Keeping the Wheels of Justice Turning During the COVID-19 Pandemic

Posted on April 17th, 2020

Following the announcement of the first confirmed COVID-19 case in Kenya on 13th March 2020, the National Council on the Administration of Justice (NCAJ) promptly issued directions scaling down the operations of Courts countrywide aimed at finding a balance between keeping the wheels of justice turning whilst safeguarding the health of both the judicial staff and the general public in the face of the prevailing pandemic. The general effect of the directions which have been amended from time to time has been a significant slowdown of litigation practice. Whereas the past month of litigation practice has been challenging, our firm has been able to navigate these unchartered waters and we take this opportunity to share some of our experiences in the litigation circles.

The initial directives from NCAJ on 15th March 2020 saw massive scaling down of Court activities throughout the country for two weeks effective 16th March 2020. During this period, all appeals, hearings, mentions and execution proceedings in criminal and civil cases in all Courts were suspended. The only filings accepted at the Court registries were those under certificate of urgency and time bound pleadings. With time, further directions were given on the electronic filing (e-filing) of pleadings.

Our first encounter with e-filing was in the Court of Appeal where we filed a Notice of Appeal and a letter to the Deputy Registrar bespeaking typed proceedings from the lower Court. The process entailed preparing the documents in the usual manner and thereafter scanning and sending the documents to an email address provided by the Judiciary. In this instance we were advised to send the documents to efilingkenya@gmail.com. After sending the scanned documents to the said email, we received an email confirming the assessed filing fees and proceeded to pay the amount through the M-Pesa Pay Bill Number provided by the Court registry. Upon confirmation of payment, a physical receipt was generated for collection by our clerk. During this period the process still necessitated attendance to the Court registry.

Subsequently, there was further scaling down of operations at the Court registries with absolutely no physical attendance at the Court registries. Contact details for the various Divisions and Court stations around the country were circulated for communication with the relevant Deputy Registrars for directions on e-filing. It was directed that all documents should be scanned and sent to the appropriate email addresses of the Deputy Registrars and Executive Officers (as the case may be) and once that was  done, the court would then advise on the mode of payment and how proof of payment would be communicated. During this period, we were able to file applications under certificate of urgency and time bound pleadings in the various Courts including the Court of Appeal where we filed an application for stay of execution.

We further had an interesting experience of participating in a hearing at the Chief Magistrate’s Court. The Plaintiff served us through email with an application under certificate of urgency together with the extracted orders relating to a contentious burial dispute. Upon receipt of the documents we drafted a notice entering appearance and response on behalf of our client (through scanning and sending the documents to the Court’s email address) and served the same upon the other parties via email. It was necessary to have each document clearly identified in capital letters and scanned separately. Upon receipt of the documents, the Court registry assessed the documents before sending out the amount of filing fees to be paid. We then paid the amount advised via an M-Pesa Pay Bill Number after which the confirmation message was sent. Once it was confirmed that payment had been received, the documents were processed and sent to the litigants. On the hearing date, we sought clarification on whether the hearing would be in open Court or via video-link. We were informed that due to the limited electronic resources available to the Chief Magistrate’s Court, the hearing of the application would be in open Court but with strict observance of the directives issued by the Government.

The Court session began with all parties being ushered into the Court room by the Court assistant who ensured that each Counsel and respective clients had worn protective masks and had either sanitized their hands or had latex gloves on. After this brief inspection, the Court assistant pointed everyone to their sitting positions and allocated everyone a spot at least one (1) meter apart from each other. Advocates were allocated the front benches while clients were allocated the rear benches. The general public was not allowed to sit in during the Court session. The Court room selected was spacious and with very good ventilation.

Once everyone was seated, the Court assistant informed the Magistrate who came in duly masked and gloved. In the course of the hearing, confirmation of e-filing and e-service was done by confirming the same from a laptop availed to the Magistrate and the Court assistant. The litigants had physical copies of the documents which had been availed to the Magistrate, who referred to the documents as the litigants followed proceedings.

The advocates observed at least one (1) meter’s distance while delivering their oral arguments. Whilst addressing Court, each advocate kept his mask on despite it muffling out the sound which made it difficult to hear what one was saying. After the conclusion of the hearing, order was observed as parties made their way out of the Court room. Parties were thereafter ushered out of the Court precinct to avoid crowding. Although the Ruling was promptly prepared and sent via email, parties still insisted on appearing in Court for the delivery of the Ruling, during which the same ‘rules’ were observed.

