Case backlog likely as courts hear poll petitions

By Wahome Thuku

Nairobi, Kenya: The impact of the more than 180 election petitions filed in the High Court across the country is already being felt, with dozens of other cases being put aside to enable judges deal with the disputes.

Some of the judges assigned to hear the petitions have since last week put off all other matters pending before them until they conclude the electoral disputes within the six-month deadline.

Some of the cases that will have to wait date years back.

And though the move has generally been welcomed even by the Law Society of Kenya and other parties involved due to the constitutional timelines, lawyers and litigants will still be counting losses when the cases resume possibly after July.

On its part, the Judiciary is making efforts to recruit more judges to salvage the situation that could see a fresh backlog of cases.

Litigants with cases pending at the Milimani Commercial Courts in Nairobi, which arbitrates on multi-billion shilling worth of suits arising from business disputes, will certainly feel a big impact.

According to the Deputy Registrar D W Nyambu, four of the five judges attached to the Commercial and Admiralty division are engaged in hearing the petitions.

“This notice is to inform you that for the next five months a good number of cases will be taken out of the cause list. We kindly request you to be patient with us for that period,” the deputy registrar informs lawyers and their clients in an official notice.

Legal fees

Some of the cases that go to this division involve high-profile contracts and property disputes between individuals and companies and failing to arbitrate them in good time could leave the litigants with millions of shillings either in losses or as legal fees for the lawyers involved.

LSK chairman Eric Mutua said the need to take out the cases and to free the judges was dictated by the six-month constitutional deadline, also defending judges against the perception they were abandoning cases.

“The perception that the judges hearing petitions will not deal with other matters is not true. The direction from the Judiciary is to prioritise petitions,” Mutua told The Standard.

Chief Justice Willy Mutunga has gazetted 39 judges to hear 115 election petitions filed in the High Court while 59 magistrates are dealing with petitions on Country Assembly seats. The Judiciary has 53 High Court judges and 408 magistrates.

Of the petitions, 23 challenge the election of governors, 12 against senators, 71 against MPs, nine against County Woman Representatives, 65 against County Ward Representatives and four against County Assembly Speakers.

“The ability to arbitrate commercial disputes expeditiously is one way of encouraging investors and when this is interrupted the consequences are grave,” said a senior lawyer in Nairobi who did not wish to be named. “Lawyers must charge for every appearance they make in court and for every paper they file. When cases don’t proceed, the costs will still be passed to the client.”

Besides the high-profile commercial disputes, other cases that form the bulk of matters in courts are on succession of family property and confirmations of grants in the Family Division of the Judiciary.

Other matters

Last week alone, 34 cases had been listed before presiding judge of this division Luka Kimaru but they were all taken out of his diary. They will not be heard until Kimaru completes hearing election petitions in Malindi.

In Busia, a notice by the deputy registrar stated that all the civil cases listed for hearing in May, June and July had been taken out of the court diary. Also taken out were succession matters and confirmation of grants. They would be mentioned at the end of July to fix new hearing dates.

The courts have only allowed urgent cases and charges of murder crimes to be taken, to avoid the constitutional timelines, which require one to be charged within 24 hours of arrest. The notice dated May 8, was sent to State counsels, advocates and litigants, prisons and to the LSK.

In all the affected stations, lawyers and litigants were being attended to by deputy registrars, who only give them directions on when they should go back to court.

Judiciary Chief Registrar Gladys Shollei had last month said there was going be significant disruption of normal court business due to the legal timelines for concluding the petitions.

Shollei said the Judiciary was making every effort to minimize disruption which included recruitment of more judges and magistrates. The JSC has already shortlisted candidates to be interviewed for new positions of judges.