19 October 2021 by , and Dispute Resolution

The future of litigation in Kenya: Virtual or hybrid?

The reporting of the first COVID-19 case in Kenya in March 2020 completely disrupted businesses and people’s interactions. Most sectors of the economy were affected by the pandemic, including the judiciary. In a bid to curb the spread of the pandemic, the Kenyan Government issued various directives to contain people’s movements and interactions in all parts of the country. On or about 30 March 2020, the now retired Hon. Chief Justice David Maraga ordered the closure of all courts in the country for 14 days to minimise the spread of pandemic within court precincts. This meant that litigants and the public could not access courts, threatening the constitutional right to a fair trial and access to justice.  

Article 48 of the Constitution of Kenya, 2010 guarantees that all persons have the right to access justice and that nothing shall impede this right. The total inaccessibility of the law courts threatened this right, prompting the judiciary to come up with measures to facilitate access to justice by Kenyans despite the restrictions on movement of persons.

Like everyone else, the judiciary had to embrace technology and move to providing its services virtually. The timely rolling out of the online e-filing platform in the Milimani Commercial Courts in Nairobi proved to be a reprieve for litigants who could now file court documents online. This eliminated the infamous congestion common in the registries and helped to curb the further spread of COVID-19. Further, the Civil Procedure (Amendment) Rules, 2020 came into force, which now allow for the servicing of documents electronically, even by means of WhatsApp. As such, the online filing and service of documents has since proved to be cost effective as it saves time and resources that would otherwise be used when doing it physically.

Virtual court appearances

In addition to the e-filing system, the judiciary embraced “online court” or virtual litigation where parties to a suit appear in court virtually. The virtual court has revolutionised the delivery of justice to parties and continued to safeguard the right to access to justice. Microsoft Teams is the most commonly used platform for online court proceedings. Anyone who wants to access court must do so using a virtual court link from the Kenya Law website www.kenyalaw.org. To access court, one must have access to a smart phone or computer, together with a reliable and stable source of internet.

The advantages of virtual court proceedings are immense. For one, parties no longer have to travel to court for matters as they can access court from anywhere, reducing the overall cost of accessing justice. Further, virtual court saves on time and offers great convenience to litigants who can focus on other tasks as they wait for their matters to proceed online. The benefits of virtual court proceedings have not been lost on the bench either as they now enjoy minimal interruptions from parties and retain greater control of court proceedings. Most importantly, virtual courts have greatly minimised the spread of COVID-19 within court premises which has helped the Government’s efforts to control the virus. All in all, the flexibility, safety, and cost effectiveness of virtual litigation have made it preferable to traditional litigation in physical courts for many litigants.

Right to a fair hearing

Despite these immense benefits, some litigants have argued that virtual court proceedings are not appropriate for hearing cases. In both civil and criminal cases, hearing is a critical stage where a litigant calls witnesses to testify in support of their case. Ideally, during a hearing only one witness should be present at a time in court to give their testimony. This guarantees the veracity and integrity of the testimony and weeds out any attempt of evidential collusion. The exclusion of other witnesses from virtual court proceedings during a hearing may not be guaranteed. On this basis, virtual court proceedings may well be seen to threaten Article 50 of the Constitution, which guarantees the right to a fair hearing.

Another key component of the right to fair hearing is the right to challenge evidence by facing and cross-examining witnesses. Some have argued that this right is severely limited when hearings are conducted virtually as the parties are not able to physically see one another. Additionally, it is hard for the court to read witnesses’ body language during a virtual hearing which means that a judge or magistrate may not be able to assess a witness’ demeanour to determine their credibility. Therefore, although virtual courts are designed to promote access to justice they may as well infringe on the right to a fair hearing.

Internet access

Access to the internet is also a major challenge that threatens the access to virtual courts and therefore the right to a fair hearing. Not all Kenyans have access to internet, which is aggravated by the unequal distribution of access to electricity, especially in rural areas. With such a significant number of the population possibly outside the loop, it is paramount to consider the impact that this has to the right to access justice.

Clearly, both physical and virtual court proceedings have advantages and disadvantages. Although virtual proceedings are flexible and cost effective, not all litigants and courts across the country are equipped to go fully virtual. Some remote court stations still do not have good access to internet and electricity which are essential for virtual hearings.

In March 2020, Chief Justice, David Maraga, issued online court practice directions for the protection of all court users in the subordinate and high courts in Kenya. These practice directions encouraged the use of virtual proceedings by courts to dispose of matters filed before them. Virtual court proceedings have now been with us for almost two years, demonstrating that online court is possibly the future of litigation and the same ought to be embraced. It is therefore essential for the Kenyan judiciary to continue to make use of virtual court proceedings, even after the pandemic, with the option of physical court for those who would prefer it. The hybrid system would ultimately promote the aim and purpose of Articles 48 and 50 of the Constitution of Kenya.

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