Justice on trial as case backlog returns to haunt the Judiciary

               A court official goes through files.  Investigations reveal that the Judiciary’s diaries are full, which has led to hearing of some cases pushed to 2015.  PHOTO: FILE/STANDARD]

By JACOB NGÉTICH

Justice delayed is justice denied. And from the High Court to magistrate courts across the country, Judiciary’s diaries are full. The effect of this is that hearings and determination of a significant number of cases have been pushed to 2015.

Investigations by The Standard on Sunday reveal that by late November 2013 all the dates for 2014 hearings, mentions and rulings had been booked at the High Court’s civil division in Milimani, Industrial Court, Chief Magistrate’s Court and the appeals division in Nairobi thereby forcing litigants to wait until next year to take up new dates.

The situation is not any better in courts in Eldoret and Nakuru where judges and magistrates can no longer keep up with the piling number of cases with their plates full till the end of the year.

The reemergence of backlog happens hardly two years after the Judiciary declared to have undergone a transformative phase that saw heavy capital investment including the construction of more court houses, establishment of mobile courts, establishment of a case management system and mainstreaming of Information Communication Technology (ICT) all aimed at expediting hearing and determination of cases.

The heavy investment, complete with a proposal to acquire three helicopters to facilitate the work of judicial officers, was expected to bring efficiency to the courts.

But despite the spirited efforts by the Judiciary to reduce caseloads, the situation continues to be bad with the resultant effect of delaying delivery of justice to Kenyans.

Frustrating

According to lawyers who spoke to The Standard on Sunday, the situation in the Judiciary is frustrating because they would have to wait for over a year to have some of their cases heard or determined. Some of these cases have been completed and are only awaiting ruling.

Donald Rabala, an advocate at Rabala and Company Advocates said by early December, the clerks in the registry at the High Court and the Chief Magistrate’s court in Nairobi informed them that the diary for cases at the courts were full and they could only wait until November 2014 to pick new dates in 2015.

“The diaries for some divisions got full in December last year and we will have to wait until November to start putting the cases in the diaries again. So if you missed an opportunity to have the case in the diary then you can only achieve that after a year,” said Rabala

He said the delay was a source of anguish not only for the litigants but also for the lawyers who are often accused by their clients of laxity or lack of interest in their cases.

“When you tell a client that their cases cannot be heard until 2015, they look at you and wonder if you are seriously pursuing his or her case. It is so frustrating especially when you know that there is nothing you can do,” said Rabala.

Another lawyer Kabaru Ndegwa said about 80 per cent of all the civil cases were in Nairobi and therefore the situation was becoming really frustrating because lawyers were idle as the cases piled up in the courts.

“We are in shock, we are increasingly unable to execute our business. But if the diaries were full in late November and early December, what are we supposed to do as lawyers? We have been forced to sit and wait as the situation deteriorates,” said Ndegwa.

Newly appointed Registrar of the High Court Judy Omange blames delays in clearing of cases on the small number of judges and magistrates.

According to her, there are only 79 judges serving a population of over 40 million Kenyans with each judge serving 506,329 people compared to India where 7 judges serve a similar number of people.

Omange said in the Civil Division of the High Court there was a backlog of 35,213 cases with only three sitting judges to handle them.

Diary closed early

“Last year the division registered 2,414 new cases, and if 8 cases are listed before each of the three judges daily and the court sits 220 days in a year excluding weekends and leave days, only 5,280 cases can be listed, this scenario does not take into account the time judges need to write the judgements,” Omange said.

She confirmed that the courts have a backlog of cases dating back several years.

“From the above illustration it is clear that the diary has to be closed very early in the year as there is simply not enough capacity to hear all matters even if they were to be listed. Once the 25 new Judges are appointed, the diary will be reopened to fix cases for them,” said Omange.

She observed that Chief Justice Willy Mutunga in his speech during the launch of the Judiciary Transformation Framework 2012-2016 on  May 31, 2012 noted that “case backlog constitutes the single most important source of public frustration with the Judiciary”.

Wait until next year

Law Society of Kenya (LSK) Chairman Eric Mutua told The Standard on Sunday that the situation was a major concern because those who had not picked dates early would be forced to wait until next year. This, he said, means delaying justice for the litigants.

