State of the Nation: Rein in our proclivity for litigation

By JASPER MBIUKI

The Constitution of Kenya 2010 places a burden on all persons, institutions and authorities in Kenya to uphold and obey the Laws of Kenya. No person, authority or institution is above the Law.

No person, authority or institution can claim that in them is vested a sense of superiority or immunity from the coercive effects of the Law.  When the Courts issue Orders or Judgments, no person or body can lawfully defy the Court or assert that they are above the jurisdiction of the Courts. This is the paradigm shift introduced by the Constitution of Kenya 2010; both in letter and in spirit.

A Court Order is not a suggestion. It is not a request. It is not a plea from the Judiciary, on bended knee, begging the named person or organ to comply. A Court Order is not the whimper of a Mouse but rather the mighty roar of the Lion of Justice demanding obedience in emphatic and unequivocal terms.

When a Kenyan Court issues an order it does so in exercise of a constitutional authority granted to it by the Kenyan people themselves. A Court Order is an embodiment of the sovereignty of the Kenyan people and the supremacy of the Constitution.

To defy a Court Order is to ride roughshod over the Constitution, to reject the sovereign authority of the people and to invite a steep descent into impunity and anarchy. Kenyans have looked at the reinvigorated and reformed Judiciary and seen in it an institution that they can have confidence in.

Kenyans have been emboldened by the expanded Bill of Rights and ease of access to Justice and are now seeking the intervention of the Courts with a propensity never seen before. After decades of being denied access to fair and expeditious court processes Kenyans are now making up for lost time.

‘Okoa Jahazi’

The question is however; are Kenyans taking this new found freedom too far? Why is every little perceived slight or uncomfortable action ending up as a Court Case? The Corridors of Justice are heaving with frivolous, vexatious and malicious cases brought about by busy-bodies or persons exercising vendettas.

Seemingly no tender, award, appointment or any other significant action by the Public or Private sectors can pass without it being immediately the subjective of reflexive litigation processes.

In the same vein, are the Courts too willing to issue order and to intervene in each and every matter? In the Legal Profession there are even mutterings against a particular Tribunal; which despite being limited to a jurisdiction on matters less than Sh2,500 has nonetheless been ignoring its founding statute and been issuing Orders even where the amounts are many times greater than the ceiling amount.

One lawyer even quipped that getting a temporary injunction from the Courts staying even the most mundane action is as easy as borrowing mobile airtime…popularly known as “Okoa Jahazi”.

Employers are on record as expressing their concern as to the surprising orders and judgments that have been issued with respect to claims by Employees.

Some have even gone so far as to state that they are considering relocating to neighboring countries as the legal environment in Kenya has become inimical to business. It appears that the Courts are granting interim orders no matter what the claim is. Landlords are unable to increase rents without triggering a year-long fight in the Courts.

The Government’s hands have been tied by Court Orders granted against the interests of the Public. Private Enterprise is suffering under a mountain of restrictive Court edicts. Cartels of Corruption and Impunity have are fighting back against efforts to bring them to book, ironically using Court Orders to shield themselves from the sword of justice.

Court Orders should be respected by all persons and bodies in Kenya.

Of that there can be no discussion.

However, on its part, the Judiciary must exercise judicial restraint in the exercise of the power vested in it by the Constitution.  The Bench appears to have become too activist; too eager to be seen, heard and felt.

Little is being done by the Bench to follow through on constitutional provisions that encourage traditional justice processes and Alternative Dispute Resolution.

People’s mandate

Courts seem to want the profile, presence and social-structuring power of the Executive and the Legislature; without having the direct mandate of the People through elections which authorises such sweeping interventions into the wider social, economic and political aspects of national life.

On our part; we need to rein in our proclivity for litigation. If we do not, Kenya will be a world leader in both marathon running as well as marathon court cases. Development, Business and Governance will grind to a halt amid spurious litigation that benefits no one other than the lawyers. Court is an avenue that should be used responsibly and with thought to other cheaper, quicker and less antagonistic ways of obtaining desired results.

The writer is an Advocate of the High Court of Kenya.