Court of Appeal should abandon its obsession with procedure and its decisions

For readers of judiciaries and legal systems in Africa, it is obvious that the three most progressive democracies with fiercely radical constitutions are Kenya, South Africa and Malawi in necessarily no order. Each of them has a share of their demons and moments of judicial exorcises, one day at a time. For our judiciary to grow, we have to critique it. Applause it when it passes the constitutional examination and call it out whenever it veers.

Despite the progress Kenya has made in terms of development of the law post its baptism era in 2010, the Court of Appeal which was the highest court pre-2010 has remained an important player in our judicial life as a nation for two reasons.  First, the court still remains the final destination of many civil and criminal matters save for the few which manage to wade through the stringent jurisdictional filters under Articles 163(4)(a) and 163(4)(b) of the Constitution to the Supreme Court.

Second, the court sits primarily as a three-judge bench apart from a few matters which can be dealt with by a single judge bench. The design therefore was to have more judicial eyes examine decisions from the High Court and be able to deliver justice to a close perfection standard.

I have stated here before that the Kenyan judiciary as a whole has a very low capacity to reflect inwards, more often any criticism to it is met with a ready answer. The Court of Appeal is officially the court of procedure; rules rule it without a bend. I am afraid that the court is sacrificing substance at the expense of clearing backlog. Even so, its span to determine an appeal still remains averagely five years. Law practitioners who are Court of Appeal regulars know that an appeal of significant weight will be reduced to 12 pages of written submissions and dare you ask the court to extend even by five pages to accommodate the unique issues that a particular case presents!

It will be met by "do you read our rules?", "counsel, do you practice regularly before this court?" If you get a cordial bench that cares to engage with your thoughts however irrational, that is heaven’s luck. Even more ridiculous are weighty appeals being restricted to oral submissions of five minutes per party. Things get a bit softer when you have two or three senior counsel who are implicitly considered "to know what they are saying". Those are exceptions, as unwritten as it may be.

I cannot make a suggestion that at appeal stage pleadings or submissions should marred with verbosity and inelegance in drafting that at times muffles the trial stage. Far from it. The Court of Appeal should be sensitive to the nature of matters before them and not inflexibly apply their rules with no exceptions. As of now, it is a court that everything goes as ‘it is trite law per our rules and many decisions of this court', it allows no room for development of jurisprudence.

Being an appellate court does not mean it has to chorus the trial record, the court should be more cordial, reflective and accommodative to both counsel who appear before it regularly and the seldom ones. Why would a final court for most matters be a feared court where procedure means everything?

Most people recall the Court of Appeal Rules 2022 and rarely remember the operating Act of that court because the rules are at the top of the pyramid when you appear there. The second problem that plagues our judicial system and particularly in this case, the Court of Appeal is tradition of sticklers of precedent. There is a worrying trend between both the practitioners and sadly the court to stamp what has been decided as final, there is no space in our courts to distinguish cases, engage with past decisions of the court and most significantly create new frontiers of law in various issues.

How can this happen in five minutes of oral submissions before the court or even 12 pages of written submissions in a matter where the legal issues to be determined are germane? We are killing trial advocacy and critical thinking in our legal system and it is unfortunately happening at the higher levels of our courts. There exist other structural factors that definitely affect the administration of justice, but in the hurry and desire to clear backlog, we must worry of the quality of judicial system which is not determinable by outcome of decisions alone but rather the quality of them that emanate from the contribution of counsel and the court.

The role of counsel at the Court of Appeal is diminishing. This rigidity and stiff approach to substance cannot be what the Constitution contemplated of the court. The fact that it has not happened before does not mean it cannot happen now, the Court of Appeal should submit itself to growth. The journey of jurisprudential growth is both accidental and deliberate.

Long gone are the days when it would be thrilling to see the court of appeal fully appreciate the rigor of the submissions of advocates before it but they never miss one opportunity or another to chide or embarrass one either in open court or even submissions. The time is here for the court of procedure to be the court of justice and remain open and flexible for the sake of the quality of lawyering.