Thousands of people are languishing in prisons country wide — some for as many as 10 years — as they wait for their cases to be determined, the Nation can exclusively reveal.
And in what is turning out to be some of the worst cases of human rights violations, the situation paints a grim picture of our justice system and raises questions about the ability of the State Law Office and the Judiciary to safeguard the rights of suspects who are assumed to be innocent until proven guilty.
Mr Philip Kipng’etich’s case is one such example of miscarriage of justice. Mr Kipng’etich was accused of murder and has been languishing in remand for the past 10 years, waiting for his case to be finalised. He is just one among of hundreds of litigants who seem to have been condemned even before their cases are heard and determined due to an ineffective legal system.
Another case that illustrates the sorry state of affairs in our courts and prisons is that of Mr Joseph Macharia, who has been waiting for his appeal to be heard for more than four years. Then there are the cases of Ms Ruth Wanjiru and Ms Esther Wanjiku, who have been languishing at the Lang’ata Women’s Prison since 2003 and 2004, respectively.
The Kenya National Human Rights Commission is now raising the red flag about the massive pile-up of cases in local courts, saying that this amounts to miscarriage of justice. Mr Hassan Omar, the rights body’s vice-chairman, on Sunday said that a visit to several prisons has revealed a disturbing state of affairs concerning pending court cases.
Mr Omar said there was an urgent need for both the Attorney General and the Chief Justice to address the problem. “One such move is for the prosecution to review some of the minor cases and withdraw them, while the Chief Justice should issue firm instructions to judicial officials to deal with this problem urgently,” he said.
Mr Omar said it was unfair and a violation of litigants’ legal rights to stay in remand or wait for appeals over lengthy periods of time. The pile-up of cases has been blamed on understaffing in the judiciary, missing files, unnecessary adjournments, lawyers holding pauper briefs, lack of support staff for judges and magistrates, lack of adequate office equipment, and failure by the judiciary to embrace modern technology.
Currently, most prisons hold two to three times the number of prisoners they were designed to house. For example, King’ong’o Prison in Nyeri has 1,700 inmates against its original capacity of 600, while Kakamega Prison is holding 900 inmates instead of 500.
Information indicates that 998,263 cases are pending in the High Court and magistrates’ courts countrywide. Some 209,668 cases were before High Courts while 788,595 were before magistrates by December 31, 2008. A compilation of pending cases in 2009 is still going on. So far, 43 courts are yet to submit their returns for December, 2009.
The High Court in Nairobi has the highest number of pending cases at 70,589, followed by Mombasa at 20,306. Milimani Commercial Court has 16,917 cases while the Kisii High Court has 14,465. In Machakos, 13,419 cases are yet to be determined and 12,169 cases are still pending in Nakuru.
A 2007-2008 summary for pending cases in the courts shows that there were 416,134 traffic cases, 190,969 civil cases, 122,159 criminal cases, 29,790 succession cases, 10,189 land matters, 10,432 affiliation matters, and 8,922 miscellaneous cases that were yet to be determined.
High Court registrar Lydia Achode blamed the backlog on shortage of staff at the Judiciary. Other factors like poor pay, which led to the loss of 43 magistrates between 2005 and 2009, delaying tactics employed by lawyers such as seeking unnecessary adjournments or filing numerous application to stop cases from proceeding, have also contributed to the delay, she said.
On staffing, she said there was little the Judiciary could do because it does not have funds to employ more officials. She added that if the number of judges was to be increased, Parliament must first pass a law raising the current limit of 50 High Court judges. The country has 46 High Court judges, 11 in the Court of Appeal, and 282 magistrates.
The registrar also said that in some instances, even when there is an adequate number of magistrates, they cannot be posted to some stations because there are no courts. However, Mrs Achode expressed optimism the situation would improve, saying the Judiciary was addressing the issue. New magistrates’ courts have been built in Narok, Kerugoya, Naivasha, Mariakani, Kilifi, Mutomo, Kilgoris, Nyahururu, Butere, and Wajir.
Five High Courts are also being built in Malindi, Kisumu, Nyeri, Busia, and Migori. The Law Society of Kenya believes that increasing the Judiciary’s work force would help solve the issue of backlog of cases. “We can’t pretend as a country to survive on 50 judges,” said LSK chairman Okong’o Omogeni.
Mr Omogeni said the bulk of the pending cases were traffic offences, which could easily be settled through instant fines. Another solution to this perennial problem, he said, would be the passage of a Bill on small the claims court, which has been pending in Parliament for some time.
