Lawyer urges Judiciary to fully reopen courts, faults mandatory E-filing

Senior lawyer and advocate Harrison Kinyanjui./FILE

Senior lawyer and advocate Harrison Kinyanjui has called on Chief Justice Martha Koome to fully reopen courthouses across the country, saying the mandatory use of e-filing and virtual platforms has left courts “partially closed” and locked out ordinary Kenyans.

He argues that the imposition of an exclusive electronic system for accessing justice violates the Constitution and denies ordinary citizens their right to justice.

Speaking during a public forum on access to justice, Kinyanjui said courts must remain physically open and accessible. He warned that digital platforms cannot replace constitutionally established courts that are open to the public without the inhibitions common in online systems.

“Courts should be open and remain open. Article 50(2)(d) of the Constitution demands an open court established under the Constitution and accessible to the public. Online courts violate this constitutional demand. Phones, laptops, and tablets are not courts. Technology has its place, but it cannot be used to take away constitutionally entrenched rights for those who want to physically conduct their cases and assess the demeanor of witnesses,” he said.

He said the Judiciary’s insistence on exclusive e-filing and virtual proceedings breaches Articles 48 and 50(2)(d) of the Constitution, which guarantee access to justice and the right to a fair hearing. Kinyanjui said forcing litigants onto online platforms unfairly discriminates against those without internet access.

He noted that courthouses are funded and maintained by taxpayers but are now lying idle.

“Android phones, tablets, laptops, desktops, and other digital platforms do not qualify as courts as constitutionally envisaged. The Judiciary should not force anyone into an online platform falsely branded as a court in order to access justice. A litigant must be free to choose whether to access justice physically or online,” he said.

While acknowledging that technology has brought some convenience, Kinyanjui said the Judiciary has lost sight of the human element at the heart of litigation.

“I think this obsession with e-filing has created more problems than solutions in the delivery of justice. There are positives, such as not having to travel to Machakos, Kitale, Mombasa, or other stations. That is a plus. But at the core of litigation is a person dealing with money, emotions, families, and property. The Judiciary has reduced everything to e-filing and forgotten the human being behind the case. It is not just a case. You cannot force someone into an online judicial process when they want to test evidence in open court,” he said.

He also raised concerns about privacy and data protection, especially in cases handled by the Family Division and Children’s Courts.

“Why should families be exposed to embarrassment and violations of privacy? People are asked online to state their names, ID numbers, and relationships to deceased persons in succession cases, and this data is published. Children’s cases are conducted online, yet a child has no chance to say they do not want their life exposed,” Kinyanjui said.

He said the practice violates the Children’s Act and data protection laws. He added that the Judiciary appears unwilling to listen to litigants calling for a return to physical court operations.

“Litigants are saying: keep the digital system if you must, but only for those who choose it. Judicial services are a monopoly under Article 46A. The Judiciary must prioritise what the consumer of justice wants and not impose a take-it-or-leave-it approach,” he said.

Kinyanjui warned that requiring litigants to have email addresses and internet-enabled devices denies justice to millions who lack access due to cost, connectivity, or power outages.

“If you do not have email or internet access, you cannot access the courts. That is a clear violation of Article 48. Even with an email address, inboxes can be full due to large volumes of documents, yet the Judiciary still turns litigants away,” he said.

He questioned why courts can no longer accept documents physically.

“If a litigant can pay filing fees, why can’t the Judiciary receive documents at the counter as before? Did Kenyans ever agree that digital platforms introduced during Covid-19 should become the default system?” he asked.

The Judiciary, on its part, said it would look into the concerns raised. It also engaged court users on complaints about judges and magistrates failing to admit litigants online, leading to cases being determined in their absence.