New rules expected to fast-track civil lawsuits

PRAVIN BOWRY

The Judiciary has a tainted reputation. Even in its core function of settling civil disputes, it has been branded as corrupt, inefficient, lagging behind in technology and slow to embrace reform.

This image is likely to change soon, with the Judiciary having taken a proactive role and successfully moving towards meaningful reform.

With effect from this month, with the coming into force of the Civil Procedure Rules 2010, promulgated on September 10, vide Legal Notice 151, it is hoped a new page will be opened in matters related to the civil cases.

New procedures have been set in place for just determination and efficient disposal of business of the Court under what is termed the "overriding objectives" namely, just, expeditious, proportionate and affordable resolution of civil suits.

Unlike the old and antiquated rules, the Courts will effectively take over the case management, and not leave it to the Claimants (or the Plaintiffs) or the opposite side (or the Defendants).

On filing a claim or plaint — three control methods have been adopted termed "small claims", "fast track" and "multi track".

Small claims are those where the monetary value is less than Sh50,000. Fast track matters are those with undisputed facts and legal issues likely to be concluded within 180 days after a new system introduced called ‘pre-trial directions’ is completed.

Concrete evidence

Multi-track matters are complex matters with several parties but which must be concluded within 240 days after taking pre-trial directions.

Other than the small cases, upon suits being filed, a plaintiff must file an affidavit, a list of witnesses, written statements of witnesses excluding expert witnesses and give copies of documents to be relied on at the trial.

Litigants will now enter the arena of legal redress only when fully prepared backed by concrete evidence which needs to be disclosed to the opposing side upfront.

With a view to furthering expeditions disposal of cases and case management the Courts must within 30 days of closing of pleadings embark on a process of pre-trial directions and conferences.

The Courts will have to identify contested and uncontested matters, explore methods to resolve the uncontested issues, secure parties’ agreement on specific schedules of events in proceedings, narrow issues and create a timetable for the proceedings.

A multitude of jurisdictions are given to the Court at this stage such as referring the matter for alternative dispute resolution, encouraging parties to corporate and in extreme cases striking out incompetent proceedings and striking out documents from record.

After the case conference, there is an additional step of "settlement conference" designed for settlement of the case or issues or for the Advocates to "narrow down the issues".

Before the procedure takes place, parties must exchange a written "settlement conference brief".

And then comes, ten days before the Trial Conference, the filling of a trial Conference Questionnaire.

The Trial Conference must be convened at least 30 days before the Trial which hopefully will control the precise timing of a trial.

Corridors of justice

In all these intricate procedures, the Chief Justice is mandated to appoint "Case Management Judges".

Arbitration and alternative dispute resolution concept has been strengthened and adopted respectively and many other substantial changes have been made.

It is anticipated and hoped that these new procedural changes will be a lifeline not only to fight delay in civil matters but will also be instrumental in fighting corruption in the corridors of justice by increasing efficiency.

The writer is the Assistant Director with KACC. The views expressed are those of the author.

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