How senior counsel Pheroze Nowrojee fell in love with law

He is motivated by the goal of “A just nation by just means” — the words of Jawaharlal Nehru, freedom fighter and first Prime Minister of India.

And as a young boy, he accompanied his father to courtrooms to follow proceedings, and the love of law grew in his young heart. 

This is the story of senior counsel Pheroze Nowrojee, 80.

Along the court corridors, he is often described as a soft-spoken, brilliant legal mind and humble.

One of the cases which shaped his life as he followed his dad AR Kapila to court was Mau Mau Lari massacre trials in Githunguri in 1953. His father was defence attorney.

Accompanying him to court, a great impression was made on the young Pherozee by the courage of his dad and his steadfastness. It was this experience that made him follow in his father's footsteps and pursue law as a career.

"It confirmed for me that this (being a lawyer and representing people) was the task I wanted to do. I was 13 at the time and joined university a few weeks later. And there began my reading in the direction I had seen in that court," he said.

Though he loves law, the octogenarian plans to retiring from practising this year.

A father of three, he loves reading history books, law, politics and occasionally favourite-fiction.

When he is not reading a book, he is writing, sketching and doing water colour painting, though none of them are framable, in his own words.

Pherozee was called as a Barrister at Lincoln’s Inn in 1965, and then as an advocate in Kenya in 1967. He later enrolled as an advocate in Tanzania in 1970 and in Zanzibar in 1989.

He schooled at Catholic Parochial Primary School in Nairobi before proceeding to Billimorja High School in Panchgani, Maharashtra, India. He later studied in Bombay University, Dar-es-Salaam and later proceeded to Yale Law School in the United States.

There are many moments in his practice of law that made him proud, but two instances stand out.

One is the Raila presidential election petition of 2017, where the Supreme Court nullified the election results for failure to comply with the constitution.

"It had taken us 25 years to achieve this overturning of the constant practice of rigging by those in power," he said.

"We the practising lawyers of Kenya and all thinking Kenyans had shown that they had not given up the pursuit of the law by this case," the senior counsel said.

The decision, he said, followed the most important principle of politics in Kenya: of constitutional supremacy as opposed to the supremacy of individual politicians.

"We had set the precedent that compliance with the constitution’s provisions binds all governance and all public activity in Kenya," he said.

"We had set the correct goal of all future politics and public endeavour in Kenya. We have hard work ahead to ensure the application of this principle as widely as necessary in public service."

The first time presidential election petition was filed in courts in Kenya was in 1992. It was dismissed and thereafter, more than five petitions were filed, all of which were dismissed on technicalities.

The other case he is proud of is the one relating to the Nairobi Law Monthly magazine filed in 1990.

The magazine, founded and edited by Gitobu Imanyara, had been banned by the Moi government.

Pherozee and his team moved to court and applied to quash the ban, and the High Court (Justice Shields) lifted the ban.

"It was back on the streets. It was an important victory for liberty in Kenya. Like Imanyara himself, the existence itself, and the contents of this history-making magazine, was a key propellant and part of the Second Liberation and Kenyan freedom," he said.

Below are excepts from his interview with the Star.

The Star: Who is Pherozee Nowrojee?

PHEROZEE NOWROJEE: I think we are different persons at different times in our lives. Right now, coming close to the end, I am a person who is deliberating about how best to pass on, within the profession of law, and into public debate also, the lessons of the struggle of the Second Liberation and our past.

What is the one thing you regret?

The huge national cost of imposed poverty, torture, misuse of the law and legal cases to harm political opponents, and the direct harm to young people, including young lawyers, that politicians of one-man and one-party rule inflicted and were always ready to inflict on Kenya. We went backward in those years.

Who is your role model?

Not one person but a composite of my father, Senior Counsel AR Kapila, DN Pritt QC (from England, who defended Jomo Kenyatta, Bildad Kaggia, Achieng Oneko, Fred Kubai, Paul Ngei and Kungu Kaumba at Kapenguria in 1952-58), and Bram Fischer QC (from South Africa’s Afrikaner community, who defended Nelson Mandela, Walter Sisulu and many hundreds of other freedom fighters).

Do you plan to retire from practising law?

Yes, this year!

What motivates you?

The goal of “A just nation by just means” — the words of Jawaharlal Nehru, freedom fighter and first Prime Minister of India (1947-64). That this goal is part of the professional duty of all advocates of the High Court of Kenya.

Do you engage in any sporting activities? 

My father was a national champion in sport (tennis and cricket), and an advocate. I was able to follow him in only one of these directions!

You have practised law during the Moi era and under the new constitution. How can you describe the experience?

As different as dark days and sunlit days. Now the norm is acknowledged to be what the constitution says it is. Then, we had many judges who were ready to decide what the executive told them to decide. Today, we have many judges who are ready to decide what is right according to the law and the evidence.

We as Kenyans always complain about our shortcomings. We are ahead of many, many countries in the world. And these blessings we have achieved by constancy and pain. We have to celebrate and consolidate them. Not be motivated all the time by individual lust for money and its misuse to gain political power.

Do you think our constitution needs amendments?

Constitutional amendments are not what individuals want or do not want, but what the national circumstances show over time and at different times to be a better option. The unity of our many peoples, the integrity of the nation, the experience of our drafting errors of the past, or of machinery that is not working as was intended in 2010. These dictate not only when but what amendments may be preferable or not.  

As a senior member of the legal fraternity, what do you think about the failure by the President not to swear in 41 judges?

This is a bad decision. It is a political decision, guided by the politics of a limited interest; when, instead, it has to be a constitutional decision that is guided by what the constitution provides. It was a decision made during a different political ethos. It is not consistent with the ethos and expectation of the present and the immediate future. Its justifications are poor. The President can be served better.

On several occasions, the CJ has complained about disobedience of court orders by the executive. What do you say about that?

This is the destructive legacy of 50 years of presidential behaviour from 1964.  This present disregard by executive office-holders from the top to the lower ranks drags us back to illegality and disunity arising from dissatisfaction. We are trying hard to move away from disunity and illegality.

What is the one piece of advice you can give to a young Kenyan who wants to be a lawyer?

Read, read, read: Your briefs thoroughly, the statute of the case very carefully, including the statutory instruments/subsidiary legislation, Kenyan history past and present. Be aware of what is going on in the profession. We all want to be ‘successful lawyers’. We must not mix up successful lawyering with celebrity status in the media and in the pubs.

Clients decide which lawyers are ‘successful’. And they decide with their feet. To them, successful lawyers are those who are hardworking, knowledgeable (not ‘clever’), reliable and honest. People in difficulty or in business are not impressed by how eloquent their lawyer is on FM or in print media. They are impressed when their lawyers respond promptly to their calls and messages.

What do you do during your free time?

I read, read, read (history, law, history of law and lawyers, politics, favourite-fiction), write, write, write, and sketch and water colours (non-framable! I was told not to leave my day job).

Are you a family man? If yes, how many children do you have?

I am married. We have three children.

Edited by T Jalio