GAZETTE NOTICE NO. 189

IN EXERCISE of the powers conferred under Articles 159 (2) and 161 (2) (a) of the Constitution of Kenya, section 10 of the Judicature Act and section 81 (3) of the Civil Procedure Act, and section 39 of the High Court (Organization and Administration) Act, the Chief Justice issues the following practice directions— Citation 1. These Practice Directions may be cited as Practice Directions on standardization of Practice & Procedures in the High Court 2021. Commencement 2. The Practice Directions shall come into force on a date to be determined by the Hon Chief Justice. Application 3. The Practice Directions shall apply to all High Court stations and Divisions. Objectives 4. The Objectives of the Practice Directions— (a) consolidate and standardize practice and procedure in the High Court (b) Enhance access to justice; (c) Facilitate timely and efficient disposal of cases; (d) Ensure uniformity in court experience; (e) Promote use of technology in court proceedings for expeditious disposal of cases. Court fees 5. (a) Court Fees Schedule as published from time to time shall be applicable to proceedings in the High Court. (b) The registry shall maintain an automated fee assessment system to facilitate e-payment of all forms of court fees. (c) Where court fees is payable, it shall be the responsibility of each party to ensure correct fees is paid in the prescribed manner. In the event fees is not correctly assessed and paid, the party shall be notified and requested to pay the additional fees. (d) The Procedure on payment of fines and refund of deposits is outlined in the Registry Operations and Procedures Manual. An offline payment solution shall be applied when the e- payment system is not responsive. Access to Justice by Vulnerable and Specialized Groups 6. (a) The interests of vulnerable litigants shall be safeguarded in all Registry and Court proceedings. Vulnerable litigants may include children, persons living with disabilities, elderly, minorities and marginalized groups, paupers, pregnant women, victims of trauma and persons in custody. (b) An E-Support Centre shall be established in each High Court station to assist vulnerable litigants to access the ICT platform where needed. (c) A pauper litigant may apply to court for waiver of court fees as stipulated in the law. Alternative Dispute Resolution (ADR) 7. (a) The Court shall encourage and facilitate the use of alternative dispute resolution mechanisms. (b) Parties shall ensure that as far as possible they have considered alternative means of dispute resolution prior to filing cases in Court. High Court Recess 8. (a) Disposal of matters during recess shall be in accordance with directions published in the Kenya Gazette by the Principal Judge. (b) A party to a matter may apply to the court for an order that such a matter be heard during recess. 9:33 AM THE KENYA GAZETTE 14th January, 2022 90 90 (c) If the Court is satisfied that the matter is urgent, it will make orders accordingly. Typing Format Style 9. All pleadings filed shall adopt the format style below— (a) Paper size: A-4 (b) Margins :1.5” (c) Top: 1.5” (d) Bottom: 1.5” (e) Left: 1.75” (f) Justification: Full (g) Font: Times New Roman / Arial / century gothic (h) Font size: 12 (i) Font colour: black (j) Line spacing: 1.5 Case Heading 10. (a) All case headings shall utilize the format provided in the Judiciary E- filing system, where applicable. The case type is pre-set in the System. (b) When filing pleadings, parties must indicate the correct details of the case including; the court, place of filing, the case type and parties to the case. Republic of Kenya In the High Court of Kenya at……………… Civil Case/ Criminal Case/ Succession Cause No……. BETWEEN: (Name) X Versus (Name (Y)) Drawing of pleadings 11. (a) The original text material, documents, notice of motion, memoranda, main petition or appeal, interlocutory applications and pleadings generally shall be prepared electronically using Word processors. (b) Care must be taken to ensure that all filed documents are legible. (c) All pages shall be numbered/paginated at the bottom right hand corner. (d) All annexures attached to pleadings shall be numbered at the top right hand corner. (e) Pleadings shall be precise and brief. The pleadings shall be accompanied by an index of all documents. (f) Each pleading filed in court must contain telephone numbers, e-mail, postal and physical addresses of parties and the firm of advocates on record. (g) ‘Persons deprived of liberty may use the address of the institution in which they are held. (h) Parties shall comply with set requirements and time limits when filing pleadings, witness statements and documents as set out under the Civil Procedures Rules and/or applicable statutes. Witness Statements 12. (a) Witness Statements shall contain sufficient details so that— (i) The witness may adopt his/her statement