Whereas there have been Rulings and Judgment delivered via email and hearings conducted via Zoom, the Judiciary is still trying to put in place further measures to provide services using technology, however the process should be complementary between the Judiciary, advocates and litigants, so as not to leave out any stakeholders. We have also noted most of the e-filings and hearings via video-link have been largely in Nairobi and there is room for expansion to other stations.

NCAJ has recently issued the latest update vide a communique of 16th April 2020 which will see Court operations upscaled effective 21st April 2020. Some of the implications of these latest resolutions will see operations and services in all Court registries upscaled and are therefore set to be accessible to Court users but in a manner that is in compliance with the guidelines of the Ministry of Health on combating COVID-19. With respect to civil matters, hearings will be upscaled with effect from 22nd April 2020 and guidelines on how the hearings and appeals are to be conducted will be put in place in accordance with the guidelines of the Ministry of Health. This is a clear indication that going forward, parties will be able to institute Court proceedings and progress pending cases, even in instances where there is no urgency, with effect from 22nd April 2020. Further guidelines on how matters which were taken out between 16th March 2020 and 22nd April 2020, will be dealt with are to be put in place by the respective Heads of Divisions and various Court stations.

It is expected that going forward, all pending Judgments and Rulings will now be delivered in open Court upon notice to the parties as opposed to the electronic delivery via email or video-link as was previously the case. This indicates that there is likely to be controlled Court appearance by litigants and/or their advocates. Further, orders will now be extracted by the Court registries and released to the litigants or their advocates within twenty-four (24) hours of their making. The suspension of execution of civil orders, decrees and eviction orders made before 16th March 2020, remains in force until 22nd April 2020.

We will keep you updated on any developments with respect to the implementation of the latest directives issued by the NCAJ.


This alert is for informational purposes only and should not be taken as or construed to be legal advice.

If you have any queries or need clarifications, please do not hesitate to contact Georgina Ogalo-Omondi (georgina@oraro.co.ke), Daniel Okoth (daniel@oraro.co.ke), Meshack Kwaka (meshack@oraro.co.ke), Quinter Okuta (quinter@oraro.co.ke) or your usual contact at our firm, for legal advice relating to the COVID-19 pandemic and how the same might affect you.

Sandra Kavagi

Posted on July 9th, 2018

Sandra Kavagi

Senior Associate

 

T: +254 709 250 000/709 250 742

E: sandra@oraro.co.ke

 

 

Sandra is a Senior Associate in the dispute resolution practice group and specialises in employment & labour law. With over 7 years’ experience, she has advised clients in education, financial services, and public sector. Sandra advises local and international clients in banking and commercial litigation, constitutional law, environmental law, employment, and labour law, election petitions, fraud and land disputes. 

Sandra has advised an academic institution in formulating Collective Bargaining Agreements. She also successfully defended a company in an employment claim filed by casuals who wanted to be accorded similar employment terms as permanent staff.

Sandra holds a Bachelor of Laws (LLB) from Moi University and a post-graduate diploma in Law from the Kenya School of Law

“Sandra is an Associate in the Litigation Department and specialises in Dispute Resolution”

Experience
  • Successfully prosecuted an application in the environment and land court to strike out a plaint for a suit that had been filed without the consent or approval of the plaintiff company.
  • Assisted a leading local architectural firm in an arbitration dispute against the County Government of Kitui for a claim of approximately USD 27.5 million.
  • Part of the team that represented an international outdoor advertising company against the Kenya National Highway Authority on appeal in a constitutional petition.
  • Successfully defended an application by a union which alleged to represent pensioners who had retired.
  • Part of a team that successfully defended an election petition of a prominent politician in the coastal region.
  • Assisted in the representation of a public Kenyan university in relation to the provision of security services before the Public Procurement Administrative Review Board (PPARB).

Dispute Resolution

Posted on June 12th, 2018

Known in the legal industry in Kenya as a "formidable dispute resolution practice" we bring together a multidisciplinary disputes team with an in-depth understanding of the judicial process. Our practice group has the experience, skills and judgement to successfully guide clients from the onset of a dispute through to resolution. 

