evidence will be deemed inadmissible if it cannot be depended on to prove or
disprove a material fact. Hearsay, for instance, is deemed unreliable since the actual
witness does not give information, only the person to whom the information was relayed
to. Further, unauthenticated evidence is inadmissible. It is improper to admit into
evidence an analysis of the alcohol content in someone‘s breath if the breathalyser was
faulty.

In Republic v Mark Lloyd Stevenson [2016] eKLR,19 the High Court of Kenya at Kiambu
stated that the admission and consideration of tangible exhibit in evidence follows the
following steps:

a. First, the Court determines if the proposed evidence is relevant. Here, the Court simply
determines the probative value of the proposed evidence; whether the proposed evidence
has the tendency to make the existence of any fact that is of consequence to the
determination of a fact in issue more or less probable than it would be without the
evidence. If the proposed evidence passes the Relevancy Test, it proceeds to the second
step.

b. Second, in the case of tangible exhibits (like the two documents in this case), the
proponent of the evidence authenticates the proposed piece of evidence. The court only

17
Republic of Kenya, Evidence Act, Cap 80, Section 5.
18
ibid.
19
Crim. Revision No. 1 of 2016.

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 proceeds to the third step if the proposed evidence passes the Authentication Test,
meaning that a proper foundation for admission of the document or exhibit has been laid.
The Trial Court, as the fact finder, must ultimately weigh (in step 4 below) the admitted
evidence in light of all the circumstances. The weighing can only happen after the
foundation for the proposed evidence has been laid.

c. Third, the Court, at the behest of the parties or on its own motion, determines if there is
any other rule of evidence that excludes the proposed evidence. Herein, the Court
considers whether the evidence is excluded by statute, for example, the right against self-
incrimination, prohibition against hearsay evidence or whether the proposed evidence
would lead to unfair prejudice. If the proposed evidence survives this Exclusion Test, then
the proposed evidence is admitted into evidence and the Court proceeds to the fourth step.

d. Fourth, the Court considers the weight to be accorded to the admitted evidence. At this
stage the opponent may still question the authenticity of the evidence, thereby allowing
the Court to give less weight to the evidence or no weight at all. This also applies to
opinion evidence given by someone other than an expert.

Conversely, some facts may be so reliable that courts take judicial notice of them. For
example, 26th February 2019 was a Tuesday, and no resources need to be invested to
prove this fact as there is no room for debate.

1.3.3 Legality:
This facet deals with the question, ‘Is it right to admit the evidence?’ Evidence might be
relevant, but if factors such as unfair prejudice, undue delay or misdirection of the court
far outweigh its probative value, it may be excluded. This is notwithstanding the fact that
such evidence is objectively relevant and reliable. For instance; it may not be right to
admit gruesome photos, character evidence, privileged information, or evidence that is
improperly obtained.

1.4 Preparation and Procedure of Making Objections.

Generally, the objections ought to be timely and specific. Therefore, it is imperative to
note that thorough case preparation should be conducted before it is raised. The objection
must be specific as to:

a) Grounds: state the ground of the objection.

b) Party: state the party against whom the objection is made.

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 c) Part: identify the part that is objected to.
d) Purpose: state the purpose of the objection.

Objections should be raised on time, meaning that in case of preliminary objections, it

entails identifying whether a specific issue, statute or rule of evidence renders the
evidence inadmissible, hence the objection made before the proceedings commence. As
was held in Kashbhsi vs Sempagawa,20 a party raising a preliminary objection (PO) must
state the exact statutory provision they are relying on in raising the said objection.

Under Order 51, Rule 14 of the Civil Procedure Rules of 2010 as well as in the case of
Hudson Liase Wailbwa vs AG,21 you must notify the adverse party of your intention to
raise a P.O. In civil cases, a paragraph in the defence stating your intention to raise an
objection and service of an application seeking to strike out a pleading or suit
preliminarily serve as sufficient notice. The sitting judge gives the parties an opportunity
to argue their case at the appointed time and the reasons thereof. Rules of the Court of
Appeal prevail in matters prosecuted therein as notice is not necessary.

Trial objections are raised on the substantive issues as provided for in the Evidence Act
during a trial, unlike the P.Os, which are raised before a trial commences. It is therefore
impractical to give notice. As discussed in ‘The Power of Thinking Without Thinking’ by
Malcolm Gladwell, a trial lawyer needs rapid cognitive recognition, 22 which entails:

a) One being well conversant with the issue or question raised.

b) Recognizing a potential objection.
c) Deciding whether to make objection.
d) Making the objection.

