Many years ago, in an office long since knocked down, on Museum Hill, Nairobi I sat in a meeting where my contractual partner ripped up our contract. He didn’t do it physically.
But he told me the contract was ‘over’ and I could sue if I wanted to, but it would take me eight years, cost me hundreds of thousands of shillings, and then, I might win: if I wanted to invest that much for so long.
He knew I couldn’t afford it. It was a bitter moment, as the contract was a revenue-share agreement with what was, at that time, a publicly listed company in Kenya.
The deal was that I provided a large volume of online and content services, produced by seven full-time staff, for no fee, but for half of the advertising revenue of a newly launched portal.
The previous month, after 15 months of me covering the costs almost wholly, that portal had finally begun earning and made its first decent payout. So now the partner did not want to share the earnings any more.
Yet the saddest part about that loss of two years of my creativity, energy, earnings, investment and life was that the partner was right: there was not one single thing I could do to enforce that contract.
For, where on earth would I have found the legal costs?
Now, some 15 years later, I face another organisation that has breached contract, although this time it is odder, as an international organisation, but in Nigeria, not Kenya.
Having battled for months, finally it’s time to sue, but, following the breach of last year, I am, again, severely backwards financially. The case is crystal clear and very strong, but how to find the fees?
Yet, this time, I can choose my jurisdiction, based on a few issues, like my domicile (where I pay taxes), residence, and the organisation’s international presence, and that opens the way to lawyers who will act for a percentage of the win. I don’t have to fund the case, but only share the award at the end.
Yet that is not allowed in Kenya. One could say that might be because it would encourage time-wasting cases. Except, which lawyer will give up hundreds of hours on a case that only pays on winning, if it isn’t a sure-fire win?
In fact, the winners on the banning of these ‘contingency fee’ lawyers are everyone who tears up contracts, knowing the partner cannot afford to sue them.
It’s that simple. And the system is a fix, to serve the rich, and oppress and undermine the rights of the less wealthy, by keeping the doors closed to legal redress.