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Cases backlog rise show effects of understaffing, pandemic on Judiciary

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Chief Justice Martha Koome. PHOTO | DENNIS ONSONGO | NMG

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Summary

  • The State of the Judiciary and the Administration of Justice Report for the year ended June 2021 shows the number of pending cases went up by five percent to 649,112 in the period — from 617,582 by June 2020.
  • Restrictions on in-person hearings imposed to curb the spread of the coronavirus and perennial understaffing of the Judiciary have been the prime reasons for the growth of the pending cases.
  • Pending cases at the magistrate courts account for the biggest share at 512,454 or 78 percent, followed by those at the High Court at 90,901.

The number of pending cases before courts of law has climbed to a six-year high, reflecting the damage the Covid-19 pandemic has brought on the Judiciary’s efforts to cut back the backlog that has delayed justice for thousands of Kenyans.

Restrictions on in-person hearings imposed to curb the spread of the coronavirus and perennial understaffing of the Judiciary have been the prime reasons for the growth of the pending cases, with delays in hiring new judges also a contributor.

The State of the Judiciary and the Administration of Justice Report for the year ended June 2021 shows the number of pending cases went up by five percent to 649,112 in the period — from 617,582 by June 2020.

Out of these, 375,671 are classified as backlog. The Judiciary defines backlog cases as ones in a court’s inventory, which remain unresolved more than one year since filing.

Pending cases at the magistrate courts account for the biggest share at 512,454 or 78 percent, followed by those at the High Court at 90,901.

The Court of Appeal recorded the highest jump in pending cases at 16 percent followed by the Employment and Labor Relations court at nine percent.

Only the Supreme Court and the Environment and Labour courts posted a decline in the number of pending cases in the period at 17 percent and nine percent.

Civil cases, which tend to take longer to resolve, account for more than half of the pending cases at 355,507 while criminal cases stood at 293,605 as of June.

The judiciary says that the number of pending cases is expected to grow naturally in line with growth in population and economic activity, a more informed citizenry and increased confidence in courts as a final arbiter.

At the same time, however, it points to some institutional issues which cause courts not to effectively clear their pending caseload, and also some occurrences that are beyond the control of courts.

“Pending cases arise if the courts are unable to cope with the number of filings…the courts are expected to resolve an equal number of filed cases. For the courts to perform optimally, there should be adequate provision of human capital,” the Office of Chief Justice told the Business Daily.

“Equally, necessary infrastructure — physical and technological — should be provided for the labour force to effectively function.”

Cases filed in the year ended June rose nearly three times faster than the rate of the cases resolved, painting the picture of an overstretched Judiciary.

The number of cases filed in the year to June rose 5.8 percent to 356,997 from 337,510 last year, while resolved cases grew at 1.76 percent to 294,837 in the same period.

Additionally, the Judiciary points to the Covid-19 pandemic, challenges in physical and ICT infrastructure and lethargy in other players in the justice chain as causes of the pending case rise in the period.

Courts suspended physical sessions last year in a bid to stem the rise in Covid-19 infections within the Judiciary. A shift to virtual sessions was exposed to the vagaries of online meetings where unstable connections would at times make hearings drag out.

The biggest concern, however, remains the number of cases classified as backlog, some of which have been pending for more than five years.

Magistrates’ courts have the biggest chunk of the backlog, accounting for 73.09 percent, followed by High Court at 18.5 percent, Environment and Land (3.07 percent) employment and labour (2.98 percent) and Court of Appeal (1.67 percent).

Hearings that are unresolved for up to three years represent 60 percent of the backlog at 225,422 cases, followed by those between three to five years at 31 percent (34, 648) and those over five years (nine percent).

“The overall pending cases in the Judiciary have been rising over time. This growth has on average revolved between five and ten percent,” the judiciary report tabled before Parliament reads in part.

To resolve the backlog, the Judiciary is betting on the recently launched Small Claims Court, use of alternative mechanisms of dispute resolution, increased number of staff, new court halls and ramping up the use of ICT.

The Small Claims Court — which handles commercial disputes of less than Sh1 million — will be extended to Mombasa, Kisumu, Nakuru and Naivasha. The court has been handling disputes in Nairobi since 2016.

Disputes filed at the Small Claims Courts should be heard and determined within 60 days from the date of filing, making these courts a key plank of the efforts to clear the case backlog of commercial disputes.

“During the period under review, the five Small Claims Courts that were operationalised resolved 637 cases at an average time of 53 days, against the statutory requirement of a maximum of 60 days. This depicts the game-changing potential that lies in the Small Claims Courts if we roll them out throughout the country,” Chief Justice Martha Koome said on November 18 when unveiling the Judiciary performance report.

The Judiciary also relies on Court Annexed Mediation, which was started in 2016 to drive its alternative dispute resolution mechanism to expedite justice and keep disputes out of the courtroom.

Under the Court Annexed Mediation, parties pick arbitrators to settle their cases amicably as opposed to arguing it in court.

The report shows that 767 commercial disputes worth Sh382 million were resolved through Court Annexed Mediation in the year ended June, bringing to Sh11.9 billion the value of disputes successfully heard and determined under the new dispute resolution since its inception five years.

But the hiring of more staff and construction of new court halls are perhaps out of the immediate reach of the Judiciary, as budgetary cuts have hampered the efforts for the past few years.

The Judiciary and the Treasury have in recent years faced off over budgetary cuts, battles that are not likely to end soon given the push to reduce expenditure in the face of near stagnant revenue collections and debt repayment obligations that are piling pressure on the Exchequer.

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