To clear the case backlog, increase number of appellate court judges

Among the highlights of Chief Justice Martha Koome’s first year in office, which ended on May 20, is the rollout of the small claims court, which has tremendously revolutionised the dispensation of justice with conclusive resolution of disputes within a short three months.

The court has lived to the aspirations of Article 48 of the Constitution, which advocates for the citizens’ right to justice. The court dispenses real-time justice in a simple manner without applying technicalities and hardly entertains adjournments due to the strict timelines for conclusion of cases provided for in its statute.

The CJ’s other notable success is the choice of diplomacy over confrontation in her engagements with the Executive. That has reaped dividends, as seen in the increase in the Judiciary’s allocation from Sh17.9 billion to Sh18.9 billion. She has struck a balance without necessarily compromising the independence of the Judiciary by recognising the interdependence of the three organs of government, the other being Parliament.

However, it has not been easy going in the Court of Appeal, which is ordinarily the last port of call for more than 90 per cent of litigation; hence its importance and relevance, what with the Supreme Court’s appellate jurisdiction having a very limited scope.

The court has been more than overwhelmed as our liberalised Constitution enhanced rights, opening a floodgate of litigation in new spheres, such as constitutional and judicial review and employment and labour relations.

While Section 7 of the Judicature Act caps the number of Court of Appeal judges at 30, for the High Court, it’s 150. The combined effect of judges in the specialised courts—Employment and Labour Relations Court and the Environmental and Land Court—added to the High Court bench is such that the appellate court, even at full capacity, can’t cope with individual appeals emanating from the lower courts. The Court of Appeal operates at a bare minimum as six judges are being recruited while the appointment of four among those proposed was declined by the President.

Out of the few judges in that court, one bench of three judges each is stationed in Mombasa and Kisumu and the rest in Nairobi, leaving the Nyeri station without a bench.

There are applications pending for determination for as long as five years while civil appeals are more than an overflow. The stalemate on the appointment of judges, unfortunately, came at a time when the backlog gap was almost being bridged and the court was very close to zero-rating the matters pending before it.

Applications under certificate of urgency can never be heard as fast as it should be yet ex parte orders cannot be given in the Court of Appeal at the first instance, resulting in the applications and appeals filed being overtaken by events as the status quo of the subject matters in dispute may by the time of hearing may have changed beyond recall.

Instructively, this court’s worst crisis ever is out of no fault of the judges but due to their dwindling numbers caused by the long, uncalled-for standoff between the President and Chief Justice David Maraga, for which the Executive was and is still, clearly, to blame. Justice retired on January 12, 2021.

The solution, considering the rapid expansion of our courts courtesy of the 2010 Constitution, would be the amendment of Section 7 of the Judicature Act to increase the number of appellate court judges to at least 50 so.

Permanent specialised divisions can then be set up to deal with appeals from the Employment and Labour Relations Court and the Environmental and Land Court, each of which should have 10 judges with the ability to set up three benches at any given time. The remaining 30 judges would deal with High Court appeals spread between Nairobi, Nyeri, Mombasa and Kisumu stations.

Mr Sumba, an advocate of the High Court of Kenya, is a trained journalist. [email protected]