“The lawyers begun picking dates for their cases in September last year, now the diary for some divisions is full and we will have to wait until next year. The diary ought not to be full at this time, there is lack of capacity on the part of the Judiciary, the cases are piling and not much is being done to clear them,” said Mutua.

LSK Vice Chairman Lilian Omondi called on President Uhuru Kenyatta to immediately appoint the 25 judges that were recommended by the JSC last week.

“The number of judges needs to be increased like yesterday, their shortage in the courts is causing a crisis,” said Omondi.

Mutua said that if the judges were appointed, some of the cases would be taken up thereby easing the backlog. “If the 25 judges come in, the diaries will most likely be opened up again for dates to be picked,” said the LSK chairman.

In Eldoret and Nakuru, the situation is not any better. Lack of adequate judges and magistrates has continued to affect the delivery of justice in the regions. In the law courts in Eldoret, a number of cases have taken long to conclude due to challenges from both the court and parties involved.

The Law Society of Kenya (LSK) North Rift Chapter Chairman Rioba Omboto said there was an increasing bulk of cases in the court at Eldoret, adding that registered cases were taking too long because there is only one judge at the station.

“Diaries are also full for this year meaning that most cases will spill over to next year. There are currently over 1,800 land/environment cases from the region at the Eldoret High Court that have not been attended to because of shortage of judges. Something needs to be done,” he said.

He noted that there were several counties that depended on one judge sitting at the Eldoret High Court to handle their cases.

“There are a lot of cases in the Land and Environment courts that have not progressed for a while and the number will increase further if the Judiciary does not intervene and send more judges here,” he said.

Kipkoech Ng’etich, Chairman of LSK Rift Valley region based in Nakuru said that some magistrates’ diaries were full but the judges still had slots from October to December.

“It is only the new magistrates in Nakuru lower courts who still have space in their diaries; their counterparts have closed theirs. The judges have space for October, November and December dates which will likely get full soon given the traffic of cases,” said Ng’etich.

Whereas fingers have been pointed at the courts, delays from the prosecution side and the numerous adjournments sought by lawyers also contribute significantly to the delays.

But the LSK boss insists that the problem squarely lies with the Judiciary.

“It is the Judiciary that lacks capacity to handle the cases, they need more judges and magistrates to reduce the backlog in the courts,” said Mutua.

Engaging in blame game

Director of Public Prosecution (DPP) Keriako Tobiko explained that there was no point in resorting to  blame game because the different departments of the justice system had their fair share of challenges.

“It is not the Judiciary, the prosecution, police or the lawyers who have singularly failed. The entire judicial system is ineffective because of the systemic infrastructural deficiency,” said Tobiko.

Tobiko said as long as the judges and magistrates were still hand-writing their notes and the compulsory appearance of witnesses in court during hearings, there would be challenges in arresting the situation.

“All we need is a holistic approach to the justice system, including new developments in the courts to reduce the backlog. Recording evidence via video, and the recording of proceedings rather than judges and magistrates writing them down, will save a lot of time,” he said.

The Coast region is an exception in the matter of caseloads. Mombasa LSK Chairman Eric Nyongesa explained in Mombasa where courts are still on vacation until the end of February, lawyers had agreed with judges and magistrates that they would set their diaries on quarterly basis and this had helped them curb the backlog.

“We will be meeting in February to set the diary for April to June and during that period we will ensure that the allocation of dates by the registrars is done in a fair manner,” said Nyongesa.

A Bungoma-based lawyer who sought anonymity apportioned blame on his colleagues who abuse privileges given to them by judges even over cases that are supposed to be treated on priority basis.“Judges ask lawyers or parties to go and take dates at the registry and that is when one of the parties insists that he or she will not be available over a certain period of time,” said the lawyer. He said many land cases are pending at the court, most of them filed by victims of the 1992 land clashes over 20 years ago.

When the case comes for mention, it is common to hear the lawyers again seeking more time to get more documents or witnesses – thus prolonging the case duration.

“Even when cases are filed under certificate of urgency the advocates will delay the hearing date by ensuring prolonged mention sessions,” said another lawyer from Kitale. He gave the reason for such delays as “advocates greed” because the longer the case takes, the more they benefit.