CMS Expert Guide to Digital Litigation in Kenya

Before the COVID-19 pandemic, court appearances were physical and parties had to file paper documents at the court registry. The litigants would manually submit documents at the registry – themselves or through their appointed advocates, have a registry official assess the applicable court filing fees and thereafter pay these fees through the bank. It is upon payment of the assessed fees that the pleadings or court papers would be stamped as received by the court.

However, with the onset of the COVID-19 pandemic, physical court appearances were largely restricted, with the effect that litigants could not gain access to the physical court due to the nationwide restrictions on gatherings. There was a general disruption regarding physical court attendances and the physical filing of documents. This prompted the Kenyan Judiciary to implement and adopt virtual court appearances and the e-filing of documents and pleadings although this was more fast tracking since the Judiciary was, at the time, running a pilot project on the digitisation of the court but limited to recording representations made by advocates in court.

The Courts started to embrace technological alternatives by first accepting the assessment and filing of documents through designated registry or court emails. This resulted in the amendment of the Civil Procedure Rules [2010] by incorporating Order 5 Rules 22B and 22C, which allowed parties to file and serve documents on email and via mobile applications such as Whatsapp. The then Chief Justice, the Hon. David K. Maraga, also gazetted the document Practice Directions for the Protection of Judges, Judicial Officers, Judiciary Staff, Other Court Users and the General Public from the Risks Associated with the Global Corona Virus Pandemic, vide Gazette Notice No. 3137 – accessible at http://kenyalaw.org/kl/index.php?id=10310. These directions published on 20 March 2020 allowed the use of appropriate technology in the dispensation of justice at the High Court and Subordinate Courts. The then President of the Court of Appeal, Justice William Ouko, also published the Practice Notes for the Conduct of Court Business During the Global Coronavirus Pandemic on 21 April 2020 – accessible at http://kenyalaw.org/kl/index.php?id=10327. These notes provided the manner in which proceedings before the appellate court would be conducted during the pandemic.

In July 2020, about five months after COVID-19 first hit our shores, the judiciary launched the electronic filing system (i.e. e-filing). This system allows law firms and individuals to set up their accounts using unique log-in details and upload pleadings or documents on behalf of their clients or on their own behalf. Once the intended pleadings or documents are uploaded, the e-filing system assesses the filings costs and produces an invoice. The invoice incorporates various methods of payments such as M-Pesa, a mobile payment platform, as well as debit card payments. Once the payments have been made, the system generates a receipt and the same is easily downloaded as evidence of filing.

Court appearances are also digitalised with most courts utilising the Microsoft Teams application. Court links are generated periodically and litigants are predominantly attending court virtually. In certain rare instances, the courts also make use of Zoom and Google Meet platforms as an alternative to Microsoft Teams. Depending on the nature of a case and the evidence to be adduced, some judges and magistrates prefer that parties appear before them physically. This is especially the case for trial hearings where in certain circumstances, the court may want to assess the demeanor of the various witness or the Judge may want to be referred to certain bulky or original documents in court such as cadastral maps, deeds of ownership of land, etc. During physical appearances, some courts still insist on maintaining social distance, wearing masks, etc.

It is the litigants and advocates responsibility, when attending virtual court, to ensure that they have a good internet connection and to avoid other connected disruptions. Witness are also required to keep their cameras on when giving testimony, avoid instances of witness coaching, etc.

The digital and technical measures available to litigation are as prescribed in Practice Directions for the Conduct of Court Business during the Global Coronavirus Pandemic dated 21 April 2020 for the Court of Appeal and the Practice Directions for the Protection of Judges, Judicial Officers, Judiciary Staff, Other Court Users and the General Public from the Risks Associated with the Global Corona Virus Pandemic – links provided above.

Advocates and court users are required to appear virtually through the Microsoft Teams platform, and utilise technology such as high-resolution cameras and microphones when addressing the court. The virtual court sessions are also recorded for purposes of keeping a record of the proceedings. Litigants are expected to retain good internet connectivity throughout the court proceedings.

The filing of pleadings has also been automated. Parties are required to upload their pleadings and documents on the e-filing system and pay the requisite filing fees and obtain a receipt as evidence of payment. The e-filing system is presently accessible in major courts only, such as the courts in Nairobi and Mombasa. For the other satellite court stations, parties are filing their documents via email.

