How rapid court expansion may maintain case backlog

The Judiciary has made great strides in the clearance of case backlog at the very lowest level. The creation of the Small Claims Court resulted in instant justice as cases are heard and determined within 60 days of filing.

However, the magic touch is still elusive at the higher levels of the courts. The Court of Appeal had almost achieved the elusive feat before being rudely interrupted by the stand-off created by then President Uhuru Kenyatta, who, for so long, and for no reason, refused to appoint Court of Appeal judges.

The court had, for a long time, operated at a third of its capacity, which created an endemic backlog that saw matters certified urgent at times being heard after a year while determination of appeals and even applications took five years on average. There are pending applications from even 2017.

The appellate court is now operating at full capacity following the appointment by President William Ruto of four judges hardly two weeks ago, bringing the number to 29 out of a maximum of 30, another seven having recently been recruited competitively.

There is hope of the case backlog at the top court being tackled adequately. Chief Justice Martha Koome has asked that appeals be heard and determined within a year. But that could be impossible with her strategy of rapid expansion of the court while the number of judges is still capped at 30.

The CJ has set up a new ‘diaspora’ court station in Nakuru with another one due in Eldoret. Others will be located in Mombasa, Kisumu and Nyeri. But the ambitious undertaking would be better accomplished after amending the Judicature Act to raise the number of Appeal court judges to at least 50.

Considering that the stations will have four judges each, as is the case with Nakuru  20 judges will be taken up, leaving only nine in Nairobi, one of which is a director at the Judiciary Training Institute. Yet Nairobi has the worst backlog, considering the number of judges in the High Court, Environment and Land Court and Employment and Labour Relations Court, from which appeals emanate, nearby. At least 16 judges are required in Nairobi, with no less than five benches of three judges each.

Crumble under the weight

The rapid addition of Court of Appeal stations, unless strategic and measured, might be counter-productive and inequitable. While case backlog in the ‘diaspora’ stations could, realistically, be cleared and/or dramatically reduced, the centre (Nairobi) would be exposed and, hence, crumble under the weight.

It must be this thinking that saw CJ Koome’s predecessors, Dr Willy Mutunga and Mr David Maraga, find it prudent to set up just three ‘diaspora’ stations of the Court of Appeal—in Mombasa (initially Malindi) , Nyeri and Kisumu—even at full capacity.

The current full house should be able to hear and determine applications under certificate of urgency within a month, other applications within six months and appeals, as proposed by the CJ, in a year. This may, however, not be achieved if the number of judges in Nairobi remains at a bare minimum. Could the CJ be spreading herself too thin?

Mr Sumba is an advocate of the High Court of Kenya.  [email protected].