BY SAM ALFAN.
The Judiciary has received the first ever petition drafted in Kiswahili, which is one of the country’s official languages.
The petition filed by businessman Enock Joseph Aura is challenging the move by the courts to hear and determine cases online, otherwise known as virtual proceedings.
The businessman has sued Chief Justice Martha Koome, Attorney General Justin Muturi, Kenya Law Reform Commission, Law Society of Kenya and the Judicial Service Commission (JSC).
Aura wants the immediate lifting of what he terms as irrational directive issued by the Chief Justice barring in person litigation.
The online hearings was introduced at the height of COVID-19 as one of the containment measures to curb the spread of the virus.
Aura also wants Rule 8 of the Supreme Court Rules of 2020 declared unconstitutional because it only recognizes English as the language of the Court yet Article 7(2) of the Constitution states that both English and Kiswahili are official languages.
He claims that anyone filing a case in Kiswahili will be barred from litigating before the Supreme Court under that rule and that why he is seeking the Court to declare is in violation of Article 10(2)(a) of the Constitution.
He further seeks the High Court to compel the LSK to have half of the Continuous Legal Education conducted in Kiswahili language and that no Advocate should be given a Practicing Certificate unless they have 3CLE points in Kiswahili Language lessons.
Aura is also seeking the stoppage of recording of proceedings in English, where a litigant elects to lodge proceedings in Kiswahili language.
According to him, this is because Article 7(1) of the Constitution recognizes Kiswahili as the National language.
Through his lawyer Harrison Kinyanjui, he wants the invalidation of the unilaterally made rules by the Chief Justice compelling exclusive online access to Justice in Kenya.
Aura says these rules were never subjected to any form of public participation yet Section 5 of the Statutory Instruments Act provides that all stakeholders must be consulted in the making of subsidiary legislation.
He adds that these rules are oppressive in demanding that only electronic-format (PDF) Court documents will be accepted online. He adds that strangely the same Rules demand a hard copy to be lodged in Court.
Aura argues that the requirement is paradoxical and superfluous because the Chief Justice has irrationally closed off regular in person court sessions.
“By demanding that litigants lodge hard copies in spite of lodging PDF copies, it is clear that there is in fact no valid reason at all to inhibit in person Judicial services,” says Aura.
Aura adds that the Chief Justice never having laid the challenged rules before The National Assembly, pursuant to Section 11 of the Statutory Instruments Act, the rules are null and void and hence unenforceable.
Through lawyer Kinyanjui, Aura adds only the Central Bank of Kenya is Constitutionally mandated under Article 231(2) of the Constitution to declare the monetary policy in Kenya and CBK has never outlawed the use of hard cash in meeting payments for goods and services in Kenya.
He says that the Judiciary offers judicial services at a fee and these are neither free nor charitable services.
“Therefore they are governed by Article 46(1) of the Constitution of Kenya and the Consumer Protection Act and the Judiciary in that sense has abused its Monopoly status and no Kenyan is given the right to reject poor legal services or seek alternate judicial services.Therefore the standard of care expected of the Judiciary is higher in the delivery of it’s monopolistic services than ordinarily expected of products that are returnable,” adds Aura in the petition.
