The Constitution is the brief

There is still a habit, in some boardrooms, of treating the Constitution of Kenya, 2010 as a document for public lawyers. That habit does not survive contact with a High Court that will ask, in a commercial suit, whether the process that produced the decision was fair under Article 47.

Fair administrative action, the Bill of Rights, devolution, and the values in Article 10 now sit underneath land, procurement, licensing, and the way a listed company talks to its shareholders. A conveyancing file that ignores the National Land Commission is not a careful file. A merger that ignores county functions is not a closed merger.

We take fewer matters so that this is not a specialism wheeled in at the end. It is the ordinary condition of the brief. When a client asks why we declined the other case, the answer is the same as it was on Kimathi Street in 1978. We would rather be ready than busy.

Readiness, in this jurisdiction, means a theory of the case that can be said to a judge of the High Court in a sentence, and a record that will survive the Court of Appeal. Everything else is furniture.