Inclusion of Legal Services as Essential Services during the Covid-19 Pandemic; Comparison between Kenya and India
March 25, 2021
Supreme Court of India brings to an end the extension of limitation period for legal services by including them as essential services
(Suo Motu Writ Petition (Civil) No.3 of 2020 (In Re: Cognizance for Extension of Limitation))
In India, due to the onset of COVID-19 pandemic the Supreme Court took suo motu cognizance of the situation arising from difficulties that might be faced by the litigants across the country in filing petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central or State).
The Supreme Court also took cognizance of the fact that the lockdown had been lifted and the country was returning to normalcy. Almost all the Courts and Tribunals were functioning either physically or by virtual mode. The Court was of the opinion that the order dated March 15, 2020 prescribing the limitation period had served its purpose and in view of the changing scenario relating to the pandemic, the extension of limitation should come to an end.
The Court through Suo Motu Writ Petition (Civil) No.3 of 2020 (In Re: Cognizance for Extension of Limitation) on March 8, 2021 then ordered the Government of India to amend the guidelines for containment zones, to state that regulated movement would be allowed for medical emergencies, provision of essential goods and services, and other necessary functions, such as, time bound applications, including for legal purposes, and educational and job-related requirements.
As can be seen in the Supreme Court of India’s writ petition, legal services have now been considered as essential services and thus they do not have restricted movement in filing petitions/applications/suits/appeals/all other proceedings. The order when implemented will thus make it easier for litigants to access legal services in the country without difficulties.
In Kenya, the courts went ahead and gave an order to the on April 16, 2020 to Fred Matiangi, Cabinet Secretary for Interior and Coordination of National Government to include the Law Society of Kenya and its members in the list of services, personnel or workers exempted from the provisions of the Public Order (State Curfew) Order, 2020.
This was seen in the case of Law Society of Kenya v Hillary Mutyambai, Inspector General National Police Service & 4 others; Kenya National Commission on Human Rights & 3 others (Interested Parties)  eKLR wherethe petitioner challenged the night curfew published under the Public Order Act (POA) (curfew order), imposed by Kenyan government as one of the measures meant to halt or slow the spread of the coronavirus (covid-19) in Kenya. They termed it as unconstitutional and illegal, and that it did not comply with the provisions of section 8 of the POA by failing to provide the period of the curfew. One of their main prayers was that advocates of the High Court ought to be included in the list of services, personnel or workers exempted from the operation of the Public Order (State Curfew) Order, 2020.
The High Court held that the government could not be faulted for enforcing precautionary and restrictive measures in order to slow the spread of a novel disease in line with the precautionary principle. The use of a curfew order to restrict the contact between persons as advised by the Ministry of Health was a legitimate action. The 2nd respondent had ameliorated the effects of the curfew by changing the working hours in order to make it possible for the workers to comply with the curfew.
The court also held that although the curfew order met the constitutional and statutory parameters, there was a strong case for the retooling and remodeling of the legal instrument so that it could achieve its objectives with reduced impacts on the rights and fundamental freedoms of Kenyans.
Further, the High Court found that curfew order had not closed courts. The curfew did not affect the right to fair hearing under article 50 of the Constitution. However, the work of advocates was not limited to court work. They also attended to persons arrested by the police. Therefore, petitioner’s members ought to have been exempted from the operations of the curfew order so that they could assist in the protection of the rights guaranteed by article 49 of the Constitution whenever called upon to do so. The petitioner’s concern became more important when the manner in which the curfew had been enforced was taken into account.
The High Court finally gave the order compelling the 2nd respondent (Fred Matiangi, Cabinet Secretary for Interior and Coordination of National Government) to amend, within five days from the date of the judgment, the Schedule to the Public Order (State Curfew) Order, 2020 so as to include the 3rd Interested Party (IPOA) and the members of the petitioner in the list of “services, personnel or workers” exempted from the provisions of the Public Order (State Curfew) Order, 2020.
The Current Status in Kenya
The current status in Kenya shows that action has been taken to include legal services as essential services. This is after issuance of Legal Notice No. 46 on The Public Order (State Curfew) Order, No. 2 of 2021 by Fred Matiangi, Cabinet Secretary for Interior and Coordination of National Government. The Legal Notice applies to the entire territory of the Republic of Kenya except Nairobi City, Kajiado, Machakos, Kiambu and Nakuru counties. The legal notice adds advocates of the High Court of Kenya to the list of essential services with effect from March 29, 2021 and will remain in effect for a period of 6o days thereof.
There is also Legal Notice No. 47 on The Public Order (Nairobi City, Kajiado, Machakos, Kiambu and Nakuru Counties Curfew) Order, 2021issued by Fred Matiangi, Cabinet Secretary for Interior and Coordination of National Government.The Legal Notice applies to Nairobi City, Kajiado, Machakos, Kiambu and Nakuru counties. The legal notice adds advocates of the High Court of Kenya in the 5 counties to the list of essential services with effect from March 29, 2021 and will remain in effect for a period of 6o days thereof.
As can be seen in both countries, India and Kenya, their courts issued compelling orders to their respective Executive organs to include legal services as essential services to ease the difficulties litigants are faced with in filing all types of matters and proceedings. Kenya has now seen the importance and effected its court orders showing the respect to the Judiciary by the Executive. It is therefore clear that judicial organs of various countries have realized and seen the need of having legal services as essential services operating beyond the restrictions in place during the Covid-19 Pandemic as justice delayed is justice denied. Litigants in countries where these orders are implemented will thus have a reprieve and it can only be hoped that more Executive organs will see the need to also be a driving force during the Covid-19 Pandemic of ensuring justice is continually served by implementing those orders.