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Submitted by:
Christopher Kerkering
External Consultant for the
International Development Law Organization
Nairobi, Kenya
Table of Contents
Part 1: Executive Summary and introduction
1.1Purpose of the Report
1.2Kenya Law and Online Access to Legal Information
Part 2: Preliminary Findings
2.1Uniform Citations Systems: Introduction and Analysis
2.2Uniform Citation Systems Under eKLR
2.3A Uniform System of Citation: Ways Forward
2.4Citation Systems and Quick Access to Information
Part 3: Recommendations for Citing Kenyan Legal Authorities
3.1Kenyan Case Law
3.2Kenyan Legislation
3.3Senate or National Assembly Bills
3.4Legal Notices and Regulations
3.5County Legislation
3.6Gazette Notices
3.7Secondary Sources
Part 4: Conclusion
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Part 1:Executive Summary and introduction
1.1Purpose of the Report
This report explains why a uniform system of citations is necessary for the development of Kenyan jurisprudence and discusses potential citation models for Kenya Law and the Judiciary to consider.
It is vital that thisreportby reviewed by representatives from the National Council for Law Reporting (Kenya Law), the Judiciary, the Law Society of Kenya and other stakeholders to ensure that it accurately reflects the needs of these organisations and groups.
1.2Kenya Law and Online Access to Legal Information
Kenya Law has a statutory mandate under the National Council for Law Reporting Act, 1994 and the Interpretation and General Provisions Act, Legal Notice 29 of 2009 to:
- To monitor and report on the development of Kenya’s jurisprudence through the publication of the Kenya Law Reports;
- To revise, consolidate and publish the Laws of Kenya; and
- To undertake such other related publications and perform such other functions as may be conferred by law.[1]
As part of its mandate to publish the Kenya Law Reports and disseminate legal information to the public, Kenya Law has established a website, commonly referred to as eKLR. Since its launch, eKLR has grown to become the primary source for Kenyan legal information, including case law, statutes, legislative information, and select publications that are of particular interest to the public. It has become the primary platform for judges, judicial clerks, and scholars looking to research and analyse Kenyan law.
As is the case in many jurisdictions, eKLR has supplanted the historical print publications of the Kenya Law Reports and related material. This is not surprising. Given the rapid changes to Kenyan law since the promulgation of the 2010 Constitution, print publications are often outdated even at the time of release. Moreover, they are expensive to produce and inaccessible to the majority of the population. eKLR has proven to be a better platform for Kenya Law to fulfil its mandate.
The transformation to the internet as the defacto source of Kenyan legal information, however, has required eKLR to change rapidly to fit the demands of its users. Over the years, it has streamlined its search functions, expanded its case database to include cases published years before the launch of the site, and added previous versions of the amended statutory law.
It has become standard practice in the judiciary, and among lawyers, to refer to case law by citing eKLR. These citations included references to the name of the case, the year in which the document was published, and general reference to eKLR. As eKLR has become the standard reporting source and case law under the 2010 Constitution has grown, however, there has been an increased interest in developing a uniform system of citation that provides research and readers with a standard citation form and allows quick and accurate access to the information contained on the website.
Should the Kenyan Judiciary decide to implement a uniform system of citation, Kenya Law is in the best position to develop that system. Moreover, the benefits of a uniform citation system fit squarely within Kenya Law’s statutory mandate as well as its vision for ‘Accessible Public Legal Information towards and Enlightened Society’.[2]
The Judiciary must first determine the standard citation system to be implemented by Kenya Law. In addition, both Kenya Law and the Judiciary should seek input from the legal community to ensure that the practice is understood and adopted by practitioners.
Part 2:Preliminary Findings
2.1Uniform Citations Systems: Introduction and Analysis
The aim of a system for citing legal authorities is relatively straightforward: ‘a simple and practically costless way to point at the source that provides authority for your claim’.[3] Unfortunately, the idea of a simple and efficient method to ensure that legal arguments are backed by legal authority has become more complicated than it need be. There are now hundreds of citation systems developed by different jurisdictions, universities, and publishing houses. Each of these developers purports to have the most efficient and straightforward way of citing authority, but the very process of developing a more superior citation system only confuses the efforts. The numerous citation methods do the opposite of the intended goal. Instead of being costless and straightforward, they are convoluted and a waste of precious time and resources.