Our dispute resolution practice group actively pursues all avenues of dispute resolution available to advise clients on a wide range of contentious matters including banking litigation, highly complex commercial disputes, constitutional law, election petitions, environmental litigation, employment and labour law, family law, medical malpractice, public procurement and property disputes.


We have recently been involved in:

  • Acting for a real estate developer in respect to a challenging the decision by the Nairobi City County in awarding a tender for the development of a mega housing project valued at USD 195 Million.
  • Representing a client in the High Court and the Court of Appeal in a shareholder dispute regarding the directorship of a company, the constitution of an interim board of directors and the legality of a transfer of 60% of the shareholding which is valued at USD 25 million to a third party.
  • Successfully represented a leading Commercial Bank in a rare application seeking to have the Court of Appeal re-open, re-examine and set aside its decision. We also sought to have the Court of Appeal declare its earlier decision a nullity and direct that the appeal is heard afresh.
  • Acting for the regulatory Authority for the ICT industry in Kenya in challenging the constitutionality of some of the introduction of the amendment introduced by the Media Act 2013 and the Kenya Information Amendment Act 2013.
  • Acting for one of the largest trade union in Kenya in a trade dispute in the Court of Appeal against the employer, the Teachers Service Commission, with respect to the historical 2015/2016 nationwide teachers' strike.
  • Acting in an anti-suit injunction application involving a technology, media and telecommunications sector-focused venture capital fund manager where parties not party to a shareholder and management agreement between certain entities and a funder manager threatened to institute suit against the fund manager despite provisions for arbitration.
  • Acting for the authorized distributor and service provider of an automotive brand in a class action product liability claim with respect to its HINO FC 500 motor vehicles.
  • Representing one of the leading private hospitals in Kenya in a wrongful birth appeal claim which was the first of its kind to be determined by the Court of Appeal.
  • Assisting counsel to an international commodity company in a dispute with Kenya Pipeline Company worth USD 52.5 million.
  • Successfully represented a client in the logistics industry, in a contractual dispute; the client was subsequently awarded USD 8 million for a breach of contract.
  • Represented a foreign multinational company in an appeal (before the Court of Appeal) arising from a High Court judgment in a claim for over  USD 40.3 million in damages for breach of duty as bailee by attornment.
  • Representing an international NGO in a land rates’ dispute (the estimated demand value is USD 46 million)
  • Representing a real estate company, in a dispute with environmental and land law aspects.
  • Represented a  party in a construction arbitration estimated matter value: USD 6.5 million).
  • Representing the the monetary authority of Kenya in a case in which the represented petitioner sought to challenge the legality of contracts for the printing of currency, which had been awarded to De La Rue(Kenya) Ltd.
  • Acted for a state corporation in claims brought against a pan African downstream oil company, arising out of alleged wrongful payment of shore handling services (the claim value was USD 2.6 million).
  • Represented a foreign multinational company in an appeal (before the Court of Appeal) arising from a High Court judgment in a claim for over  USD 40.3 million (approximately KES 3 billion) in damages for breach of duty as  bailee by attornment.
  • Represented an international shipping company on a salvage and towage claim.
  • Represented a Kenyan-based holding company that manufactures branded beer, spirits, and non-alcoholic beverages in challenging the constitutionality of various provisions of the Alcoholic Drinks and Control Act, on aspects relating to the infringement of the right to property.

Recent Insights

Google LLC v Oracle America, Inc.: The Fair Use Doctrine in Copyright Law

Recent Decision Underscores Need for Court Sanction in The Carrying Out of Commission’s Mandate

The More, the Wiser: Empanelment of Extraordinary Benches in the Court Of Appeal

‘Add to Cart’: The Role of Alternative Dispute Resolution in Online Commerce

Sweeping Changes in Kenya’s Disputes’ Regime: The New Magistrates’ Courts Act, 2015


Related Services

Arbitration, Banking & Finance, Employment & Labour and Tax


For more information about our Dispute Resolution practice, please contact George Oraro SC (Founding Partner) or John Mbaluto, FCIArb (Partner).  Alternatively click here to download our Dispute Resolution profile.

