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Court of Appeal has only 12 judges to hear and determine a backlog of 6,000 cases

The courts are feeling the pressure of President Uhuru Kenyatta’s decision not to appoint 41 judges.

The nominees from the Judiciary and private practice have been left in the dark even as the High Court prepares to deliver its decision on the matter on February 6.

It is this decision that litigants who have pending cases before the Court of Appeal and the High Court, are banking on as a way forward to solve the stalemate that has rocked the Judiciary since July.

Full hearing

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On the list of 41 nominees forwarded to the President are 10 High Court judges who went through the interviews conducted by the Judicial Service Commission (JSC) and have now been forced to only handle applications and not matters that are going for full hearing.

The judges, who include those heading divisions within the High Court, have also been concentrating on clearing cases pending before them as they wait for their fate.

JSC nominated Justice Msagha Mbogholi (Civil Division), Aggrey Muchelule (Family Division), Jesie Lesiit (Criminal Division), Pauline Nyamweya (Judicial Review Division), Mumbi Ngugi (Anti-Corruption Division) and Weldon Korir (Constitutional and Human Rights Division).

From the High Court outside Nairobi, apart from Justice George Odunga (Machakos), Joel Ngugi (Nakuru) and Hellen Omondi (Eldoret), only Justice Francis Tuiyot is not a presiding judge.

At the Court of Appeal where the wheels of justice have slowed down, 6,000 cases are pending and the number is set to increase, given the fact that JSC has resorted back to the old court circuit system outside Nairobi.

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Of the 6,000 appeals, 2,000 are in Nairobi while the others are spread across the country. Registrar of the Court of Appeal Moses Serem told the Saturday Standard that the Judiciary will prepare a circuit calendar when the judges return from recess on January 14.

In the calendar, there will be a circuit court for civil and another one for criminal appeals in stations outside Nairobi one week per month.

Benches are to be formed based on the 12 judges currently serving, but the sub-registries are to remain in Kisumu, Nyeri, Mombasa, Eldoret and Nakuru.

“The sub-registries will continue operating and the deputy registrars are to remain in their stations to receive appeals,” he said.

Higher offices

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However, litigants with urgent matters such as those whose properties are being auctioned and require orders suspending the act, are to travel to Nairobi.

The applications suspending High Court orders are to be filed within the stations and forwarded to Nairobi, a move that will see litigants spend more money.

Immediately after promulgation of the Constitution in August 2010, Court of Appeal had 27 judges, a number that has now reduced to 15 following the retirement and appointment of others to higher offices.

The 15 judges include the court’s President William Ouko, the court’s representative to JSC Mohammed Warsame and the Director of the Judiciary Training Institute Kathurima M’Inoti, leaving only 12 judges to sit full time.

Yesterday, Law Society of Kenya (LSK) President Allen Gichuhi said apart from the judges and litigants, those in private practice have also been left in limbo.

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“Lawyers in private practice cannot take new clients because the President can decide to gazette them any time. This is affecting their ability to earn and that of litigants’ right to lawyers of their choice,” he said.

The lawyers have been unable to take in new clients since they will be required to wind-up their law firms immediately they are gazetted.


Gichuhi blamed the stalemate on lack of timelines in the Constitution or the Judicial Service Act on the period within which the President should gazette nominees forwarded to him by JSC.

“We need a law that provides timelines instead of leaving the discretion to one person,” he added.

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The President has since defended his decision not to gazette the list of 41 judges nominated by JSC, saying he had received adverse reports on integrity of some candidates. He argued that it would be irresponsible to appoint judges who enjoy the security of tenure given the integrity concerns.

In the decision to be delivered by the High Court in February, lawyer Adrian Kamotho sued Attorney General Kihara Kariuki, JSC and the CJ over the delay.  

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