Kenya Law Reports Overview
Law reports are a judicial record that contain a selection of judgments or rulings from the superior court. In Kenya, law reports are an important source of law and comprise of all judgments and rulings from the Supreme Court, Court of Appeal, Environment and Land Court, Employment and Industrial Relations Court, High Court, Industrial Court, Kadhis’ Court and Courts Martial. Courts report on a number of relevant or notable points of law that serve the interest of legal professionals, particularly judges, attorneys, scholars and students. The purpose of these reports is to not only provide a record of the case but also be a useful resource for advocacy in future cases.
The records are arranged in volumes that reflect the date the decision was handed down or settled by an authority. A single volume contains reports from the same court, during the same term . The first law reports were published in 1923, in the East Africa Law Reports (EARLR) and the Kenya Law Reports (KLR). The latter is published quarterly with decisions from the superior courts aimed at interpreting and developing the law. From 2013 to present, these law reports have been available online from the Kenya Law Reports website.
The website includes legislation listed over five different categories: current, repealed, proposed, consolidated, and by topic. Court judgments are categorized by appellate court, environmental and land court, human right & constitutional law court, industrial relations & labor court, Kadhis court, small claims court, succession court, value added tax office and winding up court. Lawyers can search the law reports by using the advanced search feature where they can search by case number, date issued, case name, and judge.
Kenya Law Reports History
Understanding Law Reports in Kenya
Many years ago, before Kenya became Kenya and the British turned the land into a colony, there were judges who wrote down exactly what they’d said during a court case. These written words were called "minutes". The minutes of important cases were used by people to find out what other judges thought. The second Chief Justice of the Kenya Colony at that time was Sir William Frederick Robson Kay, who worked hard towards changing the minutes into something much more proper: Law reports. In 1908, Mr. J.W. A. Agan was appointed as the first Reporter of English law in the East African Protectorate and then the Colony of Kenya. The first law report in Kenya to be cited in a judgement was Nadarraj v Ebrahim (A) Nyerere – High Court of Kenya (Kadhis) No 1 of 1922. Similar to the Entry of Judgement, a judgement will state the name of the parties, the place and date of the sitting, the judgement of the presiding judge and the name of the reporter who transcribed the judgement of the case into their law report. The most interesting story about our law reports is that the person appointed to write them did not know English nor the workings of a law court. Mr. Agan was a Swahili speaker from Mombasa and he had to employ helpers fluent in English so that the ‘translator’ could do the actual work of ensuring that Mr. Agan received the law reports written verbatim. According to F.A Rwebangira, the law reports of Kenya are some of the best publications as compared to the rest of Africa and even beyond. Although the work of our law reporters today still requires a high level of skill, the process has been improved. The minutes are typed and referred to the law reporter. The law reporter and their assistants discuss the contents of the minutes. The law reporter then prepares a draft of the report with the help of their assistants. To back up their work, their draft is then compared to the original minutes for accuracy. The original minutes and subsequent draft are then used to prepare a final copy which is given to a proof-reader to check on the spelling, grammar, omissions and any other issues.
Structure and Composition of Kenya Law Reports
Law reports in Kenya usually comprise a selection of reported judicial decisions, both from appellate and superior courts as well as some National Industrial Court decisions. The structure of a law report is generally straightforward. It begins with a cover page of the report followed by a table of cases. After the table of cases, the reports contain a section on learning or other articles related to the law and then finally the judgments and orders that have been selected for publication. The law report is always paginated continuously even when changes in the pagination are effected. The pagination of the law report is essential in establishing citations of judicial decisions.
The table of cases in a law report is essential in improving the accessibility of a report. It also includes references to the legal principles that have emerged in a particular report. This enables a researcher to trace the case law on a particular point quickly and efficiently. The main body of a law report contains the law applied in determining the cases and the analysis thereof. This is in conformity with the fact that the primary purpose of a law report is to publish and disseminate judicial decisions. It follows that law reports are first and foremost publications of judicial decisions.
The law applied in deciding cases is important because it brings in the aspect of transparency of reasoning exercised by judges when they adjudicate cases that are reported. In this regard, various aspects will be examined in the decision such as evidence, the law and its interpretation. In some circumstances, the judges may write down their decision and incorporate findings, rulings and observations during the case before them. Furthermore, the law applied and discussed in the judicial decision is in many cases a way of propelling guidance to be given to the judiciary and issues for review are frequently highlighted for future deliberation. Of great significance is a well-reasoned judgment which is important in guiding lower courts and giving uniformity in dispensation of justice.