The Kenya courts continually use the video conferencing platform on a daily basis to conduct court proceedings and hear various matters. The courts also continually use the electronic e-filing system in-order to retrieve the various pleadings filed by advocates and the documents they wish to rely on in their respective matters.

The use of both the Electronic Filing System (i.e. e-filing) and Video Conferencing Court proceedings (i.e. Virtual Court) is mandatory for counsel, advocates and the parties in various parts of the country. A location’s accessibility to the internet is critical for using the technological platforms available and in places where internet coverage is limited, court users are usually availed facilities in court buildings, which will have internet coverage (through perhaps 'hot spots').

The courts primarily conduct court proceedings on the virtual platforms. Only in rare instances, such as upon request of the parties, counsel or due to the court’s own preference, does the court conduct a physical session. For instance, counsel may request a physical hearing. However, the court may not grant such a request unless justified.

The electronic filing of pleadings, submissions and various documents is mandatory in Nairobi and Mombasa Court stations. The court will, as circumstances dictate, allow parties to file documents physically at the court registry if they are too bulky or in rare instances when the e-filing portal is undergoing maintenance. 

To a great extent, the Kenyan judicial system has digitalised its litigation process. The majority of the functions of the court have fully migrated to the digital sphere.

However, there are some aspects that still require digitalisation, such as in the following instances:

1. There is need to have a system that transcribes court proceedings (e.g. the counsel’s oral submissions in court, the court’s directions, etc.) so that the judge is not required to prepare handwritten proceedings in court. The virtual appearances are recorded as an attendant consequence to the using of Microsoft Teams, Zoom, etc. but there is a need for the oral representations to be reduced in writing 
2. A reliable system, which sends automatic updates, prompts or reminders to counsels and court users to inform them of when their matters will next be before the court. This will reduce the number of adjournments in court as counsels and parties will be fully aware of when next their matters will be before the court. The e-filing system as it presently is does have this option, but its functionalities are still being advanced.

The use of technology in litigation and the general court process is regulated by a raft of specific statutes and rules, which permit for the Hon. Chief Justice to issue practice directions that ensure effective access to justice including automation of court records and the general use of information technology in pursuance of justice. These laws and rules include:

Sections 1A, 1B and 81 (3) of the Civil Procedure Act, Section 10 of the Judicature Act, Sections 29 and 38 of the Court of Appeal (Organisation and Administration) Act, 2015, Section 5 of the Judicial Service Act, 2011, Sections 13 and 16 of the High Court (Organisation and Administration) Act, 2015, Section 24 of the Environment and Land Court Act, 2011, Section 27 of the Employment and Labour Relations Act, 2011, Section 14 of the Magistrates Court Act, 2015, and Rule 51 of the Supreme Court Rules, 2011.

The present Chief Justice, the Hon. Lady Justice Martha Koome, published the Practice Directions to Standardise Practice and Procedures in the High Court on 11 January 2022, accessible at: http://kenyalaw.org/kl/index.php?id=11536, which regulates the manner in which technology is to be utilised in litigation at the High Court.

The transcribing of oral proceedings is a project that had commenced at the High Court of Kenya, in Nairobi and specifically in the Commercial and Admiralty Division. This was before COVID-19. The judiciary is looking to adopt this practice.

There are no specific rules that govern the use of AI in litigation in Kenya. We have not come across instances of litigants using AI tools to prepare pleadings or court papers.

Kenya has enacted the Data Protection Act, 2019. This act regulates who holds data and the extent to which they can deal with that data. Where data handlers breach their duty of privacy or deal in data in a way contrary to the law, the Act provides certain sanctions against such data handlers including fines and imprisonment.

It is noteworthy, however, that disclosures required by or under any written law, such as during court proceedings, are exempted from the strictures of the Data Protection Act and amount to lawful processing of data. 

The use of digital tools in litigation and general court process has led to new business risks. Given that the documents or pleadings are uploaded on the e-filing system, back-end users can access confidential information such as pleadings or documents filed on the e-filing system that have yet to be assessed or paid for, and therefore not yet filed. This information can possibly be sold to third parties, including potential defendants in a civil litigation.   

The central aim of the Kenyan judicial system has been to improve accessibility of legal services within the jurisdiction. Now that courts have migrated to the virtual space, they have liaised with various Internet service providers to increase and expand internet connectivity both in urban and rural areas.

That courts in remote areas in Kenya will gradually have access to more effective expeditious access to justice through virtual court as internet services are being expanded to such areas.