From left: Media Owners Association lawyers Henry Kurauka, Paul Muite
and Issa Mansour leave the Court of Appeal. Judges halted the digital
television migration for Nairobi to February. PHOTO/NATION
The
hearing and determination of the appeal filed by the Media Owners
Association seeking stay of execution over the ruling on digital
migration within a record three days of its filing during the festive
season is a milestone despite the great challenges facing the Judiciary.
It redeems the negative image of the Judiciary caused by cases dragging on for years before determination.
As
much as this tremendous achievement by the Court of Appeal should be
applauded, the same court should ask itself why, despite the appointment
of many judges whose main aim was to reduce the backlog of cases,
nothing much has changed. Apart from cases with immense public interest,
there are appeals which have been pending since 2004.
When
I was before the same court the other day and tried to find out why the
effect of the additional appointments was not being felt in terms of
easing the backlog of cases, nobody seemed to have an answer.
However,
beneficial effects seem to be felt in the satellite courts outside
Nairobi. I learnt from a colleague that he was able to file and have an
appeal heard and determined within the same year in the Court of Appeal
in Nyeri.
While there is no doubt the president of the
said court, Mr Justice Kihara Kariuki, is a competent judge who is up
to the task and is more than capable to undertake the court’s
transformation, he should carry out an audit and find out why we still
have appeals filed 10 years ago, especially in Nairobi.
The
Vision 2030 target for the Court of Appeal, and by extension, the
entire Judiciary should be to be able to hear and determine appeals and
suits within one year of their being filed.
Until our
courts can do that, then I am afraid the Vision 2030 target could still
be a long shot because we shall not be able to sell Kenya as a country
with a friendly business and investment environment.
In
the High Court, especially in Nairobi, as much as I may not have the
latest data, the situation has not improved because in the civil
division as we speak, the 2014 diary has been closed and no dates are
available until 2015 (whose diary will be opened at the end of 2014).
No sooner did litigants become aware of the 2014 diary’s opening than it was closed.
However,
the situation seems to be different in courts outside Nairobi. A case
in point is the Malindi Land Court where one can literally have a matter
heard and determined within the same year, and hearing dates are
readily available within two months, with the presiding judge at times
delivering even up to 10 decisions in a day.
This court is a good example of what our Judiciary should be.
In
the Magistrate’s Commercial Court in Nairobi, the situation is the same
but it could be better though the court has reverted to old bottlenecks
of pre-trial conferences which take too much time, while such matters
could administratively be dealt with by an executive officer because it
has everything to do with compliance with order 11 of the civil
procedure rules before a hearing date can be fixed.
As
for the Chief Justice and all his subordinate administrative heads of
various courts, a point of concern should be how a foolproof system can
be put in place to enable litigants to readily obtain typed proceedings
for purposes of appeal.
It is a great challenge to
obtain typed proceedings in the magistrate’s and High Court’s civil
process, and at times it takes up to five years to obtain it while
appeals cannot be heard, leave alone be admitted for direction unless
the record of appeal contains typed proceedings.
Unless
typed certified proceedings are expedited and provided as and when a
matter is finalised, the appointment of additional judges under our
civil appellate system will not serve any useful purpose.
Mr Sumba is an advocate of the High Court of Kenya. He also holds a diploma in journalism. (nicsumba@yahoo.com)
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