Kenya Law Reports Sources
Kenya has several sources for accessing law reports, both in print and online. The National Council for Law Reporting (NCLR) is primary among those sources, as it publishes the Kenya Law Reports (KLR). The KLR includes all decisions of the Supreme Court of Kenya and all appellate decisions not otherwise reported in the public domain for more than 18 years, along with annual, quarterly and monthly digest reports. In addition to the KLR, the NCLR provides several law reports with specialized topics, such as recent decisions from the Court of Appeal on issues of public interest, a Student Law Review Series, and a series of precedent-setting rulings.
Kenyan legislation can now be found online, through Legal Informatics Institute (LIIS), a project of the NCLR. The site provides access to the laws of Kenya post-independence, starting from 1964. The laws are being updated and revised as quickly as possible, with the most recent updates made in December 2015.
Law reports can also be accessed through the Dockets of the Judiciary of Kenya, which contain uploaded judgments from 2006 to present. Other providers of online law reports include the KLR Online (free online access to the Kenya Law Reports), the Kenya Law Reports English Reports (a digitization project focused on pre-independence publications), Justis Publishing (subscription access to KLR Online), and LawAfrica (subscription access to KLR Online).
Legal professionals can also visit any of the Law Courts in Kenya in order to spend time with court staff, and to peruse older law reports published throughout history. Some of the most prominent of those older reports are: The Kenya Law Reports have long been the official and authoritative legal publishing agency in Kenya, from 1902-1963 under the British colonial government and continuing today. The NCLR is one of the semi-autonomous governmental agencies under the Kenya Judiciary, and was established by the Kenya Law Reports Act, 2013, as amended and further elaborated by the Kenya Law Reports (2016) Policy Document. The NCLR ensures that Kenyan judicial pronouncements and legal analysis are rendered accessible to all users, and that Kenyans everywhere benefit from access to Kenya’s law.
Key Law Reporting Institutions in Kenya
The National Council for Law Reporting, also known as Kenya Law, is the preeminent institution responsible for the updating, compilation, and publication of law reports in Kenya. It is an independent and corporate body established by an act of parliament in 2010 and is therefore an arm of government whose existence is independent of the Executive and Judiciary. Kenya Law’s mission is to update the laws of Kenya and to make them accessible to all Kenyans, a mandate that can only be achieved with the access and sharing of legal information. The institution is also responsible for the collection, publication, dissemination and preservation of Kenya’s legislation, judicial decisions, legal periodicals, treaties and conventions to which Kenya is a party, data and statistics.
Kenya Law has a long history, having been previously known as the Kenya Law Reform Commission, established in 2002, under the Kenya Law Reform Commission Act, of 1996. It conducted an audit of the statute laws of Kenya, conducted consultations with the Attorney General and the Chief Justice, and in 2005 prepared a Report on the Status of the Law, which stated that a law reporting body is critical to the development of law reporting in the country. The Council was then created under the Kenya Law Reform Commission (Repeal) Act, No. 20 of 2010.
In 2007, the Judiciary set up the Kenyan Law Reports under the Judicial Act and the Court Systems Act, to update the laws of Kenya and to make them available to the public. However, this venture was short lived and fell apart. The Supreme Court and High Court Reports were then consolidated to form the Kenya Law Reports which was published from 2010 to 2013. A new weekly law report was then created by the judiciary in 2013 called the East African Court of Justice Weekly Law Reports (published in 2014) which was discontinued in 2016 after publication of Volume 9.
Role of Law Reports in Education
In Kenya, perceived to be a regional hub of legal education maybe second to Uganda, law reports play an important role not only for the administration of Justice but is also used as important resource material to both law students and teachers of law in the curriculum of legal education. Law students are known to spend scores of hours in the libraries hunting for past examination papers and/or law reports to give them some glimmer or insight about the dreaded exit exams at the time of contract completion. Law reports are not only important for the legal insight they give to law students, but also help in understanding the actual practice of law under the jurisprudential eyes of judges. As there are very few law reports published in Kenya because lawyers prefer to get their legal opinions from foreign jurisprudence, law students generally are at the whims of the teachers of law for inspiration . It is no wonder therefore that law students then take law reports as given and some would rather indulge themselves with the foreign law reports from the Africa Law Reporting Project (ALRP), rather than read the French version of their own law reports as published by the Kenya Law Reporting. The teachers themselves may not be acquainted with the French version of the law reports as they have not been trained in France or by anyone with legal training in France. As a result, unfamiliar with not only the language but also the substantive aspect of the French law, it is understandable why teachers of law use the method of past exam papers to discuss the application of law and to give legal reasoning for the application.
