• Introduction

As discussed in the previous chapter, Epistolary jurisdiction is an invention of the judiciary. It is a result of the augmentation of the traditional judicial process to suit the unique characteristics of the society in which it is applied, in order to deliver justice to all those who have been wronged. In the eyes of Amartya Sen, the concept of epistolary jurisdiction would be a natural manifestation of his theoretical analysis of a just society. In his theory he states that the pursuit of justice in a society is actually predicated on making policy comparisons rather than implementing singular policies drawn from a universal ideal theory of justice.9394 Such policy comparisons, he states, will lead to the implementation of policies that are most ideal in providing justice in the society, acknowledging such a society’s unique characteristics and needs. [1] [2] [3]

Successful implementation of epistolary jurisdiction has to be accompanied by several procedural alterations in the judicial process. Indeed, epistolary jurisdiction was originally created to bypass procedural technicalities that prevented poor people from accessing the court process. Such technicalities stifle the enforcement of access to justice as a fundamental right and consequently prevents the development of substantive legal precedent necessary for the realization of fundamental rights and freedoms in a democratic state. As discussed earlier, the major procedural limiter of access to justice for this group of people is the requirements of locus standi. The adversarial form of litigation also creates limitations to the lull realization of access to justice, especially in the Kenyan context where close to half of its population lives in poverty. This is due to its private right based remedies and its apparent constraints on judicial activism.

This chapter therefore seeks to analyze the extent to which such procedural requirements have been or should be altered to allow frill implementation of epistolary jurisdiction in Kenya and resultantly frill realization of access to justice to poor people. Moreover, the chapter will seek to examine how Kenyan courts have interpreted Article 22 and the Mutunga rules, which are the foundation for the application of epistolary jurisdiction in Kenya.

  • Application of Epistolary Jurisdiction in Kenya

In 2010, we promulgated a new Constitution, and with it a wind of change swept over Kenya. The rules of locus standi, which have held back years of progressive jurisprudence, have been expanded to facilitate third party litigation.[4] Additionally, under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, informal documentation can be used, where necessary, to commence a suit. These rules are further supported through Article 159 that outlines principles that shall govern the judiciary including under Article 159 (d) that the court shall not pay undue regard to procedural technicalities. Indeed, the Constitution has acknowledged the vitality of access to justice in advancing the rule of law and democracy.[5]

However, the Judiciary concedes that in order for it to effectively perform its role and advance the values and principles of the Constitution, it must lift itself out of years of political servitude, financial insecurity, widespread corruption and delinquent jurisprudence.[6] It additionally accepts that it must not only re-organize and restructure its institutional operations, but also wholly embrace the unique responsibilities bestowed upon it by the Constitution.

The Judiciary holds itself up to achieve several goals including reordering its administrative and judicial processes so that the former supports the latter to enhance delivery of services; improve the speed of justice; and improve access to justice especially for the marginalized and traditionally under-served communities. Evidently, the court has taken cognisance of the need to adopt new procedural mechanisms in order to improve justice delivery and access to justice. More so, it has realized that such procedural mechanisms will require distinctive administrative support to bring to fruition. Consequently, it has conceived a four pillar strategy envisaged to propel the judiciary towards its overriding objective: to achieve access to, and expeditious delivery of justice to all.[7] Article 159 of the Constitution provides that judicial authority is derived from the people of Kenya and is vested in and exercised by the courts and tribunals created under the Constitution.[8] Based on this, the judiciary aims to achieve a people-focused system of delivery of justice. In order to achieve this, the Judiciary, as the custodian of justice in Kenya, needs to take effective steps to reduce the obstacles that hinder public access to information; ensure proximity and physical access to courts; simplify court procedures so that all litigants can understand and effectively participate in court processes. In guaranteeing equal protection of the law, the Constitution demands that the Judiciary must not only remove barriers to access to justice, but it must also ensure that the Judiciary remains open and available to all those who seek its assistance. Taking these measures will not only serve the objective of enhancing the expeditious delivery of justice but also reduce the people’s alienation from the justice system.[9]

To this effect, quite a few court cases have recognized the need to expand the scope of access to justice and move past rigid procedural mechanisms that limit it.

In the case of Joseph Nyamamba & 4 others v. Kenya Railways Corporation, the court expounded on the extent to which Article 48 was applicable. It admitted that the right of access to justice was wide and included the ability of a party to institute a suit in court, the ability to access the police with legitimate expectation of fair, expeditious and prompt enforcement of one’s complaint, prosecution of suspects, enforcement of decrees and orders issued by a court and prompt and fair compensation by government upon compulsory acquisition of one’s property for public use.[10] [11] [12] Moreover, in the case of Kenya Bus Sen’ices Limited and Anor v. Minister of Transport & 2 Others’03, the court reckoned that access to justice is incorporated in tire constitution to allow us to look beyond the dry letter of the law, to fight against legal formalism and dogmatism and to uphold national values and principles of governance, which include the rule of law, social justice, human dignity and democracy that can only be realized tlirough the legal processes. Moreover, the court stated that Article 48 invited the court to consider, ‘… the conditions which clog and fetter the right ofpersons to seek the assistance of courts of law.”

