Doing justice: The new statutes changing Kenya’s dispute resolution system

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Critics of Kenya’s judiciary and the justice system have for long complained about the backlog of cases and the slow turning wheels of justice. It is however worth noting that there have been significant steps towards clearing the backlog of cases in the recent years. 2016 was no exception and a few inroads were made including, but not limited to various legislation that will without a doubt enhance the dispensation of justice.

First, is the implementation of the court-mandated mediation pilot program in both the commercial and family divisions of the High Court, which is a move towards fostering alternative dispute resolution without necessarily severing business relations; the establishment of the Anti-Corruption and Economic Crimes Division of the High Court and the inauguration of various courts such as the High Court stations at Narok, Kiambu and Baringo but to name a few.  The Court is in addition, fast-tracking old matters with a move to clearing the perennial backlog of cases.

A notable legislative development is the Small Claims Court Act, No. 2 of 2016 (SMCA), which establishes the Small Claims Court a subordinate court with a pecuniary jurisdiction of KES 200,000.  However, the Chief Justice may determine the pecuniary jurisdiction in a Gazette Notice.  The small claims courts are to be accessible in every county, as well as in other decentralized units of judicial service delivery. The Small Claims Court shall be guided by the same constitutional principles that guide other courts that are established in the Constitution. Under the SMCA, a Small Claims Court has jurisdiction to deal with any civil claims relating to matters such as:  contracts for sale and supply of goods or services; contracts for money held and received; liability in tort in respect of loss or damage to any property, for the delivery or recovery of movable property; compensation for personal injuries; and set-off and counterclaim under any contract. The Court may further exercise any other civil jurisdiction as conferred on it by written law.

There are however matters that the Court cannot deal with such as matters relating to defamation, libel, slander, malicious prosecution, disputes regarding titles or possession of land, or employment and labour relations. There are certain conditions which must be met before a party lodges a claim before the Small Claims Court, these include that they must ordinarily reside or carry on business within the local limits of the jurisdiction of the Court; the subject matter of the claim must be situated within the local limits of the jurisdiction of the Court; the contract to which the claim relates must either have been made or be intended to be performed within the local limits of the Court; the cause of action must have arisen within the local limits of the Court; or the Defendant to the claim must reside  within  the local limits of the court’s jurisdiction.

It is interesting to note that the SMCA provides that a party to the proceedings shall appear in person or where they are unable to appear in person, be represented by a duly authorised representative who shall not be a legal practitioner.

In a move to ease things, the Act excludes the strict application of the rules of evidence. It is further worth noting that under the SMCA, the Small Claims Court shall be presided over by an adjudicator who must be an advocate of the High Court of Kenya, with at least three years experience in the legal field and who may in addition, serve on full or part-time basis. The Act does not preclude a person from lodging a claim that is within the jurisdiction of the Small Claims Court in any other court if they elect to do so.

Additionally, the Access to Information Act No. 31 of 2016 (AIA), now gives effect to Article 35 of the Constitution which provides for the right to access to information. It also confers on the Commission on Administrative Justice, the oversight and enforcement functions and powers relating to the right.  Under the AIA, a public body is required to facilitate the access to information held by it. At a minimum, the information is to be provided for inspection without any charge, by supplying a copy on request for reasonable charge to cover the costs for copying and supplying the information.

There are limits to the right of access of information in accordance with the provisions of Article 24 of the Constitution. This includes information whose disclosure is likely to:  undermine the national security of Kenya; impede the due process of law; endanger the safety, health or life of any person; involve the unwarranted invasion of the privacy of an individual other than the applicant; substantially prejudice commercial interests of the entity or third party from whom it was obtained; cause substantial harm to the ability of the government to manage the economy of Kenya; significantly undermine a public or private entity’s ability to give adequate and judicious consideration on which a final determination has not yet been made; damage a public entity’s position on any actual contemplated legal proceedings or infringe on professional confidentiality.

A Court may require a public entity or private entity to disclose information where the public interest in disclosure outweighs the harm to protected interests. However, where information is readily accessible by other means, a public body is not obliged to supply information on such a request. The AIA provides timelines within which an application for access to information is to be considered. The AIA has provisions which enable an applicant to write to the Commission on Administrative Justice to review a decision by a public entity or private body in relation to a request for access to information. A party who is dissatisfied with a decision of the Commission may appeal the same to the High Court within set timelines.

