William Ouko lays out plan to spur Court of Appeal success

Interview with Justice William Ouko, President of the Court of Appeal, as recorded by Sunday Nation reporter Sam Kiplagat.

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The Court of Appeal, in many instances, acts as the final court. How do you ensure that Kenyans appreciate this through your decisions?

Indeed, 99 percent of our decisions are final. Only about one percent go to the Supreme Court, and even then we have to certify that the matters are of public importance and relate to interpretation and application of the Constitution.

We therefore ensure our decisions are solid. We employ our professionalism, the competence of the judges and always anchor our decisions in law.

But, of course, we cannot stop litigants from seeking further remedy.

The main challenge when you took over a year ago was case backlog. There were about 4,349 pending cases. Has the number reduced and what strategies did you employ?

Yes, the number has significantly reduced. We are now at about 3,600, including the ones that have since been filed in our courts. This is impressive considering that we’ve done it without having the full complement of judges.

We have used a number of strategies to achieve this. For one, we do not allow adjournments; once a matter is listed it has to proceed unless in very special circumstances.

Another strategy has been insisting on written submissions, with each party providing a summary — we limit the length, the font used, the highlighting and so on.

STRATEGIES

We also use timers. We ask, how long do you intend to take with your submissions? You say 10 minutes and that’s it. Our courtrooms are fitted with timers and we are very strict.

Further, we have been holding special service weeks where we take five or so benches to a particular station and clear a large number of cases at a go.

For example, last week we all huddled in Nairobi and cleared 76 cases. Next week we are in Kisumu where 85 cases are listed. By the time we come back these will be off the backlog list.

Away from the professional strategies, we address the wellness of judges — the welfare issues. We work closely together as a team.

This is reflected in the way we relate. We have tea and eat together. We even visit each other’s homes on a rotational basis. This makes us a tight family.

Your office had undertaken to dispose of all appeals older than five years by December 2018. Did you achieve this?

We have now cleared all the five-year-old cases.

What is your next target?

We want the court to become real-time; meaning that you file an appeal and hearing time is allocated immediately. Within two years we want appeals to be heard within the same year or less.

In four years, we want to be like the best of the world — real-time hearing.

You also promised to get better office space for your judges. Where are the plans at the moment?

The President offered us space at KICC when he visited us in February. We thought it was a gift but it turns out we have to pay rent.

We are working on it. The Chief Registrar of the Judiciary (CRJ) is on it. The court does not intend to move, what CRJ plans to do is relocate some of the offices to KICC and create space here for the judges.

Of course, the long-term plan is constructing the court on our land in Milimani. In the current Budget, we were allocated Sh100 million to start the process.

We are going to tender and construction starts next year.

This week the Judicial Service Commission named 11 new judges for your court. This is more than a 50 percent increase in your establishment. What can you promise Kenyans?

Getting the full complement of 30 judges up from 19 judges is a big boost to the court.

Where will you send the new judges?

The Chief Justice, in consultation with ourselves, will see where there is greatest need. Places like Nyeri do not have any judges. We usually send judges there from Nairobi. They will now get a permanent bench.

Do you think the requirement for your court to sit as a three-judge bench is always necessary? Does it slow you down?

It is an international practice to have an odd number. As you go up in the court hierarchy, the bench becomes bigger (except in small applications such as extension of time, et cetera).

We sit as three judges, at the Supreme Court they must be five. This is okay.

Yes, it slows us down. We have identified some matters that need not be heard by three judges. Some can even be heard by the registrar and the deputy registrar, particularly the applications; then we concentrate on appeals.

Last year, the Supreme Court overturned several decisions of the Court of Appeal in the election petitions. Many advocates felt that the Supreme Court went for technicalities while your court was for substantive justice. Does this point to an ideological rift between the two courts? Did it result in a tiff?

We appreciate the structure of our court system. We also overturn High Court decisions — we make our decisions on strict honesty.

If the court higher than us overturns our decisions, we learn from them. There is no tiff.