COVID-19 THREAT

Petition to reopen physical court public hearings declined

Koome instead urged to formulate programmes ensuring access to courts by the public within 90 days

In Summary
  • The judge said the restrictions imposed by former CJ David Maraga and National Council on the Administrative of Justice were reasonable.
  • Kituo cha Sheria petitioned the High Court in November last year, seeking reopening of courts for open physical hearing.
Chief Justice Martha Koome during the swearing-in ceremony of Court of Appeal president Daniel Musinga at the Supreme Court on June 11, 2021.
Chief Justice Martha Koome during the swearing-in ceremony of Court of Appeal president Daniel Musinga at the Supreme Court on June 11, 2021.
Image: EZEKIEL AMING'A

The High Court has directed Chief Justice Martha Koome to implement programmes that will ensure access to courts and services by members of the public and advocates within 90 days.

Justice James Makau said the Judiciary failed by not implementing initiatives to ensure members of the public seeking court services, especially those who may not have access to the necessary infrastructure or are unfamiliar with court proceedings, are catered for.

At the same time, the judge declined to issue an order to reopen courts for open physical public hearings, including registries to members of the public and advocates.

The judge said the restrictions imposed by former CJ David Maraga and the National Council on the Administrative of Justice were reasonable, constitutional and reflective of the steps taken worldwide in the fight against Covid-19.

“Covid-19 no doubt exposes threats to life in Kenya and I find that this is an issue of grave public interest, which, for all purposes and intention, cannot be taken lightly,” Makau said.

He said allowing reopening of courts for open physical hearing at this time when Covid-19 exposure is most imminent to staff would be like giving lethal poison to an individual and expect him to survive with any side effects.

Kituo cha Sheria petitioned the High Court in November last year, seeking reopening of courts for physical hearings. It also sought an order requiring the CJ to implement programmes—which was issued.

Through programmes manager John Mwariri, Kituo Cha Sheria argued that even where Internet networks are available, the cost of digital devices (smartphones, tablets, and desktop and laptop computers) locked out the poor.

It said using the technology, such as the electronic filing of documents and use of video links in open court, has been a frustration because a majority cannot access digital devices and internet services in order to be heard by a magistrate or a judge remotely.

“Women, the poor, rural populations and other marginalised groups are particularly impacted as they form the larger part of the population that has no access to internet, and electricity,” said the rights group.

The CJ and NCAJ in turn argued that it would not be in the public interest to re-open courts as it would result in the rapid spread and exposure of Kenyans to Covid-19.

In July 2020,  Maraga announced the initiation of various programmes to ensure that wananchi seeking court services are not disenfranchised.

The programmes included the establishment of IT support centres within stations.

Makau in issuing the orders said Kituo Cha Sheria demonstrated that they have not benefited from the said ICT support centres. The CJ did not respond to that allegation.

“The promise to provide ICT support also meets the threshold of legitimate expectation as it was a promise made within the confines of the law,” he said.

The judge further directed that a copy of the court's judgment be served upon the Chief Justice for necessary action.

-Edited by SKanyara