The Kenyan court system is anchored in common law, which is characterized by paper-based procedures and physical court appearances. The disruptions caused by the COVID-19 pandemic have shaken the very foundation of the system, forcing the judiciary to come up with measures to mitigate the effects and assure litigants of their right to a fair trial and access to courts.

Some of the measures taken by the Kenyan judiciary include adopting a virtual court and a paperless court case management system. The system, adopted on July 1, 2020, is still in its infancy and has attracted both praise and criticism in equal measure from court users. This article addresses the benefits and challenges experienced by litigants using the court case management system.

Key features

The electronic court case management system supports electronic filing of documents, electronic service, electronic search of cases, electronic payment and receipting and electronic request for extraction of orders. The system has two interfaces: the user interface which is accessible to litigants, and the court interface accessible to judicial officers.

The portal allows for registration of law firms, organizations, self-represented parties, and the state. Once registered, all entities are able to file and serve documents via the portal. The system allows for registration and filing of documents on both existing and new matters. Once these documents are fed to the system, the user is then prompted to input details of the case. A payment prompt appears once documents are uploaded which a party will be required to pay via a mobile money platform.

Upon effective filing of documents, parties have a choice to either serve their documents through the portal, or choose to effect service via email. Service via email is now allowed in Kenyan courts subject to the Civil Procedure (Amendment) Rules, 2020.¹

Legislative framework governing the electronic case management system in Kenya

Before the launch of the system, the Chief Justice gazetted the Civil Procedure (Amendment) Rules 2020 and the Practice Directions on Electronic Case Management. The Amendment to the Civil Procedure Rules mandates parties to provide their postal address, telephone number, email, and physical address when filing their pleadings in court. Further, should any changes be proposed to these details, the court must be notified.² This provision aims to facilitate the proper function of the electronic case management system to avoid instances of parties citing service to the wrong contacts.

The Practice Directions on Electronic Case Management published through Gazette Notice No. 2357 of 2020 provide a comprehensive framework for the functioning of the judiciary e-filing system.

Advantages of the system

Through Gazette Notice No. 2357 of 2020, the Chief Justice indicated that the main objective of the system is to integrate information communication technology (ICT) into judicial proceedings. The emphasis, according to the Chief Justice, is on efficient electronic filing and service of documents. The system has transformed litigation by providing digital services for filing, serving documents and requesting court orders.

From a litigator’s perspective, the system saves time and resources that would have otherwise been used in filing and serving physical documents. The system has automated the filing and serving process entirely except for the Supreme Court of Kenya, where parties are still required to file and serve physical copies. Travelling time and costs associated with service and filing of documents have also been eliminated.

The system also acts as a link between advocates and the court, making virtual proceedings a reality. In essence, without the system it would have been an uphill task for the courts to effectively implement virtual hearings. It would have been contradictory to conduct proceedings online when parties have to travel to the court to file documents and also serve the documents physically. This would have defeated the purpose of the implementation of the online proceedings to give parties the right to access courts, and to comply with the government restrictions on COVID-19.

From the court’s perspective, the system makes it easier for judges and judicial officers to access court files. Once parties have filed their documents, the system generates a complete copy of the court file. Any documents filed in future will be automatically linked to the file on the system. The system also provides prompts and updates for judicial officers as to when a matter is coming up for a mention or hearing. Judicial officers are therefore able to keep an online diary of their matters with relative ease.

E-payments for filing of documents is another advantage as it promotes accountability. The system effectively minimizes fraud and corruption. With the manual payment and receipting system, the payments received through filing of documents and payment of fines was at risk from parties engaging in corruption and fraud, denying the government revenue. The online system keeps track of all payments and digital receipts are generated for all payments. This ensures a high level of accountability within the judiciary.

Lastly, the system has eased the transmission of judgments and rulings. Once parties have consented to a judgment being delivered via email, the courts proceed on that basis. It therefore saves the courts time that would have otherwise been lost in physical reading of judgments in open court.

