Kenyans will have to travel long distances to attend hearings after the Court of Appeal recalled all judges to Nairobi.
In what appears to be a showdown with the Executive, and a drastic claw-back on Judiciary reforms, all appellate judges who were serving in Kisumu (Patrick Kiage, Asike Makhandia) and Mombasa (Daniel Musinga, Agnes Murgor and Gatembu Kairu) are to relocate to Nairobi by January.
“It has become necessary to revisit the decentralisation of the court as it is currently not tenable. This decision is highly regrettable but beyond our control,” said the court’s president William Ouko yesterday.
The court numbers have been dwindling over time now with some retiring, being promoted or dying. Judges Philip Waki, Alnashir Visram, GBM Kariuki and Erastus Githinji retired from the court while Paul Kihara left to become the Attorney General.
Justice Otieno Odek died this week. The court had banked on the 11 Judicial Service Commission (JSC) nominees to shore up their low numbers.
The 11 whose appointment is caught up in the tussle between JSC and President Uhuru Kenyatta are Justices Mbogholi Msagha, Francis Tuiyot, Jessie Lessit, Aggrey Muchelule, Pauline Nyamweya, George Odunga, Mumbi Ngugi, Weldon Korir, Hellen Omondi and Joel Ngugi. They also include Kibaya Laibuta.
“The affected court stations, including Nyeri, will be served from Nairobi through circuit sessions conducted once a month to each station,” Ouko said. With the current number of judges and a backlog of nearly 3,000 appeals and applications pending at the Nairobi registry, the court can only mount two benches.
The President defended his decision not to gazette the list of 41 judges nominated by JSC, saying he had received adverse reports on the integrity of some of the candidates and JSC ought to have considered the details while arriving at the decision to nominate them.
Lawyer Adrian Kamotho has since sued the President’s adviser - Attorney General Kihara Kariuki, JSC and the Chief Justice over the delay.
The Judiciary’s decision to suspend Court of Appeal sittings outside Nairobi comes few days after Chief Justice David Maraga exposed how the Executive was trying to suffocate the institution by delaying funds and failing to treat his office with dignity.
“The government should lead in obeying the law. It should not lead in impunity. As though to hit at the Judiciary, the government is not settling court decrees against it. And it’s the decree holders who are being hit,” he said.
He also accused Parliament of slashing the Judiciary budget when globally, it is recommended that it gets at least 2.5 per cent of the national budget. The institution’s development budget was cut by Parliament from Sh2.5 billion to Sh50 million.
The Judiciary had requested for Sh31.2 billion but Parliament allocated Sh14.5 billion, which the Treasury later slashed to Sh11.5 billion but rescinded the decision after protest by the CJ and the Law Society of Kenya (LSK).
Operations such as 53 mobile courts, circuit courts of the Court of Appeal and tribunals were suspended, leaving litigants in a dilemma as to when their matters will be concluded.
Maraga said there is need for all the three arms of the government to keep to their lanes because they are all equal.
“The truth of the matter is that the amount available to us in the system has been reduced. Only the amount that goes to salaries has been spared; our development and recurrent expenditure has been slashed by 50 per cent, which works out to Sh2.9 billion; and the entire ICT vote of Sh400 million has been cut!,” he added.
From independence when Sir Ainley was appointed CJ, the Judiciary has been working harmoniously with the other arms of government until 2017 when things changed after the Supreme Court annulled the presidential election.
Maraga, who is the 14th CJ to serve the country, protested at the manner in which his office was being treated.
The CJ said he has no official car like the ones driven by the Speakers of the National Assembly and Senate and was saved by the public when his name was omitted from the VIPs to be accorded traffic clearance on the roads.
“The same contempt has been extended to public and state functions and access to important government facilities, such as the Ground VIP lounge at the airport. The Judiciary, for instance, is not able to host visiting Chief Justices in these facilities. Even letters of invitation to the Chief Justice are signed off by very junior officers in complete disregard of protocol,” the CJ said.
And in his demand for the CJ’s office to be accorded its rightful place in the institutional architecture for this country, Maraga who said the Judiciary was tired of being the punching bag did not attend the Jamuhuri Day celebrations at Nyayo Stadium.
The courts also dismissed the state’s decision not to gazette Justice Mohammed Warsame as a member of JSC for a second term before he is vetted by the National Assembly.
The President had forwarded the judge’s name to Parliament for vetting, a move that saw the Judiciary put on hold the swearing-in of other members nominated by the state.