as his/her evidence-in-chief; and (ii) Parties can apply for highlighting of evidence and production of documents (in examination-in-chief) before the witness can be cross-examined. (b) In cases where documents are sought to be produced and relied upon, the bundle of documents shall be chronologically arranged and sequentially paginated. (c) As much as possible, witness statements shall make sequential reference to the documents by their pages to make it easy for the court and other parties to follow and understand the case. Territorial Jurisdiction on Appeals 13. All appeals and applications from subordinates Courts, tribunals, other bodies and authorities shall have due regard to the corresponding supervisory jurisdiction of the High Court Station as per the established Judicial Administrative Regions set out in the High Court (Organization and Administration) Act and shall conform with the provisions of the Appellate Jurisdiction Act; Record of Appeal for Civil Appeals 14. (a) The record of Appeal shall contain the following— (i) Index page (ii) A copy of pleadings (iii) Certified typed record of the entire trial court proceedings (iv) The judgment and sentence (v) List of exhibits (vi) List of witnesses (b) The record of appeal shall be numbered in the bottom right hand corner (c) Every tenth line of every document shall be numbered in the right hand margin. (d) Record of appeal shall be bound and where the pleadings comprise of more than 500 pages, they shall be bound in separate volumes each of 500 or less pages. The volumes shall contain an index of all the documents. Record of Criminal Appeal 15. (a) The Notice of Appeal shall be lodged at the High Court Registry by the party or designated Prisons official for an appellant who is in custody. (b) A register which captures the date of receipt of notice, the lower court file number, the date of Judgement and the name of the officer receiving the Notice shall be maintained at each registry. (c) In case of first appeals, the High Court registry shall follow up on the records. (d) In the case of 2nd appeals, the High Court Registry shall commence the process of preparing the Record of Appeal upon receipt of the Notice of Appeal. (e) For ease of reference and follow up by litigants, the High Court 2nd Appeal Registry will utilize the High Court case numbers while awaiting new Court of Appeal numbers. (f) Once the record of appeal is ready, it shall be forwarded to the Court of Appeal and a communication shall be sent to the appellants by the High Court 2nd Appeals Registry notifying them that the record has been forwarded to the Court of Appeal (g) In case of appellants in custody the information shall be communicated through the in charge prisons. (h) The record of Appeal shall contain the documents set out in the criminal procedure code. (i) Pleadings with over 100 pages shall be bound and where the pleadings comprise of more than 500 pages, they shall be bound in separate volumes each of 500 or less pages. The volumes shall contain an index of all the documents. 14th January, 2022 THE KENYA GAZETTE Electronic Filing and Service of Process 16. (a) Pleadings/documents shall be filed via the Judiciary electronic filing system (e-filing) and shall satisfy the criteria specified for acceptance. (b) The e-filing procedure shall be guided by rules and regulations as may be issued from time to time. (c) In the event of unavailability of the electronic filing system, the court shall issue directions on the mode of filing. (d) The Registry shall serve Court processes on the Advocates /Litigants electronically /physically if the Court so directs. Time Management 17. (a) At the point of issuing a hearing date, the court may allocate time for hearing and may also indicate the amount of time to be given to each case and party. (b) Where parties fail to appear during a scheduled time, the court may make such orders as the court deems fit. (c) The Courts will promptly communicate when Court sessions shall commence late. (d) Parties and Counsel shall be bound by agreed optimum timelines during sessions. Applications Generally 18. (a) In the case of applications, the court will give directions on whether the matter should be determined by way of written submissions. (b) In the event there is need to highlight the submissions the court may in its discretion limit the time for highlighting the submissions. (c) The court shall shorten or extend a time limit fixed by a direction; (d) The court shall require that issues in the case should be― (i) identified in writing, (ii) decided in a particular order Application under Certificate of Urgency 19. (a) Applications filed under Certificate of urgency shall be considered by the Judge at the earliest opportunity. However, matters filed after 12.00pm may be considered by the Judge on the next working day. (b) The Court may in its discretion, issue