This process has to be done within a split second. However, the lawyer doesn’t
necessarily need to know all evidentiary rules but only the ones potentially applicable to
the given case at hand.

A trial lawyer making an objection should take into consideration the principles of
professional ethics and conduct. He should say ‘objection’ as he rises up, then proceed to
give grounds for the objection. In other cases, upon standing or saying objection, he may
wait for the court to allow him to proceed after which he is required to give the ground.

20
1976 E.A 16.
21
NBI HCC No 2714 of 1987.
22
Malcolm Gladwell, Blink: The Power of Thinking Without [Thinking] (CNIB 2012).

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 When the roles are reversed and it is the opposing advocate objecting, you should pause,
think and respond, and then wait for the court’s ruling.

In response to either of the two objections, the court will make a ruling. The objection
may be sustained, meaning the question is ruled out, therefore an advocate must rephrase
the question or address the issue with the evidence; or overruled, meaning evidence is
properly admitted, therefore the trial can proceed with the witness answering the question
posed.

If a defence lawyer does not make a timely objection, the objection would be waived. If a
witness gives an answer to a question raised by an opposing lawyer and answer is
objectionable, the defence lawyer may request the judge to strike the answer from the
record. Some errors could however lead to a mistrial. If not, a party in subsequent appeals
has a chance to have the court dismiss the case and demand for a new trial.

1.5 Ethical Considerations on Objections

Often, objections are used for reasons other than what they are intended for. Ideally,
preliminary objections should be raised purely on a point of law and not the truthfulness
of a fact while trial objections are raised on substantive issues.

An advocate should be familiar with the purposes and functions of the different types of
objections as well as the issues to take into consideration when making objections to
avoid making objections that constitute unethical conduct. For instance, an advocate
should not make an objection to disrupt the other advocate’s train of thought, or
intentionally include or bring material or arguments that give rise to objections in Court.
An advocate should also familiarize themselves with the proper procedures on making
objections. 23

Objections should not be used as a tactic to slow down or impede justice. Rather, they
should make them on legal grounds and only when necessary. When raising and
responding to objections, advocates should be guided by LSK Code of Standards of
Professional Practice and Ethical Conduct. 24

23
J Alexander Tanford, The Trial Process: Law, Tactics, and Ethics (4 edition, Carolina Academic Pr 2009).
24
https://lsk.or.ke/Downloads/LSK%20CODE%20OF%20STANDARDS%20OF%20PROFESSIONAL%20PR
ACTICE%20AND%20ETHICAL%20CONDUCT%20FINAL%20VERSION.pdf

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2 Preliminary Objections
2.1 Definition
A preliminary objection seeks to exclude evidence that the adverse party seeks to rely on
and is made before litigation commences.25 This is even before the merits of a case are
determined without considering the validity of the claims made in the suit. Sir Charles
Newbold P in Mukisa Biscuit Company vs West End Distributors Limited26 defined a
PO as a form of demurrer that raises a legal point and assumes that the facts pleaded are
accurate. If argued properly, it may dispose of a suit.
The High Court of Kenya at Kisumu was of a similar opinion in Avtar Singh Bhamra &
Another –vs- Oriental Commercial Bank27 where it stated that, “A Preliminary Objection
must stem or germinate from the pleadings filed by the parties and must be based on pure
points of law with no facts to be ascertained.”

2.2 The Nature of Preliminary Objections

The Mukisa Biscuit Company case discussed the nature of a preliminary objection as
follows:
Firstly, a PO is raised on a point of law and a party cannot therefore raise it to question
the accuracy of a fact in a case. This would be a breach of the rules of procedure and
hence the court will not entertain it.
Further, in raising a PO, it is assumed that the other party pleaded the facts correctly. No
substantive issues must be raised, as this must be left to be determined by the court upon
perusal of evidence.28
Finally, a PO should be capable of dispensing with the matter from the onset without
ascertaining the facts or different sources apart from the pleadings. The point of law
raised by the PO should be so central to the case as to dismiss the suit if allowed, even if
the merits of the case are yet to be determined.
Mativo J in John Mundia Njoroge & 9 others –vs- Cecilia Muthoni Njoroge &
Another,29 outlined the grounds on which one might raise a PO:

25
Federal Bar Association, ‘Legal Definitions’ <http://www.fedbar.org/For-the-Media/Legal-Definitions.aspx>
accessed 9 May 2019.
26
[1969] EA 696.
27
Civil suit No. 53 of 2004.
28
Natin Properties Limited –vs- Jaggit Singh Kalsi & Another, C.A, Civil Appeal No. 132 of 1989 (Gicheru,
Kwach & Shah JJ.A).
29
[2016] Succession Cause No. 127 of 1999, eKLR.