In light of the above pronouncements, the court has shown great commitment to the realization of the right of access to justice. It has acknowledged the need to go beyond the legal straight jacket and develop new methods of achieving the right to access courts and the judicial process. This has been acknowledged in the Centre For Human Rights and Democracy and Others v The Judges and Magistrates Vetting Board and Others’04, where the court stated that it is part of and core of the courts’ constitutional and statutory obligations to innovate new methods and devise new strategies for purposes of providing access to justice to all persons who are denied their basic fundamental and human rights. This is predicated on its duty as the custodian of the constitution, to ensure the principles and values under it are upheld.

It is in this same vein that the court, guided by the Constitution, has adopted liberal interpretations to the requirements of locus standi. Article 159 (d) directs that the court should not place undue regard to procedural technicalities in the delivery of justice.[13] In the case of James Mangeli Musoo v Ezeetec Limited[14] [15] [16] the court defined procedural technicalities as provisions of law or procedure that inhibit or limit the direction of pleadings, proceedings and even decisions of court matters. In Michael Osundwa Salewa v Chief Justice and President of the Supreme Court of Kenya & another’07the court recognized that the procedural trappings and restrictions, the preconditions of being an aggrieved person and other similar technical objections, cannot bar the jurisdiction of the court, or let justice bleed at the altar of technicality. More so, the court continued to state that in the interest of advancing meaningful human rights and for the purpose of those who may be indigent and unsophisticated, the rules of locus standi have been extended to allow such people to access the judicial process and enforce their rights. Additionally, in the case of Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others’os the court reiterating its commitment to the values of substantive justice, the rule of law, public participation, inclusiveness, transparency and accountability envisaged under Article 10, stated that it cannot sanction a judicial standard for locus standi that places limitations on the access to courts.

Resultantly, the legal conditions and judicial attitudes towards access to justice for all regardless of status, are not only feasible for the effective implementation epistolary jurisdiction in Kenya, but have also encapsulated it in our procedural rules through the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Rules of 2010, providing a legal basis for its use. Nonetheless, some court decisions have created uncertainty towards the interpretation of Article 159 (2) (d), and its application in the judicial process.

In the case of Raila Oc/inga v I.E.B.C & others’09, the court cautioned itself against the blanket application of Article 159. It admitted that the essence of article 159 (2) (d) was to prevent a court from allowing prescriptions of procedure and form, from preventing the primary objective of dispensing substantive justice to the parties. However, it further stated that this principle of merit was not set in stone and a court, as an agency of the judicial process, was called upon to appreciate all circumstances and requirements of a particular case. In the case of Nicholas Kiptoo Amp Korir Salat v IEBC & 6 others”0, Justice Kiage in a dissenting opinion holds that courts cannot aid in the bending and circumventing of even handed processes and that the rules of procedures serve to make the process of judicial adjudication and determination fair, just, certain and even handed.

In the previous constitutional dispensation, procedural requirements or the absence of such requirements set by law were used as an affront to deny justice to people. For example, in the case of Kamau Kuria v Attorney General”1, the court denied redress to the applicant due to the fact that rules under Section 84 of the repealed Constitution had not been made by the Chief Justice.[17] [18] [19] [20] It was in light of such pronouncements by the Court that Article 159 was included; to prevent over reliance on procedural technicalities in order to defeat justice. Clearly, courts are also weary of exploitation of article 159 to defeat procedural rules laid down to bring order to the judicial process. However, Article 258 of the Constitution provides that the Constitution shall be interpreted in a manner that advances its purposes, values, principles, the rule of law and rights and freedoms under the Bill of Rights.[21] Clearly, the purpose of Article 159 was to enhance access to justice to all regardless of status and it would be redundant if it is used to defeat the same defect it sought to cure.[22]

Moreover, although limited in number, some court decisions have questioned the use of epistolary jurisdiction and therefore led to uncertainty in its application. In the case of Republic v Francis Kariko Kimani, an accused through his counsel instituted a case through epistolary jurisdiction for his release on cash bail. In determining the case, Emukule J. stated that although epistolary jurisdiction was applied in countries such as India, it involved major issues such as the effects of industrialization and climate change which were determined by the Supreme Court after investigation of the issues raised in complaint. The judge therefore denied the applicant bail based on his epistolary application. It is clear, from the analysis of epistolary jurisdiction done under Chapter 3 of this dissertation that the honourable judge, in the case, lacked the precise understanding of the purpose of epistolary jurisdiction as a principle of law and the defects it was meant to cure in the Kenyan context. What he pronounces to be reasons against its application in Kenya, are the administrative and procedural manifestations of epistolary jurisdiction in India. This decision does not, therefore, take into consideration Article 22 (3), 159 (2) and 259 (1) of the Constitution and creates damaging precedent on the future of Epistolary jurisdiction. More so, in the case of Andrew Khisa Wasike v Office of the Public Prosecution & another[23] [24] the court outlines that in its view, epistolary jurisdiction should only be invoked in circumstances concerning public interest litigation and where a party is not represented, thereafter the court cited the case of People’s Union of Democratic Rights and Others v Union of India and Others to support its decision. Indeed, this case portrays a clearer understanding of the application of epistolary jurisdiction. However, it goes to show that epistolary jurisdiction lacks clarity of definition and institutional recognition by the Judiciary and therefore, there is fluctuation and uncertainty as to when, where and how this jurisdiction may be invoked in Court. In the case of Geoffrey Muthinja & another v Samuel Muguna Henry1,6, the court of appeal attempted to bring some certainty in the criteria of determining formal competency of an application invoking epistolary jurisdiction. It stated that so long as there was sufficiency of information as to the constitutional right violated with particulars supplied, then a court of competent jurisdiction, in the spirit of the Constitution, ought to take the matter up, investigate and provide redress or relief if merited, careful not to defeat substance at the altar of procedure. In fact the court held that petition in question satisfied the requisite formal competency.