orders/directions without the attendance of the advocates or parties. (c) Where the attendance of parties/advocates is necessary, the court shall notify the parties/ advocates to appear. (d) Hearing dates for applications certified urgent by a Judge, shall be fixed by the Judge. Criminal Revision 20. (a) An application for revision may be by way of a notice of motion application accompanied by an affidavit or a letter to the Judge setting out the grounds for the order sought. (b) The application may be placed before a Judge for directions on the same day. Criminal Re- Sentence Applications 21. (a) An application for re- sentence only from murder trials where sentences have been passed may be by way of a notice of motion application accompanied by an affidavit or a letter to the Judge setting out the grounds for the order sought. (b) The application may be placed before a Judge for directions on the same day. Bail and Bond 22. The court may grant bail or bond to an accused as per the Bail and Bond Policy Guidelines. Request to act as Amicus Curiae 23. (a) A party that wishes to act as amicus curiae in public interest matters shall submit a request to the Bench, specifying the contribution they would like to make with regard to the matter. (b) The Court will examine the request and determine within a reasonable time from the date of receipt of the request, whether or not to accept the request to act as amicus curiae. (c) If the Court grants the request to act as amicus curiae, the person or organization making the request shall be notified by the Registrar and invited to make submissions, together with any annexures, at any point during the proceedings. The Application, together with any subsequent pleadings relating to the matter for which the request for amicus curiae has been made, shall be availed to the person or organization. (d) The Court on its own motion may invite an individual or organization to act as amicus curiae in a particular matter pending before it. (e) The amicus curiae brief and its annexures submitted to the Court on a matter shall be immediately transmitted to all the parties, for their information. (f) The decision on whether or not to grant a request for amicus curiae is at the discretion of the Court /Bench after hearing submissions of all parties. Issuance of Dates 24. (a) All filed matters must have dates. (b) Priority hearing dates shall be given to cases according to age, urgency and nature as may be practicably possible. (c) Deputy Registrars may on the direction of the Judge issue hearing dates for applications which are not under Certificate of Urgency (d) Hearing Dates for the main suit shall be given by the Judge (e) Matters without hearing dates shall be listed for mention before a Judge to give a hearing date. (f) Mentions before a Judge shall only be for the following purposes— (i) For compliance with the courts directions (ii) For fixing of hearing dates (iii) For directions (iv) To take ruling/judgment dates upon filing submissions by parties. (v) All other mentions shall at first instance be before the Deputy Registrar (g) Requests for mention (i) The purpose and reasons MUST be specified (ii) The request for mention shall be placed before the Deputy Registrar for consideration. Preparation and Posting of the Cause List 25. (a) Cause lists for the month shall be prepared and posted online a week before the end of the month. There shall be an addendum cause list to cater for matters that are fixed after the main cause list has been posted and such addendum shall be published at least twenty-four hours in advance. (b) The Cause list may have a limited number of cases with a maximum of 5 main hearings, 5 Applications and 10 Mentions. (c) Cause lists shall be structured by listing matters in the following order— (i) Mentions, (ii) Applications, (iii) Hearings, 9:33 AM THE KENYA GAZETTE 14th January, 2022 92 92 (iv) Rulings and judgments. (d) The cause list shall clearly indicate— (i) The names of litigants and advocates (ii) Time for various activities (iii) The court room number (iv) Whether the hearing is virtual or physical (v) virtual links (vi) Court contacts (vii) Any other relevant communication Pre-trial Directions/Conferences in Civil Matters 26. (a) Upon filing of a suit the matter shall be given a mention date before the Deputy Registrar within 30 days of the date of filing. A bring up mention notice shall be issued together with the Summons. (b) The Deputy Registrar will be a case manager for purposes of— (i) confirming that the Checklist form set out in Appendix B Order 11, Rule 2 of the Civil Procedure Rules has been filed (ii) Giving Direction on preliminary issues under Order 3, Civil Procedure Rules (ii) Issuance of appropriate directions to ensure parties comply with pre-trial conferences. (iii) Screening matters for suitability for referral to Court annexed mediation (iv) Explaining to parties the process and their roles in Court Annexed mediation. (v) Issuance of summons for witnesses to attend court to testify and/or produce documents, and for filing of Witness Statements in respect of such witnesses. (vi) issuance of directions requiring the filing of more comprehensive Witness Statements. (vii) Where there is non-compliance with pre- trial directions, the case manager shall place the file before a Judge for sanctions. (viii) At the close of pre-trial the case manager shall— (i) Ensure parties file a duly signed case management checklist in the prescribed form (ii) place the file before a Judge for directions on hearing. (ix) The Judge may set a matter for hearing not withstanding that a party has failed to comply with pre- trial directions. The Judge may impose sanctions where necessary. Pre-Trial Directions/Conference in Criminal Cases 27. (a) Criminal trials in the High court must be subjected to pre- trial before being set down for trial. A pre- trial conference may not be held where the court determines, in writing, that there is good reason not to do so. (b) upon the first appearance of an accused before a judge, directions will be issued on mental assessment and allocation of pro bono advocate. (c) The Court shall set a pre-trial conference not later than 30 days after a plea of ‘not-guilty’ is entered. (d) At the pre-trial conference the Court shall confirm the following; (i) That the Prosecution has supplied the defence all relevant materials, information or documents that it intends to rely on during trial; (ii) Whether the accused person has obtained, and or has an appointed legal representation; (iii) Whether the accused person is a minor; (iv) Whether the accused person is out on bond; (v) Whether the accused raises a defence of double jeopardy or an alibi defence; (vi) The need for interpreters; (vii) The real issues in dispute, considering in advance issues relating to any arguments inter alia regarding the admissibility of any documentary, technical, expert evidence, pre-recorded, digital or electronic evidence including confessions, video and audio recorded interview; (viii) The number and needs of witnesses (including intermediaries), including the length of those witnesses’ testimony and whether tele-conferencing or live TV link shall be necessary and/or appropriate; (ix) The length of trial, achieving certainty as to what must be done, by whom, and when, in particular by the early setting of a timetable for the progress of the case; (x) The progress of the case and compliance with directions ensuring that evidence, whether disputed or not, shall be presented in the shortest and clearest way; (xi) The court shall ensure determination of all aspects of the case necessary for expeditious trial while encouraging the parties to cooperate in the progression of the case; (xii) The court shall provide an opportunity for consideration of plea- bargaining and, where appropriate, alternative dispute resolution; (xiii) Identify all relevant preliminary issues; (e) At the close of the pre-trial conference— (i) parties shall file with court a duly signed case management checklist in the prescribed form. (ii) The court shall set down the matter for hearing Directions on Hearing 28. (a) The court shall give direction on whether the hearing will be in open court, virtually or in camera. (b) At every hearing the court must, where practicable— (i) set, follow or revise a timetable for the progress of the case; (ii) ensure continuity of the case for the expeditious disposal of the case (c) If a case cannot be concluded the court shall give further directions for its expeditious conclusion. (d) The Judge may at any stage, where appropriate, refer a matter to Court Annexed Mediation. Adjournments 29. (a) Except in exceptional circumstances, the Court shall not allow an adjournment of scheduled proceedings. (b) Any adjournment should be communicated to the other party and Court in advance before coming to Court. (c) Where a technical hitch impedes communication during virtual court sessions, the period during which communication was cut off is deemed to be an adjournment. (d) The court shall issue directions if the technical hitch is not resolved within reasonable time. Conduct of Virtual Hearings 30. (a) The conduct of the Virtual Court Session shall be guided by the court. (b) All Advocates /Litigants and relevant staff of the Court must be connected at least fifteen (15) minutes before the stipulated time of the court session. (c) Advocates and all participants shall be properly dressed for the virtual court session. 