Court of Appeal rejects push for bigger budget share for Judiciary

Justice Mumbi Ngugi. [File, Standard]

The Court of Appeal has dismissed a bid to force the Executive to give the Judiciary a bigger share of the national budget.

While Justices Mumbi Ngugi, Pauline Nyamweya and Weldon Korir said that the move to have the court pronounce itself on the consistent underfunding was noble, the issue of the funding ought to be addressed in a different forum.

The judges observed that the case targeted the 2018 Budget, which was now water under the bridge.

“With respect to the present appeal and while we appreciate the appellant’s public-spirited desire to see that the Judiciary is properly funded in order for it to properly execute its constitutional mandate, we find that the issues that the appeal raises are either moot, not capable of determination in this appeal, or not established. Accordingly, the appeal is hereby dismissed, but with no order as to costs,” the bench headed by Justice Ngugi said.

The judges noted that lawyer Adrian Kamotho had raised a critical issue, which has been the subject of discussions and debate, but without a solution.

The trio were of the view that although the issue boiled down to the Judiciary Fund Act, the minimum amount that should be wired and the formula for allocation, Article 173 of the Constitution is silent on it.

“The report, Republic of Kenya Final Report of the Taskforce on Judicial Reforms July 2010 (The Ouko Report) which recommended the establishment of the Judiciary Fund, had also recommended that 2.5 per cent of the national budget be allocated to the Judiciary,” the judges said, adding:

“While the recommendation for the establishment of the Fund was adopted and enacted in Article 173, no minimum allocation was accepted and included in the Constitution, and the trial court did not, therefore, err in not granting the orders sought with respect to the constitutionality of the Judiciary Fund Act,” they said.

Over the years, the  Judiciary has seen its allocation fall short of the promises made by successive administrations.

The third arm of government is got Sh27.7 billion in the 2025-26 financial year against proposal of at least Sh44.9 billion, a 49 per cent shortfall.

Conversely, MPs allocated themselves Sh47.9 billion for the 2025-2026 financial year.

Chief Justice Martha Koome’s headache includes expanding the Judiciary’s  footprints, hiring judges and magistrates, and staff across the country, and using technology to facilitate access to justice.

President William Ruto, in his inaugural speech on September 13, 2022, said Kenya Kwanza would increase the Judiciary’s share by three billion each year.

This came against the backdrop of the decision by his predecessor Uhuru Kenyatta to have the Judiciary operate its own fund drawn from the national budget after years of underfunding.

Nevertheless, the fine print of the Ruto and Raila Odinga’s broad-based government Judiciary is yet another documented broken promise.

In 2023-2024 financial year, the Judiciary was allocated Sh22.43 billion, up from Sh 21.13 billion.

This year, the Budget and Appropriations Committee approved Sh27.7 billion, of which Sh1 billion was to go toward hiring new judges and judicial officers.

The Judiciary has been fighting to have 25 per cent of the total national budget.

Koome’s headache is on how to speed up the wheels of justice. She needs more judges and magistrates but her hands are tied by lack of  resources.

Data from the this year’s  status of the Judiciary annual report indicates that the Judiciary is working with 64 per cent of the required staff. The report indicated that the Judiciary had a Sh22.1 billion funding gap.