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Impact of Covid-19 on Court Processes

The National Council for the Administration of Justice (“NCAJ”) on 15 March, 2020 published an Administrative and Contingency Management Plan (“the Plan”) to mitigate COVID-19 (“Coronavirus”) in the Kenyan Justice sector. This was followed by the gazettement of the Electronic Case Management Practice Directions, 2020 (“the new Electronic Practice Directions”) on 20 March, 2020 which seeks to fundamentally change litigation practice in Kenya.
 
The current position
The Judiciary is using Electronic Practice Directions to accept court filings that are urgent and warrant consideration at this time when the judicial officers have been asked to work from home.
 
Urgent matters and the Statute of Limitation
The Judiciary is operating and receiving e-filings for cases that are urgent and those that may lapse on account of time limitations provided in the Limitation of Actions Act.
In order to succeed in filing this case, the threshold for injunction orders remains the same but it can be anticipated that the courts, in considering these applications will also consider the impact of COVID-19 on a counterparty’s business operations/interests.
In merited cases, parties may succeed in securing injunctive orders but in those that are borderline and purely monetary, we the courts may not be persuaded that there is urgency.
 
e-Filing
All documents being filed are in PDF and sent to email addresses that have been provided to facilitate the assessment of the documents for payment of court fees.
Once the documents are assessed, the court emails the advocate informing them of the sum due to be paid, providing an Mpesa paybill, and account number generated by the courts.
On payment, the documents are forwarded to the Duty Judge or Magistrate for the determination of the case and orders/directions are emailed to the advocate.
In some instances, there will be telephonic conversation between the Judge/Magistrate and the advocate on the application to explain the urgency before orders are issued.
 
e-Service
 The documents can be served, with the order obtained electronically by virtue of the Civil Procedure (Amendment) Rules, 2020 (the “Amendment Rules”), gazetted on 26 February 2020, which allows for electronic service of court documents using known email addresses.
 
Post COVID -19
 It is foreseeable that e-filings will become the norm after containment of COVID–19. The shift will likely lead to greater efficiency within the judicial system reducing the duration taken to resolve cases.
 
Conclusion
Although there are glitches in the use of the e-filing, and there may be questions as to the integrity and transparency of the system, it is undeniable that it is opening a new way of delivering justice.
                                                                                                                   
This article serves the purpose of general guidance and does not constitute legal advice. For further legal advice with respect to this series, please contact:
George Muchiri (Partner): [email protected]