CHAPTER 5: CONCLUSION AND RECOMMENDATIONS
Following the words of Justice P.N Bhagwatti, whereas the articles of the constitution are couched in the widest of terms possible they mean little to the bulk of the population for as long as the courts fail to embrace the invocation of such jurisdiction. The Constitution of Kenya 2010 has been explicit about the invocation of epistolary jurisdiction as a legitimate method of instituting court proceedings. This couched with the expansion of the rules of locus standi has created the viable legal atmosphere for epistolary jurisdiction to thrive. However, due to the lack of a proper legal framework on this provision of law epistolary jurisdiction remains in the dark.
This chapter seeks to provide the research findings from each chapter and consequently provide viable recommendations on the application of epistolary jurisdiction in Kenya
- Access to Justice is hindered by Legal, Institutional and Structural Barriers
Poverty as defined earlier is a condition in which human beings are deprived of the resources,
capabilities and powers necessary for the attainment of an adequate standard of life. Such deprivation is occasioned by an ineffective or non-responsive policing and judicial system. Inspired by the social contract theory, these two institutions are the backbone of an effective democracy. The police are obligated to secure and protect the rights and freedoms guaranteed under the Constitution. The Judiciary is obligated to enforce and promote further such rights and freedoms if and when they are violated or simply under threat of violation. The systemic disintegration of the processes that keep such institutions miming are a result of negligence and poor leadership. Understaffing and overstretching of the staff members of these institutions, who function under a very limited budget, culminates into the emergence of detrimental and unethical practices such as corruption. Conversely, without the effective channels to protect, enforce and promote fundamental rights and freedoms, nothing is guaranteed and the weak and vulnerable are left to their own devices. Resultantly, poor people’s rights and freedoms are violated further, pushing them into greater poverty. They are denied of the opportunity to strengthen their economic status.
Evidently, enforcement of the right of access to justice is not predicated on the Judiciary alone, it is dependent on the wholesome cooperation of the three arms of government.
- The Executive should ensure proper and sufficient budgetary allocations to all arms of government. Moreover, through separation of powers, the Executive should not
succumb to political pressure and infringe on the independence of the Judiciary. Through separation of powers, each arm of government is kept on its toes, accountable for every action it takes. It is therefore critical to maintain the balance.
- The Legislature and the legal fraternity should continuously seek to harmonize statutory provisions to the Constitution of Kenya 2010 in order to ensure uniformity in interpreting and applying the laws.
- Moreover, due to the expanded rules of locus standi, independent citizens can effectively institute proceedings challenging unconstitutional laws that prohibit access to justice. Policies and institutional regulations that prohibit ordinary citizens from obtaining legal identity and claiming their legal entitlements should be challenged.
- The Judiciary should continuously ward off any attempts at it independence, for a Judiciary cannot rise above the status of its authority. More so, it should ensure effective reform and attainment of the four pillar strategy towards the overriding objective of the Judiciary: guaranteeing access to justice for all and ensuring equal protection of the law.
- In Paul Plciach Anupa & Another v Attorney Genera! &Another1,7 the court reiterated that an environment, in which access to justice for all is promoted and enforced, regardless of social or economic status, was that in which the rule of law flourished. Clearly, above all else, the rule of law and constitutionalism ought to be the guiding principles for Kenya’s young democracy. Attainment of above mentioned recommendations is predicated on adherence to these guiding principles.
- Effective Implementation of Epistolary Jurisdiction will enhance Access to Justice for the Poor people in Kenya.
As seen under Indian jurisprudence, epistolary jurisdiction is a mechanism developed with the most disadvantaged member of society in mind. It seeks to bypass all procedural, legal, institutional and structural barriers that may impede access to court. Through Social Action Litigation, the Indian Supreme Court has been able to significantly revolutionise the human rights landscape in India, through judicial activism and progressive interpretation of human rights provisions under their Bill of Rights.
