Justice denied as number of missing files, exhibits jump 80pc

When Simon Kimani filed a land succession case at the Milimani court in 2014, he hoped justice would prevail as soon as possible. But the matter still drags on, six years later.

Mr Kimani says his file went missing two years after filing his case. This has seen him make several visits to the court and write letters to various agencies.

Missing court files not only cause inordinate delays but also leads to acquittals. The aggrieved parties could undergo financial constraints due to higher spending on legal costs.

“I’m just disappointed. We have used every coin in this case and even worse is that we have lost hope in ever getting our mother’s land. How did the file just disappear? Of course someone in the office got rid of it. This a corrupt country, the poor are disadvantaged…it is not about justice but how much you can give as a bribe,” a distraught Mr Kimani told Business Daily in a phone interview.

“The big problem is, someone out there will continue living large while the other one is suffering, as long as this file keeps missing, ’he said.

Mr Kimani’s predicament resonates with those of the 330 Kenyans who filed complaints related to missing court records in financial year 2018/19. This was an 81 percent increase compared to the previous year.

In line with legal practice around the world, cases are decided on the basis of the records presented before the court. If files go missing, assumptions and conjecture alone do not hold water, and thus cannot lead to convictions.

In Kenya, missing police files is considered as a major hindrance to the progress of cases as it frustrates the Office of the Director of Public Prosecutions (ODPP) in proceeding with the cases.

The Judiciary says that one of their challenges is lack of commitment from the deputy registrar and court officers on how long the searches should take and construction of files, thereby causing miscarriage of justice inquiries.

“Continuous vigil needs to be enforced to ensure that court employees desist from the practice of “misplacing” records,” says the Judiciary.

But files are not the only things that go missing in Kenyan courtrooms. There also complaints to the Judiciary about loss of exhibits.

In its report, the Judiciary says loss of exhibits at the various court registries had adversely affected the conduct of cases, especially in the event of re-trials. It further noted that some exhibits were being released without court order.

There has been much popular attention pertaining to the sluggish nature of the country’s justice system. And although the Judiciary report claims that the overall case clearance rate stands at 97 percent, complaints from both private and public actors regarding the slow delivery of justice topped the list.

If, as the adage goes, justice delayed is justice denied, then Kenya’s courts can be said to customarily live in a state of denial as 569,859 cases remained unresolved as at the end of June 2019.

In addition, 341,056 cases were classified as backlog as they surpassed the maximum desirable timeline of one year, in which a case ought to have been finalised, from the date of filing. About 34 per cent of the unresolved cases have dragged on for more than three years.

“Primarily, increase of case backlog over time is occasioned by resolved cases being less than the incoming matters. Besides, pending cases together with the subsequent filed cases show the growth of court’s workload and hence a need to increase its workforce and infrastructure,” says the report.

Recently, the Kenya Magistrates and Judges Association (KMJA) Union urged President Uhuru Kenyatta to appoint 41 nominated Judicial Service Commission (JSC) members for the completion of backlog cases.

“The Judiciary is facing a 45 percent shortfall in workforce. As at June, 2019, there were 5,584 employees against an approved establishment of 10,243,” it says.

The Kenyan Judiciary also struggles to master the ever increasing influx of cases. Statistics show that as of June last year, a total of 484,349 cases were filed in all courts comprising 343,109 criminal cases and 141,240 civil cases.

The Judiciary is confronted with the demand to speed up, whereas the nature of the legal system needs a certain degree of slowness to communicate its accuracy.

For instance, the Judiciary says there are instances where analysis of exhibits by the government chemists for authentication takes time, leading to delay in determination of cases.

Low uptake of technology in the delivery of court services have also hampered efficiency in the Judicial system.

“The Judiciary has consistently prioritised technology as a tool to enhance access to justice. However, many of the planned projects have not taken off as a result of declining funds and abrupt budget cuts” Chief Justice David Maraga said.

Despite the uncertainty of funding and a declining budget, the Judiciary was able to undertake a number technology projects in the 2018/19 fiscal year.

For example, all the six courtrooms of the Commercial and Tax Division of the High Court at the Milimani Law Courts were equipped with court recording equipment and as at the end of the reporting period, the division had recorded 2,500 case sessions in the six court rooms.

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