Judge cites shoddy probes, lack of witnesses for delayed justice

Bungled investigations leading to discrepancies and glaring gaps delay many cases and often defeat justice, a High Court judge has said.  

Presiding judge at the High Court Criminal Division justice Grace Nzioka said statements filed by the prosecution and Independent Policing Oversight Authority sometimes cost victims of injustices the reprieve they would have gotten if investigators paid attention to details. 

“When the complainant or key witness dispute their statement tabled in court or when a case does not have witnesses, how can a judge proceed with it?”  Nzioka questioned.

She continued, "If you bring me a matter I am ready to proceed but IPOA or ODPP do not bring witnesses what can the court do? The lawyers are trained to poke holes and you are simply helping them.”

Reacting to concerns about the Missing Voices report launch focusing on delayed justice in cases of police killings on Wednesday, the judge said the criminal justice system is such that if there is any benefit of doubt, it  goes to the accused.

“We do not use our personal beliefs or what we think happened to decide on a case. We make our judgements based on what is tabled before court; direct or circumstantial,” the judge said.

Nzioka also said the defence team often delays cases when they seek numerous adjournments or submitting heavy documents for the court to consider.

“When I have many witnesses taking stand and pages of documents to consider before making a judgment, then a case is likely to take long. The judge does not intentionally delay a case,” she explained.

Justice Nzioka called on all actors in the criminal justice system to play their role in enabling the courts to administer justice swiftly.

“I can assure you as a judge, if you bring me witnesses and bring to my knowledge the sensitivity, the need, the demand, I'm willing to lay aside every other case and take this case, finalise with it and move on, but if you do not enable me, it is going to be extremely difficult,” Justice Nzioka said. 

The Missing Voices documented 219 cases of police killings and enforced disappearances in 2021.

“Out of these, 187 cases were of police killings, and 32 of enforced disappearances. Of the 32 cases of enforced disappearances, two of the victims were later found alive after campaigns by civil society organisations,” reads the report titled Delayed Justice.

 The report adds, “Originally, there were 36 cases of enforced disappearances; four of these were found dead more than 24 hours after disappearing in police custody, two were returned alive and 30 remain missing. These 219 cases of police killings and enforced disappearances resulted from 161 separate incidents.”

The Judiciary is committed to expeditious disposal of extrajudicial killings cases in court and does not intentionally delay cases, she said.

The report listed several cases that had taken long in court without realisation of justice for the victims. Sone of the cases listed includes Mavoko 3 and Mukuru 8 cases that have been in court for six years.

“The longer the cases drags in court, the harder the healing process for victims and survivors whose wounds are continuously reopened with every court date,” the report noted.

Justice Nzioka agreed that indeed one of the cases that had been highlighted was that of Willie Kimani, Josephat Mwenda and Joseph Muiruri that occurred in 2016. The judge said she was aware that the case had taken six years and could lead to a lack of trust in the Judiciary.

“It is a fact any Kenyan waiting for justice for six years will feel fatigued, frustrated and most likely lose confidence not just in the general justice system but in the criminal justice system,” she said.

The judge said it was not intentional for such a case to take long, but several factors lead to such delays, “Justice Lessit who is hearing the matter has heard 44 witnesses, and she has over 5,000 handwritten pages of evidence. If a judge has to hear one witness for about 3, 4, 5 days, just evidence in chief, you have about 14 or 20 lawyers cross-examining that witness you will do appreciate that it would take time.”