Court of Appeal must change public image

By Pravin Bowry

The constitutionally reconstituted Court of Appeal will soon have seven more judges.

It is opportune to pass judgement on what was formerly the highest court in Kenya.

Prior to independence of Tanganyika, Kenya and Uganda, there existed a Court of Appeal of Eastern Africa, and with independence the colonial system continued, having a president, vice-president and appeal judges appointed by the Executives of all three countries. On independence, appeals to Privy Council were discontinued.

Then in 1977, after the collapse of the East African Community, the Court of Appeal of Kenya was constituted, but with the Chief Justice being the head of both the Court of Appeal and the mainstream High Court.

The 2010 Constitution has given constitutional backing to the existing Court, but created the Supreme Court being now the highest court in the country.

The report card on the Court of Appeal of Kenya since 1977 to 2010 is a mirror image of the Kenyan political scene, and however objective one tries to be, the Court of Appeal sadly let the Kenyans down in its independence, in the development of the law and in its day to day functioning.

The Court’s integrity was eroded by substantiated and unsubstantiated revelations of unfairness, political alignment, corruption of the judges, and downright inefficiency of the judges culminating in some of the judges falling prey to the ‘Ringera Report’ allegations.

Constitutional tribunals investigated some Court of Appeal judges, exonerated some, and some tribunals did not see the finalizations of the allegations.

Unanswered questions

Other Appeal judges opted to wriggle out and "retired" amidst grave clouds of impropriety hanging over their professional conduct. Was there a reprieve? Why were they not brought to justice? Why was the ‘Ringera Report’ not made public? These are questions which Kenyans yearn to be answered, and one day they should be.

Court of Appeal judges have been known to trade, very publicly, allegations of corruption against one another, but most unfortunately the truth of the allegations was never ventilated.

Did some get scot free? In how many appeals did the highest court pervert the course of justice?

On matters of substantive law, the Court of Appeal has, rightly or wrongly, been branded as a Court which had never given a "landmark" decision, was inefficient, contributed to massive delays, and was in its functions escapist when ‘political’ matters were brought before it.

Court of Appeal judges were known to be outrightly rude, discourteous, and obstructive.

Even where the integrity of the bench was unimpeachable, some judges neither had the grit, courage or guts to chart a path of pure justice.

How else can one explain that the Court of Appeal took over 40 years to appreciate that the 24 hour rule in bringing arrested persons to court was an encroachment of a constitutional right, or that death sentence was not a mandatory sentence in murder cases, and that the court had a discretion in sentencing of convicted murderers?

The bane of different Court of Appeal benches giving diametrically opposing decisions thus throwing the doctrine of precedent into disarray was an indicator that selective justice was being dispensed.

On analysis, some decisions were said to be based on political considerations or the desire not to be perceived as anti-establishment.

The delays in finalizing cases in the Court were painfully long, both for the civil litigant and the convicted criminals.

Attribute that to increased workload, shortage of judges, logistical problems and long-hand scripts in courts,, but the fact remains delays of a decade or so in deciding some cases is unacceptable in this day and age.

In civil cases when judgments were given, they had been rendered nugatory by litigants taking evasive action especially where limited liability companies were parties.

Another sad conceptional blunder of the former Court of Appeal was in the exercise and development of the contempt of court jurisdiction. A comparative study of the factual and legal situations indicates that the jurisdiction was exercised to thwart, not promote justice.

Professionalism

Those of us who have suffered the ignonmity at the hands of the Court of Appeal judges of being thrown out of judicial proceedings unceremoniously and without rhyme or reason, were left wondering on the professionalism of our judges.

Hopefully, the new judges and those from the old brigade who survive vetting will open up a new chapter in appellate jurisprudence.

The writer is an advocate of the High Court of Kenya.

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