Key Contacts

George Oraro SC
Founding Partner

 

 

E: goraro@oraro.co.ke

Chacha Odera
Senior Partner

 

 

E: chacha@oraro.co.ke

John Mbaluto, FCIArb
Deputy Managing Partner

 

 

E: john@oraro.co.ke

Erastus Rabut

Posted on April 11th, 2018

Erastus Rabut

Associate

 

T: +254 709 250 000/709 250 706

E: erastus@oraro.co.ke

 

 

Erastus is an Associate in the dispute resolution practice group. His expertise largely focuses on banking and commercial litigation, constitutional and administrative law, complex employment & labour disputes as well as land and property disputes.

Erastus has a keen interest in insolvency and restructuring following the new changes in the Insolvency Act 2015 as well as asset tracing and recovery. He has advised local and international clients from various sectors such as the financial services sector and the public sector.

Erastus has a Bachelor of Laws (LLB) from Moi University and a post-graduate diploma in Law from the Kenya School of Law.

"Erastus is well regarded for his  insolvency and restructuring expertise."

Experience
  • Part of the team that is currently representing a pension scheme at the High Court in a Judicial Review Application challenging the decision by the Retirement Benefits Appeals Tribunal.
  • Part of a team acting in a claim which seeks to stop an alleged payment of USD 20 billion in respect of power purchase agreements.
  • Part of a team that assisted in the preparation and hearing of an appeal challenging the decision of the High Court requiring a major soft drink bottler to brand their 900 million bottles with nutritional facts of the soft drink.
  • Representing a large telecom company in an employment dispute and incidental negotiations of USD arising from a redundancy exercise of two thousand six hundred (2,600) employees taking part in the where a settlement of USD 3 million was reached.

Anne Kadima

Posted on April 11th, 2018

Anne Kadima

Senior Associate

 

T: +254 709 250 000/709 250 744

E: anne@oraro.co.ke

 

Anne Kadima is a Senior Associate in the dispute resolution practice group. She has represented local and international clients in banking and commercial litigation, defamation,  employment and labour and shareholder disputes from various target sectors including financial services and manufacturing & industries.  

Anne was part of a team representing a leading commercial bank against three separate class action claims in the Employment and Labour Relations Court, for the recalculation of terminal benefits arising from voluntary early retirement taken by the claimants.

Anne is currently pursuing a Master of Laws (LLM) in International Trade and Investment Law from the University of Nairobi. She holds a Bachelor of Laws (LLB) from Moi University and a post-graduate diploma in Law from the Kenya School of Law.

“Anne has experience in advising clients in various contentious matters.”

Experience
  • Advising a major American private equity fund on its legal options and remedies against former directors and shareholders of a leading East African civil engineering and construction company. The matter concerned a shareholders’ agreement, a convertible note debt for equity swap, a share pledge agreement and personal guarantees with a view of recovering a London Court of International Arbitration arbitral award of USD 23.2 million.
  • Part of a team that is advising a Kenyan government corporation in the negotiations and recovery of depositor’s money from a debtor with an estimated value of USD 20 million.
  • Representing a railway corporation in a claim worth USD 4.3 million brought by its former employees to enforce an award made by the Industrial Court and a claim for unfair dismissal after a strike which led to their dismissal.
  • Representing a publicly listed commercial bank against three separate class action claims in the Employment & Labour Relations Court, for the retabulation of terminal benefits arising from voluntary early retirement taken by the claimants. .
  • Leading the litigation team representing an International Research Institute in a land rates’ dispute of an estimated demand value of USD 4.8 million.
  • Part of a team representing a reinsurance company based in Kenya after the former Managing Director sued the corporation for unfair and unlawful termination of employment.

Daniel Okoth

Posted on April 11th, 2018

Daniel Ouma

Partner

 

T: +254 709 250 000/709 250 717

E: daniel@oraro.co.ke

 

 

Daniel is a Partner in the Litigation Department. With over seven years’ experience, he has advised both local and international clients in arbitration, banking and commercial litigation, constitutional law, employment and labour law and land disputes.

Daniel has been involved in a number of notable matters including being part of a team that represented a leading telecommunications company in a landmark employment dispute arising from a redundancy of 2,600 employees and further negotiating a settlement worth USD 3.5 million.

