Business Daily (Nairobi)
Emmanuel Wetang'ula
16 July 2008
column
The Milimani Commercial Court Division, as the name suggests, deals with commercial disputes that may arise from time to time in the normal conduct of business.
Matters which have been classified as commercial include proceedings in which an injunction is sought to restrain the realisation of securities, company matters and applications including winding-up, bankruptcy matters, intellectual property matters and claims for the recovery of unsecured debts.
Due to the fact that a dispute in business should not result in the closure of the going concern or business venture, it is expected that cases of this nature brought to the commercial court will be expeditiously disposed of.
However, as it is a matter of public notoriety, justice within a reasonable period of time is an alien concept in our Kenyan courts. Many reasons have advanced as to the cause and even solutions continuously being proposed but a lasting solution is not yet in sight.
Judges, litigants, and advocates agonise over this all the time but a final solution is far in the horizon. One of the problems that have contributed to delays of justice, which is a denial of justice, is the administrative transfer of Judges and Magistrates from one station to the next.
As and when this happens, the parties to the case are at the mercy of the courts as how to progress with their matters. The judicial officer may continue with the matters partly dealt by him or may abandon them.
Imagine a complicated commercial dispute, where the judge has taken the evidence of five witnesses, then, as fate would have it, he/she is transferred to a different station. The likelihood of the matter progressing is, thus, nipped in the bud.
The parties to the case, through their advocates, take an election to have the proceedings typed and upon having been proof-read and verified by all the parties, a new judge may proceed from where the matter rested. In the alternative, the matter may have to commence afresh before the new Judge.
It is, therefore, instructive that administrative transfers of Judges and magistrates be designed and carried out in such a way that it does not lead to injustice.
This is by ensuring that before the transfer the Judge is given an opportunity to conclude all their pending cases. They also ought to be notified in advance such that they would not take up matters that in their estimation they would not deal with due to looming transfers. This, amongst many other reasons, will go along way in reducing the delay inherent in our judicial system.
Wetang'ula is an Advocate of the High Court
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