The Magistrates Courts’ Act (hereinafter referred to as “the MCA”) provides for the jurisdiction, powers and functions, establishment, constitution, and set up of the Primary Court, District Court, the Resident Magistrate’s Court, and other related matters.
The Written Laws (Miscellaneous Amendments) (No. 3) Act, 2021 (hereinafter referred to as “The Act”) has made a few amendments to the Magistrates’ Courts Act.
A quick overview of what the Act amends:
- Appearance of Advocates or public prosecutors on behalf of parties in Primary courts.
The position before:
No advocate or prosecutor may appear or act for any party in a primary court.
The new position: An advocate or public prosecutor may appear or act for any party in a primary court presided over by a resident magistrate and the procedures applied in the primary court shall apply in such cases. - Proceedings that require assessors. The position before: The Primary court was required to sit with not less than 2 assessors in every proceeding in the primary court including a finding in any issue, the question of adjourning the hearing, an application for bail, a question of guilt or innocence of any accused person, the determination of sentence, the assessment of any monetary award and all questions and issues whatsoever. In the event of difference between a magistrate and the assessors or any of them, be decided by the votes of the majority of the magistrates and assessors present and, in the event of an equality of votes the magistrate shall have the casting vote in addition to his deliberative vote.
The new Position: The Act removes the mandatory requirement of assessors in all matters in the primary court. It requires the Primary courts to sit with not less than two assessors where:
– proceedings involve Customary and Islamic Laws
– it considers necessary in the interest of justice or upon application by any party to the proceedings: PROVIDED THAT the Magistrate shall not be bound by the opinion of the assessors in deciding matters. - Repealing of Section 13 of the MCA: This section laid down the language of the courts that being Primary Court shall be Kiswahili and of the Resident Magistrate Court and District Court shall be either English or Kiswahili or such other language as the magistrate holding such court may direct.
Things to consider with the changes in the law.
- All proceedings (cases) instituted before the commencement of the Act on the 11th day of October 2021 will continue to apply the original procedures before the enactment of the Act until such proceedings are completed.
- For all cases that have been instituted and will continue to be instituted after these changes in the law shall follow the requirements of the amendments in the relevant laws.
Important Notice:
This publication has been prepared for information purposes only, and it does not constitute professional advice. You should not act upon the information contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication, and, to the extent permitted by law, Cymbell Attorneys, its members, employees and agents do not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in this publication or for any decision based on it.
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