Illegal aid | Marcel Strigberger

By Marcel Strigberger

Law360 Canada (October 27, 2023, 2:25 PM EDT) --
Marcel Strigberger
Marcel Strigberger
Did you know that there are actually two Brian Mwendas out in Kenya? I didn’t think so. And one of them is a real lawyer.

Police have recently arrested and charged one Brian Mwenda who allegedly pinched the identity of his namesake who was a member of the Bar of Kenya and who waited a few months before entering private practice. The matter came to light after the real lawyer tried to log into his Law Society of Kenya (LSK) portal but was unable to. Of interest is the fact that the rogue gentleman was not only not a lawyer but also never had any legal training. Notwithstanding this little deficiency, the accused, whom authorities call the “fake lawyer” went on a trial rampage winning all 26 cases he handled. What does this suggest?

I would say that the inescapable and obvious conclusion is that to become a proficient lawyer you need not go to law school. After all, is anything you learned there really necessary to succeed? However, given that degrees and other pieces of paper do matter, in view of the Mwenda victory experiences, law schools should re-evaluate their curricula, vastly abridging or altering their courses.

For example, I recall wasting my student time at my alma mater McGill University studying real property, learning tedious and boring concepts such as “fee simple” or “rule against perpetuities” or “life interests.” I remember the opening sentence uttered by my professor in our first property class was, “What is property?” There’s certainly a mind stimulating question. This type of instruction is no doubt guaranteed to make you a Bay Street big-law success lawyer.

All trifling, useless and jejune. Brian Mwenda (the one in trouble), in his wisdom, was spared having to go through this type of ordeal.

I suggest that all you need to know about real property can be covered in one class. The prof can enter the classroom and just say something like, “The cost of houses in Toronto are going through the roof.” That will resonate big time.

Or take a contracts course. Every law student still can remember the iconic 1890s English Court of Appeal Carbolic Smoke Ball case (Carlill v. Carbolic Smoke Ball Co.). This case was about that company which advertised that using its smoke ball would prevent colds and influenza, offering one hundred pounds if it did not work. The plaintiff of course used it, got sick and sued Carbolic, which argued no contract was established. It pleaded the ad was “mere puffery.”

In all my four decades of practice I never came across this type of case. I did conduct some research to see whether this type of product even still exists. I visited a Walmart. I asked an associate if they have any carbolic smoke balls in stock and to my surprise the lady said, “Aisle K, next to the Ajax.”

Only kidding — mere puffery.

Smoke ball bah! I’ll go for the flu shot.

No doubt some of Mwenda’s victories were in handling criminal matters. He must have used some magic charm to achieve these acquittals. He obviously did not attain this quality in law school. We spent many hours in first year criminal law class trying to answer the question, “what is an arrest?” Hey, if you have to go to law school to find that out, you should consider another career, like maybe operating an Uber. 

Didn’t Einstein say, “Education is what remains after one has forgotten what one had learned in school”?

Hear, hear. I would say Brian Mwenda definitely had a leg up on those who went through law school.

It is interesting to note that although the LSK vigorously pushed authorities to prosecute Mwenda on fraud related charges, he is viewed as a hero by others, such as the Central Office of Trade Unions (COTU) which refers to him as a “young brilliant mind who made it without traditional qualifications.”

You can say that again. In fact if they have that television program there, Brain Mwenda would be a shoo-in winner on Kenya’s Got Talent.

As well, he also has helped some people who were short on cash to obtain access to justice. He asserts that the LSK’s zeal against him is politically motivated. 

He almost comes across as a Robin Hood. I suppose this sort of makes the LSK look like the Sheriff of Nottingham. Until now, I never really viewed law societies through the lens of this metaphor. Hmmm…

Brian Mwenda is vigorously defending all charges, saying that “I would like to convey my gratitude to the people that are supporting me and praying for me… in the fullness of time I will be able to clear this misunderstanding.”

Then again, I’d say Mwenda certainly exudes an abundance of confidence. Where is the misunderstanding? Any way you slice it the man apparently stole or, at best, borrowed the identity of Brian Mwenda the real lawyer, using a little uttering and forgery. That’s almost like Bernie Madoff helping himself to other people’s money and saying, “This is not what it looks like. Just a misunderstanding.”

I don’t know how the Brian Mwenda case will resolve. He did win 26 cases so far. Maybe this one will be 27 times a charm.
 
Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His book Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging is available on Amazon, (e-book) and paper version. Visit www.marcelshumour.com. Follow him @MarcelsHumour.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


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