Justice delayed

Besides the outdated Companies Act that has not kept pace with the changing business environment, the huge backlog that hinder speedy dispensation of commercial disputes is a major concern to the business community.

This was the verdict by the majority of Kenyans interviewed during the African Peer Review Mechanism (APRM) exercise as contained in the yet to be released Self-Assessment Report. It was part of a fact-finding mission on Kenya's standing on corporate governance. With APRM Country Review Team led by Graca Machel set to visit the country from October 3-15, most Kenyans— despite last year's purge in the judiciary— cited the huge backlog in hearing cases and rampant corruption as some of the factors leading to the inefficiency and high costs.

For instance, Nairobi's Milimani Commercial Courts, has only four presiding judges compared to hundreds of litigants. Similarly, Kenyans noted that some of the laws governing corporate behaviour in the country are outdated and inadequate for current business practices. An example are the laws governing insolvency and bankruptcy, which are ineffective and insensitive to unsecured creditor rights and fail to maintain investor confidence.

Judiciary spokesman, Dola Indidis, conceded that the backlog in the commercial courts is still a problem but enumerated various changes in the commercial courts that will improve the delivery of justice and address these concerns. "We are not saying that we are going to address all the problems at once, but at least we are in the process of addressing key problems. However, we still face the problem of frivolous adjournment by either parties or advocates who don't want the cases to be dispensed with speedily," said Mr Indidis.

He is, however, confident that the recent circular by the chief justice, Evan Gicheru, for judges to deliver their judgement within 45 days after conclusion of the hearing, will help ease the backlog. Also optimistic, was the assistant minister for justice and constitutional affairs, Robinson Githae, who argued that the delay of the previous years has gone down.

"While before you could be lucky to have your civil suit heard within five years, it has now come down to between two to three years. This is, however, still a long time and our vision is for civil cases to take a maximum of one year," Said Mr Githae, who revealed that magistrates and judges have been instructed to file daily returns to the chief justice in regards to newly filed cases, finalised cases, and pending cases.

Mr Githae further said that all the private lawyers have been put on notice that no adjournment will be granted on the account that the lawyer is committed in a another case, the same state counsels that used to be given preferential treatment by the courts, are now going to be treated the same as private lawyers.

"Government bureaucracy is no longer and issue and if you are not going to turn up, the case will be dismissed. It is from that approach that we have seen the state lose a number of cases recently on account of failure by state counsels," he said. Among other measures in the pipeline are; plans to establish commercial divisions in all the major towns to decentralise commercial cases from Nairobi. Mombasa is already on and Kisumu on the way.

Other measures include the establishment of mobile courts, as well as the establishment of alternative dispute resolution mechanism within the court system to deal with simple matters that don't need elaborate procedure. However, both Mr Githae and Mr Indidis conceded that the backlog is mainly as a result of the manual system of recording judicial proceedings, and the registry that urgently needs to be computerised.

Uganda is the only country within the East African Community that has fully automated its judicial system. At the launch of the Ksh 8 million computerisation pilot programme in June, the government expressed confidence that it will help speed up business-related cases which would in turn instill confidence in investors to do business in Kenya and help the economy grow.

Funded through grant by Norway through the World Bank, the yet to be completed project seems to have escaped those Kenyans who gave their views in the self-assessment exercise. "Once the system starts working, judges will be sitting back and listening to the evidence and not writing evidence which will be left to the stenographers.

Still, the key concern of Kenyans who interviewed during the APRM exercise, remains the Companies Act Cap 486, which is the main legislation for public and private corporations, but which Kenyans feel has remained static for nearly six decades. Kenyans expressed concern that the Companies Act —enacted in 1948 —was designed specifically for the formal sector and has not kept pace with changes in the business environment because it did not take into consideration the needs, constraints and supportive framework necessary to develop an indigenous vibrant private sector.

Githae conceded that the Companies Act Cap 486, is a major problem because it remains static and yet it is an exact replica of the British one that has since been amended over 10 times. He however, revealed that the Kenya Law Reform Commission is currently reviewing the law together with the Partnership Act and other related commercial laws.

As the judiciary comes into focus, Kenyans awaiting to reap the benefits of the "radical surgery" that was carried out by the government last year to improve judicial independence and accountability following major political changes in 2002 elections. The "radical surgery" followed the report by the Integrity and Anti-Corruption Committee of the Judiciary in Kenya. led by Justice Aaron Ringera, that saw five out of nine Court of Appeal justices, 18 out of 36 High Court justices and 82 out of 254 magistrates — implicated in corruption.

While many resigned or took voluntary retirement, some have mounted legal challenges against their dismissals. Since the tribunals started to hear these cases, only one case has been resolved, with the acquittal and reinstatement of Justice Waki in late 2004. In a series of appointments made in 2003/2004, the President used his authority to appoint 28 acting High Court justices to replace the 18 who were dismissed. However, the appointment process raised concerns as to whether the newly appointed justices were selected in response to political and sectarian interests given that the president was relying on the same discredited system used by the former president, Daniel Moi. Many have also voiced concerns that the lack of transparency in the appointment process undermines public confidence in the quality of those named to the bench.