Perhaps the most egregious example of a citation system devolving into a convoluted process is the Bluebook, which is the most common citation system in the United States. As Prof Lawrence Lessig complained, the ‘Bluebook is a brilliant embarrassment. Hundreds of pages long, with thousands of abbreviations, and convoluted rules specifying, among other things, typeface variations.’[4] The Bluebook system ‘seems designed to punish’ rather than provide an efficient and accurate method for identifying the authority to support a advocate’s or judge’s arguments.[5]
The Bluebook and other systems of citation require different detailed rules to achieve the same goals: clarity, efficiency, transparency, and accuracy. Often, the established rules do not provide a better system and, instead, reflect a stylistic preference—a vanity project to distinguish one publication, one jurisdiction, or one journal from another.
Despite these complications, a citation system is essential. The law is based on precedent. For lawyers to craft their arguments and for judges to reach well-informed decisions, they must be able to access, analyse, and cite legal authority. A uniform citation system ensures that lawyers have adequately identified the authority they are presenting to the court, gives the court a reference that it can use to find the authority quickly, and ensures that the judges understand what that authority says and how it is to be used. Without a uniform system of citation, it is much easier to misquote or misrepresent authorities and much harder for the judiciary to ensure that authorities are being used appropriately. The reliance on president, transparency, and the quality of legal arguments suffer. In short, without a uniform system of citation, jurisprudence suffers.
With the onset of digital and online resources, the need for a uniform and accurate citation system prevails, yet the multitude of resources has expanded the types of citations methods and has increased the tendency for advocates to provide less accurate citations.
2.2Uniform Citation Systems Under eKLR
Having established the importance of a uniform system of citation, this next section addresses the added difficulties—and opportunities—presented by an online legal environment. The shift to online legal databases has transformed the way that repositories of legal information store their data, the manner in which legal practitioners conduct research, and the methods by which digital sources, as opposed to print sources, are cited. This transformation is evident in the development of jurisprudence by the Kenyan Courts following the implementation of the 2010 Constitution. As the most relevant sources for research and analysis have shifted to online databases, the Kenyan Courts have similarly shifted their citation methods. A typical, pre-electronic case citation from the Kenyan Judiciary looked like this:
- Speaker of National Assembly v Karume [1992] KLR 21
Now, Kenyan courts have largely eschewed the use of print citations, in part because print citations are either not available, are difficult to access, or do not reflect the rapid change caused by the Constitutional transformation. Equally as important, Kenya Law has done an impressive job of ensuring that many of the cases that were previously published in the print version of the Kenya Law Reports are now digitised and available online.
The digitisation of case law that was previously only available in print is an excellent and essential step in increasing accessibility and developing jurisprudence. Yet, it has also created another example of how one case may be cited in multiple ways. For example, the case mentioned above, Speaker of the National Assembly v Karume, is available not just through the print version of the Kenya Law Reports, but as an electronic version through eKLR. The eKLR citation is:
- Speaker of the National Assembly v James Njenga Karume [1992] eKLR
The eKLR citation is now relied upon by the Judiciary as a reference as much, if not more than, the print KLR cite. For example, the following cases use the eKLR cite of Karume and not the KLR print cite.
- Republic v George Ndung’u Koimburi & 2 Others Ex Parte Alice Njogu &Another [2017] eKLR [3]
- Republic v George Ndung’u Koimburi & 2 Others Ex Parte Alice Njogu &Another [2017] eKLR [6]
- Secretary, County Public Service Board &Another v Hulbhai Gedi Abdille [2017] eKLR
There are several reasons that courts and advocates have turned to the online version of cases. First, the most recent print publication of Kenya Law Reports only includes cases through 2010. As a result, the vast majority of cases that discuss the 2010 Constitution are not available in an official print format. Second, eKLR makes it more straightforward to conduct research online by using simple word searches that narrow the search results to a particular phrase, a specific issue, a specific judge, a specific court, or various other search terms. Third, citation to eKLR represents a common platform that advocates and judges know is available to anyone with an internet connection; whereas the Kenya Law Reports is only available to those who have been able to make a significant investment in the books, or can access them through a library.
Yet, eKLR is not perfect and lacks one crucial advantage of the print versions of case law. Unlike eKLR, the KLR cite identifies not just the date the decision was made, but the page number on which the case can be found. For example, the KLR cite to Karume refers to the page number, 21, on which the case begins. If a researcher has a hard copy of KLR for the year 1992, she can quickly flip to the proper page and start reading.
