Judiciary shutdown comes with sharper case backlog pain

When Chief Justice David Maraga took office in 2016, he promised to clear case backlog in courts.

In January 2017, the Chief Justice pledged the Judiciary would clear all cases that were five years and older by December 2018.

Then, there were 170,186 cases that had been pending for five years and longer. But three years down the line, the backlog is still a major issue for the Judiciary.

This state of affairs is set to worsen with the shutting down of court hearings following the outbreak of coronavirus.

At first, the Judiciary announced that a few staff would handle urgent matters as the National Council for the Administration of Justice, chaired by Justice Maraga, planned for more meetings to deliberate on the matter.

“All conferences, workshops, colloquia and training programmes are suspended until further notice. There will be no foreign travel for the next 30 days for staff of the justice sector institutions, whether official or private, save for exceptional circumstances,” the CJ said

And on Tuesday, March 24, Chief Registrar of Judiciary Anne Amadi directed all staff to work from home to protect them and the entire Judiciary fraternity from the disease outbreak that has now killed more than 24,000 across the world.

According to the CRJ, the Judiciary gave priority to the safety and health of the entire Judiciary family after reviewing the statement issued by Health Cabinet Secretary Mutahi Kagwe on the seriousness of the pandemic.

Ms Amadi then directed court stations to notify the public of the directive, provide telephone and e-mail contact details to facilitate urgent matters and ensure public inquiries are responded to promptly.

She further asked lawyers and litigants to embrace Electronic Case Management, where practicable, during the period.

“We have been providing minimal essential services across our court stations to ensure access to justice is not completely disrupted. However, concerns have been raised by our staff regarding their safety as they attend to wananchi,” the CRJ said.

She added: “We have taken these concerns into consideration, and having reviewed the press statement issued on March 22, 2020, by the Cabinet Secretary for Health, on the seriousness of the pandemic and upon consultation with the Chief Justice, it is our view that the health and safety of the entire Judiciary family must be prioritised.”

A report released during the state of the Judiciary address in January by Mr Maraga pointed out that an average of 400,000 cases are filed annually while courts are able to dispose of about 300,000 cases a year. The caseload stands at 569,859 cases.

The hearings were first conducted under a tree at the Milimani car park, while in Malindi law courts used technology to decongest courtrooms.

On March 20, Malindi Chief Magistrate Julie Oseko presided over court proceedings through video conferencing on Skype. The exercise which was conducted in conjunction with Malindi GK Prisons saw 157 matters handled by the court.

At the Milimani High Court, commercial division, Justice David Majanja delivered several rulings online, with the consent of parties. The parties waived compliance of rules that require all judgments and rulings to be pronounced in open court.

In Taita Taveta, Voi High Court Presiding Judge Farah Amin processed 24 files from Wundanyi Magistrate's Court and issued orders for release of 23 petty offenders from Wundanyi GK Prison as part of efforts to decongest prison facilities and mitigate the spread of Covid-19.

Part of the measures announced by the CJ were suspension of bringing of prisoners and remandees to courts.

A few days later, Correctional Services PS Zeinab Hussein suspended all prison visits for 30 days to curtail the spread of the virus. The PS also suspended visits to prison lines, borstal institutions and youth corrective training centres across the country.

NEW JUDGES

“The Kenya Prisons Service has put in place adequate contingent measures and is fully prepared to protect those in custody, whose population currently stands at approximately 54,000 inmates and pretrial remandees,” the PS said in a statement.

With the shutting of courts, which was about to go for April vacation, Mr Maraga might not achieve his vision of clearing case backlog.

It is also not lost that the CJ has been pleading with President Uhuru Kenyatta to swear in 41 judges who were recruited last year by the Judicial Service Commission.

There is a serious shortage of judges, especially at the Court of Appeal, where only 13 judges were only available at all times to hear matters. The lack of judges has forced the CJ to suspend the decentralised Appellate courts in Kisumu, Nyeri and Malindi.

In the state of the judiciary report, there were 569,859 pending cases in the Judiciary, which comprised 249,264 criminal cases and 320,595 civil cases. The High Court has the highest with 63,443 cases.

But it is not all gloom for the Judiciary as Justice Maraga said in his address that a number of initiatives will be undertaken to reduce the overall case backlog.

These measures include service weeks, mobile courts, circuit courts as well as emerging measures such as the court-annexed mediation programme.

“These measures have collectively resulted in a nine per cent reduction of case backlog, as at the end of the year under review making the total case backlog to be 341, 056 cases.

During the year under review, a total of 469,359 cases were resolved by courts against a total of 484,349 cases that were filed during the year,” the report said. But all that has to wait until the coronavirus pandemic is vanquished.

The court-annexed mediation, where parties pick arbitrators to settle their cases amicably as opposed to arguing it in court, had also picked up but this has also been disrupted by the virus.

“The processed matters are matters that had outcomes of settlement, non-settlements, non-compliance or termination. Out of the 1,879 matters that were processed through mediation, 946 had settlement agreements,” the report said.

The cases, according to the Judiciary, handled some 2,905 matters in 2018-19, with a monetary value of Sh33.9 billion through mediation.

“Out of these matters, 946 were settled. The total value of the matters in mediation with settlement agreements stood at Sh7 billion,” the report stated.

Still on technology, the six courts at the commercial division have been equipped with court recording equipment. By the end of last year, the Division had recorded 2,500 case sessions in the six court rooms. The judiciary has also employed transcribers who now make it possible to have rulings and judgments in the shortest time possible.

“The advantage of transcription is that the judges will now be able to focus on the demeanour of the witnesses and only take a few guiding notes,” the report said.

TECH SOLUTIONS

The Judiciary has also been implementing the Case Tracking System (CTS). The system tracks the life cycle of a case, from registration to disposition and 40 law courts, five tribunals, and two mediation units have been installed with the tracker.

“A total of 256,041 cases have been captured on the system during the period under review. In total, 467,041 cases had been entered in CTS. With regard to ICT infrastructure, a total of 1,266 ICT equipment (desktop computers, laptops, printers and iPads) were bought and distributed to employees across various court stations. The Judiciary also acquired a private cloud solution to house all the systems”.

The fears of spreading the virus also saw the CJ publish rules on the e-filing portal, an internally developed system that was rolled out at the Commercial and Tax Division from May 2018.

Among the advantages of the system are that time taken to file cases has been reduced from an average five hours to about 30 minutes, besides eliminating the cost of transport to and from the court registries.

“The system automatically performs fee assessment and produces the fee invoice to be paid. This has eliminated problems of overassessment, under-assessment and corruption. A total of 392 matters were filed through the portal and Sh16,747,768 collected through the e-payment portal during the period under review,” the CJ said.

The Judiciary has a no-cash collection policy in all the court stations.

Revenue is collected in all court stations mainly through direct banking, use of playbills, and through agency banking.

For fines and cash bail, a paybill number has been displayed in courtrooms and suspects and offenders have been given instructions on the process.

All the revenue collected by the stations is auto-transferred to the Judiciary’s main revenue collection account on the last day of the month.

And according to the report, these measures have improved cash collection as well as ensuring timely reporting.

“Total revenue increased from Sh1.97 billion in financial year 2016/2017 to Sh2.075 billion in 2017/2018 and further to Sh2.69 billion in 2018/2019, a 30 percent increase,” the report noted.