Hiring more judges will ease backlog

The advertisement, shortlisting and subsequent interviews by the Judicial Service Commission (JSC) in the quest to enlist 15 additional Court of Appeal judges will be transformative to the Judiciary since the promulgation of the Kenyan Constitution 2010.

This is informed by the fact that the Court of Appeal is the last and final court for more than 90 per cent of cases. Therefore, the court handles appeals from close to 200 judges in the High Court, the Environment and Land Court and the Employment and Labour Relations Court.

It became overwhelmed after the creation of several special courts, courtesy of the 2010 Constitution and after the setting up of new High Court stations. The court is facing a crisis with a backlog spanning six years as the appeals being heard now are for the year 2020.

The backlog is attributable to the court’s lack of capacity as it currently has only 27 judges. Until December 2023 when section 7 (1) of the Judicature Act was amended by Parliament to increase the maximum limit of Court of Appeal judges to 70, the ceiling had been fixed at a minimum of 12 and a maximum of 30 judges.

With the current number of judges being 27 serving the five Court of Appeal stations in Nairobi, Nyeri, Nakuru, Mombasa and Kisumu, and with each station requiring at least four judges, Nairobi which is the busiest station, with more workload than the other stations combined, would, at any given time remain with hardly 11 judges, therefore only able to set up a maximum of three benches at a time.

Heavy workload

The number of cases to be determined vis-a-vis the number of judges to handle the heavy workload in Nairobi has been quite a mismatch. The case backlog has therefore been insurmountable despite the very commendable work ethic of this particular court that takes distinction of starting its sessions promptly at 9am without fail. The leadership of the court under Justice Daniel Musinga is commendable. The appointment of additional 15 judges will enable the court to achieve its target of hearing appeals within a year of filing, just like in the Supreme Court.

An additional 15 judges will bring the number to 42. As a result, even if 16 judges are spread to the other four stations to form one bench each, Nairobi can still remain with 26, who would form a maximum of eight benches sitting at a given time. If the additional numbers are used optimumly, the Court of Appeal backlog would be a thing of the past.

The resultant, consequential impact would be quite transformative to the Judiciary as it will directly touch the lives of litigants who will have their disputes resolved without undue delay as is envisaged under article 159 of the Constitution.

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The writer is an advocate of the High Court.