Carrot and stick: JSC interviews underscore need for legal reforms, accountability and performance

JSC chairperson and Chief Justice Martha Koome announces Justice Mohamed Warsame as nominee for Supreme Court judge at the CBK Pension Towers in Nairobi on April 29, 2026. [David Gichuru, Standard]

A radical shift in how judges and magistrates determine cases and how they are judged might determine whether they keep their jobs and secure promotions for junior officers in the coming years.

The Judicial Service Commission, in its interview of the Supreme Court judge position applicants underscored rising concerns on assessing judges and magistrates for misconduct and individual performance, and whether they should be used for disciplinary proceedings and future employment for those who will be seeking higher Judiciary positions.

For years, the Judiciary has been grappling with a backlog of cases. The State of the Judiciary and Administration Report (SOJAR) attributed the backlog to inadequate funding, which resulted in a strained judges-to-cases ratio.

In the 2021-2022 financial year, there were at least 336, 426 cases that were older than one year.

The following financial year, the total backlog dropped by 17 per cent while in 2023-2024, it further dropped by 10 per cent.

By April 2026, the Judiciary recorded a 104 per cent clearance rate, meaning out of the 621,000 cases, judges and magistrates resolved 647,000, with around 598,835 overall case backlog.

During the interviews, JSC commissioner Everlyne Olwande asked Court of Appeal judge Francis Tuiyott on the balance between carrot and stick in enhancing performance and accountability within the Judiciary.

Olwande cited the Spanish judiciary where a judge’s output determines what he or she gets as a salary.

“You have a bit of your salary as fixed and there is a bit which is not. Like a bonus, so that if you meet 100 per cent of your target, you get three per cent of your pay and if you go below 80 per cent, you suffer a five per cent cut,” she said, adding that all performance in the USA is also displayed to the public.

In response, the judge emphasized that the carrot ought to focus on professional growth, addressing burnout and ensuring a supportive work environment.

Tuiyott also proposed celebrating excellence and innovation in justice delivery.

On the other hand, he also suggested zero tolerance for misconduct, adding that sanctions should not be arbitrary but clearly outlined in the performance guidelines and the use of disciplinary measures to protect the Judiciary’s reputation.

Tuiyott, however, argued that the stick should be the last resort for the JSC to deploy.

“The manner of acknowledging outstanding members of staff and judges who were exemplary is an effective way of rewarding excellence and good performance. In respect to the stick, we must be sensitive in the manner we do it, lest we kill the spirit of those who are underperforming. It should be the one that encourages improvement yet one that the underperformer should be let to know he or she is not pulling her weight in service delivery. It is effective enough,” he said.

While Justice Tuiyott suggested a more human-centric solution to judges and magistrates’ performance, his colleague, also a candidate and now a Supreme Court Judge nominee Mohamed Warsame was of the view that the proposed judicial reforms on performance ought to focus on supervision and accountability over performance.

Productivity metrics

While criticizing how judicial performance is measured, Justice Warsame argued that the current productivity metrics are insufficient.

“The production metric is a complicated document. It doesn’t always measure the output of judges,” said Warsame, calling for fixed benches in the Court of Appeal and more structured oversight.

Warsame was of the view that underperformance should be treated as an administrative issue rather than a disciplinary one and proposed that there should be a registrar who is designated to monitor judicial productivity and report to the Chief Justice.

He noted that the current performance document does not factor in the complexity of individual cases and or the collegial nature of benches, adding that there should be structural reforms before.

Olwande told the court that the performance is based on the benches a judge sits in, total output in terms of merit resolution compared to the total output of the court.

He said there were exterior factors, such as judges being assigned other jobs, benches and leave, which were unique factors that ought to be considered.

“We have always been insisting in the Court of Appeal, and it is easy to measure metrics in courts in Nairobi, where there are only three judges. But the problem is even in those stations, a judge or two of them will go on leave, so the situation will change, a judge in Nairobi will be sent to Nakuru. I think we need to have fixed benches in the Court of Appeal, and that will also help to measure the individual judges,” he said.

Warsame posed that it is still unclear on the timelines provided for the courts to deal with election cases.

While wading into the controversy over whether the Judiciary denied the People’s Liberation Party (PLP) leader Martha Karua her rights by failing to hear the election contest following the lapse of a six-month grace period.

He said the Supreme Court needs to determine when the clock starts and when it should end, and in instances where there are appeals, if this six-month period ought to be shared between the High Court, Court of Appeal and Supreme Court.

“Another issue that needs to be dealt with is that the Karua petition was brought under Article 22, as a violation of a Constitutional right. Then the question is, do such petitions on violations then have timelines? Here is a situation where the petitioner is helpless, and the Court is also helpless, whom do you blame? Do you blame the legislation, do you blame the Court of Appeal, do you blame the Supreme Court judges… I have no answer,” he said.

Warsame was of the view that performance is about mirror retrospection.

“ The metrics, in my view, are to relook ourselves in the mirror and say, because Kenyans have given us this trust, these privileges, are we able to look ourselves on the mirror and identify the black spots. If we have been told to deliver judgments in a specific period of time, is it possible to deliver them. Second, how do you deal with the high-level lifters against the low-level lifters? A judge may be doing a criminal appeal for six months but another one will be hearing and determining 100 to 200. The question is, are we delivering?” he paused, adding that the discussion should be about standardizing the number of cases a judge and magistrate ought to handle in a day.

Lawyer Nelson Havi is among the proponents of courts dealing with applications within 30 days and disposing cases of within 12 months.

“There is a legitimate complaint by advocates on judges and magistrates’ failure to deliver judgments in time,” he said, adding that the issues of absenteeism have ended.

Havi said that an urgent application ought to be heard within 14 days and all cases ought to be dealt with within 12 years, and where a case has been heard, a judgment ought to be delivered within 60 days.

Chief Justice Martha Koome last year issued a circular that judges ought to deliver rulings and judgments within 30 and 60 days respectively.

On Wednesday this week, she said that, from July this year, the commission will let the public know how each magistrate and judge performs.

“To this end, the Judicial Service Commission has resolved that effective July 1, 2026, the Judiciary shall commence the publication of individual performance data for judges and judicial officers in a structured and transparent framework that safeguards judicial independence and institutional integrity. This is in recognition of our duty to remain accountable to the people of Kenya who are the ultimate consumers and financiers of justice and in whose name judicial authority is derived and exercised,” said Koome.