Greetings! We trust that this communication finds you well. In keeping with our regular updates, we wish to address to you the following:

  1. Current Court Operations in The Wake of The Corona Virus Pandemic

Since the corona virus pandemic was first reported in Kenya, the Judiciary has taken several measures to avert the spread of the virus within our courts whilst ensuring that it discharges its mandate to administer justice.
On 20th March 2020, the Chief Justice and President of the Supreme Court published in the Kenya Gazette Vol CXXII No. 67, Gazette Notice No. 3137 titled: “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”. The objective of the practice directions is to ensure just determination of proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources including the use of suitable technology in discharging such mandate.
We write to inform you of the measures being taken by the courts at different levels to ensure the efficient and expeditious disposal of matters in court:

A. Court of Appeal.

In complimenting the practice directions issued by the Chief Justice, the President of the Court of Appeal on 21st April 2020 issued practice notes that will guide how business will be conducted in the Court of Appeal.

  1. All court documents are filed electronically and the court fees paid electronically. The service of the documents is also by way of electronic mail. On hearing of applications, the Court of Appeal is considering all applications on the basis of written submissions that are limited to 3 pages.
  2. In appeals where case management has not been conducted, parties are encouraged to exchange written submissions limited to 12 pages and to transmit them electronically to the registry.
  3. The hearing of appeal will be conducted through video link. Where parties agree, they may rely on their written submissions and a judgment will be written on the basis of the submissions. Judgments and rulings are delivered electronically through video link upon notice to the respective advocates.

B. High Court.

  1. The filing of documents in the High Court is through electronic filing. In the Chief Justice’s directions, every document filed shall contain the email address and mobile number of the party or the advocate in conduct. We have been doing this in all our pleadings and including other additional information such as the name of the advocate in conduct and their practice number. The payment of court filing fees is also done electronically.
  2.  Service of court documents and processes is through electronic mail and other mobile enabled messaging applications such as WhatsApp as provided under Order 5 rules 22B and 22C of the Civil Procedure Rules.
  3. The Court admits certificates of urgency and where it is satisfied that the matter is urgent, it may grant interim orders or give directions in chambers to the party filing the matter on service of the documents and filing of written submissions or hearing of the matter. The Commercial and Tax Division has been conducting hearing of applications through skype and some of the matters have been mentioned for further directions, this has been very successful and very effective so far.
  4. The Courts are also delivering rulings and judgments through teleconferencing. Prior to the delivery of the ruling, the court notifies the parties or their advocates by email of the date of delivery. Where the court is unable to deliver the judgment, ruling or order on the date reserved, it promptly notifies the parties and reserves a new date or gives further relevant directions as the circumstances may be.

C. Subordinate Courts.

The Milimani Commercial Magistrates Court issued a public notice on 23rd April 2020 to supplement the Chief Justice’s Practice directions to provide as follows:

  1. Matters to be filed under Certificate of Urgency to be scanned in PDF format and sent to address provided by the Court. The payment of the court fees is by way of Mpesa pay bill that has been provided by the Court. The Application shall be heard by the duty court in chambers ex parte and the order made sent to the advocates or parties through email.
  2. The Court has also provided the relevant email addresses for filing of other pleadings and court documents and the payment to be made through the pay bill number.
  3. Applications are dispensed by way of written submissions. Parties shall seek directions on submissions once all responses have been filed. Where the matter was pending submissions, parties shall send their submissions to the email provided and the advocate must indicate the name of the magistrate who heard the case and a copy to their counterparts. The submissions are sent to the Magistrate after seven days and a ruling or judgment date is reserved.
  4. Rulings and Judgments will be read and signed in open court and sent to the respective advocates or parties.
  5. The Chief Magistrates is yet to commence the use of teleconferencing in mentioning and hearing matters but it is expected that they will do so in line with the Chief Justice’s Practice Directions.

Other directions issued by the Chief Justice that apply across the board are as follows:

Execution.

i. Upon receipt of a notice of the reservation of a date for the delivery of a judgment, ruling or order, the parties or their advocates may either individually or by consent propose a period within which the execution of the judgment, ruling or order may be stayed or suspended. This communication shall be made at least three days before the date reserved for delivery.

ii. The Court may on its own motion either within the judgment, ruling or order or as a separate order direct the period for which execution shall be suspended or stayed.

iii. There shall be an automatic stay of execution for a period of fourteen days where no directions have been issued.

Consents.

i. Parties are highly encouraged to agree on suitable consents. Where parties have agreed, the consent shall be communicated via email and recorded as an order of the Court. It shall not be necessary that the parties sign a consent so long as they confirm via email that they are acceptable to the terms.

