KENYA: An Introduction
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2021 Dispute Resolution Country Profile: Kenya
Current Economic Conditions Affecting Clients or the Legal Profession
The legal profession is one that is critical to the operation of all other economic sectors. This is due to the nature of services offered by lawyers, which range from transactional work to dispute resolution. It therefore follows that when other areas of business are affected by economic conditions, either positively or negatively, it trickles down to the legal sector. 2020-2021 has been a difficult year for Kenya with the COVID-19 pandemic, which negatively affected most businesses but less so for others such as those in the telecommunications industry. It nonetheless goes without saying that with reduced spending power, the economy in general is likely to suffer adversely. According to the World Bank Press Release No: 2021/189/AFR there is a lot of hope for recovery of the Kenyan economy, however a lot depends on the speed of vaccination and the initiatives to combat the virus. Despite these efforts, there continues to be a level of uncertainty due to the mutating nature of the COVID-19 virus and the emergence of new variants.
Trends, Activities and Legislation
With the realization that the pandemic was going to be here for a while, came the need to revolutionize the dispute resolution practice to adjust to what is now being referred to as “the new normal.” This led to expedited completion of the e-filing platform, which now allows litigants to file their pleadings and evidence via an online portal. This was complemented by the introduction of virtual courts that made it possible for matters to proceed without the parties necessarily being physically present in court. These are welcome adjustments to the dispute resolution practice even for the long term as they allow flexibility, reduced use of paper and optimum use of technology. These developments have not come without challenges. Some of the matters involve voluminous documents that sometimes make it cumbersome to upload or even circulate. The e-filing platform also faced a lot of piloting challenges, although as time has progressed these have been addressed and the process continues to improve. The digitization of the services being offered by the judiciary has meant that there has had to be investment in technological resources by the judiciary, counsel, and litigants. This is a great step towards embracing technology in the services being offered to the Kenyan people by the judiciary.
The pandemic season did not stop the legislative drive that would ensure better regulation of the dispute resolution practice areas in Kenya. Most of these bills are still pending in parliament and although they are yet to be passed into law, they reflect what the future of the legal framework looks like. The first of these is the Alternative Dispute Resolution (ADR) Bill which is one of the laws seeking to operationalize Article 159(2) (c) of the Constitution. This bill seeks to codify the use of ADR mechanisms not just for disputes at the horizontal level but for disputes involving both levels of government and state organs as well. This bill, if and when passed, shall not be applicable to disputes whose dispute resolution forums are already provided for such as those arising out of elections, the bill of rights, constitutional interpretation, environmental or occupational health and safety, public interest claims or arbitration.
Closely related to the ADR bill is the Mediation Bill which seeks to regulate the practice of mediation in Kenya. This bill seeks to establish a mediation committee that will facilitate resolution of disputes through mediation. It further puts in place the mechanisms for accreditation of mediators as well as recognition and enforcement of settlement agreements. One notable aspect in this bill that has attracted a lot of comments during the public participation exercises is it states in mandatory terms that advocates shall advise their clients to consider mediation before initiating any judicial proceedings.
In increasing the avenues for Kenyans to access justice, the judiciary operationalized the Small Claims Act, 2016, by establishing a small claims court in April 2021. This court has a pecuniary jurisdiction not exceeding Kshs.1,000,000/- and is designed to facilitate justice for the ordinary low to middle income Kenyan. These courts have affordable filing fees, expediency, flexibility in the language used, and flexibility in how the court is generally conducted; they can, for instance, employ ADR. There are certain limitations to the kind of disputes that the small claims courts can handle. These courts are excluded from handling defamation matters, malicious prosecution claims, land disputes, and labour disputes.
On 30th March 2021, President Uhuru Kenyatta assented to the Employment (Amendment) Bill of 2019 which now entitles employees to one-month pre-adoptive leave. This is a great development that aligns Kenya with global trends and international best practices.
Potential hurdles or difficulties faced by clients and how these can be overcome
One of the difficulties that is expected to be experienced by clients as well as lawyers in addition to the crippling effects of the pandemic is the political season. Kenya is set to hold its general election in August 2022. 2021 already saw one of the most highly publicised petition and appeals that challenged a bill seeking to amend the Constitution being dismissed both at the High Court and at the Court of Appeal. These are Nairobi High Court Constitutional Petition No. 282 of 2020 and Civil Appeals No. 292, 293 and 294 of 2021 respectively. The proposed amendments were found to be in violation of the basic structure doctrine which is applicable in Kenya. This position was affirmed by the Court of Appeal. In as much as these matters had legal issues, they originated from political processes and the politics kept creeping up in the discussion. Election years in Kenya have always been quite eventful with some industries such as advertising thriving and others, especially those that require foreign investment, slowing down with the investors preferring to wait the elections out.