Following the announcement of the first confirmed COVID-19 case in Kenya on 13^th March 2020, the National Council on the Administration of Justice (NCAJ) promptly issued directions scaling down the operations of Courts countrywide aimed at finding a balance between keeping the wheels of justice turning whilst safeguarding the health of both the judicial staff and the general public in the face of the prevailing pandemic. The general effect of the directions which have been amended from time to time has been a significant slowdown of litigation practice. Whereas the past month of litigation practice has been challenging, our firm has been able to navigate these unchartered waters and we take this opportunity to share some of our experiences in the litigation circles.

The initial directives from NCAJ on 15^th March 2020 saw massive scaling down of Court activities throughout the country for two weeks effective 16^th March 2020. During this period, all appeals, hearings, mentions and execution proceedings in criminal and civil cases in all Courts were suspended. The only filings accepted at the Court registries were those under certificate of urgency and time bound pleadings. With time, further directions were given on the electronic filing (e-filing) of pleadings.

Our first encounter with e-filing was in the Court of Appeal where we filed a Notice of Appeal and a letter to the Deputy Registrar bespeaking typed proceedings from the lower Court. The process entailed preparing the documents in the usual manner and thereafter scanning and sending the documents to an email address provided by the Judiciary. In this instance we were advised to send the documents to [email protected]. After sending the scanned documents to the said email, we received an email confirming the assessed filing fees and proceeded to pay the amount through the M-Pesa Pay Bill Number provided by the Court registry. Upon confirmation of payment, a physical receipt was generated for collection by our clerk. During this period the process still necessitated attendance to the Court registry.

Subsequently, there was further scaling down of operations at the Court registries with absolutely no physical attendance at the Court registries. Contact details for the various Divisions and Court stations around the country were circulated for communication with the relevant Deputy Registrars for directions on e-filing. It was directed that all documents should be scanned and sent to the appropriate email addresses of the Deputy Registrars and Executive Officers (as the case may be) and once that was  done, the court would then advise on the mode of payment and how proof of payment would be communicated. During this period, we were able to file applications under certificate of urgency and time bound pleadings in the various Courts including the Court of Appeal where we filed an application for stay of execution.

We further had an interesting experience of participating in a hearing at the Chief Magistrate’s Court. The Plaintiff served us through email with an application under certificate of urgency together with the extracted orders relating to a contentious burial dispute. Upon receipt of the documents we drafted a notice entering appearance and response on behalf of our client (through scanning and sending the documents to the Court’s email address) and served the same upon the other parties via email. It was necessary to have each document clearly identified in capital letters and scanned separately. Upon receipt of the documents, the Court registry assessed the documents before sending out the amount of filing fees to be paid. We then paid the amount advised via an M-Pesa Pay Bill Number after which the confirmation message was sent. Once it was confirmed that payment had been received, the documents were processed and sent to the litigants. On the hearing date, we sought clarification on whether the hearing would be in open Court or via video-link. We were informed that due to the limited electronic resources available to the Chief Magistrate’s Court, the hearing of the application would be in open Court but with strict observance of the directives issued by the Government.

The Court session began with all parties being ushered into the Court room by the Court assistant who ensured that each Counsel and respective clients had worn protective masks and had either sanitized their hands or had latex gloves on. After this brief inspection, the Court assistant pointed everyone to their sitting positions and allocated everyone a spot at least one (1) meter apart from each other. Advocates were allocated the front benches while clients were allocated the rear benches. The general public was not allowed to sit in during the Court session. The Court room selected was spacious and with very good ventilation.

Once everyone was seated, the Court assistant informed the Magistrate who came in duly masked and gloved. In the course of the hearing, confirmation of e-filing and e-service was done by confirming the same from a laptop availed to the Magistrate and the Court assistant. The litigants had physical copies of the documents which had been availed to the Magistrate, who referred to the documents as the litigants followed proceedings.

The advocates observed at least one (1) meter’s distance while delivering their oral arguments. Whilst addressing Court, each advocate kept his mask on despite it muffling out the sound which made it difficult to hear what one was saying. After the conclusion of the hearing, order was observed as parties made their way out of the Court room. Parties were thereafter ushered out of the Court precinct to avoid crowding. Although the Ruling was promptly prepared and sent via email, parties still insisted on appearing in Court for the delivery of the Ruling, during which the same ‘rules’ were observed.

Whereas there have been Rulings and Judgment delivered via email and hearings conducted via Zoom, the Judiciary is still trying to put in place further measures to provide services using technology, however the process should be complementary between the Judiciary, advocates and litigants, so as not to leave out any stakeholders. We have also noted most of the e-filings and hearings via video-link have been largely in Nairobi and there is room for expansion to other stations.

NCAJ has recently issued the latest update vide a communique of 16^th April 2020 which will see Court operations upscaled effective 21^st April 2020. Some of the implications of these latest resolutions will see operations and services in all Court registries upscaled and are therefore set to be accessible to Court users but in a manner that is in compliance with the guidelines of the Ministry of Health on combating COVID-19. With respect to civil matters, hearings will be upscaled with effect from 22^nd April 2020 and guidelines on how the hearings and appeals are to be conducted will be put in place in accordance with the guidelines of the Ministry of Health. This is a clear indication that going forward, parties will be able to institute Court proceedings and progress pending cases, even in instances where there is no urgency, with effect from 22^nd April 2020. Further guidelines on how matters which were taken out between 16^th March 2020 and 22^nd April 2020, will be dealt with are to be put in place by the respective Heads of Divisions and various Court stations.

It is expected that going forward, all pending Judgments and Rulings will now be delivered in open Court upon notice to the parties as opposed to the electronic delivery via email or video-link as was previously the case. This indicates that there is likely to be controlled Court appearance by litigants and/or their advocates. Further, orders will now be extracted by the Court registries and released to the litigants or their advocates within twenty-four (24) hours of their making. The suspension of execution of civil orders, decrees and eviction orders made before 16^th March 2020, remains in force until 22^nd April 2020.

We will keep you updated on any developments with respect to the implementation of the latest directives issued by the NCAJ.

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This alert is for informational purposes only and should not be taken as or construed to be legal advice.

If you have any queries or need clarifications, please do not hesitate to contact Georgina Ogalo-Omondi ([email protected]), Daniel Okoth ([email protected]), Meshack Kwaka ([email protected]), Quinter Okuta ([email protected]) or your usual contact at our firm, for legal advice relating to the COVID-19 pandemic and how the same might affect you.