Judiciary in bold move to entrench mediation as a means of dispute resolution
In a marked departure from litigation; the traditional and conventional way of resolving disputes in Kenyan courts, the Judiciary has since May 2016 operated a court-annexed mediation program at the Milimani Law Courts. This alternative dispute resolution mechanism has proved to be less tedious, less expensive and more amicable to the disputing parties.
The Court Annexed Mediation has been operational as a pilot project at the Commercial and Family Divisions of the High Court at Milimani and is set to be rolled out countrywide soon.
Under the pilot program, over 2,000 cases have been screened to check if they are fit for mediation and over 500 with an approximate value of KSh13 billion have been referred to mediation.
The court-sanctioned mediation program not only provides Kenyans with low-cost and less acrimonious environment for resolving their disputes but has also helped clear case backlog which has been a major impediment to the dispensation of justice in the country.
Mediation is defined as a process in which a neutral third-party assists disputing parties to understand their underlying concerns and in negotiating a possible settlement of their dispute. The third-party listens to the evidence, helps the litigants to understand each other’s viewpoint regarding the controversy, and then facilitates the negotiation of an amicable resolution.
Unlike in courts where the system is adversarial, parties resolving their dispute through mediation often remain friends after the case is resolved because mediators seek to create “win-win” situations where everyone is a winner.
With Court-annexed mediation being a relatively new phenomenon in Kenya’s judicial system, there is a scarcity of certified and experienced mediators. To fill this critical gap, the Mediation Accreditation Committee which certifies court mandated mediators advertised for qualified and interested members of the public to apply for accreditation as mediators.
So far about a hundred applicants have been accredited. The process of accreditation is continuous as the Committee works on building a comprehensive database of mediators with diverse experience across the country.
The Mediation Accreditation Committee requires that for one to be accredited as a mediator, he or she must undergo a 40-hour mediation course and also be a member of a professional body among other requirements.
Members of the Mediation Accreditation Committee are drawn from various institutions such as the Law Society of Kenya, Attorney General’s office, Chartered Institute of Arbitrators, Kenya Private Sector Alliance, Institute of Public Accountants, Certified Public Secretaries, Kenya Bankers, Federation of Kenya Employers, the Central Organization of Trade Unions.
Under Section 59/A (2) of Civil Procedure Act, MAC is mandated to maintain a register of accredited mediators and to enforce a code of ethics for the mediators.
MAC Registrar, Moses Wanjala.
MAC Registrar, Moses Wanjala explains that because mediators are neither judicial officers nor subject to the normal code of conduct for public officers, there is need to put in place a system for enforcing ethical conduct for mediators.
“It is the statutory duty of MAC to ensure that a proper ethical standard among the mediators is observed through the enforcement of a code of ethics for mediators to ensure that mediators conduct themselves in a manner that engenders public trust thereby entrenching mediation as a mainstream dispute resolution mechanism in the country.” said Wanjala.
It is hoped therefore that mediation will in the fullness of time form an integral part of a modern Kenyan judicial system. The move by the Judiciary to have mediation as one of the means available to litigants is laudable with Kenyans hoping it will replace the ‘see you in court’ culture with “let us resolve this matter through mediation” ethos.
A day in a mediator’s job: what mediation is and what its not
Rev. Geoffrey Njenga serves at the All Saints Cathedral. He is an Economist, has trained in Diplomacy and Public Relations and holds Master’s Degree in Theology. Rev. Njenga trained as a professional mediator with the Mediation Training Institute and was later accredited as a mediator for the court mandated mediation program. He speaks to Jerusha Gichohi, Assistant Director, Directorate of Public Affairs and Communication, recently caught up with mediator Rev. Geoffrey Njenga at the Milimani Law Courts for a one-on-one interview. Here are the excerpts from the interview.
What led you enroll to be a mediator with the Judiciary.
As a clergy, I have a wide experience in family mediation matters and when the opportunity arose to work with the Judiciary I took it up. I love to mediate because it gives sustainable peace and restores broken relationships. As a Christian, it is all about peace, the Bible demands that we pursue peace and hence when I mediate I get personal satisfaction. I have enlisted to mediate in both family and commercial cases which I have wide experience in my professional capacity as a mediator and a trained economist.
How does the Judiciary contact you on cases to mediate?
The disputing parties choose their preferred mediator from the Judiciary’s accredited mediators. If I am selected to mediate over a case, the Judiciary contacts me to start the negotiation. The Mediation Deputy Registrars in the Family or Commercial Divisions notify me via email and give me the case file that they want mediated.
How do you schedule your cases?
