The Commercial & Tax Division of the High Court
The Commercial Court is a highly specialized division created to deal exclusively with debt recovery and commercial related disputes. The Division was established in 1997 with one principal objective; to make litigation faster, fairer and more accessible to the business community and by so doing enhance foreign investment through fostering investor confidence.
The broad categories of cases that fall within the purview of the Commercial Division include:
- Injunction proceedings seeking to restrain realization of securities;
- Company cases, including winding up;
- Bankruptcy proceedings;
- Arbitration cases;
- Intellectual property cases;
- Income tax Appeals;
- Claims for recovery of unsecured debts due to banks and financial institutions; and,
- Matters certified by judge of commercial court due to need for its speedy disposal, nature of the case and amounts involved.
The Division has seven (7) judges headed by a Presiding Judge who is the administrative head of the Division with the responsibility for implementation of strategies and policies, administrative leadership, distribution of business before the Division amongst judges, convening and chairing of the court users committee; coordination of engagement between the Division and the public. The other Judges in the Division are deployed by the Chief Justice.
The Division has four (4) Deputy Registrars responsible to the Presiding Judge for the administration and management of the day to day operation of the Division, Case Management and offering support to the Judges through supervision and coordination of the operations in the registry. The Deputy Registrars also act as the Taxing officers of the court. They consider and dispose off procedural or administrative matters in accordance with the Rules or on the direction of the Presiding Judge.
Alternative Dispute Resolution Mechanisms in the Commercial Division
To encourage the expeditious and effective disposal and management of commercial cases, the Court initiated and rolled out mediation as an appropriate dispute resolution mechanism where all cases filed are referred to court annexed mediation at the close of the pleadings, at the request of the parties or at the instant of the trial judge.
Use of Information Communication Technology (ICT) in the Commercial Division
The Division embraces the use of technology in its procedures. There is a well-established and functioning e-registry and e-court. The e-registry enables the litigants to file cases remotely from the comfort of their offices with the use of the e-filing, e-assessment and e-payment platform. The e-court on the other hand promotes accountability and fast-tracks court proceedings. This has been made possible through the use of the Judiciary Transcription System where court proceedings are recorded and transcribed.
The Commercial Bar-Bench Committee
The Division has a robust Bar-Bench Committee which committee comprises the Judges of the Division and representatives of lawyers specializing in Commercial litigation. The committee was and is instrumental in the formulation and implementation of Practice Directions on Case Management in the Division. The Practice Directions were issued for purpose of expeditious disposal of cases filed in the Division. It provides for Case management Conferences. The principle of the Practice Direction is to enable Judges spend most of their time hearing and determining the substantive case and shortening the time spent on interlocutory applications.
The Business Court Users’ Committee
To develop, implement, maintain and deepen Judicial reforms and hence ensure a sustainable, predictable and a robust commercial justice ecosystem, the Division with the support of the Chief Justice established the Business Community Court Users Committee (BCUC). The BCUC is a forum where members of the Business Community and the Judiciary meet quarterly and on need basis to discuss matters of mutual interest. It provides a platform for the Business Community and other stakeholders to understand the processes and systems of the Judiciary and interact with and contribute to the improvement of access to commercial justice by the courts.
Performance Management and Measurement Understanding
The Presiding Judge of the Commercial Division has signed a Performance Management and Measurement Understanding on behalf of the Judges of the Division to hear and determine cases filed in the Division within agreed timelines.
Pursuant thereto the Division enters data on daily basis onto the case tracking system which is then used by the Judiciary Performance Management Directorate to generate various reports including time to disposition report, Clearance rate report, and age of pending cases report.
The Commercial Magistracy Court
The Commercial & Tax Division of the High Court has supervisory jurisdiction over the Chief Magistrates’ Commercial Courts. The Court is presided over by the Chief Magistrates and handles commercial cases whose claim value is up to USD 200,000.
Benefits of a Specialized Commercial Division
In Kenya, having a specialized Commercial division has had the following benefits:
- It has reduced the number of cases pending for hearing in comparison with having the Commercial cases filed and determined in the mainstream court system. This has led to shorter resolution times within the main trial court.
- It has promoted consistency in the application of the law, increasing predictability for court users.
- Judges in the division have developed expertise in the commercial law which has led to faster and more quantitative dispute resolutions.