On January 26th 2023 Hon Justice Oscar John Kihika, took an oath as a Justice of the Court of Appeal/Constitutional Court.
Mr. Kihika, a distinguished commercial lawyer and certainly one of the finest in the trade, and the co-founding Partner of Byenkya, Kihika & Co Advocates, was in November last year appointed Justice of the Court of Appeal/Constitutional Court by President Yoweri Kaguta Museveni.
The Court of Appeal of Uganda is the second-highest judicial organ in Uganda. It derives its powers from Article 134 of the 1995 Constitution. It is an appellate court that hears cases appealed from the High Court of Uganda. The Court of Appeal also constitutes itself into a Constitutional Court to handle the matters, issues or cases concerning the interpretation of the Constitution.
To execute this huge responsibility, he joins 12 eminent persons on the appellate court, headed by the Deputy Chief Justice/Head of Court, Hon. Justice Richard Buteera.
At Byenkya, Kihika & Co Advocates, he was the Managing Partner of one of Uganda’s top 10 corporate and commercial law firms, according to a recently published list of top 25 law firms in Uganda by CEO East Africa Magazine, and certainly living a comfortable life, so why the switch from the bar to the bench?
“It is a different side of the same coin,” he told CEO East Africa Magazine in an interview.
He adds: “I have spent more than 30 years of my professional life trying to help my clients resolve disputes. My new role as a Justice of the Court of Appeal/Constitutional Court is all about the same thing, but this time at a higher and more nationally significant level. It is a challenge, that I have thought through and I accept with humility”.
Nonetheless, he is fully aware of the challenges involved in transitioning from the bar to the bench, especially after 30 years on the other side.
“It’s a new challenge for me. All of my professional life, I have been at the bar. My life is going to change. I have spent my professional life, representing litigants either as the defence or prosecution. Now the challenge that I have with my new assignment, is that I have got to look at litigation from a neutral perspective. My duty will be to look at both sides and then decide who has got the better case. That’s a new challenge,” he says.
And this task is made even more delicate, given the unique nature of the court that he has been appointed to. He is aware that every decision he makes, will have far-wider and longer-lasting implications, on not just the parties in the dispute but many more others to come several years later.
“I am going to be part of what we call a court of record, I have to be mindful that my decisions will either be bringing in new trends in the law or reinforcing new ones. That is a huge academic responsibility, especially from an intellectual perspective,” a pensive Kihika says.
He is also aware of the daunting case backlog in the court system- 6,035 cases as of June 2022, according to the Auditor General, which Kihika says, with more collective effort can be resolved.
The challenges ahead regardless, he believes, the vast experience, knowledge and exposure gathered at the law firm has adequately prepared him for the road ahead.
“I am ready for the challenge. All these 30-plus years, I have been putting in hard work and I guess preparing for this. I can say, I have been battle-hardened,” he says.
The end of an era and toasting to new beginnings
Ebert Byenkya, Kihika’s partner and friend at the law firm for over 30 years, views Oscar’s elevation with bitter-sweet spectacles.
“Oscar’s appointment to the bench is a significant milestone in the life of Byenkya, Kihika and Co. Advocates. It marks the end of an era and also new beginnings,” he contemplatively says.
“We shall miss him greatly but we are also full of pride and gratitude that one of our partners has been elevated to the Court of Appeal and Constitutional Court. It is testimony to the quality of the firm’s work over the years and the confidence and high regard in which the firm is held,” Ebert adds.
Ebert will now be replacing Oscar as Managing Partner, effective January 2023. He will also continue his head of the firm’s litigation practice role as he is one of the most respected attorneys in commercial litigation with rich experience in handling complex commercial matters and debt recoveries. He is also the brain behind the firm’s robust litigation practice that has seen the rise of other star lawyers, such as Anthony Bazira, a young but well-respected litigation and dispute resolution practitioner.
Ebert is also renowned for his good command of the law in the areas of energy and infrastructure; mergers & acquisitions, banking & finance as well as litigation and dispute resolution.
Over and above key recognitions by Chambers and Partners and IFLR1000, domestically he has been recognised by being given major national assignments such as the recently concluded National Land Probe Commission where he was appointed as the Lead Counsel.
His bespoke skills in international finance are exemplified by key transactions and assignments such as representing and advising major players such as the International Finance Corporation and Standard Chartered Bank for over ten years.
Ebert’s emotive bitter-sweet feelings about Justice Kihika’s exit from the firm are perhaps deeply rooted in the friendship and business partnership he has enjoyed with him over the years. They met more than 40 years ago while Kihika was in form one at St Mary’s College Kisubi (SMACK) and a younger Ebert at the neighbouring St. Savio Junior School, Kisubi.
Ebert would soon join SMACK too and their friendship grew stronger all the way to the University and the law school. When both young men were done with law school, they still stuck together and doing business together was probably the next natural thing to do.
“We used to have lunch together almost every other day, then I mentioned to him (Ebert) the plan to start a law firm and then he said, can I come along? Can we do it together? Then I said absolutely; why not,” recalls Oscar.
That is how Byenkya, Kihika & Co Advocates, was born. They opened their first office at Spearhouse on Jinja Road, in 1992 and have never left that address. They have only taken up more space as the firm grew larger.
The duo have since built the law firm into one of Uganda’s leading corporate and commercial law firms with some of the industry’s most respected lawyers and a track record of landmark cases, successfully handled.
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The firm is known for its key sector expertise in intellectual property, insolvency, energy, employment and labour law, corporate transactions advisory, banking, insurance & other financial institutions and all associated litigation and dispute resolution. It also stands out for its expertise in private equity, mergers & acquisitions, real estate & conveyancing, family law & divorce as well as debt recovery.
