Judiciary warms up to virtual court sessions
The Judiciary has embraced information and communication technology to deliver services following outbreak of coronavirus, which causes Covid-19 disease.
To ensure the wheels of justice do not grind to a halt, courts are allowing the filing of cases electronically in a method referred to as Electronic Case Management and the hearing of parties through video links, thus restricting human contact to curb the spread of the deadly disease.
Only matters certified urgent are being heard virtually through Skype and Zoom and orders sent to the applicants via email.
The hearing and mention of both criminal and civil cases have been suspended. Law Society of Kenya (LSK) President Nelson Havi explains how the cases are categorised.
The registrar looks at the case and decides if it is urgent or not. If urgent, the matter is sent to the judge, who hears it and makes an order ex parte, or if there is a need for an inter partes hearing, the judge gives a date to appear via Zoom or Skype.
TEETHING PROBLEMS
Lawyer George Ogembo says the challenge of filing documents electronically is that some pleadings may go missing or may not be captured in one’s record because all court users are using one email.
“One must be careful to ensure the voluminous documents reach the deputy registrar. There is also a challenge of delay when sending huge documents as they may take long,” says Mr Ogembo
He adds that one has to call the registrar before sending documents and notify him or her that you mailed the documents and afterwards call again to confirm that they have been received.
According to Mr Ogembo, the registrars are likely to be overwhelmed by screening and checking the multiple documents sent by different people, some without notification.
“But the onus is on a party to ensure the documents are received,” he says.
LEARNING EXPERIENCE
Mr Havi says technology has helped in ensuring there is no total shutdown of the Judiciary, adding that the pandemic has given solutions to problems that have bogged down speedy delivery of justice.
“The coronavirus has given the Judiciary and lawyers an opportunity to be innovative. Courts have put a digital platform where cases can be heard and taken to the judge, decisions made and communicated to advocates through email or WhatsApp. That is a big step towards improving access to justice,” he said.
Mr Havi on Friday argued an application that is challenging the constitutionality of the current dusk-to-dawn curfew through Zoom.
He said through the technology, parties involved in a case can see each other on the display screen, and thus there is little difference between the virtual court and the traditional court.
Besides, Zoom has a function of recording the proceeding. Mr Havi said he has a time out period of 40 minutes on Zoom if one has registered for a day.
CONVENIENCE
In the curfew case presided by Justice Weldon Korir, he timed out almost three times. “That was a challenge that we ended up spending almost two to three hours on one case. The challenges are the teething problems for every new idea, and with time we will surmount them,” Mr Havi says, describing the new model of litigation as exciting and fulfilling because they are arguing cases from the confines of their homes or office.
Mr Havi says the use of technology, though it saves time, is costly. “I would advise the Judiciary to purchase an entire month’s subscription to Zoom. I have purchased an entire month’s subscription. Then there is a problem of time keeping; lawyers are not treating the digital court as a courtroom and end up logging in five or 10 minutes late,” says the LSK president.
Lawyers have described the digital system as a disruption that will overhaul the legal practice.
“The coronavirus pandemic has taken the legal practice to a new horizon. It may necessitate review of the Advocates Remuneration Order so that teleconferencing and receiving rulings are captured as a court appearance,” says lawyer Wahome Gikonyo.
But he added that there is a need for tutorials so that judicial officers and legal practitioners are fully acquainted with the technology.
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