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2.2.1 Lack of Jurisdiction
Nyarangi JA in Owners of Motor Vessel “Lilian S” vs Caltex Oil Kenya30 stated as
follows:
“Jurisdiction is everything. Without it, a court has no power to make
one more step. A court of law downs its tools in respect of the matter
before it the moment it holds the opinion that it is without
jurisdiction.”
Jurisdiction is considered central to the commencement and sustenance of any
proceedings. You should therefore raise an objection as to jurisdiction at the onset.31 This
premise is supported by the Civil Procedure Act under Section 16, which provides that no
objection as to the jurisdiction is permissible on appeal unless it was raised in the court of
first instance. An apparent lack of jurisdiction means that the entire proceeding will be
null and void regardless of how well it was conducted.32 The Supreme Court in Mary
Wambui Munene –vs- Peter Gichuki Kingara and Six Others33 considered the question
of jurisdiction to be a purely legal one, and should be resolved on priority basis.

2.2.2 Breach of Law and Rules of Procedure

Various laws including the Civil Procedure Rules, the Criminal Procedure Code and the
Probate and Administration Rules serve to give guidance to parties involved in any form
of litigation. The parties are able to determine which pleadings need to be filed and the
specific timelines to be observed. A pleading that offends the laid down rules of
procedure will warrant the raising of a Preliminary Objection, for instance, where one
approaches the court through a Notice of Motion when a Chamber Summons would have
been more appropriate. Birechi J in Quick Enterprises Ltd –vs- Kenya Railways
Corporation34 held that a plaint that is hopelessly bad that no life can be breathed into it
may be struck out. POs in criminal cases are ordinarily raised under Sections 134-137 of
the Criminal Procedure Code.

2.2.3 Lack of specificity in Pleadings

The service of pleadings lacking sufficient specificity constitute another ground for
raising a preliminary objection. Insufficient specificity arises where the pleadings do not
30
(1989) KLR 1.
31
Beatrice Cherotich Koskei & Another –vs- Olenguruone Land Dispute Tribunal & 2 others Misc. App. No.
861 of 2007.
32
Local Authorities Provident Fund –vs- Joseph Njogu Gathu & Another [2016] eKLR C.A. No. 66 of 2009.
33
[2014] eKLR Petition No. 7 of 2013 at paragraph 68 and 69.
34
Kisumu HCCC No. 22 of 1999.

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 clearly outline the facts that show that there is a genuine case for determination by the
presiding court or tribunal. A PO that succeeds on this ground completely nullifies the
suit.

2.2.4 Legal Inaccuracies of Pleadings

The Rules of Procedure requires that the parties to a suit must state out their cases clearly.
This means that the legal basis for their claims must be sound, and the legal provisions
relied on must be sound and accurately represent the existing legal position.

2.2.5 Lack of Capacity

Locus standi raises questions of jurisdiction as lack of it can prevent a court from
presiding over the matter. Order 1 of the Civil Procedure Rules gives guidance on the
parties to a suit in civil matters. The legal capacity of minors and persons of unsound
mind is also covered under Order 32.

2.2.6 Prior Litigation

The two principles falling under this figurehead include double jeopardy and res
judicata.35 Double jeopardy arises where a party was either convicted or acquitted, having
been tried on a criminal charge. They are allowed to raise a preliminary objection to avoid
a second trial based on the same charge facts.36
The Civil Procedure Act under Section 7 deals with the doctrine of res judicata and
provides that the court shall not handle any matter that has already been determined
between the same parties. A party can therefore raise a preliminary objection where the
same facts, parties, and cause of action exist.