14th January, 2022 THE KENYA GAZETTE (d) To maintain the solemnity of the hearing and if the Court so directs, Advocates may appear either in their robes or appropriate professional attire. (e) Order and discipline shall be maintained during the Hearing. No one shall speak unless given the floor to do by the Court. (f) All microphones shall be muted until one is given audience and camera should be turned on. Advocates and Participants shall uphold the same courtesies as done in the physical court room. (g) In addressing the Court, Advocates/Litigants should be mindful of the need for interpretations and should therefore speak slowly and pause intermittently. (h) Advocates/Litigants shall be concise and precise in their submissions without repeating the content of the documents. Witnesses During Virtual Hearings 31. (a) Witnesses shall ensure that they have reliable internet connectivity. (b) Witnesses shall join the virtual court when called upon to do so. (c) Standard rules for the admissibility of the witness testimonies apply. (d) The witnesses shall be required to state their physical location and verify that they are alone in the video conferencing space. (e) To ensure the integrity of the proceedings and subject to the direction of the Court, if a witness is participating from the Advocates office, the witness should if possible, be placed in a separate room from the Advocate. (f) The Advocates’/Witness camera settings should provide enough visibility for the court to see the witness and to verify that the witness is not receiving communication or assistance of any sort. (g) There shall be no private communications - phone, text or e- mail - with a witness during the witness’s testimony (h) The Court will direct Advocates, parties and witnesses on how to communicate or raise any issues that may arise during the virtual sessions (i) No one else should be in the room with the witness without notice and approval of the court - if more than one person is permitted to be in the same room they should log in separately. However, only one microphone should be in use at any one time so as to avoid echo. (j) In the event an interpreter is required, the Court shall give directions as to where the interpreter shall sit in relation to the witness and the manner in which the interpretation shall be conducted. (k) It is the responsibility of the Advocates and parties calling witnesses to ensure that in a matter involving more than one witness, the other witnesses shall be in a separate room from that of the one testifying. (l) The witness giving testimony shall at all times be visible to the Court and the other party. (m) There shall be no deliberate interruption in the internet connectivity, visual or audio. (n) The Court shall ensure that parties in remand are not disadvantaged by the practice directions. Production of Exhibits During Virtual Hearings 32. (a) Advocates /Litigants will be required to upload all Pleadings and documents necessary for the conduct of the hearing from the e-filing portal and may display using the share function in the video app. (b) All witnesses should have in their possession all pertinent exhibits and documents before the virtual hearing. (c) The court shall issue protocols where needed for production of physical exhibits. Recording of Virtual Court Proceedings 33. (a) Virtual hearing proceedings shall be recorded by the Court. (b) Recording of proceedings by counsel and /or parties shall only be with the leave of court. (c) The transcripts of the Virtual Court Session shall constitute the official record of the sessions. (d) Certified true copy of the transcripts of the virtual proceedings shall be made available upon request and on payment of the requisite fees. Submissions 34. (a) Submissions shall not raise or address any new issue(s) ground(s) or point(s) of law, not contained in the pleadings filed before the Court. (b) The Court shall set out time lines for oral submissions by each party; and the parties shall adhere to the prescribed time- frames. (c) The court may issue directions on filing of written submissions depending on the circumstances of the case which may prescribe— (i) The timelines for the filing of submissions (ii) Number of pages / bytes (iii) Format. 1. Sub-headings, on the specific issues being addressed. 2. Numbered paragraphs. 3. Underline and/or make bold Citations from authorities, books and literatures 4. Background/chronology of relevant events; 5. Cited authorities specifying the ratio decidendi, relevance and applicability to the matter. (iv) The Court may direct that parties highlight filed submissions (d) Authorities accompanying submissions shall— (i) Give the full citation, attach the hard-copy case law, and highlight the relevant portion(s) being relied on. (ii) Where a party seeks to rely on the Constitution, Statutes, or other legal instruments, such as Treaties, Protocols and Conventions, parties shall give the full citation, as well as an excerpt of the relevant provision(s) (iii) To assist the Court, the bundle of authorities shall be indexed, bound, paginated and flagged. (iv) The bundle of authorities shall be numerically