The Kenya Law Reform Commission (KLRC), established by the Kenya Law Reform Commission Act, No. 19 of 2013 (the Act) is the primary law reform agency in Kenya. The Act, among other functions, mandates the Commission to keep under review all the law and recommend its reform to ensure that—
- the law conforms to the letter and spirit of the Constitution;
- the law systematically develops in compliance with the values and principles enshrined in the Constitution; and
- the law is, among others, consistent, harmonized, just, simple, accessible, modern and cost-effective in application.
Further, the KLRC is mandated to formulate and implement programmes, plans and actions for the effective reform of laws and administrative procedures at national and county government levels. It is in furtherance of this mandate that we seek to review and propose reforms to the Civil Procedure Act, Cap 21, the Interpretation and General Provisions Act, Cap 2 and the Evidence Act, Cap 80.
The Civil Procedure Act, the Interpretation and General Provisions Act and the Evidence Act, were enacted in the years 1924, 1956, and 1963 respectively. These laws are critical in governing the administration of civil justice, interpretation of statute law and providing guidance on substantive and procedural aspects of evidence.
These statutes have been amended over the years albeit on piecemeal basis. Most of the amendments were aimed towards actualising narrow objectives, hence inadequate. As a result, these laws have generally lagged behind in the wide-ranging development of law, society, technology and even case law.
This has led to some of the critical aspects on administration of civil justice to be embodied in case law. The downside of such scenario is making the law complex, especially to persons without technical expertise in the area. Moreover, some of the provisions in these laws are obsolete and inconsistent with the Constitution.
A brief overview of the statutes is as follows:
2.1 THE CIVIL PROCEDURE ACT, CAP 21
The Civil Procedure Act was enacted on the 31st January, 1924. It is an Act of Parliament to make provision for procedure in civil courts. This Act has retained the basis of civil procedure as originally conceived in the year of enactment. Failure to have this Act under constant reform has limited the leeway for the development of the rules and narrowing the ambit of court room practice and civil dispute resolutions. Further, it is substantially not aligned with the Constitution.
The Constitution provides that cases shall be determined without undue regard to technicalities. In such case, the cardinal principle of procedure is that rules are handmaids of justice, not mistresses. The civil procedure rules must therefore be kept under constant reform to make them more effective and relate to the modern day. In a comparative study, other countries such as England have significantly improved their civil procedure practice.
Some of the aspects that will need to be addressed in the review include adoption of technology and making determination of civil justice expeditious. Further, there is need to explore possibilities of dispensing with court attendance on small procedural points such as some mentions, creating efficiency in discovery process, and general reduction of paper filing in line with environmental conservation measures under Sustainable Development Goals.
To further these ends, KLRC has preliminarily determined that this Act needs to be repealed and re-enacted.
2.2 THE EVIDENCE ACT, CAP 80
The Evidence Act was enacted on 10th December, 1963. It is an Act of Parliament to provide for the law of evidence. The law of evidence deals with aspects concerning the obtaining of evidence before trial, adducing evidence at trial, applying and assessing evidence for the proof or disproof of a fact. Procedures of evidence have evolved over the years allowing or forbidding the use of particular evidence in court.
Generally, the rules on the law of evidence entail establishing the required burden of proof, guidance on treatment of records and digital evidence, making provisions on admissibility and presentation of various forms of evidence such as on character, confessions, opinions, documents, among others.
The admissibility of evidence has become increasingly flexible and less technical over the years, most on account of robust development of the case law. Lastly, this Act needs to be aligned with the Constitution.
KLRC has preliminarily determined the basis of law of evidence may not have radically changed but the Act needs comprehensive amendments.
2.3 THE INTERPRETATION AND GENERAL PROVISIONS ACT, CAP 2
The Interpretation and General Provisions Act was enacted on 11th December, 1956. It is an Act of Parliament to make provisions in regard to the construction, application and interpretation of written law and to make certain general provisions with regard to such law and for other like purposes.
To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose. Thus, this Act aims to set out, in a methodical way, mechanisms for interpretation of statutes and to explain their effect and operation. It further aims at collating legal rules for the interpretation of statutes in order to create harmony in statutory interpretation.
The rules of law exist independently of the circumstances of the parties and are generally inflexible. On the other hand, the canons of construction are a presumption in favour of a particular meaning in case of an ambiguity.
The Act needs to be reviewed to effectively guide modes of interpretation of statutes, drafting of statutes including formats and acceptable norms, classification of statutes, effects of statutes creating duties, effect of statutes having penal provisions, guide creating of penal provisions, provide and define the words of general usage, clarify supremacy of laws, making provisions on national versus county legislation, clarify repealing of statutes, and elaborate on the delegated legislation.
Further, the Act needs to be reformed for purpose of aligning it with the Constitution, to incorporate emerging trends in legislative drafting, and clarify the applicability of treaties. This Act contains numerous redundant provisions and it’s highly inadequate.
KLRC has determined this Act need to be repealed and re-enacted.
- WAY FORWARD
To this extent, we intend to have the review process of these Statutes being stakeholder driven from the initial stage. We are therefore calling institutions, organisations and members of the public, to give proposals on general areas of reform, new ideas, jurisdictions to benchmark, and recommendations for purpose of conducting required legislative reform.