This Court of Appeal case can be cited as the first case to elucidate on the application of epistolary jurisdiction. For now, an application of epistolary jurisdiction is formally competent if it outlines the details of the applicant and the constitutional right violated. Furthermore, a court has the

obligation to consequently take up the matter, investigate and provide a suitable relief for such a party.

  • Conclusion

The Judiciary, despite its countless efforts at reform, has been slow to recognize the lacuna in law in the application of epistolary jurisdiction. Since 2010, there has been little to no development in the area. The limited number of cases involving epistolary jurisdiction signifies a lack of knowledge, by tire general public, of this provision of law. More so, due to the uncertainty brought about by conflicting interpretations of epistolary jurisdiction by the court, the legal community has been reluctant to institute cases in this form. Evidently, there lacks a concise legal framework detailing the procedure of bringing an epistolary application to court; directing what type of cases can be instituted through epistolary jurisdiction; and the obligations of the court in investigating- that is the collection of evidence- and providing a suitable relief to the aggrieved party. This jurisprudential void may result in a floodgate of cases if the provision of law becomes popular, owing to the fact that it would attract many of Kenya’s citizens who are poor. Moreover, the lack of a legal framework will result in the misuse of Epistolary jurisdiction leading to many frivolous suits being instituted, resulting in inefficiencies in the judicial process.

A lot needs to be achieved in order to attain universal access to justice in Kenya. The foundations of any democracy that has the ability to facilitate, enforce and protect the fundamental rights and freedoms of its citizens lie within its respect of the rule of law and constitutionality. It is through this that a culture of respect of human rights will develop amongst individual people. The Executive must not disregard the rale of law and overstep its mandate. The Judiciary in further development of epistolary jurisdiction must seek to cooperate with other public and private institutions in order to bring about a process that is adaptable to the Kenyan situation.

[1]  Amartya Sen, ‘The Idea of Justice’, the Belknap Press of Harvard University Press Cambridge, Massachusetts 2009.

[2]   John Rawls, ‘A Theory of Justice’, the Belknap Press of Harvard University Press Cambridge, Massachusetts.

[3]   Amartya Sen, ‘The Idea of Justice’, the Belknap Press of Harvard University Press Cambridge, Massachusetts,

[4]  Article 22, the Constitution of Kenya (2010).

[5]   Under Article 10-2 (a), the rule of law and democracy are listed as some of the national principles to be advanced by all state organs, state officers and public officers while carrying out their duties.

[6]  Tire Judiciary, Judicial Transformation Framework, 2012-2016.

[7]  Tire Judiciary, Judicial Transformation Framework, 2012-2016, 13.

[8]   Article 159, the Constitution of Kenya (2010).

[9]   The Judiciary, Judicial Transformation Framework, 2012-2016.

[10]  Joseph Nyamamba & 4 others v Kenya Railways Corporation [2009] eKLR.

[11]  Kenya Bus Services Limited and Anor vMinister of Transport & 2 Others [2012] eKLR.

[12]  Centre For Human Rights and Democracy and Others v The Judges and Magistrates Vetting Board and Others [20 12] (Unreported).

[13]  Article 159 (d), the Constitution of Kenya (2010).

[14]  James Mangeli Musoo v Ezeetec limited [2014] eKLR.

[15]  Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR.

[16]  Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others [Civil Appeal No. 290 of 2012] eKLR.

[17]  Raila Odinga v I.E.B.C & others [2013] eKLR.

[18]  Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others [2013] eKLR.

luKamau Kuria v Attorney General, Misc. Civil Application [550 of 1988] eKLR.

[20]   Under the 2010 Constitution, Article 22(4) states that the absence of such rules shall not limit the right to any person to commence court proceedings under Article 22, and to have a matter determined by court.

[21]  Article 259, the Constitution of Kenya, 2010.

[22]   Edward Ritei Paranla, ‘Epistolary Jurisdiction as a Means of Enhancing Access to Justice in Kenya’, Published Dissertation, Strathmore University, 2016.

[23]  Andrew Khisa Wasike v Office of the Public Prosecution & another [2016] eKLR.

[24]Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR.