A web of corruption involving lawyers and doctors, a backlog of cases from the petty to the criminal, and a politics-first approach in election season have slowed down the wheels of justice in Kenya.
Much to the dismay of complainants, some cases drag on for more than 10 years before being resolved. Bumps in the road include objections, injunctions, missing witnesses, constitutional challenges, calls for a judge to recuse himself, change of lawyers mid-trial forcing a restart, and conveniently timed and recurrent illnesses of suspects.
Faced with these barriers, cases get postponement after postponement, with judges’ lenience on evasive parties allowing impunity to prevail, for example in the Miguna Miguna deportation saga.
Protracted legal battles include the one where five senior allies of former President Daniel arap Moi are accused of defrauding a widow in Eldoret of 477 acres worth Sh954 million. The case has taken almost 13 years in court.
Last month, it was scheduled for defence before Milimani chief magistrate Francis Andayi, but it could not proceed because former Kenya Pipeline Company MD Ezekiel Komen was said to be hospitalised in Nakuru county. This is the second time the case has been adjourned. Komen was also reportedly unwell on March 15.
All the accused persons were found with a case to answer in respect of fraud charges against them. They are facing charges of grabbing land worth over Sh954 million belonging to Anne Nyogi in Eldoret, Uasin Gishu county.
POLL PETITIONS PRIORITISED
Nairobi lawyer Vincent Lempaa questioned why election petitions are handled fast, while other justice systems are suspended. He said it is by design that politicians are taken more seriously than other complainants, which he termed unfair.
“In 2013, people went to court to challenge various opponents’ victories, and they had their justice. Yet there was a case where a woman was being evicted from her land by her in-laws in a succession matter, and the case is still pending in court,” Lempaa said.
“Justice is justice. There is no other form of justice that is more important than the other.”
The lawyer said some judicial officers give a date for judgement and when you appear in court, the judge says the ruling will be delivered on notice, and you get locked up.
To make matters worse, he said, justice for rich people is fast-tracked, while justice for the poor drags. For example, Industrial cases where poor men sacked by employers in industries and only ask for Sh300,000 as compensation take so long to be dealt with.
“It is very sad when cases delay, and when the victims are in custody, there is a backlog of cases at the Industrial court that take five to six years to be finished, yet they only need two witnesses,” Lempaa said.
He said the judiciary must know the public is on their side, and its support is palpable after the executive defied court orders in Miguna Miguna’s case. This sparked outrage, as people said the government must respect the court. Lempaa urged the judiciary to use that goodwill to deliver justice in time.
He said the judiciary should not blame lawyers for delays, since advocates have no powers to abuse court processes or punish the judiciary.
Lempaa said criminal cases should take a short time in court, at most three months, since victims take their property in custody of court. “It is only appeal cases that should take long because of the technicalities involved in preparing the pleadings.”
Activist Boniface Mwangi blamed corruption and poverty for delayed justice. He said some lawyers are compromised by other parties in the same case, while poor people may not afford bail or even a lawyer to represent them when charged.
Mwangi said the judiciary is scaled for rich people, especially in corruption cases, since their cases are handled in a different way from those of the poor. Most rich victims who face corruption charges are never tried and convicted. They end up being acquitted, he said, citing Kamlesh Pattni.
“There is no single rich person in jail over a corruption case, but poor people are made poorer as they rot in jail. The rich are never guilty,” Mwangi said, urging the judiciary to set up a specialised corruption court to tackle corruption cases within six months
In a bid to reduce the backlog of cases at the judiciary, Chief Justice David Maraga told the Court Users’ Committee in February to use alternative methods to listen to petty cases.
The CJ said succession, land and boundary cases should be solved out of court. He said some cases can be solved at home with the help of neighbours and village elders.
“Some cases should not be brought to courts. County commissioners should urge residents to solve them at public barazas,” Maraga said.
In 2016, IDPs at the Ndonga farm in Subukia, Nakuru county, called on the CJ to help speed up a court case surrounding the extensive 750-acre farm.
The 267 IDPs wanted the CJ to help them find a lasting solution to the case to enable them settle and carry out meaningful development on the land.
The IDPs complained that it had taken the court too long to settle the matter, which had lasted more than six years. Group chairman John Wanyoike said the case was filed by eight sisters of the Ndonga family following internal disagreements, derailing their resettlement.
Maraga has also put lawyers who delay cases in court on notice, saying the judiciary is implementing new measures to speed their conclusion. The CJ said the parties involved in some “dead file” cases do want the cases to end, adding that the cases become statistics and the judiciary is blamed for them.
“I give a pledge to the nation that all cases that have taken five years and above will be cleared,” he said. “For one reason or the other, the parties [who filed the cases] don’t want the cases to end, but the public doesn’t know that, so all the blame is coming to us. We are putting our foot down and we’re going to disappoint some lawyers,” he said.