Why the Court of Appeal is hurtling towards a crisis

The Court of Appeal is on verge of becoming unconstitutional due to a shortage of judges following elevation of justices Martha Koome and William Ouko to the Supreme Court. 

The court currently has 13 judges, just one above the minimum constitutional requirement of not fewer than 12. This means if one of the judges vacates office, the court will be operating with the bare minimum number and should two judges leave, the court will grind to a halt. 

The country's second highest court has an establishment of a maximum of 30 judges, but before the exit of justices Koome and Ouko it had 15.

In July 2019, the Judicial Service Commission (JSC) recommended to President Uhuru Kenyatta the appointment of 11 judges to the court to shore up their number and deal with delay of cases. 

However, the nominees (10 High Court judges and one civilian) are yet to be appointed, as well as 30 others the JSC wanted appointed as High Court judges.

Recommended judges

Those recommended as Appeal Court judges are justices George Odunga, Mumbi Ngugi, Weldon Korir, Msagha Mbogholi, Francis Tuiyott, Hellen Omondi, Pauline Nyamweya, Aggrey Muchelule, Joel Ngugi, Jessie Lesiit and lawyer Dr Kibaaya Imaana Laibuta.

President Kenyatta declined to appoint them on grounds that some had questionable integrity. In a letter dated July 5, 2019, the National Intelligence Service (NIS) told the JSC that it had received adverse reports against some of the nominated judges but did not furnish the reports, nor were any particulars of the alleged adverse reports provided to the JSC. 

Owing to the shortage, the Court of Appeal has been unable to constitute a bench to hear cases in Nyeri, Meru, Busia, Eldoret, Nakuru and Kisii sub-registries, leading to their closure.

Reduce backlog

When Chief Justice Koome appeared before the JSC for an interview, she told the panel that one of her priorities would be to reduce the backlog of cases by facilitating the appointment of additional judges and magistrates. 

“I believe that it is important that we have the Judiciary Fund operationalised so as to make the courts more financially independent and work better. I also think that on the matter of judges and magistrates, the best thing to do is to appoint additional judges and magistrates, including the 41 judges that is currently pending,” Justice Koome told the interviewing panel. 

The number of judges at the court has been dwindling over time as a result of retirements and death while the number of those active has been affected by re-assignments to other areas of governance. 

For instance, Justices Philip Waki, Alnashir Visram and Erastus Githinji retired from the court in 2019, while Justice Paul Kihara Kariuki left to become the Attorney General.

Extra duties

Justice Kathurima M’inoti got extra duties in February this year after being appointed by President Kenyatta to the East Africa Court of Justice (EACJ).

Justice Mohammed Warsame left two years ago to represent his colleagues at the Judicial Service Commission (JSC) while Justice Otieno Odek died in December 2019.

Recently, 16 civil society groups asked President Kenyatta to expedite the appointment of the judges whose appointment has been pending for almost two years.

The Law Society of Kenya (LSK) also called on Chief Justice Koome to use the strategies and proposals she mentioned to the JSC in dealing with the impasse on the swearing-in of the 41 judges.

The last updated State of the Judiciary Annual Report indicates that at the end of the last financial year, there were 7,598 pending cases in the Court of Appeal. These cases comprised 2,069 criminal cases and 5,529 civil cases.

The court had a backlog of 4,982 cases. In the backlog, 246 of the cases are aged more than five years. 

Institutional target

A case is classified as backlog in Kenya if it remains unresolved one year after it was filed in court. Ideally, and as an institutional target, the report says cases should be heard and determined within one year from the date of filing. 

Nairobi had the highest backlog at 1,694, while the Court of Appeal in Nyeri had 1,582 cases. Kisumu had 1,373 while Malindi had 333 cases. 

The court also had four stations namely Kisumu, Malindi, Nairobi and Nyeri, following recall of all judges to Nairobi due to a cash crunch.

The number of filed cases in the Court of Appeal has generally been increasing over time. The resolved cases have also been increasing over time except for the year 2019/20 where there was a slight decline, attributed to the downscaling of court activities due to the Covid-19 pandemic.

By the end of the year under review, Nairobi and Kisumu stations had reduced their case backlog of above five years from 619 to 125 cases and 11 cases to nine cases, respectively. 

In general, the court resolved 916 cases aged five years and above, which were more than the baseline target of 648 cases, owing to resolution of additional cases that transited to the age category of above five years.

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