Mixed bag on plight of delayed judgements

By PRAVIN BOWRY

Delays in writing judgements and rulings have resulted in at least two otherwise reputable and hardworking judges being sent home by the Judges and Magistrates Vetting Board. Greater examination of the reasons for delay in writing judgements is called for.

It would have helped if an audit of the concerned judges were made public – how many cases came up before them, how many they finalised and delivered judgements.

It must be appreciated that in every single case where judgement was delayed there were and must have been a Plaintiff, a Defendant, and in most cases two lawyers representing each party.

And what happened to the elaborate system of checks and balances – by way of daily, monthly and yearly returns by the judicial officers?

What were the reasons of the parties to the suits not raising the alarm and equally the lawyers representing the parties remaining silent.

Ironically, judges found guilty of delay must be lauded for hearing the cases in the first instance as there have been cases of judges who are so lethargic they never begin a case and devise the most unusual and feeble reasons for adjourning the cases, usually with very famous words “Stood Over Generally” – a term which few lay people understand.

By law, in civil cases it is mandatory for the court to pronounce a judgment or ruling within 60 days, and if this is not done, the judge must record the reasons and notify the Chief Justice of the reasons.

Has the Chief Justice failed too?

Parties to the suit did not complain because, up to the time the new Constitution came into force, there was no law where a litigant could complain and because the act of complaining itself means inviting the wrath of an adverse decision.

In most cases the cost and time for a retrial would become phenomenal – complaining against a delayed judgment is like going from a frying pan into the fire.

Solicit response

Fortunately, parties now have a direct constitutional right to accuse a judge of misconduct and ask for his removal by setting up a Tribunal under Article 168(2) (3) of the Constitution.

Additionally, the climate in the judiciary has changed whereby a complaint to a magistrate, judge or even the Chief Justice nowadays solicits a response. And I guess one could complain to the ombudsman.

Despite new avenues and mechanisms of complaining, a party or an Advocate would be ill-advised to stick his neck out and to attract a capricious judge ruling against the complaining party. What all this amounts to is that it is just not worth complaining when the referee has blown the whistle of commencing the case – in football parlance, it is like scoring an own goal!

And why do lawyers not complain? Most times clients expressly instruct Advocates not to rock the boat. In smaller stations Advocates do not desire to cut the branch on which they sit by complaining against a judge or magistrate, because it behoves the Advocate to sustain a good working relationship.

If I complain against a judge today and the next day I am to appear again before him, however magnanimous the judge, he is likely to hold a perception of a difficult Advocate in his mind.

And at the right time or moment, the discretionary stronghold of the judge is bound to stick against my case or more likely, my client!

In the past, delays in writing judgments have been as a direct result of overloading the judges with unbelievable workload.

I have experienced judges being asked to hear up to 40 cases a day, magistrates even now routinely have up to ten hearings a day in addition to the other mundane matters on their daily list.

What happens if a judge is transferred overnight; how does the part-heard case file follow administratively to the transferred judge?

When transfers, promotions or departures of high judicial officers are made, the Chief Justice must make it mandatory that every single part-heard file or judgment be finalised before moving on.

Am I being a bit holier than thou when writing this column? Maybe.

I have over two year overdue and pending rulings by a three-judge Bench in a constitutional matter, another in a matter involving a parastatal, the subject matter being over Sh550 million and yet another in a land matter where judges are recalcitrant to write their rulings. And I have not and do not desire to complain for various reasons.

Why, I ask, is delay only being visited against the judges!

Regrettably, it is the system which has failed the litigant and will continue to fail – until each one of us takes the spear and do what should be done – fight the cause of expedited justice in a concerted manner.

On a personal note and for posterity and for the record, I will be failing in my duty as a columnist, if I were not to mention that one of the judges sent home has disposed my cases by routinely sitting as late as midnight - ironical that the same judge has been sent home for dereliction of duty!

The writer is a lawyer.

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