'Learned' in Latin, lost in reality: The strange case of Kenya's justice system

There is something almost theatrical, no, operatic, about the Kenyan courtroom. One expects, at any moment, for a robed counsel to rise not merely to submit but to perform, unleashing a volley of Latin so muscular it could frighten even the ghosts of empire back into their ships.

Obiter dicta! Ratio decidendi! Audi alteram partem! The phrases roll out like sacred incantations, less to illuminate justice than to fog it like incense in a cathedral where the congregation has forgotten the ritual but still kneels on cue.

But listen closely. The “ra-tio de-si-den-di” lands with a rhythm no Roman ever authorised. The “au-di alteram par-tem” carries the unmistakable echo of a village baraza. The tongue may stretch toward Latin, but the ancestors quietly reclaim the vowels, borrowed language, and the accent refuses eviction.

Beneath this choreography lies a harder truth: the stage is colonial, the script imported, and the actors, our “learned friends”, often resemble understudies in a play whose original cast has long departed.

Consider land, that sacred African inheritance, still entangled in the fiction that it once belonged to the “Crown.” Independence came with flags and anthems, but the legal cord was never fully cut. The Crown changed attire and became the State; the people remained tenants, strangers on ancestral soil with title deeds as visiting cards.

A herdsman in Turkana or a farmer in Bungoma, whose lineage predates colonial maps, must produce a stamped document to prove. One imagines the ancestors watching in disbelief after defending land with spears and memory.

Then there is the lingering spirit of the “repugnancy clause”, that elegant insult, which permitted African customs only if they were not “repugnant to justice and morality.” Repugnant, it rolls off the tongue with the distaste reserved for spoiled milk. Though often buried in statutes, its attitude lingers: a suspicion of indigenous practices, a reflex preference for imported norms.

It is as though the African mind passed through colonial education and emerged not enlightened, but edited tabula rasa in the most inconvenient sense.

And who sustains this inheritance? Our “learned” legislators and jurists. Learned not only in law, but in imitation. Learned in reciting doctrines that would have dismissed their “own” as “customary complications,” quoting precedents with accents so polished.

Parliament, the irony: an august House requiring no formal degree, yet expected to produce complex laws. Leadership, once framed as sacrifice, now appears as strategy, alliances, and campaigns lubricated by generosity that has misplaced its shame. The unlearned legislate for the overeducated, while lived wisdom waits outside, told it lacks “judicial notice.”

Judiciary, a peculiar theatre, a place where arguments enter upright and leave slightly bent, where clarity is cross-examined until it confesses to confusion. One wonders when the temple of justice became a maze where even truth requires directions.

For decades, courts have applied laws shaped for colonial control; laws that disciplined African realities rather than understood them. The Constitution gestures toward cultural respect, hinting at decolonisation. Yet enforcement hesitates, as though an invisible “big brother” is watching fiercely.

The result: A prisoner, capable of productive labour, is maintained at public expense; fed, housed, and idled by an already overtaxed Kenyan. Yet, still, call to con. A society that once practised restorative justice now warehouses human potential. One must ask: who designed this logic?

There are alternatives; irrigation, reforestation, public works, school production units, programmes that restore dignity while safeguarding safety. Punishment need not mean stagnation; it can mean contribution. But such ideas sound dangerously REPUGNANT!

The courtroom, where a lawyer invokes the “man on the Clapham omnibus”, a fictional British commuter as the measure of reasonableness. The Kenyan boda boda rider, balancing passengers and potholes, is apparently less authoritative than an imaginary gentleman who has never met traffic.

And still, the Latin flows.

Yet beyond the courtroom, something inventive and quietly ancestral is unfolding.

Where traditional polygamy once operated as a structured, negotiated system anchored in survival and communal balance, today’s generation appears to be receiving softer signals from the Gen Zs, who approach relationships with flexibility, echoing an older rhythm. Not formal or declared, but guided by an unspoken ethic: Kugongeana in times of scarcity. Wi-Fi connection is not hoarded, it circulates even to Russians, Mkambas and Wababas. Carefully, respectfully and economically symbiotic! Yielding to mzinga and betting money. With the seriousness of people’s ancestors, who understood that sharing is survival.

One could mistake it for mischief until one listens closely. Beneath the laughter lies a familiar echo: what was once dismissed as “repugnant” has not vanished. It has adapted, learned a new language, and now operates on Wi-Fi.

One imagines the ancestors observing, mildly impressed:

“So… you refused our systems. Then reinvented them with a better signal.”

Meanwhile, society condemns yesterday’s communal arrangements while quietly practising today’s versions under new names. The vocabulary has changed; the instinct has not.

Technology has only amplified this awakening. The law, once guarded by the “learned,” is now searchable and increasingly transparent. Citizens can interrogate statutes and ask why some still sound like they were written for someone else.

What they find is sobering: land systems that reward accumulation over stewardship, frameworks that echo colonial priorities, and a structure that manufactures scarcity in a land that once understood sufficiency.

And so we arrive at a paradox: politically independent, yet legally haunted; intellectually trained, yet tethered. A class of “learned friends” whose tools sometimes expose the limits of their learning, especially when the Latin is flawless, but the reality is not.

Perhaps it is time to revisit what it means to be learned. It cannot simply be mastery of Latin or precedent. It must include the courage to question inherited frameworks, to align law with lived realities, to decolonise not just statutes, but thought.

Meanwhile, the performance continues. The robes still swish, the Latin still flows, and the Clapham omnibus rolls on...

But beneath the theatre, something quieter is unfolding. A gradual awakening.

And when it fully arrives, it will not ask for translation.

It will speak in the language of the land.