Chief Justice David Maraga at the Supreme Court. [Jonah Onyango, Standard]
A threat by the Executive to “revisit” the Judiciary is now grinding the Judiciary’s operations to a halt, leaving litigants seeking legal redress suffering.
The wheels of justice that had started moving fast and saw a huge backlog of cases solved between 2010 and early 2019 have started slowing down, with litigants now forced to travel long distances to have their matters heard and determined.
This, litigants say, is as a result of what the Executive terms “austerity measures” that saw Judiciary’s budget reduced by half and the delay by President Uhuru Kenyatta to appoint 41 judges.
This situation has left lawyers at loggerheads with their clients on what other alternatives can be used to solve their matters.
Sunday Standard has established that due to the cuts on Judiciary’s budget and lack of judges, several mobile magistrates’ courts are not in operation and those that are, even in the upper courts, have to wait to be given for fresh dates by the registries.
Parties that had matters pending before Appeal courts outside Nairobi now have to compete with the 6,000 matters pending before the court in Nairobi in getting hearing dates.
Even at the registries, and specifically at the Court of Appeal and the High Court’s Environment and Lands Division, the diaries for hearing dates for this and next year are already full.
Judges at the High Court are handling more cases as compared to previous months because their colleagues who are on the list President Kenyatta is sitting on can only take applications and not matters that go for full hearing as they complete cases pending before them.
Lawyer Kirathe Wandugi said he had a case before the High Court in Garissa and filed an appeal at the appellate court in Nyeri. The matter has now been moved to Nairobi due to a shortage of appellate judges, occasioned by President Kenyatta’s decision not to gazette the 11 names forwarded to him by the JSC.
“I also had a matter that has been pending before the court in Ngong, but when I went for the hearing, the court was not sitting. This is the same with some of my matters in Kajiado and Makueni where mobile courts are not operating. Cutting the Judiciary’s budget by 50 per cent was ill-informed,” he added.
For Mr Wandugi, decision to close some of the courts was harsh and things will get worse if the two arms of government do not reach an agreement.
Sunday Standard has also established that there are plans by the Senate’s Justice and Legal Affairs Committee to seek a way forward when the House resumes next week.
“Justice delayed is justice denied. We are going to have a meeting next week and invite the Judiciary Registrar and the Judicial Service Commission (JSC) to see how we can save the situation,” said Senate’s Justice and Legal Affairs Committee Chairman Samson Cherargei.
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“The Executive is trying to intimidate the Judiciary and we are even worried by some recent court decisions that clearly show some of the judges are bowing to the pressure. See the recent Court of Appeal decision which said governors charged with corruption should not access their offices yet they are still on full salaries and were elected by the people,” he added.
The committee’s chair said he was worried that the country is going back to the “dark days” when the Executive acted as the Judiciary’s gatekeeper, adding that there is need for each arm of the government to work independently.
He queried how issues raised by Building Bridges Initiative (BBI) on the Judiciary can be implemented when there is interference on how it delivers its services.
But Muranga Senator Irungu Kangata defended the Executive, saying Chief Justice David Maraga was partly to blame for the crisis in courts countrywide because he had failed to implement Small Claims Court Act that could have replaced mobile courts.
The Act that came into force in 2016 allows for the establishment of Small Claims Courts in all sub-counties. They are to act as subordinate courts and are to be presided over by adjudicators appointed by the CJ.
The CJ is to pick adjudicators from the more than 10,000 lawyers with three years experience in the legal field and are to serve on a full or part-time basis. Section 51 of the Act provides that the CJ should have prescribed the code of conduct applicable to an adjudicator six months after the commencement of the Act.
However, Makueni Senator Mutula Kilonzo Junior pointed out the shenanigans employed by the Executive to muzzle the Judiciary will create a backlog of cases that cannot be cleared even within four years.
“It is an attempt by the Executive to dictate, guide or misguide the Judiciary on what it wants. They should also know that it is the common mwananchi who is suffering,” he said.
Homa Bay MP Peter Kaluma, a member of the National Assembly’s Justice and Legal Affairs Committee, said failure by President Kenyatta to appoint the judges is grinding the Judiciary to a halt.
“It is clear there is an issue beyond excuses presented by President Kenyatta on some of the nominees’ integrity. The decision is denying Kenyans access to justice and the backlog of cases we had done away with is creeping back,” he added.
Cherargei and Kaluma argued that if President Kenyatta had issues with some of the candidates, he should have presented a petition along with the National Intelligence Service (NIS) report to JSC through Attorney General Kihara Kariuki during the interview and not to raise issues after the vetting exercise had ended.
But even as this is going on, a crisis looms at the Supreme Court as JSC prepares to replace two members who are set to retire.
Already, Justice JB Ojwang has proceeded on leave as he prepares for his exit in February after serving the Judiciary for 16 years.
On the other hand, JSC is to have a major task if Justice Maraga opts for early retirement, that is before January 5, 2021, the way his predecessor Dr Willy Mutunga did in 2016, when he left the Judiciary earlier than scheduled to give the commission ample time to find his successor.
Former LSK chairman and JSC commissioner Tom Ojienda said if this happens, the highest court in Kenya will face a major crisis, given that the deputy CJ is currently unable to hear cases due to a petition against her pending before JSC.
Yesterday, Anne Amadi, the JSC Secretary who is also the Judiciary’s Registrar, said the commission will start the process of replacing Justice Ojwang immediately the CJ declares the seat vacant.
From February, the court will have only six judges to hear and determine matters and give advisory opinions as required by the Constitution.
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