For eKLR users, however, there is no ability to ‘flip’ to the proper page, since on-line databases are not organised in that way. There are no pages, but rather a transformation of ones and zeros. As a result, electronic databases require searches based on other uniquely identifying information, such as the case name or docket number.
Often, however, the case name is not sufficient to accurately identify a case in an online database. This occurs because some litigants have filed many cases and some cases have similarly named litigants. For example, a frequent litigant, Okiya Omtatah Okoiti has many cases, often within the same year. If researchers use the advanced search tab under eKLR to find a decision issued in 2017 in which Okiya OmtatahOkoiti is a named plaintiff, they will find three separate cases. A search for decisions from 2016 will result in 6 cases.
If researchers use the general, less precise, search option on eKLR for ‘Okiya Omtatah Okoiti’, the situation becomes even more difficult. This search yields approximately 70 results and would require researchers to do significantly more work to identify the specific case they were looking for.
There, of course, are other more precise was to search. Using the case number will result in a more precise search if a research usesthe advanced search option in eKLR that allows her to search for a specific case number. If, for example, researchers search for ‘Civil Appeal 202 of 2015’, as an advanced search, they will receive a single hit: Secretary, County Public Service Board & Another v Hulbhai Gedi Abdille [2017] EKLR. If, however, researchers search just for ‘202 of 2015’ they receive 13 hits. And, if researchers use the general search option (as opposed to the advanced search option) for ‘202 of 2015’ they also receive 13 hits.
Often, however, the docket number itself will not be sufficient to identify a particular case. This is especially true when a single case produces more than one decision. The 2017 Presidential Election petition provides a perfect example. All of the roughly 14 rulings made by the Supreme Court for the August 2017 election petition have the same docket number. The names, at times, vary, but a general reference to the docket number alone will not narrow down the search. As a result, neither the docket number nor the party names for some of the most important election decisions in the country would help narrow down which case has been referred to.
For the most advanced legal researchers, these problems are only minor obstacles. Those willing to understand search operators or to narrowly tailor their search to identify the most specific information can use eKLR with ease. Unfortunately, most users—even judges and advocates—do not narrowly tailor their search and do not rely on the advanced search operators. They search like they would search on google—by free-typing the terms they wanted and looking at the top few references produced. Practically speaking, most users who wanted a specific Presidential election ruling would type in ‘raila odinga v iebc 2017’. That search, however, would yield more than 100 results.
Similar problems arise with other well-known or oft-cited cases. In fact, the more commonly cited a case is, the more hits result from a general search and, hence, the more difficult it is for the average user to find that specific case on the eKLR website.
2.3A Uniform System of Citation: Ways Forward
Fortunately, a digital citation system is incredibly flexible and, given the skill and dedication of those at Kenya Law, minor adjustments to the eKLR database can address these problems.
One of the best way to ensure accurate, efficient citation is to make sure that each decision or ruling that is published on eKLR has its own, unique identifier. This identifier should not rely on the name of the case or the case number, but rather include a reference to the year in which the case was decided, a reference to the Kenya Law Reports as the database, and a specific numerical reference that is unique to that specific case. The 2013 presidential election petition provides an excellent example of how a unique identifier would work. The following citations, although nearly identical, refer to two different court decisions.
- Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR
- Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR
These are two different cases. The first was decided on 16 April 2013 and the second was decided on 30 April 2013. Yet, the citationshave only one minor difference: there are six petitioners in the first case and three in the second. A keen eye would recognize that difference only by noticing that the first case has a 5 following ‘Odinga’ whereas the second case has a 2. Most of us do not have such a keen eye. For all practical purposes, these citations do not distinguish between the Supreme Court’s two 2013 election rulings.
If, however, each was given a unique identifying number, users of eKLR would have a much easier time searching for a specific case and would be much less likely to confuse the two. An example of a unique identifying number may be as simple as a number at the end of the citation. Using the cases above, an example of a unique identifier is in bold:
- Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR1
- Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR2
The numbers in bold help judges and advocates correctly identify the case they are referring to. If, for example, an advocate relied on the 16 April 2013 decision as legal authority, it would use the citation: Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR 1. The court, in turn, would be able to search for the specific citation, [2013] eKLR 1, and be able to find the cited authority without confusing it with the 30 April 2013 case.