NAIROBI: In the application of various laws in Kenya, there is profound and unaddressed paradox relating to ‘time’.
The Interpretation and General Provisions Act elaborately sets out the law relating to time – the standard time, computation method, provision where no time is prescribed to do or not to do a thing, and even powers to extend time.
In the Civil Procedure Act and Rules, matters of time receive great attention.
What a month or day is, exclusion of public holidays and Sundays, when time runs out, power to enlarge time, computation of days and time of service are set out.
Procedure in civil courts – be they commercial courts or land and employment courts or family law or even tribunals and criminal courts – provides very precise time when a litigant or accused can or cannot exercise their rights.
Filing a case or filing a defence one day late can mean total erosion of one’s right. A few minutes delay can mean a case can be thrown out or dismissed.
Being late in a criminal court means that a warrant of arrest is issued against the accused and daily many accused are unceremoniously remanded in the cells – it matters not if the magistrate or judge was late by a few hours!
All courts set out time limits daily and in the next breath unashamedly abuse the same. This is often seen when dates for judgments and rulings are given, and then unilaterally and repeatedly changed despite there being laws that judgements must be delivered within a certain time frame.
One of the most frustrating experience these days is when courts give hearing dates and on the appointed day just do not appear, with junior staff giving reasons such as; the magistrate is on leave, or attending a seminar, or he/she has been transferred.
It has become a habit of courts to use the mechanisms of Internet to adjourn cases on the eve of the hearing date and it is not uncommon for the cause lists to ‘take out’ cases – some fixed years in advance – without giving any prior notice and often litigants get a shock on reaching a court when crude notices are stapled on doors of courts.
I relate a recent personal experience where a judge fixed a hearing for three days months ago in a weighty matter.
I travelled by Air to Mombasa with my witnesses and staff, and upon reaching Mombasa I was greeted with a notice that the Judge was not sitting. No apologies, no email or phone call! The man-hours wasted, the cost in time and money, the travelling risks, all do not concern the judicial system.
The Law Society of Kenya organised its annual conference in Mombasa recently. After a full year’s organisation, not a single function started on time; last-minute changes were made, unscheduled and unannounced presenters encroached on time of over 800 participants by giving two-hour talk when they were supposed to speak for half an hour.
Sadly, it seems all cadres of lawyers (like most Kenyans in various spheres of life) do not appreciate the economic value of time.
The road journey to Mombasa is becoming a 12-hour affair. Witnessing the crawling trucks, waiting for hours in mile-long queues at the weighbridge stations with their engines running is a painful reminder of wastage of time, manpower and resources in our country.
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So what is the way forward? At the time of appointment of magistrates and judges, respect for time should be underlined, and management of time made a subject of training, for both judicial officer and the others – witnesses, defence lawyers, prosecutors, professionals and the underprivileged.
Somebody somewhere must tell those sitting in high and posh offices, the plight of say, the poor Maasai accused who may well have walked a few kilometres in the rain from the boma at 4.00am, caught a matatu, which got stuck and on reaching the court, being told that his case cannot be heard, or that his lateness will mean he spends a night in the cells!
Second, each judicial officer from Supreme Court judge to a magistrate, prior to being sworn in, must stay in a remand prison and in upcountry prison to appreciate the pain and predicament of litigants. The late Justice Masime once informed me that as a training process in a European country, he had to stay in jail!
Third, if adjournments are imminent and warranted, the Judiciary must set in place a mechanism to forewarn all parties that the cases will not proceed.
In these days of SMS texts, e-mails and computers, this cannot be asking for too much.
It is time the legal fraternity began to value time so that the creaking wheels of justice may begin to turn more efficiently.