3 Trial Objections
3.1 Introduction
A trial objection is a formal protest raised in court during trial. Its legal basis/purpose is to
prevent the violation of evidentiary rules or rules of procedure by protesting a witness’s
testimony or evidence. A trial objection also seeks to preserve the right to appeal and so it
is raised against a Judge’s ruling especially where bias is likely to be occasioned against
the objector. This was demonstrated in Ndirangu v Republic37 whereby the appellant

35
Section 7, Civil Procedure Act, Laws of Kenya.
36
Article 50 (2), Constitution of Kenya, Laws of Kenya.
37
[1959] EA 875.

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 remained mute during his trial. He appealed against his conviction for murder arguing
that the wife of one of the assessors in his trial was related to one of the wives of the
deceased. The appellant thus claimed that the assessor had been prejudicial against him. It
was held that on good grounds, such an objection is good practice.
A trial objection may also be used in depositions and during the discovery process. In the
latter case, a trial objection is used in the preservation of the right to exclude testimony
from evidence with the aim of supporting or opposing a later motion such as a summary
judgment.

3.2 Types of Trials Objections

1) Content trial objections: These relate to substantive evidence for example hearsay,
speculations or irrelevant evidence. They seek to prevent a witness from
answering a question or the admission of an exhibit into evidence.
2) Form trial objections: These relate to non-substantive issues. They oppose the
manner in which the opposing advocate is asking questions i.e. the manner in
which an advocate is seeking to introduce evidence e.g. leading questions,
argumentative questions etc.
3) Continuing Objections: 38 Also referred to as a running objection, this is an
objection to questions asked in a given line of questioning. A judge may permit
the advocate to make this type of objection after having previously overruled an
objection relating to several of the questions asked. The lawyer in this case is
therefore able to preserve the objection should the matter go to appeal.
4) General Objection:39 Also known as a broadside objection, this type of objection
does not specify any grounds to support the objection. It only questions the
relevance of the evidence or testimony in dispute.
5) Speaking Objection: 40 This type of objection is usually loaded with more
information than is necessary for the judge to make a ruling on it. It is usually
presented in the form of an argument and, for this reason, it is normally not
allowed, owing to its potential to influence the court.

38
Black’s Law Dictionary, 8th Edition (8th edition, Thomson West 2004).
39
ibid.
40
ibid.

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 6) Specific objection: 41 This is an objection in statement form, supported by one or
more grounds.

3.3 Common trial objections

1. Irrelevant questions
These direct, invite or cause the witness to testify on facts not related to the case at hand.
They are basically questions of no consequence to the case.
2. Immaterial or incomplete questions
These are not concerned with the issues of the trial at hand, and in other situations, the
witness is unqualified to answer. A proper question must result in a logical answer that is
relevant to the issues at hand.
3. Hearsay questions
Hearsay refers to a statement or conduct that happened out of court and is thereafter
presented in court as proof of the facts asserted.42 It therefore rests its value of the
credibility of an entity not present in court, and therefore falls short of the test of
reliability. 43
4. Leading questions
They can be objected to during examination-in-chief although the same are allowed
during cross-examination.
5. Questions that call for narrative answers
Narration as a form of answering questions within the courtroom may yield a lot of
irrelevant information. The standard format is a question and answer interrogation.
6. Speculative questions
These invite or cause the witness to guess or answer based on conjecture or supposition.
7. Questions that misstate the evidence
These questions misquote witness testimony or any other evidence.
8. Questions that are too general
These are similar to narrative answers as the witness may meander off the issue at hand
and so the testimony given becomes inadmissible. Each question should limit the witness
to a specific answer.

41
ibid.
42
Carl C Wheaton, ‘What Is Hearsay’ (1960) 46 Iowa Law Review 210.
43
Amye R Warren and Cara E Woodall, ‘The Reliability of Hearsay Testimony: How Well Do Interviewers
Recall Their Interviews with Children?’ (1999) 5 Psychology, Public Policy, and Law 355.

