The elevation of 10 high court judges to the appellate bench has been lauded even as concerns emerge on the ramifications set to be experienced by the affected courts.
Critics have also poked holes in the wisdom by the Judicial Service Commission (JSC) to find as most suitable only judges of the High Court, while overlooking those from the Environment and Lands Courts (ELC), Employment and Labour Relations Court (ELRC) and applicants from the academia.
Those whose names have been forwarded to the President for appointed are Francis Tuiyott, Hellen Omondi, Pauline Nyamweya, Weldon Korir, Msagha Mbogholi, Aggrey Muchelule, Jessie Lesiit, Mumbi Ngugi, George Odunga and Joel Ngugi. Also to be considered is lawyer Imaana Laibuta.
Law Society of Kenya President Allen Gichuhi says the practice in the past appointments took into account the need to bring in a diversity of experience from judges, lawyers and members of the academia.
Approximately 40 per cent of appointments were reserved for members from private practice and academia. In the list presented to the President, only one lawyer has been considered.
“In all fairness, while appreciating that the JSC has the discretion in the interview process, we recommend that all future appointments to the Court of Appeal provide a ratio of appointments from the High Court, courts of equal status, and from the bar,” says the LSK boss, adding that this will ensure fairness and equity in the final appointments.
The lawyers’ umbrella body has also requested the JSC to proceed and advertise the position of High Court judges, taking into account the urgent need to replace the ones promoted, the vacancies that may arise from judges who may retire in the coming years, and the need to improve access to justice.
Lawyers have expressed concern that some of the partly heard cases that are being handled by the 10 judges may be adversely affected, if they will be required to start afresh, for whatever reasons.
According to lawyer Danstan Omari, such a scenario will lead to an increase in the backlog of cases, currently a big problem in the courts.
There are approximately 553,187 pending cases in the courts. The Judiciary currently has 127 judges, 494 magistrates and 53 kadhis.
As it is, the entire justice needs of the 52 million Kenyans is in the hands of these 674 judicial officers.
Hypothetically, on average, each judicial officer has 821 cases to deal with if the matters were to be equally shared out. (Judicial officers have approximately 230 working days a year to hear and determine cases after deducting weekends, public holidays and leave.)
It would take an estimated four years to clear the pending cases, without any fresh cases being filed.
Removing 10 judges without an elaborate plan to replace them soonest only worsens the balancing act of having case backlog minimised.
Concerns over backlog is also manifest given that the 10 judges cannot take new matters before they are sworn in, and it is not known when.
“JSC has also not advertised for the 10 positions set to be left vacant. This is likely to take time because recruitment process is tedious. It will be worse if the JSC does not have a budget for recruitment and wants to wait for the Treasury to allocate funds,” lawyer Omari observes.
Lawyer Okweh Achiando says the recruitment may be delayed by, among other factors, the need to critique the list of those shortlisted to replace the 10 high court judges.
Most of the judges who were promoted were presiding judges of the high court and were in-charge of administration.
The administrative aspect of the Judiciary and case management is likely to be slowed down when they leave.
“Administratively, some cases may suffer because there are disputes which emerge from time to time during hearing, and require to be referred to the presiding judge of the division for directions,” Mr Achiando said.
Lawyer Omari separately says that many of the judges who are to join the Court of Appeal are the most experienced, and it will take time before new judges are able to catch up.
The matters which were being handled by the promoted judges will be allocated to other judges as the Judiciary plans to recruit their replacement.
“There is going to be a shortage of 10 judges because they have moved to another court, and this will create a very big shortfall. So, there is need to fast-track their replacement, at least to maintain the same workforce,” activist Okiya Omtatah said.
Others see the possibility of miscarriages of justice in instances where a new judicial officer who did not have the benefit of hearing the crucial witnesses or taking into account pertinent factors during trail has to proceed with the cases.
“Without seeing the witness and taking into account their demeanour, the new judge is likely to render a judgment that has not taken that aspect into consideration,” adds lawyer Suyianka Lempaa.
He says the JSC should avoid such instances in future by organising the interviews in such a manner that those who are to be promoted or transferred are allowed to conclude their cases before moving to their new station.
The second highest court after the Supreme Court currently has 19 judges, 11 short of the required 30. In addition, two senior judges, Erastus Githinji and Alnashir Visram, are set to retire this year.
The country has Court of Appeal stations in Nairobi, where majority of the judges are stationed, Kisumu, Malindi and Nyeri, which have three judges each.