A game changer is the Legal Aid Act No. 6 of 2016 (LAA), which gives effect to various provisions of the Constitution which facilitate the access to justice and social justice. It also establishes the National Legal Aid Service (the Service), provides for legal aid and for the funding of the legal aid. The functions of the Service include among others, to establish and administer a national legal aid scheme that is affordable, accessible, sustainable, credible and accountable. Also, to take necessary steps to promote public interest litigation with regards to consumer protection, environmental protection and any other matter of special concern to marginalized groups. Not all matters and people qualify for legal aid. The Service shall provide legal aid services at the expense of the State to persons who qualify for legal aid services. Under the LAA, legal aid services are provided in civil, criminal, children, constitutional and public interest matters as well as any other types of case or law that the service may approve.

The following persons are eligible for legal aid:

  1. A citizen of Kenya;
  2. A child;
  3. A refugee under the Refugees Act No. 13 of 2006;
  4. A victim of human trafficking; or
  5. An internally displaced person; or
  6. A stateless person.

A person who is eligible to receive legal aid is required to apply to the state in the prescribed manner and they shall not receive legal aid services unless the Service determines that their financial resources make them eligible for the services. The applicant may apply in person or through any other person authorised by the applicant in writing or through any person or organisation authorised by the applicant in writing on behalf of the applicant or on behalf of the Applicant where the applicant’s authority cannot be reasonably obtained due to physical or mental incapacity.

Legal aid is not available for civil proceedings relating to:

  1. A company, corporation, trust, public institution, civil society, non-governmental organisation or other artificial person;
  2. Tax matters;
  3. Debt recovery matters;
  4. Bankruptcy and insolvency matters; and
  5. Defamation proceedings.

In paying homage to alternative dispute resolution as espoused under the Constitution, the Service may, where it deems it necessary, recommend an aided person to alternative forms of dispute resolution and may for that purpose, provide them with such services at the expense of the Service.

Fourth on the list of recent notable disputes’ legislation is the Contempt of Court Act No. 46 of 2016 (COCA). This is an interesting Act of Parliament that defines the powers of the Courts in punishing Contempt of Court offenders. It is a well established legal principle that Courts do not act or issue orders in vain. Previously, the law relating to contempt was based on English law on Contempt of Court by virtue of Section 5 of the Judicature Act, (Cap 8 of the Laws of Kenya) and more recently, several provisions in both the High Court (Organization and Administration) Act No 27 of 2015 as well as the Court of Appeal (Organization and Administration) Act No. 28 of 2015 which provisions have since been repealed by the COCA.

COCA now provides for the law relating to contempt in one statute. It defines civil contempt to include wilful disobedience of any judgment, decree, direction, order or other process of a court or wilful breach of an undertaking given to a Court. It also defines criminal contempt to mean the publication of any matters or the doing of any act which scandalizes or tends to scandalize, or lowers the judicial authority or dignity of the Court, or prejudices, or interferes, or tends to interfere with the due course of any judicial proceeding, or interferes, or tends to interfere with, or obstruct, or tends to obstruct the administration of justice. Every superior court, (being the Supreme Court, Court of Appeal, High Court, the Environment and Land Court and the Employment and Labour Relations Court) has power to punish for contempt in the hearing of the court; punish for Contempt of Court in addition to uphold the dignity and authority of subordinate courts. Every subordinate Court shall on the other hand, have power to punish for Contempt of Court in the hearing of the Court.

Under COCA proceedings for criminal contempt can only be instituted by or with the consent of the Director of Public Prosecutions with the leave of the Court, or on the motion of a Court, having jurisdiction to deal with criminal Contempt of Court. The Act provides for elaborate defences to the offence of contempt. It is interesting to note that trial for Contempt of Court shall not constitute double jeopardy. The Act prescribes the punishment for the offence of Contempt of Court whereby upon conviction one is liable to a fine not exceeding KES 200, 000 or to imprisonment for a term not exceeding six (6) months or to both.

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