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The Matter of Mangala & WAP -vs- The Guacamole Republic of Avocado (GRA)

As promised, here is the account of the recently concluded CIPIT ICT Moot. Held every two years, the competition attracts teams across East Africa. It is the only one in the mooting calendar this part of Africa that has information technology and intellectual property as subject matters. This allows competitors to engage with contemporary issues, as was the case in this year’s edition. Data protection has not been legislated extensively in Kenya. The resulting lacuna forces the litigant to think outside the box and try to find viable and practical solutions to technology related problems oft outside the purview of lawyers.

Day One

“There will be winners, and there will be losers…” were the words of the Dean of the Strathmore Law School to end his address to the participating teams during the second biennial CIPIT moot. This author is sure that nothing rung truer in the minds of the eager young faces looking at him.

The Dean of the Strathmore Law School, Dr. Luis Franceschi delivering his address.

The CIPIT director Dr Isaac Rutenberg,  however insisted that all the participants in some way had already won. For choosing to engage with a novel topic, data protection, they had gone leaps and bounds ahead of the competition.

CIPIT Director, Dr. Isaac Rutenberg.

The courtrooms began with earnest, judges and organizers began identifying mooters who showed incredible promise at the initial rounds. One judge noted off the record, that the Moi University Team had a real chance to go the whole way. They featured an aptly dubbed “double named dynamic-duo” of Tali Israel Tali and Kimani Kimani, whose grasp of the interplay between state responsibility and the right to privacy not only astounded the judges, but put the opposing counsel at considerable unease.

The Moi University Team. Seated far left: Tali Israel Tali, Standing centre: Derrick Kimani Kimani, Seated far right: Mercy Kiragu.

Competition was fierce, understandably so. On the face of it, the prizes on offer could have been the chief instigator for this (after all, free tablets from Safaricom are always welcome). There was however, more to the contest than it seemed, the participants were eager to show their mastery of a topic that has not been part of the global discussion until the past decade, let alone the local discourse in Kenya. Data protection is more pertinent than ever before due to the clamor of governments and corporate to accumulate personal data of their citizens and customers respectively. Predictably, the Cambridge Analytica / Facebook saga was heavily cited.

The moot problem, regarding the Wika Virus Case (in the fictional Guacamole Republic) introduced contemporary issues such as the collection and dissemination of personal health related data. The applicants in the case were meant to show that this was a violation of the right to privacy of Wika virus sufferers. The State party’s argument was that they were not directly responsible for the actions of a third party, which disseminated the information to advertisers. To be clear, there were a variety of arguments to make based on the problem, what was essential was for litigants to support their arguments with substantive evidence while ingeniously making up for the deliberate gaps in the fact sheet. In fact, this year featured a Spirit of CIPIT Award which was given to the best all round mooter who demonstrated excellent research work and knowledge of the moot problem.

Nadiya Aziz of Safaricom (right) presents the Spirit of CIPIT Award to Victoria Gitau.

The mooters weren’t “at each other’s throats” throughout the two days. The friendly banter between the teams was humorous and a cross-border cultural experience. This author was enlightened by an intelligent young lady from Makerere University on a few misconceptions that Kenyans held about our dear Ugandan brethren. For instance, there has been years of vitriol about the Ugandan accent (“do you want another rap” springs to mind). Apparently, Kenyans have an accent as much as Ugandans do. Problem is, we don’t perceive it. Furthermore, despite attempts to defend the honour of Kenyan cuisine, weather, sports and beauty of landscape, the only victory we could garner was on the superiority of our sportsmen.

Day two

A keen bench, 2nd row from left: Mugambi Muhavi, Liz Lenjo, and Dr. Robert Muthuri.

Day two started with bright and welcoming weather, the same could not be said however, of the countenances of some unlucky mooters who realised that they would not proceed to the next round. The business end of the moot had fully come into swing, soon only four teams stood: the home team, Strathmore University; the fierce, Moi University team; the Kampala International University (KIU) with their most eloquent chief counsel, Swsaleh Hemed Wengo; and the defending Champions, Uganda Christian University (UCU). It was clear from the outset that the mooters had learnt from initial mistakes and were now more confident when dealing with the questions posed to them. The judges were in a most difficult position when selecting a winner, thus any harshness towards minor oversights was warranted. Despite their valiant efforts, the Moi and KIU teams were beaten to the post. These two teams arguably had the most distinguished speakers throughout the whole moot, and it showed as Swaleh Hemed Wengo from KIU won the Best Speaker Award at the competition.

Master of his craft, Swaleh Hemed Wengo, speaks. 1st from right.

The finals: Strathmore versus UCU!

Victoria Gitau (winner of the Spirit of CIPIT award) faces the panel of judges during the Final.

The finalists faced a mammoth bench, made up of titans of the legal industry, and experts in the field of technology and law. The coach of the Strathmore Team, Allan Mukuki, noted with some consternation, “a seven-judge bench will be tricky…”

The home team, versus the foreign challengers. The first time mooters versus the defending champions. Kenya versus Uganda. It seemed fated to end in this way. UCU were formidable led by the combative, indefatigable Phillip Kyoma (pronounced “ch-oma”), who was flanked by two lionesses in Nanjobe Ruth Kiryagala and Koelewijn Joy. Despite an initial shaky start, the three really came into their own when the competition became more intense. Their main strength lay in keeping to the nuances of the statement of facts provided to them, as such the judges found it difficult to throw them off-balance. Strathmore, the green-horns, who throughout the competition punched above their weight despite their relative inexperience, proved nothing trumps pure grit. The star of the team, the diminutive Victoria Gitau impressed judges with her wit, and had them in stitches with her humour and acerbic tongue. She was assisted by the able Malcom Kibati and Keli Muema, whose vast knowledge of the subject matter beat opponents into submission. Even they had a difficult start, making it into the second round by the skin of their teeth.

Her Honour, Madame President of the Court Mercy Mutemi asks the mooters a pertinent question.

At times, the back and forth between the judges and the teams could be mistaken for petulance on the part of the mooters. Not so, it simply showed how much they believed in the research their teams conducted and would not concede on any point of law. Furthermore, the proper decorum of the court was always observed.

The Winners!

The 2018 CIPIT Moot Champions! From left, Nanjobe Ruth Kiryagala, Koelewijn Joy and Phillip Kyoma.

In the end there would only be one winner. Despite the valiant efforts of Strathmore, the CIPIT moot trophy would be held in foreign lands for another two years. UCU were deserved winners, arguing expertly (more so as the respondent State) throughout the whole competition.The CIPIT team would like to congratulate and thank the finalists, judges and participants that made the moot such a success, we are in your debt. We hope to see you all in the next two years, for the third edition of the CIPIT IP-IT Moot!

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