While interviewing litigators from around the world, I am always especially curious about how my colleagues in other common law countries perform their work. I have had the opportunity to speak with litigators from the UK, Canada, Australia, and India. But I wondered whether I would observe the same differences and similarities between my practice in New York and the third largest economy in Africa. And so I was very excited to speak with Princess Caroline N. Mutisya, the CEO and Founder of CR Advocates LLP in Nairobi, to learn about what litigation is like in Kenya.

Why should you continue reading this post about litigation in Kenya?

  • You’ve already read my post about litigation in neighboring Ethiopia.

  • You want to learn about a jurisdiction where a judge can hold a hearing in Kiswhaili but publish her decision in English.

  • You want to visit a court where wigs on lawyers are mandatory.

Princess Caroline N. Mutisya is the CEO and Founder of CR Advocates LLP in Nairobi.

Can you tell me about the kinds of disputes you handle in your legal practice? 

We largely deal in business and commercial disputes. Since we have several departments, our practice areas are:

  1. Commercial, Cross Border Corporate Services;

  2. Real Estate & Conveyancing Services;

  3. Intellectual Property & Franchising;

  4. Immigration Law Services;

  5. International Trade and Transport Law (Air, Land & Sea);

  6. Logistics and Transport Law Practice;

  7. TMT, Cyber Security & Data Protection Law;

  8. Legal Compliance Audit & Training;

  9. Commercial Litigation, Arbitration & Mediation;

  10. Banking and Finance;

  11. International Due Diligence and Consultancy; and

  12. Tax and Stamp Duty Consultancy

What type of clients do you generally represent in disputes?

We represent private and public companies, financial institutions, partnerships, SMEs, large companies, trusts, societies, local and international foundations and trusts, Non-governmental organizations, subsidiary company, branch offices, liaison offices, joint ventures (special purpose vehicles) and individuals

Besides Microsoft Office, what software do you use in your practice? 

We use the following:

  1. WakiliCMS for client and office management

  2. Zoom, Teams, and Calendly for meetings

  3. Slack and WhatsApp for making internal and external communications

  4. QuickBooks for accounting

What books and websites do you use for legal research? 

We use Google Scholar for books and Articles, Kenya Law Reports for Case Law, and Kenyan and International Statutes.

Image credit: https://commons.wikimedia.org/wiki/File:Supreme_Court_of_Kenya.JPG

Does Kenya have specialized courts that only hear commercial cases? 

Yes, there are a number of specialized commercial courts in Kenya. Here are three examples:

  1. Environment and Land Court (ELC) – This particular court deals with land and environment matters and has stations nationwide.

  2. Employment and Labour Relations Court – This court deals with disputes related to employment and has stations nationwide.

  3. Small Claims Courts – These courts were recently established with the enactment of the Small Claims Act, 2016 and were operationalized in 2020 in Nairobi, Nakuru, Nyeri, and Mombasa. The court is also gradually being established in other jurisdictions. The court mainly handles claims that do not involve a sum exceeding around Kshs. 1,000,000 (equivalent to about USD 10,000). Claims in these courts are usually adjudicated upon within a statutory time limit of 60 days.

I understand that Kenya also has specialized labor courts. How do the procedures in these courts differ from other Kenyan courts?

Labour courts and commercial cases use the same rules of civil procedure. But other courts do use different procedures: Succession courts use their own probate and administration rules, while criminal cases use criminal procedures and Constitutional Petitions use the Mutunga Rules.

What are the Mutunga Rules?

The Mutunga Rules refers to the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 published under Legal Notice Number 117 on 28th June, 2013. You can access them here: http://kenyalaw.org/kl/fileadmin/pdfdownloads/LegalNotices/2013/LN117_2013.pdf

Do you electronically file pleadings with the court?  Or must you send paper copies of them to the courthouse?

Yes, we file pleadings electronically. We use this judiciary e-filing portal: https://efiling.court.go.ke/

Who decides the facts in a commercial case?  Is it a judge or a jury? 

Depending on the level of the court, either a Magistrate or a Judge decides the facts.

Generally speaking, how many pages are the complaints or initial pleadings you see in your work?

It will depend on the nature of litigation. Complex litigation pleadings have more pages than fast-track litigation matters. A small complaint could range between 10–15 pages, whereas the complaint in a complex matter could range between 30–100 pages or more.

What is fast track litigation? Do the courts designate certain cases as faster than others?

A case that is classified as a fast-track refers to a case with undisputed facts and legal issues, relatively few parties, and would likely be concluded within one hundred and eighty days after a pre-trial hearing has been conducted.

By contract, cases that are classified as multi-track are those that have complex facts and legal issues, or several parties, and which would likely be concluded within two hundred and forty days from the date when a pre-trial hearing has been conducted.

Generally speaking, how long does it take for a case to go from complaint to judgment?

It depends on the nature of the case. Some take longer than others, but the shortest time a case can take in court is ninety days.

Both English and Kiswahili are national languages in Kenya. Do the courts hold hearings and publish decisions in both languages?

No. Hearings can be done in English, Kiswahili and/or another vernacular language, but publishing of decisions is only done in English.

Generally speaking, how is evidence exchanged between the parties before trial?  Do you get to interview the opposing witnesses before the trial?

Parties do not get to interview opposing witnesses before trial. Evidence is only exchanged through an initial exchange of witness statements and documents to be relied on as evidence.

If you win, does the other side reimburse your attorneys’ fees?

Yes, if you request reimbursement and the court grants it.

Are the courts in Kenya open to the public?  Can ordinary people watch a commercial trial?

In criminal cases, they are open to the public. In commercial cases, people can watch a trial only with the court’s permission.

Do you believe that the courts in Kenya have a particular strength for resolving commercial disputes? 

A strength of the Kenyan courts is the use of mediation. In an effort to maintain relations, the court often sends parties to Court Annexed Mediation, since it’s a faster route to resolve disputes.

Another strength is that the parties are given a limited timeline to exchange documents, which prevents parties from dragging the case along.

A weakness is that cases often take longer than expected to get to a conclusion because of a backlog in cases.

How often do you go to the courthouse? 

I go every day.

Is there a specific article of clothing you need to wear there?

In the High court and the Lower court, a robe and wig are optional. But in the Court of Appeal and the Supreme Court, it’s a must to wear the robe and wig.