The Court of Appeal recently gave what must be its most curious decision ever. It declined to set down a criminal appeal for hearing and returned it to the registry because the alacrity with which the appeal had been prepared was suspicious.
The judges, therefore, directed that the appeal be conducted through normal channels at a normal pace.
One could be mean and say that murder convicts have no business seeking quick justice.
Or he could be naïve and say that a judiciary touting expeditious disposal of cases as a principal performance indicator does itself little credit when it consciously steps out of its way to have a case delayed.
The truth of the matter is, of course, different and speaks to the contradictions with which our public institutions are ridden.
At the High Court in Eldoret, I knew of a civil case which had been instituted in 1968, and was unconcluded in 2006.
I hope that it is approaching determination now. By that time, a number of judicial officers who had not been born when the dispute first came to court handled it as registrars. Now they might preside over it as judges.
Similarly, some protagonists in the matter have long departed the mortal coil.
The problem with delayed cases is that the longer they remain unresolved, the harder it will be to move them forward.
Witnesses grow old and frail; the human memory is notoriously imperfect. Tracing records and documents, let alone their makers, becomes increasingly difficult. Substituting deceased parties involves drawn-out succession proceedings in another division of the court.
The presiding officers also lose track of the issues involved and have to repeatedly jog their memory before carrying on. Charles Dickens’ Doctors’ Commons is not an inaccurate depiction of the dispiritingly daunting character of it.
In September 2008, a litigant filed a civil case at the High Court in Nairobi against a financial institution. The litigation was acrimonious and intense. At an interlocutory stage, an appeal had to be determined before the case would proceed. By late July, 2009, judgment had been handed down.
All in all, the labyrinthine procedures of pleading, discovery, call-overs and sundry mentions, objections, appeal, trial and adjournment, submission and so on, and the judgment itself, took only nine months to traverse.
Ideally, there is no fundamental difference between the 40-year-old case in Eldoret and nine-month nail-biter in Nairobi. Nevertheless, both set records in extreme directions.
While the inveterate disputants upcountry were ordinary farming folk, the Nairobi matter was a different kettle of fish, having been instituted by a senior judicial officer.
In the final analysis, this proves to be the actual decider of the matter.
In one case, the parties unreservedly deferred to the equal protection of the law, while on the other, a party possessed real power within the judiciary and had connections at all its levels as well as in the legal fraternity.
Therefore, in simple arithmetic terms, lack of connections cost the farmers 40 years or so.
This has been true about the judicial system and its processes since the colonial years. Not only are the wealthy, privileged and well-known afforded socio-political and economic immunities and benefits; the one place where all must be equal also picks them out for special protection.
The privileged are served faster, remanded in cleaner cells, obtain bail as a matter of course and are charged within hours.
Their cases are “fast-tracked” and concluded almost invariably in their favour. Lawyers learn about famous people from their decided cases, which seem to be the only ones of reportable quality.
On the other hand, the Great Unwashed disappear into the gaping maw of the system, so that once in a while we read of destitute souls who have been in remand over a decade, in a country that long outlawed detention without trial.
In its curious decision, the Court of Appeal took its hat off to the principle of equality before the law. Selectively expediting the conclusion of an appeal is as unjust and discriminatory as negligently delaying another.
The writer is an advocate of the High Court firstname.lastname@example.org