Once I receive the case, it is up to me to look for the parties. In most cases I contact them through telephone and if they are not accessible I go through their advocates and in some instances for those in the rural area I have to contact them through their local chiefs. This can take up to a week or more. Once I reach both parties, we all agree on date and venue of meetings (which is provided by the Judiciary). However, flexibility is the rule of the day, there is this time I had to go meet the disputing parties at a chief’s office in Dagoretti because one of the party who was elderly felt the city life was unbearable. It is also my duty to inform parties that the mediation is mandatory and also that all communication during mediation is confidential. I have to resolve a case within the 60-day timeline set for resolving disputes, however, a further ten days may be extended if the case is complex or has large number of parties.
How do you prepare the disputing parties, set the climate?
My job as a mediator is to ensure free flow of communication between the disputing parties so that they can focus on the issues in conflict. Most of the parties are usually immersed in emotions and it is very important for a mediator to cool down emotions and bring about an atmosphere where parties can focus and work towards a win-win resolution. This I do by engaging in small talks such as the weather, traffic or even politics which help to cool down temperatures. The usual soft skills such as being a good listener, reading the body language, being patient are all needed in this situation. Once the atmosphere is relaxed, I request each party to tell their side of dispute. At this point I will have already set ground rules that no interruption when one party is speaking. In cases where I am able to speak the parties’ vernacular language, I do so to enable them to express themselves with clarity.
What are the things to observe during mediation?
As a mediator, I am clear that my role is not to impose decisions on the party but to facilitate them to come up with their own solutions which should be agreed by both parties. There are instances where one side is very vocal while the other side feel disempowered and think they will be the losers. It is my job to carry along everyone and they need to negotiate for their own good To ensure fairness I insist for all to express their interest. After parties sign up an agreement, it is forwarded back to court and stamped as a court judgment or order. Since both parties have signed, the judgment cannot be appealed; which saves time and money often spent on long and protracted appeals in the normal adversarial court process.
And when parties don’t agree, what next?
When parties fail to agree, I file back to the Deputy Registrar with my mediation report on why the case failed mediation. At times parties will not agree 100% to issues so we have cases concluded with partial agreements on certain issues and then the others are returned back to court for direction and determination.
How many cases have you mediated?
I have mediated about 25 cases in both the Family and Commercial Divisions since the Court Annexed Mediation was introduced. On average a case takes about three sessions to resolve. These timelines cannot be compared to the court process which is long, tedious and often acrimonious.
Which is the most memorable case you have mediated upon?
There is this case which had been in court for over 15 years and once I took it up for mediation we resolved it in a record time three weeks!
Why would you recommend mediation instead of court litigation?
Litigation has no room for you to vent out your emotion. If during a hearing a litigant breaks down with emotion, the judge will just adjourn the case to allow the person time to go deal with their emotions. In contrast, mediation allow parties to express their emotions as the mediator brings them to reason about their dispute. Mediation is all about win-win situation unlike the court cases where there is a loser and a winner. Settling commercial matters through mediation makes great commercial and economic sense to the country’s economy as it swiftly frees resources—sometimes running into billions of shillings— which would otherwise have taken decades to settle. On the other hand, the Family Division arbitrates over some of the most bitterly contested and hard-fought cases. Family relationships are damaged forever as families wrangle in court for years. Mediation offers an alternative way of managing family disputes that helps restore relationships.
Nandi Governor Stephen arap Sang pays courtesy call to Kapsabet Law Courts and holds consultative meeting with court officials.
Senior Principal Magistrate Hon Dolphina Alego.
Bail and bond team developing bill
The bail and bond team retreated to Naivasha to work on its programmes and write report on the implementation of bail and bond in the country even as it develops a comprehensive Bail and Bond Bill that will address both substantive and procedural issues on bail and bond and, other administrative processes.
The team led by Justice Jessie Lesiit noted that despite the constitutional guarantee that arrested and accused persons have a right to bail and bond regardless of the offence committed, the administration of bail and bond continues to pose challenges both at the police and court level.
They cited difficulties in balancing the interests of the suspects, accused, victims and the public interest in decision making; disparities in decision making; unaffordability of bond terms leading to congestion in remand facilities; absconding by accused persons and weak inter-agency coordination as some of the challenges encountered by courts, police and prisons.
Other challenges include: holding facilities for accused persons who are vulnerable especially the children, the elderly, lactating mothers, and persons with mental and physical disability among others. Emerging issues in respect to intersex and transgender persons also posed challenges.
They said decision making on bail and bond particularly at the police stations remain opaque, unpredictable and in some cases arbitrary. In traffic cases, in particular, unreasonable bail terms are employed to traffic offenders which are often construed as punishment.