In April 2019, Daniel Participated in a three-week EXPLORE placement programme hosted by Slaughter and May at their London Offices. The programme is targeted towards African lawyers in order to provide them with extensive legal training in a leading international law firm as well as cultural excursions and a relationship-building platform

Daniel holds a Bachelor of Laws an (LLB) from Moi University and a Diploma in Law from the Kenya School of Law.

“Daniel has a keen interest in Local and International Arbitration.”
Experience
  • Successfully represented a large private tea management agency in an application seeking to set aside an arbitration award of USD15 million where the Court did set aside that part of the award amounting USD 1 million relating to goodwill.
  • Part of a team that successfully represented a construction company in arbitration proceedings, arising out of a breach of a construction contract. The claim was for VAT on the contract works and the cost of additional works and variations.
  • Part of the team that successfully represented a Kenyan commercial bank in a rare application seeking to have the Court of Appeal re-open, re-examine and set aside its decision awarding a sum of USD 2 million plus interests at 14% per annum from 1st August 2002.
  • Part of the team currently representing an international company in three (3) disputes arising from the award of a tender and the subsequent execution of a Concession Agreement for the Development and Management of Duty-Free Retail Services under a Single Master Licence at Jomo Kenyatta International Airport.
  • Part of the team which represented a telecommunications company in an employment dispute and incidental negotiations of USD arising from a redundancy exercise of two thousand six hundred (2,600) employees taking part in the where a settlement of USD 3 million was reached.

Chacha Odera

Posted on March 26th, 2018

Chacha Odera

Senior Partner

 

T: +254 709 250 000/709 250 702

E: chacha@oraro.co.ke

 

       

Chacha is a Senior Partner at Oraro & Company Advocates and practices in the dispute resolution practice group. With over 32 years of experience, he has represented local and international clients in commercial disputes, constitutional law, electoral disputes, employment and labour law, insolvency, and property law.

Chacha has been ranked by leading international legal directories such Chambers & Partners and Legal 500 as a leading lawyer in dispute resolution and employment. In the Chambers Global Guide 2021 rankings, Chacha received a plethora of praise from the Kenyan legal community with market observers regarding him as "an extremely able advocate and a gentleman in all manner of the word."

Chacha was also recognised as the overall lawyer of the year in 2019 at the Nairobi Legal Awards, hosted by the Law Society of Kenya, Nairobi branch.

Chacha holds a Bachelor of Laws (LLB) from the University of Nairobi, Kenya and a Diploma in Law from the Kenya School of Law. In addition to being an Advocate of the High Court of Kenya, Chacha is a member of the London Court of International Arbitration Users' Councils, a Commissioner for Oaths and Notary Public.

Aside from his legal practice, Chacha is an adjunct lecturer at the Strathmore Law School. He has chaired two adhoc committees of the Law Society of Kenya namely, the Committee for In-house Counsel and the development of a comprehensive Code of Conduct for Advocates. He has also served in various capacities in the Political Parties Disputes Tribunal and the Council of Legal Education.

Chacha is a passionate philanthropist and is currently a honary member of the Rotary Club of Milimani as well as a Paul Harris Fellow. He previously served as a founding trustee of the Matibabu Foundation and Msaada Kenya Trust.

"an extremely able advocate and a gentleman in all manner of the word."

Chambers Global, 2021.

  • Advising the Kenyan government corporation in the negotiations and recovery of depositor’s money from a debtor with an estimated value of USD 20 million.
  • Acted for various commercial banks including Barclays Bank of Kenya, Central Bank of Kenya, Diamond Trust Bank, Housing Finance Company of Kenya, National Bank, Standard Chartered Bank.
  • Providing legal advice to an international non-governmental organisation on the alleged unfair termination of contracts of employees on fixed-term contracts that were coming to an end.
  • Representing an International Research Institute in a suit by three self-help groups claiming adverse possession over their land worth USD 44 million.
  • Representing a leading commercial bank against three separate class action claims in the Employment and Labour Relations Court for the recalculation of terminal benefits arising from voluntary early retirement worth USD 8 million.
  • Representing a leading consumer goods company against a class action claim of over 300 employees who were terminated following a staff organisation.

