Time: The bane of law enforcement

By Pravin Bowry

Kenya: In the realm and practice of law, time is and always will remain as the most fundamental and underlying factor. In the vast Kenyan legal machinery, matters relating to time are painfully and sadly contradictory, arbitrary and attributable to delay.

Most laws provide in great detail the time limits of doing or not doing things. For example, the Limitation of Actions Act provides the limitations as to when courts can entertain a legal cause and when it is Statute-barred.

Similarly, the Interpretation and General Provisions Act has provisions of how to compute time in legal matters

The Civil Procedure Rules have elaborate rules of setting time limits and enlargement of time and every action of a civil litigant must by law be done within a specified time frame.

Even the sittings of Court are engraved by law in limitations of time. The Supreme Court, the Court of Appeal and the High Court (but not the subordinate courts) are presently on Easter vacation, and in August and September will enjoy the summer vacation for over one and a half months. In December, they will go for Christmas vacation, all this in addition to their 42 days of annual leave!

In civil practice, mandatory provisions and even orders of the court giving precise deadlines are routinely disregarded or abused both by litigants and those giving the orders.

Judges are known to construe laws which provide that a particular act ‘shall’ be done within a specified time to mean ‘may’. In matters of time, courts make and unmake orders often rendering the process of law meaningless. “Last adjournments” by courts get extended repeatedly!

The criminal courts are also governed by factors relating to time. Appearances of accused, witnesses, prosecutors, and prison personnel are given precise time limitations – also applied arbitrarily and whimsically by courts.

I can relate to the plight of a witness who religiously went to court in Nakuru from Gilgil twenty-three times and on the twenty-fourth occasion he was late by half an hour and a warrant of arrest was issued against him!

The ugly face of uncontrolled time keeping and time management in Kenyan courts is apparent ever so often. Cases are fixed for hearing months ahead, and come the day – even in the highest courts – litigants, witnesses, prosecutors and accused are informed at the very last minute that the cases cannot be heard for various reasons.

The most common reasons are that there are not enough judges, or that the judge is engaged in other duties, and in lower courts reasons such as the magistrate has been transferred or is on leave.

The sad effect of this is that hundreds of man-hours of citizens are wasted daily and the biggest cause of delay in modern Kenya is what can be termed as witness fatigue. Hundreds of criminal cases are being thrown out because complainants and witnesses fail to turn up on the material day. There is no effective legal machinery to enforce recalcitrant witnesses to give evidence. Police and prosecutors rarely bond witnesses, relying these days on mobile phone communication, SMS or emails and not physical service as by law required.

Prisons, police stations and other law enforcement agencies are institutions were time management does not exist and appointments are rarely fulfilled. Traffic offenders are kept in police stations for hours before being bonded.

Transporters in Kenya will attest to mammoth time wasting at our weighbridges. I have witnessed over 5 km long queues at Mariakani weighbridge. To fathom the loss of man-hours and wasted fuel for hundreds of heavily laden huge trucks all with running engines and crawling traffic is impossible. And the damage to the environment?

Value of time comes to the fore when one is in a police station cell or in remand prison or in prison after conviction.

How many Kenyans spend time in cells and prisons when they should be free due to judicial handling of matters in disregard of laws?

In terms of giving judgement in civil cases, courts are given specific time frames which more often than not are disregarded – an ironical case of courts disobeying their own orders.

Even in this day and age one can recall cases where judgments have not been delivered for years!

Courts have devised ways of circumventing time limits applicable to them by devious ways of interpretation. In a reported case, it has been held that the word ‘shall’ means ‘may’ and the time provided for in a statute is therefore discretionary.

This is far from what is actually meant by the term ‘shall’. While ‘may’ can be construed as discretionary or directory, ‘shall’ is mandatory and admits no discretion.

There are of course other important factors relating to time, which need to be addressed. For example employers’ use and misuse of time clocks to track their employees work but in Kenya there appear to be no laws on time clocks.

Similarly and gravely in the criminal practice – when hundreds of criminals are being sentenced (in particular in sexual offences) to life imprisonment, the meaning and in practical terms the duration of a life sentence is not known to the convict and matters of parole remain unexplained.

Maximising judicial time and time management must become a priority if delays in courts are to be averted.

Mr Bowry is an Advocate of the High Court of Kenya

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