Invigorating the Right of Access to Justice: Sweeping Away the Anachronistic Requirement of the 30-Days’ Notice of Intention to Sue the Government by Masafu Erick
The right to sue the government is subject to the requirement to issue a 30-days’ notice. This requirement places the Government in a privileged position vis-a -vis private persons. Section 13A of the Government Proceedings Act provides that no proceedings against the Government shall lie or be instituted until after the expiry of a period of thirty days after a notice in writing in the prescribed form have been served on the Government in relation to those proceedings.
The provisions for demanding prior notice before suing the government is justified on the basis that the government is a large organisation with extensive activities and fluid staff and it is necessary for it to be given the opportunity to investigate claims laid against it and decide whether to settle or contest liability taking into account the public expense. While the objectives are laudable, the effect of mandatory notice provisions cause hardship to ordinary claimants.
The requirement of the 30-days’ notice of intention to sue the government is brought into public opprobrium in the current Constitutional dispensation. The Bill of rights enshrined in the Constitution is robust and one of the best in the world. The requirement of notice will not pass muster in the current Constitutional dispensation.
Section 7 of the Sixth Schedule to the Constitution, provides that all law existing prior to the promulgation of the Constitution must be construed with the alterations, adaptations, qualification and exceptions necessary to bring it in conformity with the Constitution. P. J.O. Otieno in Bob Thompson Dickens Ngobi v Kenya Ports Authority & others  eKLR held that after the promulgation of the Constitution of Kenya 2010, certain provisions of the hitherto existing laws have the option of being read as being modified by the constitution so as to be compliant or just be rendered and declared unconstitutional. The tenets of the Constitution includes the rule of law, good governance, human rights, non-discrimination and access to justice.
Access to justice is a component of the corpus of the rights of the members of the human family. Access to justice is the ability of people to seek and obtain a remedy through formal or informal institutions of justice for grievances in compliance with human rights standards. The right of access to justice is enshrined in Article 48 of the Constitution of Kenya, 2010. Article 48 provides that the State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice. The right of access to justice is a reaction to and a protection against legal formalism and dogmatism.
Majanja J in Kenya Bus Service Ltd & Another v Minister For Transport & 2 others  eKLR held that the mandatory 30-days’ notice of intention to sue the government is a violation of the right of access to justice and amounts to unjustified limitation of a right within a democratic society. His dictum is captured as follows: The reach of the Government is far and wide and in an era of accountability or transparency ushered in by the Constitution, the State must abide by the same standards required of mere mortals. Mandatory notice requirements and short limitation periods would tend to undermine social justice and in a country like ours where illiteracy is rife, communication systems and links are few and far between and access to legal services wanting, their effect would be to provide a cover for impunity and create de-facto state immunity.
The Court of Appeal endorsed Majanja J’s reasoning in Joseph Nyamamba & 4 others v Kenya Railways Corporation  eKLR.
The rule of law requires that the Government should not enjoy unnecessary privileges or exemptions from ordinary law. Therefore, the requirement of the 30-days’ notice under section 13A of the Government Proceedings Act having been declared unconstitutional, one may sue the government without giving the 30-days’ notice.