30/04/2026
Why Kenyan Courts Should Exercise Caution before Striking Out Al-Assisted Pleadings By Mwamu JA SC
The Judiciary is a constitutional organ established by the people of Kenya to interpret ,apply and uphold the Law in a manner that is fair ,impartial and consistent with Constitutional values.The Judiciary by acting independently and administering justice without fear or favour does so on behalf of the people of Kenya whose desire is the maintenance of social order, constitutionalism and advancement of the rule of law.
Given its mandate ,the Courts should in my view eschew the desire to strike out pleadings solely on the basis that they were generated with the assistance of Artificial intelligence.This approach is inconsistent with the Constitution of Kenya 2010 which verily places reliance on substantive justice under article 159 , access to justice under article 48 of the constitution, fair hearing under Article 50 and the progressive development of the law under the Supreme Court Act,the Appellate jurisdiction Act and Civil procedure Act.
Artificial intelligence and machine learning advent are technological developments that we must learn to live with. There is no turning back. Our Society has evolved from manual typewriters to electric typewriters and eventually to computers.Some typewriters we had in the days gone by used to generate pleadings bearing all manner of colours-red yellow or green but no pleadings were struck out.There is no turning back.
First, AI assisted pleadings present an important opportunity for Kenyan courts to develop principled jurisprudence on the responsible use of technology in legal practice. Article 159(2) of the Constitution obliges courts to administer justice without undue regard to procedural technicalities. As the Judiciary has previously embraced technological innovation—through e filing systems, virtual hearings, and digital case management—AI represents a continuation of this trajectory rather than a rupture from it. Rather than striking out pleadings, courts can engage with them to articulate standards relating to disclosure of AI use, verification by advocates, and professional accountability under the Advocates Act and the Law Society of Kenya’s ethical framework.
Second, in the Kenyan context, it is well recognised that a substantial body of judicial decisions remains unreported or inaccessible in mainstream legal databases. Decisions from magistrates’ courts, tribunals, and even some superior courts do not always find their way into official law reports like (KLR) or the eKLR database. There exist numerous unreported decisions that remain uncaptured and uncodified. Until these decisions are systematically identified, recorded, and incorporated into eKLR, it will be difficult to seriously and comprehensively address the issue of Artificial Intelligence hallucinations in legal research.
Third, Artificial Intelligence is already embedded in modern legal practice in Kenya and will increasingly be used by advocates, self represented litigants, legal researchers, and even court users. Article 48 of the Constitution guarantees access to justice, and any interpretation of procedural law that disproportionately disadvantages litigants who use technological tools risks undermining that guarantee. AI is not a temporary trend but a structural feature of contemporary legal work. Kenyan courts, as custodians of constitutionalism, must therefore adapt their procedures to accommodate AI within existing frameworks of fairness, ethics, and judicial oversight.
Fourth, striking out pleadings solely because AI was used in their preparation risks elevating form over substance, contrary to Article 159(2)(d) of the Constitution. The decisive question for Kenyan courts should remain whether pleadings disclose reasonable causes of action, raise triable issues, and comply with substantive legal requirements—not the means by which they were drafted. Where inaccuracies, hallucinated authorities, or misstatements of law occur, courts already possess adequate tools: directing amendments, seeking clarification, imposing costs, or invoking the use of discretion progressively.
Finally, the Kenyan constitutional order envisages a progressive and learning judiciary. Treating AI assisted pleadings as an outright defect forecloses an opportunity for institutional learning and doctrinal development. Engaging with such pleadings enables courts to shape the normative boundaries of AI use in litigation while safeguarding the integrity of the justice system.
As my teacher Professor Karim Lakhani observes, Artificial intelligence is the cybernetics of human capability: it is designed to augment, not replace, human beings. AI itself will not replace humans; however, human beings who effectively use AI will increasingly replace those who do not.Needless to say, the Judges and lawyers who use Artificial intelligence effectively and intelligently will replace those who do not.
The Judiciary already has ICT & Integrated Case Management Systems (ICMS) Committee in the Kenyan Judiciary which is a high-level committee focused on steering the institution's digital transformation agenda. It is chaired by Supreme Court Judge Hon. Justice Isaac Lenaola and the Committee’s core mandate is to monitor the implementation and progress of cyber security and provide guidelines on the formulation of an Artificial Intelligence (AI) Policy Framework to enhance case management and legal research .In my well considered view , this committee should formulate rules and parameters on the use of Artificial intelligence.Microsoft is already developing software through its AI assistant, Copilot, aimed at detecting and addressing hallucinations generated by Artificial Intelligence systems.The judiciary can work with Microsoft to install such software in future.
In conclusion Artificial Intelligence is here to stay and will even get better.Presently the Judiciaries in United States and China are formulating rules on the treatment of Al generated content to deal with issues of verification, confidentiality, bias, accountability and disclosure and I believe our Kenyan Judiciary could borrow a leaf from those jurisdictions.
