Cases still piling up in courts as tribunals remain dormant

Progress in reducing case backlogs is slow despite the transitioning of tribunals into the Judiciary as well as recent initiatives to improve services in the country’s justice system.

Cases yet to be decided after being filed more than a year earlier totalled 372,928 at the end of June 2018, an eight percentage-point jump from 344,659 in June 2016, reveals a Nation Newsplex review of the Judiciary annual reports.

Over the three years under review, the reduction of backlog cases older than five years significantly fell by 41 percent to 82,495 as at June 2018, compared to 139,256 as at June 2016.

But even with the reductions, a significant ratio of pending cases as at June 2018, one in seven, had been in the court system for over five years. A similar ratio were aged between three and five years.

The rate of clearing cases older than five years doubled in the fiscal year ended June 2018 after Chief Justice David Maraga made an undertaking to Kenyans that the Judiciary would clear suits older than five years by the end of 2018. The courts did not meet the goal but cases that had been in the court system for over five years dipped by almost a third by June 2018 compared to a year earlier. However, total backlog cases increased by 18 percent.

The maximum desirable time within which a case ought to have been finalised from the date of filing is one year in Kenya, according to the annual report.

In January this year, CJ Maraga partly blamed some of the delays on frequent adjournments of cases for frivolous reasons. The State of the Judiciary and Administration of Justice report 2017/2018 also highlights inadequate staff and low budget as contributing factors.

During the period under review, the Judiciary’s share of spending was 0.8 percent of the national government expenditure estimates. About Sh14.5 billion was allocated to the Judiciary in the last fiscal year.

According to the report, the low budget undermines the achievement of planned targets and consequent realisation of the Judiciary’s mandate.

Complaints lodged against the Judiciary with the Ombudsman by Kenyans reveal that some of the reasons for delays in case hearings carry on from one year to another unabated even though they are easy to resolve.

For instance, missing case file was the third-most prevalent complaint filed in the fiscal year ended June 2018, with the number of grievances increasing by 11 percent from the previous financial year.

“Record keeping is something which needs to be embraced especially in this digital age because we will keep on having this mischief or corruption, let’s call it what it is,” Pauline Kamunya, a lawyer.

Lawyer Pauline Kamunya says this year she has twice been a victim of files disappearing in suits she has handled even after the file appeared in the cause-list. She explains that the cause list − a daily schedule of ongoing cases, which is usually found on the Kenya Law website or on notice boards within courts premises − is the last stop for a file before it is taken to the chambers of a magistrate or judge a day or two before a hearing to enable them prepare for the case. “If a case file has not reached the magistrate or judge handling it yet it has been put in the cause list it points out serious negligence on the part of the judicial officer who transported it from registry to the chambers,” she says.

Kamunya believes digitising the Judiciary processes will cut down on the incidents of missing files. “Record keeping is something which needs to be embraced especially in this digital age because we will keep on having this mischief or corruption, let’s call it what it is,” she says.
The report shows that during the period under review, an automated case tracking system, which includes digitisation of court files was put in place and rolled out in 24 stations. But Kamunya says the digitisation initiative at the Judiciary that started during former Chief Justice Willy Mutunga’s tenure has almost stalled and records are currently being handled manually.

The top complaint was slow service that increased by 40 percent followed by poor service that went up by 129 percent. Other common complaints included cannibalised files, date allocation of issues, delayed rulings, corruption, delayed orders, failure to refund cash bail and referral cases to stakeholders.

Kamunya says she has also experienced problems getting cash bail refunds on behalf of her clients.

The Office of the Ombudsman is mandated to receive, consider and process complaints from any litigant who has grievances against the Judiciary or its officers.

The watchdog received 3,515 complaints, a 15 percent rise from 3005 the previous fiscal year. Out of these 2,324, or more than two-thirds, were processed and closed successfully. The Office of the Ombudsman attributes the growth in number of complaints to their collaboration with the Judiciary in handling such matters which has helped in increased reporting and better tracking of such incidents.

During the period under review, the Judiciary organised service weeks in stations that have higher backlogs, prioritised resources towards backlog clearance, and engagement with stakeholders in the justice chain to reduce obstacles to the clearance of case backlog.

The Magistrate Court and High Court had the highest case backlogs at 260,653 and 76,208 cases, respectively, as at June 2018. This is because the bulk of criminal and civil cases are filed in the two courts. For instance, in the last fiscal year, 356,085 (89 percent) of cases were filed in the Magistrate Court and 25,049 (six percent) in the High Court. In contrast, 61 suits were filed in the Supreme Court and 2,013 in the Court of Appeal.

The Supreme Court and Kadhis’ Court had no case backlog aged over five years.

On reducing year-on-year backlog cases older than five years, the Kadhis’ Court took the prize by clearing all suits, which stood at 117 as at June 2017. It was followed by the High Court, which cleared its cases by more than half (53 percent) to 22,223 suits from 47,388. In third place was the Magistrate Court, which recorded a fall by almost 40 percent to 53,474 suits from 87,594 filings over the same period. But the Environment and Land Court (ELC) saw its backlog cases older than five years spike by 83 percent to 5,314 from 2,911. It was followed from the rear by the Employment and Labour Relations Court (ELRC), which recorded a six percentage-point increase in undecided cases older than five years to 754 from 712. The Supreme Court did not have any longstanding case over the period under review.

The Judiciary considers transitioning tribunals from respective government ministries into the Judiciary in accordance with the Constitution as one of the transformation initiatives geared towards enhancing the delivery of justice. As at June 2018 the National Treasury had transited 20 out of about 60 of them. Just 5,615 cases were filed in the various tribunals, of which 2,530 were resolved, resulting in a clearance rate of 45 percent in the last financial year.

The report blames little public awareness for the few cases in tribunals and the many others that could be dispensed with by tribunals being filed in the courts. The result is an increase in backlog cases in the mainstream courts while tribunal boards and staff are underused, particularly in regard to the core mandate.

For example, no cases were filed at the Public Private Partnership Petition Committee as well as state corporations appeal and the competition tribunals in the fiscal year 2017/2018 even though they were fully constituted.
The rent restriction tribunal had the highest number of filed cases (3,620) followed by the cooperative and business premises tribunal (682). Tied in third place was the political parties dispute tribunal and business premises rent tribunal, with 569 each.
The rent restriction tribunal took up two-thirds of all cases filed in the 20 tribunals that had transitioned into the Judiciary.