When Chief Justice David Maraga took office in October 2016, he promised to clear the case backlog saying that, by the end of his tenure in December 2020, there will be no case in court older than three years.
But as at the end of the last financial year, the backlog stood at 341,056 cases according to a government report, and the pile-up of cases is likely to continue after the courts shut down operations for one month following the outbreak of the Covid-19 pandemic.
At least 20 tribunals under the judiciary have also scaled down operations. The Co-operative Tribunal has suspended fresh filings while the Transport Licensing Appeals Board has postponed cases. This is on top of the budget cuts and the few number of judges and magistrates.
“He is unlikely to achieve his agenda on the case backlogs due to the suspension of the courts, whose duration remains uncertain,” says lawyer Wahome Gikonyo.
A case is classified as backlogged if it remains unresolved one year upon its filing in a court. The suspension of the courts will not only affect the clearance of cases but also revenue streams such as fines, fees, forfeitures and other charges.
Fines refer to the money ordered by the court for an offender to pay as a condition for his or her release while forfeitures are the cash bails cancelled when an accused person fails to observe court appointments.
Fees refers to money paid for court services mainly for civil matters while charges include commissioning fees, revenue from sale of exhibits and other miscellaneous fees.
In the three financial years that Justice Maraga has been in office, the judiciary’s total revenue has increased from Sh1.97 billion in Financial Year (FY) 2016/2017 to Sh2.075 billion (FY2017/2018). It further increased to Sh2.69 billion in FY2018/2019.
When the one-month suspension will be coming to an end, the judges will be starting their Easter recess. This means that normal operations could resume in May. Mr Gikonyo says current revenues for the judiciary and all legal practitioners.
“Some cases have a ripple effect on the economy. With their conclusion delayed, the economy will feel the heat” says the lawyer. Shortly after taking office, as at December of that year there were a total of 505,315 cases pending in the court system. Of these, 360,284 were pending for five years or longer.
While outlining his ‘six strategic big bets’ to back his vision for the Judiciary, Justice Maraga listed clearance of case backlog as the second from top after enhancing access to justice. Third on the agenda was dealing with corruption and handling of complaints.
He introduced service weeks, circuit courts and mobile courts and highlighted the Case Clearance Rate (CCR) as a key measure of performance indicators for judges and magistrates. The CCR is the rate of resolution of cases measured by the percentage of resolved cases against filed cases within a specified period. Productivity refers to the number of resolved cases in each court divided by number of judges and/or judicial officers in that court.
At the end of FY2018/19, a total of 186,716 cases of more than five years had been cleared in all courts.
However, the report indicates, a total of 39,781 cases that had stayed in courts for over five years remained unresolved by the end of June 2019. A total of 2,521 cases were resolved by tribunals, impacting on reduction of case backlog and consequently enhancing access to justice.
At the end of the period under review, the highest case backlogs were at the Magistrate’s Court and High Court at 245,268 and 63,443 cases, respectively.