Jeremy Bentham, an 18th century English lawyer said, “The said truth is that it is the greatest happiness of the greatest number that is the measure of right and wrong.” The greatest unhappiness was occasioned to citizens and advocates when the high court sitting in Malindi on 11th November 2016 held that magistrates had no jurisdiction to hear land and employment matters. In January 2017, the Chief Justice publicly stated that the backlog of cases stood at about 490,000. Out of this number, it is possible that 70% of the cases relate to land and employment matters. How were 46 judges of the specialised courts expected to determine such a colossal backlog?
On 21st November 2016, the writer wrote to the Law Society of Kenya demanding an urgent crisis meeting to discuss the ramifications of the decision that stalled 50,000 land and employment cases in the magistrates’ courts in Nairobi. Countrywide, the decision stalled cases in all magistrates’ courts and held up judgments worth billions of shillings which in turn impoverished lawyers who ordinarily earn full fees when cases are concluded. The ripple effect on the economy will be felt for years to come on account of the backlog of cases that will have to be cleared. Litigants were forced to seek justice at far distances due to the limited geographical prevalence of the specialized courts dealing with land and employment matters. A citizen in Marsabit would have to travel to Meru to access justice. Justice delayed was turning into the nightmare of justice denied.
When the Law Society of Kenya refused to respond to the letter, the writer called upon the branches of the Law Society to lodge an appeal. His firm took up the pro bono brief on behalf of the Law Society of Kenya- Nairobi Branch and filed an appeal within a month of the decision -The Law Society of Kenya- Nairobi Branch v the Malindi Law Society & Others. The appeal was supported by some of the branches. The Law Society of Kenya opposed the appeal as it had supported the petition in Malindi without consulting the branches.
On 19th October 2017 justice smiled on Kenya when the appeal succeeded and five judges of the Court of Appeal set aside the decision of the high court. The court held that the branches were autonomous and had locus to file the appeals as their members’ general welfare had been adversely affected.
The Court of Appeal further held as follows. The Constitution should be interpreted wholesomely and purposively. The Constitution must not be interpreted so as to create an illogical, impracticable or unworkable result as it had in the Malindi decision. It would be illogical and unreasonable to prohibit magistrates’ courts from determining land and employment disputes, when it is undeniable that their reach to the citizenry is much wider than that of specialized courts. Public interest would be better served by increasing the number of courts with the capability of resolving such disputes.
The Court found that the public interest is not met by a restrictive approach to jurisdiction which bars Kenyans from accessing justice through the most proximate courts. It was therefore retrogressive and contrary to the spirit of the Constitution to restrict Magistrates from hearing land and employment matters.
The Court also found that Parliament lawfully conferred jurisdiction to magistrates’ courts to deal with land and employment matters thus destroying the misconception that this was the exclusive preserve of the specialised courts.
An employee filing suit for Kshs. 50,000 can now file suit in the magistrates’ rather than before the specialized court and wait for more than 3 years for his case to be determined. Wanjiku can now avoid filing suit in the specialised court over a boundary dispute which can easily be heard by a magistrate in less than a year. Magistrates have pecuniary jurisdiction of up to Kshs. 20 million allowing for the immediate transfer of cases from the specialised courts. Members of the bar and the bench now need to work together to expedite justice for Wanjiku. Let us unite with unity of purpose to reduce the backlog of cases. The magistrates’ courts, with over 430 sitting Magistrates, are easily accessible giving them close proximity to the citizens.
This is a major victory for Wanjiku who can now access justice closer home. The next step is for the judiciary to employ more judicial officers to ensure that cases are determined within one year of filing. In jurisdictions like Morocco cases are determined in less than a year from the date of filing. This rapid turnaround of cases will improve investor confidence in Kenya and the welfare of advocates.
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About the author
Caxstone specializes in civil, employment and labour disputes, constitutional law, family law and succession, and environment and land matters. He has amassed a wealth of knowledge and experience in litigation which is evident in the successes obtained for clients. He is an active member of the Employment and Labour Relations Court Bar-Bench committee.
Allen Waiyaki Gichuhi, our Senior Partner, is an experienced and widely respected litigator with over 20 years experience in complex commercial litigation. He is actively involved in legal industry reforms and is ranked in Dispute Resolution Band 2 by Chambers Global. Learn more
