The newly elected President of the Court of Appeal, the Honourable Mr. Justice Daniel Musinga (President COA) held a joint stakeholders meeting at the historic Court of Appeal Building Court No.1 on 8th July 2021. The President COA was accompanied by the new Presiding Judge of the Mombasa Court of Appeal the Honourable Mr. Justice Steven Gatembu Kairu whom he described as a hardworking and highly organized judge. Also present was the Registrar Court of Appeal Honourable Mr. Moses Serem, the Deputy Registrar of the same court Honourable Mr. Harrison Adika and In Charge Court of Appeal Registry Mombasa Mr. Omuse with his team all of whom were well known to the various stakeholders.
The Mombasa Law Society team was led by our Chairman Mr. Mathew Nyabena Advocate and he started out by congratulating the President COA on his election and assumption of office on 11th June 2021. He then proceeded to make an impassioned appeal via Memorandum for the revival of the Realtime COA judicial identity the COA bench in Mombasa had come to acquire in pre-COVID times. He cited key issues currently afflicting practice before the Court of Appeal which required urgent address.
The Chairman started with the fact that the Deputy Registrar Mombasa also serves Nyeri COA proposing that a substantive and permanent Deputy Registrar be posted to coordinate the registry and handle registrar matters. This it was hoped would reactivate matters including taxations which had been pending for a while resulting in a backlog. The President COA in realtime indicated that this would be addressed and would be in place before the reopening of the Court in September 2021.
Mr. Nyabena then made a plea that the notices for hearings and directions be consolidated into a causelist that could be shared with MLS to post on our social media platforms and further that parties be given a slightly enlarged lead time of at least 7 days to enable parties comply and prepare for hearing. This too was acceded to in realtime and moving forward the bar could expect COA causelists to issue and be shared with the Mombasa Law Society who would transmit to the Bar from its various social media platforms.
The question of applications under certificate of urgency was further raised particularly since some certificates were still pending certification or otherwise upto 1 year after filing. This had caused a great deal of suffering where the orders sought were for stay of execution of decrees or stay of proceedings in the high court. Chairman requested an audit be done of all pending applications to confirm the status of these outstanding applications and further that a system to address certificates being filed moving forward. The President COA indicated that a system where all urgent matters were placed before the duty judge the same day was currently being put in place. The duty judge would be available all day and would attend to the matters virtually issuing directions which would be relayed through the Deputy Registrar within 2-3 days together with appropriate directions and where necessary the same would be listed within the same week. The intention was to dispense with urgent matters within a turnaround period of 30 days and members of the Bar were called upon to play their role to ensure effective and efficient dispensation of justice. President COA indicated that the Senior Bar in Nairobi, whom he had met, had pointed out that they would be satisfied with Rulings/Directions in this regard limited to whether or not the matter had been certified urgent and where appropriate whether the stay had been granted or not allowing all other substantive matters to be reserved for the main hearing of the appeal. A modus operandi that the members of the Mombasa Bar present nodded their approval to.
Regarding pending applications/hearings it was noted that the COA had resorted to virtual hearings which were welcome however, in a majority of instances Advocates would prefer a hybrid approach where an opportunity to confirm the completeness of documentation and in instances where there were multiple applications to confirm which particular application was being dispensed with was important. A mention in such cases was proposed or alternatively a case management/call over system would be appreciated to enable the Bench and Bar read from the same script. In realtime President COA expressed approval to a methodology where Counsel were to be given 5/10 minutes to highlight and clarify what was coming up for hearing and to further confirm that all requisite documentation was in place.
Whilst the bar appreciated and recognised that the Court of Appeal generally delivered judgements on time there were pockets of complaints of judgments being delayed for up to 6 months or even a year and a request for guidelines on the delivery of judgments was made. The COA Bench was operating at about 2/3rd capacity even with the welcome appointment of the 7 new COA Judges and a request had been relayed to the Judicial Service Commission for further Judges to bring the number up to at least 25 which hopefully would be favourably considered. In the meantime, those Advocates who had experienced delayed judgments were requested to complete a prescribed feedback form via email to a central portal to facilitate adequate follow up. The President requested the Bar to give the COA upto 30th September 2021 to clear the backlog of judgments and rulings and get back to realtime.
A question on the court filing fees was further highlighted with a proposal that filing fees in the Court be reviewed to ensure access to justice to all. An example was presented of an employment matter where a litigant paid Kshs.1,000/= as filing fees seeking an award of Kshs.2million. He was displeased with a judgment of slightly over Kshs.100,000/= and preferred an appeal where he was required to pay filing fees of over Kshs.70,000/= based on the initial award he had sought in the High Court. Honourable Serem was able to clarify that the COA Rules, 2010 provided for assessment on this basis and it was agreed that the Rules be reconsidered again to align them with the provisions of the Constitution of Kenya, 2010 to facilitate substantive access to justice in the Court of Appeal. In the intervening period the Deputy Registrars were to exercise their discretion in favour of assessing the fees payable with the overriding view of enlarging access to justice.
The Chairman’s final submission was in respect to the COA Remuneration Order which prescribed very low figures. The President COA recommended a Memorandum from MLS on this question addressed to the President and the Chair of the COA Rules Committee.
The Office of the Attorney General (OAG) represented by Mr. Patrick Wachira Advocate and Office of the Director of Public Prosecutions (ODPP) represented by Mr. Fedha Advocate further made submissions regarding the short notice periods for hearings with the OAG highlighting the special circumstances revolving around land matters and the squatter problem at the Coast. Mr. Ken Rogers In Charge Shimo La Tewa Maximum Prison further made a plea for those matters pending appeal to have the records typed and presented in good time and also to keep an eye out for those appeals that appeared to have preferential treatment.
Other key stakeholders included the Chief Magistrate Honourable Evans Makori and Deputy Registrars from Mombasa Law Courts Honourable Christine Ogweno, Honourable Lesootia and Honourable Nyariki from the Bench.
Asides from the official business concerning the meeting the Mombasa stakeholders variously recognized the President COA who was Emeritus Chairman of the Mombasa Law Society 2001–2003 with the President expressing fond memories of how he was welcomed to Mombasa in 1988 by the evergreen Senior Advocate Ushwin Khana amongst other senior practitioners then and who accompanied the MLS Team.
Other than the Chairman and Senior Advocate Ushwin Khanna, the Mombasa Law Society team comprised the Vice Chairperson Mrs. Christine Kipsang Advocate and Kinyua Kamunde Advocate, Mr. McMillan Jengo Advocate with the youthful bar being represented by MLS Council Member Mr. Mogaka Mokaya Advocate and your Editor Ms. Jacqueline Waihenya Advocate (young at heart Treasurer MLS).
the COAST JURIST
MOMBASA LAW SOCIETY JOURNAL
