Staff shortage makes wheels of justice turn even more slowly

Shortage of Judiciary staff is a countrywide problem which is being attributed to downsizing of the Judiciary’s budget, thus preventing the Judicial Service Commission from hiring staff. FILE PHOTO | NATION MEDIA GROUP

What you need to know:

  • After the nullification of the presidential election in September 2017, the Judiciary lost about Sh2 billion from its budget.

  • In the next financial year, the Judiciary had submitted a request for Sh32 billion. JSC says the Treasury is willing to give them only Sh17.8 billion

  • As a result, there is massive staff shortage. For instance, the Court of Appeal needs 30 judges but there are only 19 judges; Environment and Land Court has 34 judges, but it needs 20 more.

When lawyers in Eldoret held a demonstration to protest the shortage of judges and magistrates, it may have looked like an isolated case.

But it is a countrywide problem which is being attributed to downsizing of the Judiciary’s budget, thus preventing the Judicial Service Commission (JSC) from hiring staff — judges, magistrates and support staff.

For instance, after the nullification of the presidential election in September 2017, the Judiciary lost about Sh2 billion from its budget. “The budget was cut at that point. For JSC, it was severe because it affected our meetings. We continued to work but without a budget,” JSC member Tom Ojienda said.

SH17.8 BILLION

In the next financial year, the Judiciary had submitted a request for Sh32 billion. However, JSC says the Treasury is willing to give them only Sh17.8 billion, about half of what they had asked for.

The last large scale recruitment of High Court judges by JSC was in 2014, comprising 25 judges. The appointments caused a friction between President Uhuru Kenyatta on the one hand and JSC, Law Society of Kenya and the opposition on the other. The only other recruitment the JSC did after 2014 was for a few Environment and Land Court judges.

As a result, there is massive staff shortages. For instance, the Court of Appeal establishment is 30. But there are only 19 judges, creating a shortfall of 11. The Environment and Land Court has 34 judges in 26 counties. It needs 20 more.

At the Employment and Labour Relations Court, there are only 12 judges in four counties serving the entire country. And there are 459 magistrates against an establishment of 687, meaning there is a shortfall of 228 magistrates.

JURISDICTION

“Recruitment has to be staggered because resources are required for them to function,” said Prof Ojienda.

In response to a petition by the chairman of the Mombasa Law Society, Mr Mathew Nyabena, who had complained of  a “dire shortage of judicial staff”, Chief Justice David Maraga, while acknowledging the problem, said “the situation in other stations is worse.”

“Please bear with us on this until next term when we shall re-evaluate the situation countrywide,” Mr Maraga stated in the May 17 letter.

Interviews with lawyers across the country reveal a worrying situation, with the Environment and Land Court, and the Employment and Labour Relations Court, being the worst affected. 

LSK South West Kenya Branch head Wilkins Ochoki — whose geographical jurisdiction covers Nyamira, Kisii, Migori, Homa Bay and parts of Narok — says there is a serious shortage of judicial officers in the country. “The most affected court is the Employment and Labour Relations Court, which is at Kisumu but covers many counties. The earliest you can get a date for hearing is in March 2019, if you are lucky,” he said.

INTERDICTED

Mr Ochoki’s counterpart, Mr Justus Mutia, who chairs the LSK South Eastern Branch which covers Machakos, Makueni, Kitui and Kajiado counties, said land cases at Machakos are overwhelming, since “the judge handles disputes emanating from two counties: Kitui and Machakos”.

He said there is a request from advocates based at Kitui that the Chief Justice sends a judge for the Employment and Labour Relations Court at Kitui.

The four counties are served by 47 magistrates in about 17 stations. One of the magistrates serves as Deputy Registrar for the High Courts.

“Shortage of judges and magistrates is due to failure to recruit enough of them to serve the country. Some magistrates have been transferred from some stations and others interdicted without being replaced. Kitui, Kajiado, Mwingi and Garissa subordinate courts have been affected by this. There is also no substantive Deputy Registrar in Kitui and Kajiado high courts,” said Mr Mutia.

REPLACEMENT

In Makindu Law Courts, also under LSK South Eastern Branch, Mr Mutia said only one magistrate has jurisdiction to handle land matters. “His court is overwhelmed. This week, it was already fixing matters for hearing in November 2018. There is a need for an extra magistrate with jurisdiction to handle land disputes,” he said.

In the petition to Mr Maraga, LSK Mombasa chairman Nyabane said Justice Loice Komingoi of the Environment and Land Court was transferred without replacement.

“This will obviously burden the remaining judges, given that they preside over cases covering Mombasa, Kwale and Voi regions. We urge your Lordship (CJ) to reconsider and send a replacement at the earliest opportunity,” stated Mr Nyabane.

INSUFFICIENT

Mr Maraga explained that he had to transfer Justice Komingoi to Nairobi “because of the terrible situation here.”

Mombasa region also lost Justice Asenath Ongeri, but rather than his replacement being stationed in the same place, he was taken to Garsen.

“Your Lordship, as also indicated, the 14 magistrates (of which one is a full time deputy registrar and three are part time deputy registrars) are not sufficient, given the backlog of cases,” said Mr Nyabane. He added: “The Mombasa LSK branch is asking for eight more magistrates — two judges for the Employment and Labour Relations Court to be based in Mombasa and Malindi and additional high court judges “to clear backlog of cases.”

GRUMBLING

In Kisumu, lawyers are grumbling after the transfer of two High Court judges, Justices David Majanja and Esther Maina. Only one judge has been brought in. 

In the land court, Kisumu requires at least three judges and at least four more at the High Court. “We have only three, yet Kisumu serves a big area,” said lawyer James Mwamu.

The court serves Kisumu, Siaya, Migori, Homa Bay, Nyamira and Kisii, while the Appeal Court extends to Eldoret.