Influence of Digital Technology on Kenya Law Reports
Digitalization has had a considerable impact on Kenya’s law reports. Prior to this, when the general populace rarely had physical access to law reports, the publication of law reports was considered the preserve of the printer, such that there was no guarantee that any given judgment of a higher court would be readily accessible nearly a decade after it was delivered. However, with the coming into effect of the Kenyan Jewels Rules of 2016, lawyers are now required to serve copies of all pleadings, affidavits and judicial precedents on all parties in a matter which translates to lawyers serving papers electronically upon lawyers in other firms for a case in which they represent their clients. The electronic service of documents is incentivized under the Land Registration (Electronic Transactions) Act, 2016 and the Law of Kenya (Penalties, Fines and Alternative to Imprisonment) Act No 22 of 2016.
The effect of this new requirement is that judicial precedents are now likely to become more easily accessible to lawyers, such that it would become necessary for lawyers and courts to require readers of any precedent to read it through a lens of professional ethics and peer review. This is likely to hold in much the same way as peer review is required of journalism and academia.
Although many law reports are published on court websites, or are only available in hardcopy through a law libraries, making a choice to publish law reports on a court website is likely to be influenced by a desire for more accessibility to law reports, which remains a challenge to many lawyers in Kenya, and probably remains for years to come.
Problems with Law Reporting in Kenya
Currently, there exist a number of practical challenges that continue to unnecessarily clog the otherwise smooth process of law reporting in Kenya.
Of particular importance is the acute shortage of human resource capacity to handle the vast and sophisticated undertaking of law reporting. Apart from the well-known fact that many Kenyan lawyers prefer to do their legal research off the internet (instead of accessing law reports in print), there is an inherent lack of adequate personnel at the law reporting service. This probably explains why law reporting is always far behind other countries such as South Africa, England and India when it comes to completeness of law reporting and any planning of transition from print to electronic formats. Even though Kenya has a large number of highly skilled professionals, there is very little by way of training and skills versus practical requirements ratio when it comes to law reporting. Furthermore, as pointed out in a previous article, the telephone instrument which is probably one of the most low-tech telecommunications devices is still a scarce commodity in the law courts where many lawyers often struggle to complete routine calls. Whilst a desk top computer which could have formed the basis of a cheap information technology (IT) solution is available to some members of staff working at the law reporting service, such computers are rarely connected to power, let alone the availability of internet connectivity. These practically insurmountable hurdles have in recent times slowed down the issuance of law reports to a snail-like pace with no apparent end in sight. As at March 2007, the law reporting service estimated that it had an accumulated backlog of up to 4,500 pending cases waiting to be reported on, with hundreds more coming in every day. Therefore, it was not surprising when a recent review of the Kenya Law Reports by the Library of Parliament found several glaring omissions and found only one decision of substantial controversy over the years 2003 and 2004.
There are various difficulties faced in the context of the enforcement of the Kenya Law Reports copyright. In spite of the obvious need for access to the law (in both its print and electronic forms), legal numbers will often research for free for paying clients. In addition, there is often a perceived whimsical application of the law, where registration is reasonably believed to be mandatory, but not. The exceptional case law from Kenya found in foreign journals whose publishers have deliberately avoided any royalties has effectively forced the hand of the law reporting service – moving the market towards cheaper alternatives.
Equally, in a mirror effect, the Kenyan situation mimics that of other jurisdictions where a keen consumer is driven by the relative value proposition for goods and services of questionable quality – English case law tends to be more popular than other available material, even when "Kenyan" produces a high quality report.
Future Implications of Law Reports in Kenya
The future of law reporting in Kenya lies as much in the hands of the Judiciary as it does at the whim of lawmakers. At present, the Office of the Chief Justice has announced an intention to publish a new range of law reports, but nothing concrete has yet materialised, and there is no guarantee that it will be any more successful than previous attempts to re-establish regular law reports. A review of the larger organisations of the Court’s history reveals that on average there are around 100 reported judicial decisions per year, which is obviously a large margin below the number needed to create a quality set of reported cases. However, all of that may be about to change, with the onset of e-filing in late 2015 being a major factor, as uploading an appeal via e-filing will automatically populate the register of law reports. The impact of the Judiciary’s continued expansion of its use of technology is critical. We can expect to see much of the law reporting work undertaken by the members of the Judiciary themselves, thus eliminating the delays caused by the reporting commissions having to wait for the judgments from the Courts . It also means that the reports themselves will be published immediately, rather than after another long delay while they are painstakingly scheduled into a legal publication. The answer may be for the Judiciary to create a range of law reports, similar to the ICLR, expanding the previous attempts by the Law Society and the Council of Law Reporting. Barring that, the greatest chance of success might come through the collaboration between the Judiciary and the big legal publishers. One company moves further and faster than all of the others – Law Africa – "… a legal information platform covering East Africa (Kenya, Tanzania, Uganda and Rwanda) and growing to many more African nations in early 2016." As part of the world’s super network, these platforms will be able to deliver the best global coverage of recognised expert editorial. Given the right vision and plan, the use of technology is the key to getting Kenyan law reports up-to-date and accessible.