In the 1870s a major transformation of the court
system of England and Wales took place. Previously there had been many civil
courts. Three operated under one
system of law (known as the common law) and the Court of Chancery operated a
rather different system called equity. There were three other specialised
courts. These were all at the level of what we now call the “High Court”.
Different courts operated under different rules of procedure. If you started a case in the “wrong” court, it was likely to be simply thrown out. There was also room for “forum shopping” - going to the court you thought would give you the most favourable result.
By the end of the reform process, there was just one High Court with divisions: King’s (or Queen’s) Bench, Chancery and Probate, Divorce and Admiralty (nicknamed Wills, Wives - maybe it should have been Wedlock) and Wrecks).
In 2010 Kenya took a major step in the opposite direction- it added to the High Court two other courts “with the status of the High Court”, one to deal with employment cases and labour relations and the other to deal with environment and land cases (Article 162(2)). The first is the Employment and Labour Relations Court (ELRC), and the second the Environment and Land Court (ELC).
What if you pick wrong court?
The “wrong” court has no jurisdiction. The court must, as judges like to say, “down tools”. You would need to start the case again in the right court. You might ask “Can’t the wrong court send the case to the right court?” No ¾ because it has no jurisdiction, it can’t do anything to the case, except throw it out.
Of course, you might appeal to the Court of Appeal, saying you still believe you actually did go to the right court. A case can even reach the Supreme Court to sort out in which court a case should have begun. Possibly that court might say, “Yes it was started in the right court - now go back so it can be heard.” Or possibly, “The case has been fully heard and decided but in the wrong court. You must start all over again in the right court.”
“Justice shall be administered without undue regard to procedural technicalities,” Article 159(2)(d) says. Yet in Article 162(2) the Committee of Experts, who inserted the idea of these courts, created a situation that almost inevitably generated procedural technicalities. And played into the hands of lawyers - who love technicalities. They can sometimes be the easiest way to win a case.
What are the disagreements?
The disagreements about what is the “right” court usually involve the Constitution. There is a whole chapter in the constitution about land and environment. And the High Court deals with cases involving interpreting the constitution - but not if the case is within the jurisdiction of the ELC.
There have been cases in which the High Court has said it has jurisdiction over a constitutional issue involving land. Courts say they decide what was the “predominant purpose” of the transaction - if it is really about land, it must go to the ELC.
But at least one case has held that an eviction case where the relationship of landlord and tenant had ceased was within the jurisdiction of the High Court. Similarly, it has been held that a case about a mortgage of land is not about land.
Recently a case went to the Supreme Court which involved the issue whether the ELRC had jurisdiction over dealings before an employment contract was made. The answer was Yes.
Why were these courts created?
Here we encounter an irony. In the Committee of Experts’ (CoE) final report, they refer to “the competing jurisdictional issues that have historically existed between the High Court and the Industrial Court”. The High Court had treated the Industrial Court as a subordinate court that the High Court could supervise. The CoE’s idea was also to have courts with judges of relevant specialised experience for these courts.
In the event, they prompted the creation of courts that have, predictably I suggest, given rise to uncertainties and disagreements about their jurisdiction.
They left it to Parliament to pass laws specifying the jurisdiction of these two courts.
Another big consequence
The experience of resolving disputes through courts is a slow process and the perception is widespread. In 1215, King John of England signed Magna Carta promising, “To none shall we sell, to none deny or delay, justice or right.” And Shakespeare’s Hamlet asked (around 1600) “who would bear the whips and scorns of time, Th'oppressor's wrong, the proud man's contumely, The pangs of dispriz'd love, the law's delay…?” when they could simply put an end to it all.
The first Chief Justice after Kenya’s constitution was adopted, Dr Willy Mutunga, determined to tackle the issue. He asked judges of the “equal status” courts to sit with High Court judges to deal with the backlog of appeals from magistrates. The Court of Appeal and then the Supreme Court (after CJ Mutunga had retired) held that judges are appointed to specific courts and cannot sit as members of any other court.
What might have been done?
The Constitution does not mention divisions of the High Court. The High Court Act allows the CJ to create divisions if the number of judges and the workload in a court station supports it. Seven are listed. Otherwise, a judge in a station may have to deal with any sort of case. Are land and environment or employment and labour relations so much more complex than constitutional law, human rights, or commercial law that it was necessary to create special courts for them?
Although the Constitution does not mention
divisions, perhaps it could have required land and labour (to be brief)
divisions to be created. Perhaps it would have been possible to require that
judges in those divisions must
have experience or qualifications in the field.
To be fair to the CoE, the High Court has sometimes gone against the Constitution. Under Article 165(5)(b), if an equal status court has jurisdiction, the High Court does not. This means there cannot be two courts with jurisdiction in the same case - and the equal status court has priority.
What should be done now?
First of all, perhaps the two Acts passed by Parliament can be studied and redrafted to make the jurisdictions clearer.
Maybe it would be possible to amend those laws so that the only solution to a jurisdictional problem is not chucking the case out, but emulating the New South Wales [Australia] Civil Procedures Act. It says: “If either the Supreme Court [equivalent to our High Court] or the Land and Environment Court is satisfied, in relation to proceedings before it, that it is more appropriate for the proceedings to be heard in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court.”
Would it be possible for each superior court station to have a single registry in which all cases must be filed and which would make an initial decision as to which court the case should go to.
In New South Wales, a judge of the Land and Environment Court of New South Wales may sit as a judge in the Supreme Court of New South Wales.
The Kenyan Supreme Court ruling in the case about judges sitting in a different court was perhaps unfortunate.
That court made a mysterious reference to the absence of any “common service arrangement” between the courts. Would it be possible for legislation to provide that judges of the High Court, ELC, or ELRC to sit in one of the others?