paginated, and chronologically arranged, in accordance with the list of authorities. Judgements and Rulings 35. (a) The Court may deliver its Rulings and Judgments in a Virtual Court Session. (b) The Court shall notify Counsels and parties of the date reserved for the delivery of Judgment/Ruling. (c) Considering the nature of Virtual Court Sessions, the Court will only deliver a summarized Judgment /Ruling by reading out just the decision, while the certified true copy (CTC) of the full Judgment and Ruling containing the full analysis of the court will be forwarded to parties electronically upon request and payment of the requisite fees. Part-Heard Matters 36. (a) Active case management of cases should be implemented to manage part-heard matters. (b) where a Judge is transferred, pending matters shall be brought up for mention before the Presiding Judge for reallocation. 9:33 AM THE KENYA GAZETTE 14th January, 2022 94 94 (c) In case the outgoing Judge is not in a position to deliver the pending judgments/ rulings, the Judge will forward the files together with the sealed judgments/rulings to the Presiding Judge for delivery. (d) A list of pending part-heard matters, judgments and rulings will be sent to the Principal Judge upon transfer of a judge. (e) The Deputy Registrar shall issue notice to advocates/parties of delivery of ready judgments by the transferred judge. Extraction of Orders 37. (a) Orders of application under Certificate of urgency lodged in the e-filing system shall at first instance be issued by the Judge in the system within 24 hours during working days, with exception of admiralty cases where orders can be extracted at any time. (b) In the event there is need for a manual order advocates may prepare draft orders in soft copy. The court may approve the draft with or without amendments and have a fair one executed and sealed shortly after grant of the orders sought. Review of Court Interest Rates 38. Where a decree is silent with respect to the payment of interest on such aggregate the court shall be deemed to have ordered interest at 14 % per annum or as the Chief Justice will direct from time to time Execution and Taxation of Bills of Costs 39. (a) For efficient service delivery the High Court shall adopt active management of the Courts’ execution processes. (b) When judgment is entered in a matter shall be placed before the Deputy Registrar for directions on taxation of costs and post judgment activities. (c) Within sixty (60) days the Deputy Registrars shall issue mention notice to the parties to establish whether they are interested in pursuing any post judgement activities. (d) Upon delivering a ruling on taxation of a bill of cost the Deputy Registrar shall issue a certificate of cost within reasonable time. (e) A separate register of matters with post judgement activities shall be maintained to track the progress of the matters. (f) Depending on the volume work the Presiding Judge may give directions on a Judge or day to handle post Judgement applications. Non-Compliance with The Rules 40. Under section 1A(3) of the Civil Procedure Act non- compliance with relevant Rules, orders and/or directions issued by the Court may lead to the imposition of such sanction on the defaulting party and/or the advocate as the Court may deem fit. Access to Court Documents 41. (a) Parties in a case file shall have access to court information subject to the following— (i) Parties desirous of perusing physical court files shall make an application in writing to the Deputy Registrar or Court Administrator. (ii) Advocates and litigants shall have access to the court information electronically. (b) Media shall have access to court information provided there are no orders/directions limiting access of information on the specific case subject to— (i) The Media identifying themselves to the Court Administrator before entry to the court offices, Registries and Courts. (ii) Obtaining prior permission from the Judge hearing the matter, to public sessions, photographing, sound recording and filming sessions. (c) Information to the general public shall be released via— (i) Kenya Gazette (ii) Print Media (iii) Broadcast (iv) Official Social Media platform (v) Posters, Notices and Banners; and (vi) Official Judiciary Website (d) Official Contacts shall be available in the Judiciary portal, Customer Care Centers and Notice Boards Feedback, Complaints and Response Mechanism 42. (a) All correspondences relating to matters before court shall be filed in the Court Registry (b) Complaints should be handled through the Judiciary complaints handling mechanisms. (c) Parties aggrieved with Judicial decision should seek redress through the appellate process Miscellaneous 43. The Chief Justice may amend these practice directions from time to time Dated the 11th January, 2022. MARTHA K. KOOME, Chief Justice and President of the Supreme Court of Kenya.