George Oraro SC

Posted on March 26th, 2018

George Oraro SC

Founding Partner

 

T: +254 709 250 000/709 250 701

E: goraro@oraro.co.ke

 

      

George Oraro is the Founding Partner at Oraro & Company Advocates. With over 44 years of experience, he is held in high esteem for his arbitration, mediation and litigation expertise in Kenya. He specialises in administrative and judicial law, banking & commercial litigation, corporate & commercial law, employment and labour disputes, international trade and tax disputes. 

He has practised in the International Criminal Court, the London Court of International Arbitration (LCIA), International Chamber of Commerce (ICC), the Supreme Court of Kenya, Court of Appeal, the High Court, Employment & Labour Court, and various Tribunals.

In 2012, George was conferred with the rank of Senior Counsel for his exemplary service to the legal profession. He was also appointed to serve as a Commissioner of Assize to assist in expediting and determining criminal and civil matters. Similarly, in the Chambers Global 2021 Guide, he retained the prestigious ‘Star Individual’ accolade in Dispute Resolution which is accorded to lawyers with exceptional recommendations in their field. George remains the only lawyer ranked in this category in Kenya. He is also ranked a Band 1 lawyer in Dispute Resolution: Arbitrators, receiving a plethora of praise from the Kenyan legal community for being “one of the best lawyers Kenya has” and “without a doubt among the leading individuals in litigation and arbitration.”

In addition, the Legal 500 listed George among Africa’s leading arbitration practitioners in its Arbitration Powerlist: Africa 2021.

Aside from his legal practice, George has served as a board member for the CMA in which he was instrumental in the development of the legal and regulatory framework for the Capital Markets in Kenya. He was also a member of the Nairobi Securities Exchange Technical committee. In 2015, George became the first Honorary Consul for the Republic of Lithuania.

"without a doubt among the leading individuals in litigation and arbitration"

Chambers Global, 2021

Experience
  • Representing a Canadian-based energy company as co-counsel before the International Centre for Settlement of Investment Disputes (ICSID) brought against the Government of Kenya in respect to unlawful revocation of the company’s geothermal exploration licence.
  • Representing a pan African bank in the International Chamber of Commerce in a claim brought by a Zambian borrower who claims he never authorised the bank to disburse funds to the borrower.
  • Acting for Kenya Power and Lighting and Company an alleged payment of USD 20 billion in respect of power purchase agreements.
  • Acted for the Central Bank of Kenya in the recovery of all amounts in the “Goldenberg” related cases, in excess of USD 1 Billion.
  • Advised the Government of Kenya on the financial and operational restructuring of Kenya Airways (KQ) (a significant shareholder), including converting USD 2.3 Billion into equity and the legal implications of relinquishing its security.
  • Legal advisor on the government to government collaboration between the Kenyan Government and China National Petroleum Corporation in a proposed project to develop up to 350 MW of geothermal power.
  • Advising the Kenyan Government as part of a consortium of local and international firms, during the privatisation of Kenya Posts and Telecommunications Corporation and subsequent creation of Telkom, Postal Corporation of Kenya and the Communications Commission of Kenya.

Expertise

Posted on March 23rd, 2018

Practice Areas

Sectors

Construction

In the construction sector, we see the bigger picture ...

Education

Our lawyers understand the pressures faced by educational and training organisations

Energy

We are at the forefront of providing our clients with legal advice in a complex regulatory environment

Financial Services

We deliver legal advice that is technically sound, practical and commercially effective.

Manufacturing & Industries

We deeply understand our clients' businesses in this vast and vital sector of the Kenyan economy.

Public Sector

We deliver meaningful legal advice, through our deep understanding of how the public sector works.

About Us

Oraro & Company Advocates is a full-service market-leading African law firm established in 1977 with a strong focus on dispute resolution and corporate & commercial law. With a dedicated team of 10 partners, 4 senior associates, 10 associates, 1 lawyer and 36 support staff, the Firm has been consistently ranked by leading legal directories such as Chambers Global, IFLR 1000 and Legal 500 as a top-tier firm in Kenya.

Oraro & Company Advocates is an affiliate member of AB & David Africa.

Contact Us

Oraro & Company Advocates
ACK Garden Annex, 6th Floor, 1st Ngong Avenue
P. O. Box 51236 - 00200, Nairobi, Kenya.
T: +254 709 250 000
E: legal@oraro.co.ke | W: www.oraro.co.ke

Oraro & Company Advocates © 2021