Challenges

Despite the benefits of the electronic system, stakeholders have experienced challenges. These challenges are not related to the system itself; they are mainly infrastructural or technical in nature. The challenges arise from the lack of access to proper computers, inadequate training, and poor internet connectivity.

Fast internet is unevenly distributed in Kenya. This poses a challenge for users in accessing the electronic court system. The large number of users creates a lot of traffic on the portal. The problem is compounded for litigants in small towns in rural parts of Kenya where fast internet is largely inaccessible.

The basis for usage of any digital platform is the availability of effective infrastructure – both hardware and software. Effective use of the electronic case management system is also dependent on users’ access to compatible computers. This is an extra cost for some court users, especially young lawyers and self-represented parties who have already been adversely affected by COVID-19. With the government encouraging employees to embrace working from home, legal teams (including secretaries and clerks) now require laptops to fulfil their roles effectively.

The unstable electric supply is another hindrance for the effective functioning of the system. Unfortunately, in most towns, consistent power supply is a major challenge. This is either on account of some areas not being connected to the grid or simply on account of frequent power cuts. The lack of a stable internet connection also means that the parties cannot correctly file their documents, resulting in late filing and service of documents.

Lastly, the implementation of the system is proving difficult in criminal litigation. Accused persons on remand pending the outcome of their decisions have no access to computers and other facilities for virtual hearings. Even if the parties had access to computers, virtual hearings for criminal matters would be difficult as courts need to analyze and examine the character of the accused person, which may not be possible on the online platform.

Lessons from the Kenyan experience

The electronic case management system in Kenya is a great tool. It has ensured that courts continue to function during government restrictions on movement and gatherings as a way of preventing the spread of COVID-19. The system has, however, faced challenges that come with use of technology. Recognizing the pitfalls of technology, the Chief Justice has provided for the use of alternative technology, including approval for manual filing of documents whenever the system collapses: “if for any reason a court cannot access any form of electronic media, the presiding judge or judicial officer may approve the use of an alternative technology or approve manual filing of any document.”³ Since the judiciary is determined to make the system work, courts are only required to allow a party to file a document in person where an oral application is made before the court seeking permission to proceed.

The efficient use of the system also depends on parliament passing laws that effectively govern digital signatures. The system only allows filing of soft copy documents or scanned documents. This raises a challenge in regards to signatures. In jurisdictions where there are no laws allowing for digital signatures, it may be hard to implement the system. In Kenya however, through the passage of the Business Laws (Amendment) Act, 2020, the country has a framework governing digital signatures.⁴ The Kenya Information and Communications Act Cap 411A also enhances the provision on digital signatures provided for in various statutes.⁵ Further, through the practice directions on the use of electronic case management system, the Chief Justice allowed for the use of digital signatures.⁶ Non-electronic signatures are only used in instances where a document is scanned. The directions also provide that any person disputing a digital signature must raise an objection to the court within 30 days. Rules regulating digital signatures are therefore a prerequisite for the effective implementation of the system.

To prevent system failures, a proper backup system is also required. In Kenya, the Practice Directions governing electronic court system provide as follows: “the Judiciary shall maintain a backup system for the system that shall be located and maintained in the place as the Chief Justice, in consultation with the Judicial Service Commission shall determine.”⁷

In addition, an ICT desk for every court station is a prerequisite for the smooth running of the system. The ICT desk is responsible of the management of the system, ensuring that documents are filed properly. The Chief Justice made it mandatory for every court to establish an ICT-enabled office to help with e-filing or appoint accredited e-filing agents to provide such services.⁸

Finally, local bar associations play a key role in ensuring people accept and get used to using the system. The Law Society of Kenya (LSK) plays a significant role in communicating the concerns and difficulties experienced by members of the bar in their interaction with the system. The bar association further proposes initiatives for improvement of the system, and the LSK also organizes much-needed training for members in conjunction with Judiciary representatives.

By Gilbert Juma, Associate, DLA Piper Kenya (IKM Advocates)