The Constitution of Kenya, promulgated in August 2010, has progressive provisions in relation to access to justice. By Salem Lorot*
Article 159 (2) of the Constitution provides for the principles that courts and tribunals are to be guided by. It provides that justice shall be done to all, irrespective of status; justice shall not be delayed; alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted; justice shall be administered without undue regard to procedural technicalities; and the purpose and principles of the Constitution shall be protected and promoted.
Article 48 of the Constitution provides that, “The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.”
Article 6 (3) requires a national state organ (such as the Judiciary) to “…ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate to do so having regard to the nature of the service.”
Further, Section 12 of the High Court (Organization & Administration) Act, 2015 also requires the Chief Justice, in consultation with the Principal Judge, to facilitate reasonable and equitable access to the services of the Court and establish at least one station of the Court in every county.
The Judiciary Transformation Framework
In 2012, the immediate former Chief Justice, Dr. Justice Willy Mutunga launched the Judiciary Transformation Framework (JTF), 2012-1016. This document laid the roadmap for an ambitious, clearly thought-out transformation agenda for the judiciary. The Framework has four pillars: People-focused delivery of justice; transformative leadership, organizational culture, and professional and motivated staff; adequate financial resources and physical infrastructure; and harnessing technology as an enabler for justice. For our purposes, we will briefly touch on the first pillar: people-focused delivery of justice.
The Pillar is based on Article 159 of the Constitution, which states that while judicial authority is derived from the people of Kenya, it is vested in the Judiciary. It follows that this delegated authority should be exercised for the benefit of the people of Kenya. Under this Pillar, the Judiciary will pursue strategies aimed at creating a legal system which ensures equality of all before the law and an equitable legal process. The strategies under this Pillar are clustered in three Key Result Areas: Access to Delivery of Justice, People-centredness and Public Engagement, and Stakeholder Engagement.
Sustaining Judiciary Transformation
The current Chief Justice, Hon David K. Maraga, launched the Sustaining Judiciary Transformation (SJT): A Service Delivery Agenda 2017-2021. In the preface, he indicates that this phase will shift focus away from institutional building and capacity enhancement to enhancing service delivery. In this phase, rather than concentrating efforts at renewed institutional reforms, interventions will focus on completing and consolidating those reforms, but emphasising the improvement in the speed and quality of service delivery in the Judiciary by increasing efficiency and effectiveness at individual and system levels, as well as individual accountability for performance.
In the SJT, Chief Justice Maraga indicates some of the key successes under the Judiciary Transformation Framework in access to justice which include establishment of more courts as a strategy to reduce distance to court for litigants especially in far-flung areas; increasing the number of mobile courts and establishment of a policy and strategy to ensure their efficiency and effectiveness; development of a Litigants’ Charter; establishment of a Customer Care Desk in every court station; the employment of more judges, magistrates, kadhis and Judiciary staff.
In this second part, I will briefly discuss the structure of our Kenyan courts and the procedure our courts adopt in handling cases before them.
Hierarchy of courts
The Constitution of Kenya 2010 provides the hierarchy of the superior courts and lists them as the Supreme Court, the Court of Appeal, and the High Court respectively. The pre-2010 Constitution did not have the Supreme Court. The Constitution mandates Parliament to establish courts with the status of the High Court to hear and determine disputes relating to: employment and labour relations, and the environment and the use and occupation of, and the title to, land.
High Court divisions include Family, Commercial and Admiralty, Constitutional and Judicial Review, Land and Environment, Criminal, Industrial and Environmental and Land Court.
Also, there is the Industrial Court which deals with labour and employment matters whereas the Land and Environment Court deals with land and environment matters and appeals from all tribunals dealing in land and environment matters.
There are two levels of courts: Superior Court (consisting of Supreme Court, Court of Appeal and High Court) and Subordinate Courts (Resident Magistrate Court, Kadhis’ courts, Court Martials, Tribunals, District Magistrate Courts Classes (1st Class, 2nd Class and 3rd Class).
It is important to know which court one would file his or her claim. This depends on the jurisdiction of the court, nature of the case, geographical location and other factors. It is important to note that one starts at a lower court, for instance the High Court or a District Magistrate Court and not straight away in the Court of Appeal. However, one may appeal to a higher court if one is not satisfied with the decision of the lower court. Unfortunately, this space is not enough to elaborate on our court structure and jurisdiction.
Procedure in our courts
Supposing you are employed at a factory and the machines grind your finger and you end up losing it, where do you go from there? This will be a civil case. In law, you will be known as a plaintiff and you will move to the courts for compensation so that you are awarded damages. Your employer will be the defendant. You will institute proceedings by presenting a plaint to the court. You may decide to do it on your own but it is advisable that you instruct an advocate to represent you in court. If you cannot afford the services of an advocate, a number of organisations such as Kituo cha Sheria may help you. There are pro bono schemes (volunteer free legal advice or representation by advocates) that you may benefit from such the annual Legal Awareness Week organised by the Law Society of Kenya and the Judiciary.
What if someone breaks into your house at night and goes away with your newly-bought television set? In law, this is termed as burglary. If it happens during the day (not between 6.30 p.m. and 6.30 a.m.), then it is called housebreaking. So what do you do? Unlike a civil case like the one we have discussed previously, this is a criminal case and the State will normally conduct prosecution unless you wish to conduct a private prosecution (where the citizen conducts prosecution and not the State). Your role will be to lodge a complaint at the police station and this will be entered into the Occurrence Book. You will also give your version of what happened. A police officer will prepare a charge sheet that will contain a statement of the offence(s) and particulars of the offence(s). And you will appear in court in the criminal trial while the accused person would also be brought before court to hear the complaint and make a plea. Where the accused pleads not guilty, the trial of the case will begin. The language of the proceedings may be in English or Kiswahili, although an interpreter may be utilized where necessary.
Apart from the judiciary, one may utilize the office of the Ombudsman or the Commission on Administrative Justice. Generally, in a case of abuses of power, unfair treatment or maladministration, one may lodge a complaint before the Commission.
The judiciary is the arbiter of the grievances one may have. Despite the challenge of case backlog, it remains a good forum to resolve problems. Chief Justice Hon. David Maraga pledges “enhanced service delivery by the Judiciary” in the Strategic Blueprint.
*Mr. Salem Lorot is an Advocate of the High Court of Kenya and a Legal Counsel at the National Assembly of Kenya.