From the foregoing, it is evident that Courts have resumed operations through embracing technology making it possible to file, serve and attend court virtually. Our team has embraced these developments and is using its IT infrastructure to ensure that we handle all the matters where you have instructed us to act. The e-filing system piloted from May 2018 in the Commercial Division has been successful, even as the judiciary mainstreams it and corrects any technical glitches. The Judiciary Financial Management Information System (JFMIS) has slowly been successful in payment of Court fees, fines, and management of Court deposits and expenditure. This has enabled us to attend virtual mentions and hearings smoothly in the past week and filing documents.

  1. The Land Registration and Company Law Processes in the wake of the Corona Virus Pandemic.
I. The Lands Registries
The Ministry of Lands and Physical Planning, extended the closure of the land registries and offices countrywide for a further 14 days from 29th April 2020, as advised by the National Emergency Response Committee on the management of COVID-19. The Registries have now been closed for a total number of 70 days since the issuance of the first notice of closure from the Ministry of Lands and Physical Planning dated 24th February 2020.
Pursuant to the Notice issued on 15th April 2020, the registry confirmed that it would offer limited services that included the registration of Bank Charges, Discharges and Court Orders which shall be handled at the customer care centers at the various registries countrywide.
In light of the foregoing, our Conveyancing Team continues to prepare our client’s security documents and lodge them for registration upon issuance of instructions and we can confirm that we have been very successful in completing all our conveyancing transactions and perfecting securities within a fairly reasonable time given the challenges at the land registry. Our turn-around-time has remained good and within you, our client’s expectations.
However, the land registration processes have changed and the following changes have been affected:

A. Searches

  1. All official searches from the Nairobi Lands Registry and the Central Registry are obtained through the Ministry of Lands’ online platform National Lands Information System (LIMS) as provided for under Section 6 (h) of the Land Act,2012.
  2. Searches are now carried out online successfully save in some cases where we have noted the return of the searches having errors and inaccuracies especially for parcels of land registered under the Registration of Titles Act (RTA) regime. In the above instances we have to submit the original copy of the title for further verification and for processing of the search.
  3. In some very remote cases, where the online search is rejected, the system prompts us to do a manual search. We have experienced this especially from the Central Registry.

B. Franking
The franking of documents continues but now it takes three (3) to five (5) working days to frank documents once lodged in the respective registries.

C. Registration
The timelines within which registration should be completed is slightly longer than before due to capacity issues at the registry created by the observance of social distancing where all registry business is conducted from the Library/Customer Care Centre and the ongoing validation of the deed files and scanning of the correspondence files for purposes of digitisation of the land registries’ records.
Presently and further to the above, deed files are retrieved on a ‘need-basis’ from the validation section now occupying the banking hall at Ardhi House and access is restricted to members of the public and registry users such as our paralegals and only select ministry staff are allowed access. Hence causing slight delays due to the additional waiting time for tracing of the deed files. Correspondence files are also been scanned on the 10th Floor of Ardhi House and the registry has redeployed critical staff to carry out this function, further hampering service delivery.

II. The Business Registration Service

The Business Registration Service in response to the Covid-19 Pandemic issued a public notice on its website dated 26th March 2020, advising on the mode of operations at the registry during the period of the Pandemic.
We have observed that online services are available with minimal interruption as skeleton staff have been put in place and work in rotations to support operations during this period.
The following procedure is to be followed when lodging Charge and Debenture documents for registration:

  1. Applicants self-assess the stamp duty payable on the security documents and effect payment via mpesa of requisite fees through BRS PAYBILL NUMBER, 655650 and for the account name indicate the type of security document one is paying for. Noting that the lands office is partially opened, we are presenting the security documents, as is practice at the land’s office for assessment of stamp duty so as to avoid any discrepancies on the stamp duty payable and have the same franked;
  2. The security documents are then placed in a sealed envelope;
  3. The Applicant must attach the confirmation of mpesa payment and indicate a contact number and email address of the applicant in this case our company registry paralegal; and
  4. The Applicant then drops the security documents for registration at the drop off point BRS Back Office at the Companies Registry.

Upon completion of registration, a notification message is sent for collection at a designated point at the Companies Registry. Registration takes about seven (7) days to be completed.

CONCLUSION

Our team continues to liaise with the Courts, the Ministry of Lands and Physical Planning and the Companies Registry to ensure effective and efficient service delivery to all our esteemed clients.
We firmly believe that we are equipped to handle your legal issues and successfully complete all your commercial transactions and also remain available to assist in any arising matters. Further our offices remain opened during this turbulent period of COVID-19 pandemic. We have put in place all measures as provided by the Ministry of Health to ensure the safety of our staff and guarantee continuity of business and effective service delivery.

We shall have a webinar to discuss any queries that may arise out of the issues raised herein. We shall communicate the date and time for the said webinar in due course.

We thank you for your continued support.

Yours faithfully,
WAMAE & ALLEN

ALLEN WAIYAKI GICHUHI, E.B.S, C.Arb.
allen@wamaeallen.com

SENIOR PARTNER

Senior Partner at Wamae & Allen

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

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