Case delays as top courts face quorum hitch

Appeals Court president, William Ouko. [File, Standard]

Kenya’s two top courts have not been sitting due to quorum hitches, which might drag on for the next two months.

Both the Supreme and Appeal courts are currently facing a shortage of judges, something which had been stirred by Judicial Service Commission (JSC) meetings, suspension as well as retirement of judges.

In the Supreme Court, Chief Justice David Maraga and his deputy Philomena Mwilu will be in the JSC interviewing nominees for the position of judges.

This leaves the top court with four judges only -- Justices Njoki Ndung’u, Mohamed Ibrahim, Smokin Wanjala and Isaack Lenaola. Justice Jackton Ojwang is facing a tribunal, hence will not be sitting until he either clears his name or be removed to pave way for a new judge.

A notice by the JSC says interviews for Appeal Court judges will be held between June 17 and July 1, 2019 while those eyeing Environment and Lands Court will be interviewed between July 8 and 29.

Applicants who want to be Employment and Labour Relations Court judges are scheduled to face the JSC between August 5 and 13.

A Supreme Court judge, who spoke on condition of anonymity, suggested that Kenyans should through a referendum increase the Supreme Court bench to 11 or nine.

“You might think we do not work but the reality is that you cannot even have a prayer for leave because of the dramas affecting this court. Now that JSC will be sitting, we will not sit as Justice Ojwang was suspended. The best way forward is to increase the bench to avoid the scenarios we are having now,” he said.

The appeal court is not doing any better. A letter by the court president, William Ouko, to his Law Society of Kenya counterpart Allen Gichuhi reveals that cases are either being taken out of the cause list or delayed, including urgent ones, as that court is currently facing a shortage of a judges.

Apologies

“I express my profound apologies to you and your members regarding the slow pace and sometimes the taking out of the cause list of appeals and applications. As I explained we are facing challenges of exceptional proportions in the judges’ complement,” wrote Justice Ouko.

He said his court has 11 vacancies and that he hopes they will be filled within the year.

In the letter dated June 4, Justice Ouko informed Mr Gichuhi that out of 19 judges in service, three are due for retirement and cannot be listed to hear cases. In addition, Justice Kathurima M’inoti is deployed to the Judicial Training Institute (JTI).

Justice Mohamed Warsame is a Court of Appeal judges’ representative in the JSC, and will be unavailable.

Ouko says as a result, out of 10 judges in Nairobi, only five are available to constitute much needed benches. He said the court had to ask for help from Appeal Court judges in Nyeri to hear cases in Malindi.

“I would like once more to express my deep and sincere apologies to your members and their clients in Nairobi and Nyeri who have experienced delays in hearing of their appeals and applications,” Ouko wrote.

“We are however hopeful that the Judicial Service Commission will in due course of time address the situation by filling the 11 positions declared vacant in the Court before the end of the year.”