Kenya Commercial Law Benchbook - 2019

Issue Timeline

2014: KAM works with KMJA to hold an Annual General Conference after which the idea of the Commercial Benchbook is born.

2015: KAM starts to develop the Commercial Law Benchbook

2016: KAM holds stakeholder and validation workshops across the country

2017: KAM launches the CBB and starts to train judicial officers on its use

2018: The Business Court Users Committee (BCUC) secretariat is established.

Introduction to the Issues

The Milimani Commercial Court was established in 1996 to tackle commercial issues in response to inadequacies experienced in the general set up of the court system. At the time, the other courts were congested and lacked adequate facilities, thereby adversely affecting the dispensation of justice despite the growing demands of an increasingly fast-evolving economic environment in Kenya. However, years into its existence, the court continues to face numerous challenges that have, over the years, triggered new demands by the business community for further reforms.

Currently, courts have a backlog of commercial cases, which imposes additional compliance costs, time and lost business. This has led to a lack of confidence in the judicial process. It slows down the judicial system and makes it even difficult for new cases to be quickly heard and determined.

Development of the Benchbook

Since 2013 KAM has been engaging the judiciary in a bid to improve the judicial processes that affect businesses. In that year, KAM partnered with the National Council on the Administration of Justice (NCAJ) to develop an Illicit Trade Manual to help improve the judicial processes in relation to such cases.

In 2014, KAM partnered with the KMJA to host the Annual General Conference (AGC) for Judges and Magistrates, during which a presentation on illicit trade was made. A manual was successfully launched in March 2015.

The key issues discussed at the AGC included illicit trade, enforcement of contracts, taxation, land, labour and industrial disputes and administrative measures to reduce case backlog. While this work and support have offered great value to the management of commercial disputes, it was concluded at the AGC that more needed to be done. The issues KAM sought to tackle related to the quality of judgements made on commercial cases. In addition, KAM members perceived that decisions in similar cases were subjective and inconsistent. There were inconsistencies in interpretation of the law by the Judges and Magistrates and there were inconsistent judgements in cases regarding taxes, trademark disputes and product standards.

It was therefore resolved that a commercial law guide book would be beneficial in providing essential information. It was intended that the guide would include:

  • Local and international best practice (based on the number of referrals by other Judges/Magistrates);
  • Landmark cases that should inform judgments (that is, case law);
  • A list of Universal commercial laws utilised in commercial decisions; and
  • Relevant commercial case procedures for the priority issues of illicit trade, customs, taxation and tariffs, intellectual property (copyright and trademark), employment and administrative procedures for commercial cases.

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