Bernard Gitau and Monica Kagia

The Court of Appeal is facing an imminent shutdown over shortage of judges as stipulated in the Constitution, the Court’s President Justice  William Ouko has said.

 Justice Ouko said the number of Appellate judges has shrunk from 27 in 2010 to the current 12.

“The situation has been complicated by the retirement of eight judges, the appointment of others from this court to other government offices; Chief Justice, Deputy Chief Justice and Attorney General who have not been replaced,” he said.

 Speaking during the funeral for Kisumu Court of Appeal judge Otieno Odek, Ouko said the court is drifting closer to the minimum threshold of 12 judges and could face imminent collapse.

 The Court of Appeal is established under Article 164 of the Constitution and consists of a number of judges, being not fewer than 12.

Current number

 “If the current number goes beyond the current one, there will be no Court of Appeal. Shortage of judges has a direct impact on the economic growth of a country,” he said, adding that the shortage has also an impact on the protection of human rights and fundamental freedom.

 In July, Chief Justice David Maraga forwarded 11 names of individuals including High Court judges to President Uhuru Kenyatta for the appointment.

 But the President declined to appoint them over integrity issues facing some despite all having been vetted by the Judicial Service Commission (JSC) before being nominated.

 On what has been reported as a tug of war between the Judiciary and the Executive arms of government, Justice Ouko cited decentralisation as the cause of the Court of Appeal judges’ shortage.

“Please understand it is not as it has been reported elsewhere as a tug of war or a sibling rivalry between the Judiciary with any other branch of government,” he said.

 He added that at the time of the decentralisation, there were 27 judges; three each deployed in Malindi, Kisumu, and Nyeri while the rest (18) remained in Nairobi, due to the heavy caseload in the capital.

This number (27) has gradually shrunk to 15 today. The 15 judges include the President of the Court, the Court’s Representative to the JSC and the Director of the Judiciary Training Institute (JTI).

“In effect therefore, the country has only 12 judges in the Court of Appeal who sit full-time.

Of the 12 judges, three are serving in Mombasa and three, until the passing on of Hon Prof Justice Odek, were serving at Kisumu,” he said.

He said with this distribution, the Appellate court in Nairobi with nearly 3,000 appeals and applications, can only mount two benches, a far cry from internationally accepted ratio.

Ouko said the Judiciary, through the Chief Justice, has decided that, as long as the situation with regard to the number of judges in the Court  of Appeal remains, the sittings of the court outside Nairobi are suspended with effect from January 13, 2020, the date of commencement of the court’s new term. 

“We regret this action and appreciate the negative impact it is likely to cause to parties and litigants in the affected stations,” he said.

Meanwhile, the Law Society of Kenya (LSK) has condemned the move to recall regional court of appeal judges to Nairobi, saying the move will only chock efforts for administration of justice expeditiously.

All appellate judges who were serving in Kisumu (Patrick Kiage, Asike Makhandia) and Mombasa (Daniel Musinga, Agnes Murgor and Gatembu Kairu) are to relocate to Nairobi by January, as per directive issued by the Ouko on Friday.

Decision regretted

“It has become necessary to revisit the decentralisation of the court as it is currently not tenable. This decision is highly regrettable but beyond our control,” said Ouko.

Coast branch chair Mathew Nyabena said the move works against the tenets of access to justice and is a blow to the devolution of the court to regions.

“It will be recalled, that cases in Mombasa had not been handled because the court was constrained financially to meet its circuit to Mombasa.

There are several pending cases some of which were adjourned last week following the death of Justice Odek that require urgent attention” he said, adding that it will become more costly for most people as they will be forced to travel to Nairobi to file urgent matters.