117 Paul Pkiach Anupa & Another v Attorney General & Another  eKLR.
The Kenyan judiciary, closely following in their footsteps, has readily accepted its mandate as a protector of the Constitution and promoter of Constitutional principles. The rules of locus standi have been expanded, allowing for a party to institute legal proceedings without having any individual interest in the matter. More so, the Constitution and subsidiary legislation have expressly allowed the institution of proceedings through letters. In the case of Geoffrey Muthinja & another v Samuel Muguna Henry, the Court of Appeal provided the basic requirements for the legitimacy of an epistolary application: particulars of the party applying and sufficiency of information as to the constitutional right violated. Indeed, the fundamental legal requirements of the application of epistolary jurisdiction are in place.
The Judiciary should now furnish the necessary administrative procedures and rules so as to effectively and efficiently adjudicate such matters. Primarily, the Judiciary should define the scope of application of epistolary jurisdiction. In the earlier cited case of Geoffery Muthinja, the court stated that epistolary applications should be limited to public interest litigation matters and litigants who have no representation. However, Article 22, under which epistolary jurisdiction is inferred, provides for mechanisms in which the Bill of Rights shall be enforced. Clearly, epistolary jurisdiction under the Kenyan legal system is meant to institute any matter that outlines a violation of rights and fundamental freedoms. Under Article 165, tire High Court of Kenya has original jurisdiction to listen and determine applications for redress of a denial, violation or infringement of a right or fundamental fr eedom under the Bill of Rights. It would fall under the mandate of the High Court to receive epistolary applications.
With regards to the investigation and collection of evidence in any epistolary matter, the Kenya National Human Rights and Equality Commission may conduct any investigation, in accordance to their constitutional mandate, and collect evidence related to such a case and present it before the court. Such mutual cooperation will allow efficient use of limited court resources to advance matters brought under Epistolary jurisdiction. The Kenya National Commission on Human Rights Act, under Section 8-i states that the Commission may perform such other functions as the Commission may consider necessary for the promotion and protection of human rights; Article 249 of the Constitution provides the objects of such commissions as to protect sovereignty; secure the observance by all State Organs of the democratic values and principles; and promote constitutionalism. Therefore in fulfillment of their Constitutional mandate and promotion of the values and principles of the Constitution, the Kenya National Commission on Human Rights and the Commission on Administrative Justice should engage the Judiciary in such cooperative actions in order to better enable the achievement of access to justice for all through epistolary jurisdiction.
- Creation and Implementation of a Legal Framework governing Epistolary Jurisdiction will promote the Access to Justice for AH.
As seen in Chapter 4, various court pronouncements differ on the principle application of epistolary jurisdiction. Such uncertainty of legal procedure may lead to the under use of the legal concept of epistolary jurisdiction. The function of the law is to ensure certainty of outcomes of various actions. Lack of such certainty leads to a high amount of risk while litigating on an issue instituted through epistolary jurisdiction. More so, lack of a legal framework may result in the misuse of the concept. This will be as a result of frivolous suits instituted to avoid court fees culminating to inefficient court processes thereby delaying timely resolution of disputes. Harmonization of laws and precedent is therefore a crucial objective for the legislature and judiciary to achieve.
This dissertation was mainly earned out through desktop research of articles, books and academic papers on the issue of enhancing access to justice through Epistolary jurisdiction. Despite the successes I have gained from this method of research, more could have been achieved if there was sufficient information in Kenya on epistolary jurisdiction and its application. More so, this study could have gained further insight into the conditions of poor people and the problems they face while attempting to access courts and judicial tribunals if field interviews had been carried out. However, it is my sincere belief that tlirough the implementation of the recommendations of this study, epistolary jurisdiction can be developed into a tool tlirough which access to justice shall be achieved for every person, despite their social or economic status.
Books, Articles, Reports and Journals
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KLRC, Draft Report on Audit of Laws on Access to Justice, (March 2012).
Kariuki Muigua, ‘Access to Justice: Promoting Court and Alternative Dispute Resolution Strategies’, Workshop on Access to Justice, Nairobi (Sankara Hotel, Westlands), 23rd October 2012.
Committee On Economic, Social And Cultural Rights, ‘Substantive Issues Arising In The Implementation Of The International Covenant On Economic, Social And Cultural Rights: Poverty And The International Covenant On Economic, Social And Cultural Rights. ’ (E/C.12/2001/1010 May 2001).