11 | P a g e
 9. Questions that call for a specific conclusion
These types of questions ask for an opinion and not facts.
10. Compound questions
These are two or more questions asked together. They are usually joined with the word
‘or’ or ‘and’.
11. Questions that lack a foundation
These refer to documents lacking testimony as to their source or authenticity.
12. Questions that assume facts not in evidence
These presume unproved facts to be true.
13. Repetitive answers
This occurs when a witness has already answered a substantively similar question on the
same subject matter and posed by the same lawyer.
14. Argumentative questions
These do not bring out any new information but are simply meant to intimidate the
witness to concede examiner’s inferences based on facts that have been assumed or
proved.
15. Ambiguous questions
16. Best evidence rule

It provides that when physical evidence is available, a witness’s testimony is inadequate

and may be challenged on the basis that there is better evidence. An example is whereby
original documents are lost or destroyed through no fault by either party. Witness
testimony in this case is an admissible substitute.
17. Questions that violate common law provisions
Examples of these provisions are the privilege between advocate and client, doctor and
patient and matrimonial communications among others.
18. Improper opinions
These are offered by both experts and non-experts as long as they are based on the
witness’s perception and life experiences. They help the court to understand witness
testimony as well as determine a fact in issue. Opinions are improper if they are offered
outside the restricted areas making them a viable ground for objection.

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3.4 The Art of Trial Objections
Issue-spotting skills as developed in law school44 are crucial in one passing the bar
examinations.45 Within a trial, however, being overly pedantic in spotting issues can
hamper your case. Many advocates are given to protesting any and every issue that pops
up. Even if they are right, and the issue is indeed objectionable, a skilled advocate needs
to move beyond mere issue spotting skills. They need to analyze the admissibility of
every piece of evidence or testimony, and consider the following:46

i. Can I object?
ii. Should I object?
iii. When should I object?

This analysis has to be done expeditiously to avoid the court having to listen to
objectionable evidence, which could have irreversible repercussions on your case.47

An important consideration to have is whether the objectionable evidence tendered by the

opposing advocate hurts your case or not. You should not object if it doesn’t, lest you end
up shooting yourself in the foot.48 This is also true in relation to that advocate’s conduct.
For example, if your opponent is badgering the witness, he/she looks unprofessional to
the court, which impugns on their persuasiveness in the eyes of the court.

The court may also conclude, albeit wrongly, that the reason for your objection is the
exclusion of truthful evidence that hurts your case. This is especially where you are
persistently objecting. This is ill advised, as the court will be naturally interested in that
evidence so excluded. It would also be prudent to ensure that such evidence successfully
objected never appears before the court through some other means as the court will likely
pay more attention to it.

Finally, take stock of how your case is progressing so far. If all your previous objections
have been successfully approved, then you are on the right track. If not, then perhaps you
should refrain from objecting until you are sure that you are doing the right thing.

44
Layne Russell, A Guide to Legal Analysis, Research and Writing: A Systems Approach (iUniverse 2000).
45
Richard Michael Fischl and Jeremy R Paul, Getting to Maybe: How to Excel on Law School Exams (Carolina
Academic Press 1999).
46
Elliott Wilcox, ‘How to Successfully Make and Meet Objections’ (Trial Theater | Secrets for Courtroom
Success, 1 February 2008) <https://trialtheater.com/trial-skills/objections/free-report-how-to-successfully-make-
and-meet-objections/> accessed 16 May 2019.
47
Ibid.
48
Ibid.

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3.5 Making of Trial Objections
The making of an objection requires that one gives the legal basis for that objection, by
stating, for example, that the evidence tendered is hearsay or irrelevant. It is common for
advocates to make speaking objections as well, especially when they know that what is
being said is objectionable, but cannot at that particular moment pinpoint the technical or
legal provision that has been violated.49 In United States v Boney,50 counsel objected by
stating “You really do not need an expert…there is nothing complicated in this case…”
The appellant court found the counsel’s objection to be of sufficient specificity; that the
expert testimony was of no help to the jury. 51

The objection and response should be made directly to the presiding judge or magistrate,
who will decide whether to sustain or overrule it.52 The trial lawyer should stand up until
the Judge recognizes their action. If the Judge does not recognize this, the trial lawyer can
say; “excuse me your Honour, I have an objection…” The judge/magistrate may require
the advocates to offer further explanations before making his decision. Opposing Counsel
should not rebut the objection unless asked by the judge to do so.

The following are some tips on making timely objections:

a) Learn all the evidentiary rules: To excel in legal practice, you need to master the rules
of evidence. You need to establish what is admissible and what is not.
b) Choose the right kind of objection: A general objection may be insufficient since if
the judge overrules it, relevance is the only issue that can be raised on appeal.
c) Learn the proper way to object: Having mastered all the evidentiary rules, the next
step is knowing how to object. It is unlikely that the judge will permit a speaking
objection, so you will need to make your objection quickly and effectively.
d) Practice: Practice makes perfect, and this can be done by watching other people in
court. Advocates who are more experienced than you can teach you a new technique
or mode of presentation. Conversely, less experienced lawyers can remind you what
not to do. The endgame is to improve exponentially such that you are able to navigate
the entire process in an instant.

49
James W McElhaney, McElhaney’s Trial Notebook (American Bar Association 2005).
50
977 2d 624 [D.C CIP 1992].
51
Craig Lee Montz, ‘Trial Objections from Beginning to End: The Handbook for Civil and Criminal Trials’
(2001) 29 Pepp. L. Rev. 243.
52
FindLaw, ‘How Does a Judge Rule on Objections?’ (Findlaw) <https://litigation.findlaw.com/going-to-
court/how-does-a-judge-rule-on-objections.html> accessed 17 May 2019.

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 In summary, a trial objection as to hearsay and leading questions should be made before
the witness answers the question. A trial objection as to qualification of a witness should
be made after inquiry as to the expert’s qualification and after opposing counsel states the
area in which the expert is qualified to give opinion evidence.

3.6 Responding to Trial Objections

At this point, the trial court will make a determination on the trial objection or require the
proponent to respond to the trial objection. 53 The advocate should politely listen to the
proponent’s response without interruption while remaining on his/her feet, ready to
respond in kind, if the trial court so wishes.54

Upon ruling on the merit of the trial objection, the advocate should accept the finality of
the trial court’s decision without argument. In rare situations, the advocate may need to
request for a court ruling on the trial objection because the advocate cannot predict error
on an evidentiary issue if there is no court ruling on the objection. Further, if the opponent
merely states “objection” without identifying the specific rule, and the trial court sustains
the objection, the proponent of the evidence should simply request from the court that the
opponent specify the grounds for the trial objection. 55 Otherwise, the record is unclear as
to what objection the court has sustained.

When faced with a trial objection, the proponent of the evidence may choose to either
withdraw or rephrase the question56 or wait for the court to either rule or prompt a reply
and then succinctly reply as to why your opponent’s trial objection is without merit.
Experienced judgment will dictate which of these options you choose to adopt in any
given situation.

Response to an Objection
 Pause – take a breath; some more experienced trial advocates will simply object to
disorient the newly-admitted advocate so do not cave in.

53
Craig Lee Montz, ‘Trial Objections from Beginning to End: The Handbook for Civil and Criminal Trials’
(2001) 29 Pepp. L. Rev. 243.
54
Ibid.
55
Ibid.
56
The Legal Seagull, ‘Objection to Leading Question? Try Rephrasing’ (The Legal Seagull, 20 July 2017)
<https://www.thelegalseagull.com/objection-leading-question-try-rephrasing/> accessed 21 May 2019.

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 Think – What makes the evidence relevant and reliable? Rephrase the question if
necessary, taking care to guide the witness to steer clear of the objectionable subject of
evidence.

 Respond- tell the judge/magistrate why they should allow the evidence.

Objection Sustained
 Take a brief pause to compose yourself.

 Rephrase the question to guide the witness away from objectionable material.

 Come up with a way of making the evidence admissible.

 Offer proof and present any case law that have made rulings on the evidence in question.

 Proceed with other section of testimony if it is impossible to rephrase the question.

Objection Overruled
Just proceed with the trial as if what happened was expected. Never thank the judge/
magistrate for a favourable ruling because this is unprofessional and demonstrates lack of
confidence.

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BIBLIOGRAPHY
Books and Book Chapters
Gladwell M, Blink: The Power of Thinking Without [Thinking] (CNIB 2012)
Group W, Black’s Law Dictionary, 7th Ed (Bukupedia 1999)
McElhaney JW, McElhaney’s Trial Notebook (American Bar Association 2005)
Tanford JA, The Trial Process: Law, Tactics, and Ethics (4 edition, Carolina Academic Pr
2009)

Journal Articles
Callaghan P, ‘Dealing With Objections To Evidence’ 7
Coenen DT, ‘Free Speech and the Law of Evidence’ (2018) 68 Duke LJ 639
Conti JC, ‘Trial Objections’ (1987) 14 Litig. 16
Goodpaster G, ‘On the Theory of American Adversary Criminal Trial’ (1987) 78 J. Crim. L.
& Criminology 118
Matsuo K and Itoh Y, ‘Effects of Emotional Testimony and Gruesome Photographs on Mock
Jurors’ Decisions and Negative Emotions’ (2016) 23 Psychiatry, psychology and law 85
Melilli KJ, ‘Objecting and Responding Effectively’ (1999) 23 Am. J. Trial Advoc. 559
Schlosser K and others, ‘The Civil Action Series: Trial Techniques’
Warren AR and Woodall CE, ‘The Reliability of Hearsay Testimony: How Well Do
Interviewers Recall Their Interviews with Children?’ (1999) 5 Psychology, Public Policy,
and Law 355
Wheaton CC, ‘What Is Hearsay’ (1960) 46 Iowa Law Review 210

Blog Posts
Kenya Law Resources, ‘GENERAL RULES IN DRAWING UP A DEFENCE’
<http://www.kenyalawresourcecenter.org/2011/07/general-rules-in-drawing-up-
defence.html> accessed 8 May 2019

Murungi M and Achode M, ‘Court of Appeal Land Mark Jurisprudence: An Analysis of

Decisions Issued by Extra-Ordinary Benches of the Court of Appeal Between October 1993
and October 2013 | Kenya Law’ <http://kenyalaw.org/kenyalawblog/coa-landmark-
jurisprudence/> accessed 8 May 2019

Internet Sources
Busby JC, ‘Objection’ (LII / Legal Information Institute, 2 November 2009)
<https://www.law.cornell.edu/wex/objection> accessed 8 May 2019
Carlton Fields, ‘The Keys to Preserving Error for Appeal’ (Carlton Fields)
<https://www.carltonfields.com/insights/publications/2018/the-keys-to-preserving-error-for-
appeal> accessed 8 May 2019

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FindLaw, ‘How Does a Judge Rule on Objections?’ (Findlaw)
<https://litigation.findlaw.com/going-to-court/how-does-a-judge-rule-on-objections.html>
accessed 17 May 2019
Sala M, ‘Kinds of Objections | Witness Impeachment | Confrontation Clause’ (Scribd)
<https://www.scribd.com/document/330805651/Kinds-of-Objections> accessed 8 May 2019
Shankar H, ‘The Concept of Preliminary Objections in Law’
<http://harishankar.org/blog/entry.php/the-concept-of-preliminary-objections-in-law>
accessed 8 May 2019
The Legal Seagull, ‘OBJECTION! Master These 18 Essential Courtroom Objections
(Making Objections)’ (The Legal Seagull, 5 June 2018)
<http://www.thelegalseagull.com/making-objections-trial/> accessed 8 May 2019
Wilcox E, ‘How to Successfully Make and Meet Objections’ (Trial Theater | Secrets for
Courtroom Success, 1 February 2008) <https://trialtheater.com/trial-skills/objections/free-
report-how-to-successfully-make-and-meet-objections/> accessed 16 May 2019

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ANNEXURE

REPUBLIC OF KENYA

IN THE RESIDENT MAGISTRATE’S COURT

AT NAIROBI

CIVIL SUIT NO. 456 OF 2018

LEVERANT GARMENTS LIMITED …………………… PLAINTIFF

VERSUS

CANVASS LIMITED ……………………………….. DEFENDANT

NOTICE OF PRELIMINARY OBJECTION

TAKE NOTICE that the defendant respondent herein will raise a preliminary
objection and will oppose by the following grounds of opposition to the
plaintiff’s/applicant’s notice of motion dated 28/8/18 in THAT:

1. The application is fatally and incurably defective

2. The application is bad in law.

3. The application lacks merit

4. The application is an abuse of the process of the Court.

5. The application is frivolous and vexatious.

6. That the application does not lie

DATED at Nairobi this day of 2018.

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 DICK, HARRY & CO.

ADVOCATES FOR THE DEFENDANT / RESPONDENT

DRAWN & FILED BY:-

DICK, HARRY & CO.
ADVOCATES
19TH FLOOR, HAZINA TOWERS
MONROVIA STREET
P O BOX 12345
NAIROBI

TO BE SERVED UPON:-
MARY JANE & CO.
ADVOCATES
FINANCE HOUSE, 10TH FLOOR
P O BOX 98765
NAIROBI

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