CORRIDORS OF JUSTICE

Frustrations litigants face in judicial system

The lack of enough judges at the Court of Appeal has also been cited as a challenge

In Summary

• The delay in hearing cases, lack of sufficient judicial officers and missing files are just but a tip of the many frustrations cited by lawyers as a reason the Judiciary is still grappling with a backlog of cases.

• Lawyers who spoke to the Star said there is need for a holistic approach to the justice system, including hiring of more judicial officers, an impartial Judicial Service Commission, creation of special departments at the Court of Appeal and digitisation of proceedings to reduce backlog.

The Court of Appeal
The Court of Appeal
Image: MONICA MWANGI

When he appeared before court two weeks ago, Evanson Mwangi could not recall the details of the testimony he gave 10 years ago.

Appearing before Justice Jessie Lessit in a fresh hearing of a murder case against suspected serial killer Philip Onyancha, Mwangi, one of the alleged victim’s caretaker, disowned parts of his initial statements.

He insisted that police had added to the testimony or misunderstood him. Whatever happened, he is not sure, and after all, it was a decade ago.

The delay in hearing cases, lack of sufficient judicial officers and missing files are just but a tip of the many frustrations cited by lawyers as a reason the Judiciary is still grappling with a backlog of cases. Although Onyancha’s case was in April last year declared a mistrial, he had been in and out of court for the last eight years with the prosecution working on proving its case.

Lawyers who spoke to the Star said there is need for a holistic approach to the justice system, including hiring of more judicial officers, an impartial Judicial Service Commission, creation of special departments at the Court of Appeal and digitisation of proceedings to reduce backlog.  The lawyers said despite spirited efforts by the Judiciary to reduce caseloads, there is yet to be a significant improvement with the resultant effect of delaying delivery of justice to Kenyans.

Danstan Omari, an advocate, said the Judiciary lacks capacity to handle all cases and more judicial officers are needed, especially on sensitive areas such as the criminal, labour, children, commercial and anti-corruption divisions.

The facilities are also not up to standard to deal with people living with disabilities. Lack of translators is also a challenge, he said.

“Kenya has become a cosmopolitan and local country, people litigating are not only English speaking. The Judiciary needs to be adequately funded to recruit enough translators to avoid delays,” he said

Omari also said there is need to digitise and automate court process to improve the efficiency, enhance accountability and tackle the issue of missing files.

Lawyer Collins Osewe said adjournment of cases by the prosecution because they are not ready also frustrates their work.

“Sometimes they adjourn because the witness they summoned, who in most cases are police officers, are not in court or they have been transferred. As a result, cases can drag on for years. This problem is mostly within the Magistrates court,” he said.

Osewe said the bar should be impartial on how it handles cases. He said when defence counsels seek for adjournments, the court is likely to decline but when it comes to the prosecution, it is allowed.  Magistrates were also accused of lateness. “Court sessions ought to start at 9am but you will find them appearing one and a half hours late. Let the magistrates live up to the task and report to court on time,” he said

The lawyers were in agreement that judicial officers should decide cases based on the weight of the evidence adduced and not on their emotions or moods.

In addition, lawyer Lempaa Suyinka said bribery on the part of judges has caused them to question whether justice will be served regardless of how strong their cases are.  

“We may not be able to get justice going by the reports we are reading, with the recent one being 11 judges facing impropriety issues,” he said.

He argued that the JSC ought to be strengthened by strict adherence to the principle of Chapter Six on leadership and integrity. “We have not had proper interpretation of Chapter Six 10 years after the Constitution was promulgated. If it were to be implemented fully, professor Tom Ojienda and Deputy Chief Justice Philomena Mwilu would not be sitting at the commission due to the criminal charges levelled against them,” he said.

Suyinka said once a judge of the Supreme Court is charged with a criminal case, the honour and dignity of the said court is eroded thoroughly. Once indicted, the judges should step aside or resign, he said.

On the contrary lawyer Omari said bribery allegations of bribery will not go away and a blanket condemnation of the Judiciary that it is corrupt will erode the confidence that Kenyans have.

“Let us not bastardise every institution with allegations of corruption. Anyone with evidence should take it to the respective agencies. Judges are not immune from prosecution. But the blanket condemnation is a danger to the integrity and economy of this nation,” he said. The JSC, he said, must act with speed whenever a complaint has been raised and determine it without fear or favour.

The lack of enough judges at the Court of Appeal has also been cited as a challenge.

The procedures they say are very unfriendly. They want the appellate court to have divisions, as is the case at the High Court.

The lawyers said judges of the appellate court cannot deal with every branch of the law and there is a need to have specialised judges in their area of interest.

“We could have courts of appeal for criminal cases sit in Nyeri and on employment matters sitting in Kisumu. But the Court of Appeal in Nairobi should have specialized branches as there are judges known for a certain development of jurisprudence,” they said.