The firm and its senior lawyers have been regularly recognised as one of Uganda’s leading law firms, both by the IFLR1000— a guide to the world’s leading financial law firms and by Chambers & Partners, a widely-recognised authority on global legal rankings.
BK’s Partners, Oscar Kihika, Blaisie Paulsen and Ebert Byenkya have each been severally ranked as Highly Regarded by IFLR1000. Chambers & Partners has also recognised Blaisie Paulsen and Ebert Byenkya.
BK’s Partners, Oscar Kihika, Blaisie Paulsen, Ebert Byenkya and Dr Anthony C.K. Kakooza were also recently recognised in CEO East Africa’s recent Legal75, a list of Uganda’s highly regarded corporate and commercial lawyers. The business magazine also ranked the law firm as No.9 in its list of top 25 corporate and commercial law firms.
BK is a member of IR Global the largest professional service network providing legal, accountancy and financial advice to companies and individuals worldwide as well as ABLE (Africa Business & Legal Expertise), a network of African lawyers specialised in business law.
30+ years of commercial and corporate legal excellence
Looking back over the past three decades, Oscar says his heart is full and he is happy that he and Ebert took the courageous decision to start their law firm.
“The biggest highlight of my career was when Ebert and myself, started the law firm, we were very young boys- the audacity, to set up that law firm, amidst a difficult environment, was a difficult decision,” he reminisces, adding: “The market was dominated by the big law firms dominated by the big firms whom I have a lot of respect for, the likes of Sebalu & Lule Advocates, Katende & Ssempebwa Advocates and Mugerwa, Matovu & Co Advocates,”
He recalls that at the time they were starting, the general perspective of their peers was that”you boys, are biting more than you can chew”.
“People thought we were too young to run a successful firm, but deep inside, we were fuelled by optimism and ambition, not only to start but also to ensure that we thrived. Am glad we did start. The highlight of my career is that 30 years later, Byenkya, Kihika & Co. Advocates, today is rated among the very top firms,” he says with a tinge of pride in his calm, but firm voice.
The firm is not only 30 years old but has in these 30 years been part of key cases, some of which have set precedents and others redefined the law. For example, in Spedag Interfreight Uganda Ltd & 3 Others versus Attorney General & Another., the firm successfully represented the petitioners in a Constitutional Court groundbreaking precedent on economic and monopoly rights (competition law) as guaranteed under Article 40(2) of the Constitution. The court upheld the right of the petitioners to practice their profession.
In Biyinzika Enterprises Ltd & 2 Others versus Biyinzika Farmers & Another, the law firm successfully represented the appellants in a decision that fortified Section 40(7)(e) of the Land Act as regards owning mailo land. Court held that where there is no restriction on the transfer of shares to a non-citizen under the Articles of Association, then the company is deemed a non citizen company.
In Engineer John Eric Mugyenzi vs. UEGCL, the firm successfully represented the appellant in the Court of Appeal in a precedent-setting decision that interpreted whether the limitation period of 3 months within which to lodge a complaint with the Labour Officer applies to the Employment Act.
In another matter, Fox Odoi versus National Resistance Movement & Another, where BK successfully defended the National Resistance Movement, Uganda’s leading political party in a groundbreaking constitutional petition that held that the National Resistance Movement Elections Tribunal was legally constituted and that the regulations made under were not unconstitutional.
The firm has also successfully represented clients in some of the largest-by-value matters, such as the Victoria Repairers (EA) vs Attorney General, where the firm successfully represented the plaintiff in a case for recovery of approximately USD 10 million from the Attorney General.
In Sobetra Uganda Ltd vs West Nile Rural Electrification Co. Ltd, where BK successfully represented the defendant in a claim for damages resulting in dismissal of the contractor’s claim of USD 3.7 million.
In Fang Min versus Guangzhou Dongsong Energy Group Co. Ltd & Others, HCCS 318 of 2016, BK successfully represented the plaintiff in a suit against the defendants regarding minority rights. The plaintiff was awarded over USD 10 million.
These are just a few of the significant matters the firm has been part of.
There are no shortcuts in the legal profession- advice to upcoming lawyers.
Asked about some of the key lessons he has learnt over the past three decades, Hon Justice Kihika, advises young lawyers to be patient, and honest and put in the handwork, and like night follows day, professional and financial success will follow.
“When you choose to become a litigation lawyer- although these days the practice has expanded just beyond litigation, they should know, it takes a lot of hard work. Your job is not going to be an 08 am – 05 pm job. You have to put in the work. There are no two ways about it. The financial returns are there, but they take a long while to reach the levels you expect, so you need to have a lot of patience,” he advises.
“Never ever, ever take shortcuts. There’s no shortcut in legal practice. On average when a lawyer is starting out, your contemporaries in other professions tend to progress financially much faster. If you try to quickly catch up with them, you are going to be in a lot of trouble,” he advises, adding: “You have got to work very very hard at it. You have to do a lot of research, and at the same time, you have to have good and constant communication with clients. You have to be honest because the majority of the money that passes through your law firm is not your money; it belongs to the client. Success in our profession like in many other aspects of life takes a lot of sacrifices”.
As if saving the best for last, Justice Kihika says, he will be eternally grateful to his colleagues-turned-family at the firm.
“It has been a very good ride. They have made the last 30 years of my life worthwhile. They have become my other family,” he passionately says of his colleagues.
“It is sad, that I am leaving them at this part of the journey to join the bench, but I have all the confidence that the firm, Byenkya Kihika & Co. Advocates, will continue to produce results and I wish them the very best of luck,” he concludes.
On his part, Ebert also says he would like to dedicate a significant portion of his time to mentoring the firm’s crop of rising lawyers who will carry forth the firm’s legacy into the next 30 years and beyond.