Edward Ritei Paranta, ‘Access To Justice: Epistolaiy Jurisdiction as a Means of Improving Access to Justice in Kenya.’ Published Dissertation Paper, Strathmore University School of Law, 2016.
J Beqiraj and L McNamara, ‘International Access to Justice: Barriers and Solutions’, Bingham Centre for the Rule of Law Report (2014).
Randa, John, Gubbins, Paul, ‘Kenya Economic Update: Time to Shift Gears; Accelerating Growth and Poverty Reduction in the New Kenya’, 2013, Edition No.8. Washington DC: World Bank Group.
Human Rights Committee, CCPR General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial (2007).
The General Assembly, Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, 30′1‘ November 2012.
UN General Assembly, ‘Report of the Special Rapporteur on extreme poverty and human rights ’, August 2012.
Magdalena Sepulveda Carmona, Kate Donald, ‘Access to Justice for Persons Living in Poverty: A Human Rights Approach ’, Elements for Discussion Series, Ministry for Foreign Affairs of Finland (Erweko Oy).
Elizabeth L. MacDowell, ‘Reimagining Access to Justice in the Poor People’s Courts.’ 2015.
P.N. Bhagwati & CJ. Dias, ‘the Judiciary in India: A Hunger and Thirst for Justice ‘, 5 N.UJ.S Law Review, (2012).
Judicial Transformation Framework, 2012-2016.
Access to Justice under Public Interest Litigation: An MHRD Project under its National Mission on Education through ICT.
Drew Days III ElAl, Justice Enjoined, ‘The State of The Judiciary In Kenya ’, Publication Of The Robert F. Kennedy Memorial Center For Human Rights, (1992)
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Andrew Khisa Wasike v Office of the Public Prosecution & another  eKLR.
Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others  eKLR.
Paul Pkiach Anupa & Another v Attorney General & Another  eKLR.
Joseph Nyamamba & 4 others v Kenya Railways Corporation [Civil Appeal No. 239 of 2009] eKLR.
Kenya Bus Services Limited and Anor v. Minister of Transport & 2 Others  eKLR.
Centre For Human Rights and Democracy and Others v The Judges and Magistrates Vetting Board and Others Nairobi Constitutional Petition II of 20 12 (Unreported).
James Mangeli Musoo v Ezeetec limited  eKLR.
Michael Osundwa Salewa v ChiefJustice and President of the Supreme Court of Kenya & another  eKLR.
Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [Civil Appeal No. 290 of 2012] eKLR.
Raila Odinga v I.E.B.C & others  eKLR.
Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others  eKLR.
Kamau Kuria v Attorney General. Misc. Civil Application [550 of1988] eKLR.
Sunil Batra v Delhi Administration (1978) 4, 494.
Parmanand Katara v Union of India (1989) 4 286.
Nilibati Behra v State of Orissa and Drs (1993) 25 746.
Upendra Baxii (Dr) v State of UP (1983) 2 308.
Hussainara Khatoon v State of Bihar, (1980) 1 SCC 93: AIR 1979 SC 1360.
People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235: AIR 1982 SC 1473. Kushum Lata v Union of India (2006) 6 SCC 180.
Wangari Maathai v Kenya Times Media Trust Ltd  eKLR Gideon v Wainwright 372 US 335 (1963).
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, 947: AIR 1973 SC 1461, 2009. People’s Union for Democratic Rights v Union of India 1982 AIR 1473, 1983 SCR (1) 456. Bandhua Mukti Morcha v Union of India, (1984) 3 SCC 161: AIR 1984 SC 802.
Constitutions, Treaties and Acts of Parliament Universal Declaration of Human Rights.
International Convention on Civil and Political Rights.
African Convention on Human and People’s Rights (Banjul Charter).
Constitution of Kenya 2010.
Constitution of India.
Judiciary of Kenya; Guide to Assessment of Court fees.
The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
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Constitution of Kenya Amendment Act No. 4 (1988).
Indian Contempt of Court Act, 1971.
 Prashant Bhushan, ‘Supreme Cowl and PIL: Changing Perspectives wider Liberalisation,’ 39 EPW 194 (2004): P.N Bhagwalti and C.J Dias, ‘the Judiciary in India: A Hunger and Thirst for Justice.’ April- June 2012, 186-187.