Most civil cases in the High Court and Magistrates' Courts are decided under intricate procedural regimes contained in the Civil Procedure Act and elaborate rules contained in over 180 pages of subsidiary legislation. Some matters such as matrimonial and company law issues have their own procedures as do most tribunals.
The original Civil Procedure Act was enacted in 1924 being a carbon copy of the Indian enactment, and since then, the Act and Rules have been amended many times mainly in a haphazard fashion. In December 2010 the Rules Committee comprising two judges of the Court of Appeal, two judges from the High Court, the Attorney General and two advocates promulgated a new set of rules.
The new rules have, instead of expediting the process of adjudicating civil disputes, created unfathomed problems and have proved to be a great impediment in fighting the proverbial delays in our courts. (The committee even forgot to include an index to the rules, as was the case in the previous rules, creating a nightmare for users). Kenyan rules of procedure and the concept of justice appear to be at war with each other.
It has been held that rules are designed to formulate the issues, which the court has to determine and to give fair notice to the parties, and that procedural rules are intended to serve as handmaidens of justice not to defeat it.
The Civil Procedure Act states that the overriding objective of the Act and rules is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes and the court must give effect to these overriding objectives.
But the reality in courts is frightening. Some courts believe in overriding interests blindly and often disregard rules enacted in mandatory terms. Others do not believe in the concept of overriding interests and yet others go by the theme of substantive justice disregarding the rules totally.
The wide provisions of the Constitution which states that justice shall be administered without undue regard to technicalities has imposed interesting limitation on courts.
Despite the new rules having been in force for four and half years, mandatory matters such as pre-trial questionnaire, case conference order, settlement conference order, trial conference questionnaire, trial conference, and appointment of case managers remain a mirage totally unimplemented under what lawyers call Order 11.
But worse still is the unexplained and the inexplicable directive of the learned Chief Justice, who in a practice note recently decreed that some parts of the rules, contained in the subsidiary legislation, shall not apply to the commercial and admiralty division but only in Nairobi.
In exceptional cases the court can order non-application of certain rules but universal non-application of promulgated rules amounting to law is certainly legally suspect. With utmost respect, the Chief Justice has no mandate or powers under the law to amend, disregard or change rules cast in parliamentary enactments and his practice note, however well intentioned, is illegal and will and should be questioned.
At a recent seminar to discuss ways of expediting justice in civil courts, judges from Nairobi commercial court and practitioners debated matters of case management and even suggested draconian (and potentially illegal) method of penal fining of advocates. Jurists contend that there cannot be different rules in different courts in the country and that subsidiary legislation cannot be interfered at the sole discretion of the Chief Justice.
If change is warranted, the Civil Procedure Rules must be amended as by law provided. Noting that there is a high proportion of self-represented litigants, some with little education, the legal profession must change the ways of conducting our litigation to make it more effective, cheaper and to surmount delays.
In Scotland the Civil Justice Committee has embarked on a project for simplifying the rules. In Brazil a new Civil Procedure Code has been approved and comes into force in December. The code even "allows the parties to modify the procedure as it applies to their claim." Freedom to manage litigations to the parties is reckoned to be the way forward.
Recently, the English Master of Rolls, Lord Dyson, called for further simplification of the Civil Procedure Rules to reduce delays in the justice system but gave a warning. He said: 'If litigation is conducted at breakneck speed, there's a risk that parties will be unable to present their cases effectively and judges will not have sufficient time to produce decisions [that are] sufficiently researched and carefully considered.'
The newly clothed 2010 Rules are largely a cut and paste affair, already antiquated and oblivious of technological new developments and advancements. Should court processes not be served by email as against "registered" letters which never reach in time causing untold misery to litigants?
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The Chief Justice would leave a memorable legacy if he were to at least commence the process of simplifying civil procedure.