However since its inception, the Bail and Bond Implementation Committee has the developed public sensitization and educational materials such as FAQs, Charters for both the Judiciary and Police, sensitized stakeholders such as judicial officers and the public through Court Users Committees (CUCs) and mass media on Bail and Bond Policy Guidelines.
Further, the committee has entrenched the guidelines in the Judiciary Training Institute (JTI) training curricula, undertaken monitoring and evaluation of the uptake of the policy guidelines by the judicial officers and police, held bilateral engagement with key agencies in the implementation of the guidelines including the Offices of the Chief Registrar of the Judiciary, the Attorney-General, the Director of Public Prosecutions, the Inspector-General of Police, the Kenya Prisons Service, the National Transport and Safety Authority, the Director of Children Services and the Probation and Aftercare Service.
These activities have resulted to the adoption of cashless pay system in courts for payment of cash bail through mobile money transfer and agency banking as well as reduction of the numbers of the persons held in prison remand custody from over 48 per cent to currently 37 per cent of the total prison population that stand at 52, 000.
The committee is currently undertaking the following activities. This is in line with the reform agenda of the NCAJ in collaboration with development partners.
- Encouraging police, prosecutors, prison officer, probation and others to entrench training of the Bail and Bond Policy Guidelines through formalized and continuous training. To this extent the committee is working on a comprehensive training manual and a compendium of caselaw on bail decision making.
- Undertaking concerted mass sensitization of the public on the subject of bail and bond in order to make them understand that suspects and accused persons released on bail have not been left off-the-hook.
- Developing a comprehensive Bail and Bond Bill that will address both substantive and procedural issues on bail and bond and, other administrative processes.
- Developing tools for monitoring and evaluating the implementation of the guidelines.
The committee said that after the implementation of the planned activities, it is anticipated that majority of Kenyans will be able to access bail and bond in an easier manner, remand prisons will hold appropriate numbers of remandees, there will be uniformity in decision making and proper balancing of the various interests and fair administration of bail and bond measures.
THE POWER OF SOLAR IN DELIVERING JUSTICE
Solar Panels mounted on the roof
In the last couple of years, the Kilungu Law Court had been facing frequent power outages which caused delays in delivery of services. Proceedings in Court were affected as appellants who required typed court records for appeal purposes were not available on time. Court rooms, registries, offices and cells were frequently plunged into darkness.
Further, the court was also forced to outsource typing services at a cyber café at the nearest market place. Litigants experienced delays in the processing of fines and refunds owing to lack of access to online banking services. This made the court seem to be inefficient in providing services to the people.
The Court Users Committee (CUC) of Kilungu Law Court felt that it is their responsibility to ensure that all citizens who are looking for services at the courts are provided with prompt and quality services. The CUC’s installed a 250W Solar Panels to improve efficiency in the delivery of services at the Courts.
The Head of Station, Senior Resident Magistrate (SRM), Hon. Patrick Wambugu, acknowledges that since the solar panels were installed the court has been operating optimally.
“There is no backlog of cases; the Daily Court Returns Template (DCRT) are filled on a daily basis and submitted as required on or before the due date; payment vouchers that used to take one month to prepare are done promptly and reconciliation and surrender of revenue is done daily.” Hon Wambugu explained.
This has created more time for judicial officers and staff to engage on other official duties. Litigants would even get their statements photocopied at the station. Majority of litigants and other court users are pleased with the efficiency and prompt services that are accorded to them. The court rooms, chambers cells and registries are no longer in darkness.
During a tour of the court, the World Bank Task Team Leader for the Judicial Performance Improvement Project (JPIP), Nicholas Menzies, noted that a lot has been achieved since the establishment of JPIP and it has greatly added value to the delivery of service by the Judiciary.
“I think the Judiciary as a whole has made strides over the last five years with support from JPIP. There is always a new initiative being undertaken,” says Mr Menzies.
He is impressed that most of the Court Users Committees who received the small grants by JPIP have undertaken projects which are benefiting court users and the Judiciary in delivering justice.
“They have utilized the funds prudently and effectively in enhancing performance and services to the people.” He said.
Kilungu Law Court is located on the hilly parts of the County where the temperatures can range between 20.2° to 24.6°C. Some of the reasons for the frequent power outages in the area is the constant power rationing; frequent blowing up of the transformers which takes a very long period to replace; and the overhead lines touching one another caused by the strong winds in the area.
With frequent power outages, prompt services were hard to come by giving the impression of inefficiency, laxity and bad corporate image of the Judiciary. Litigants who would have travelled as far as from 60 km would be forced to travel back receiving no services at all. With a grant of Sh165,000, the Kilungu CUC installed the Solar Panels and procured a printer enabling the court to deliver timely and efficient services to its clients.
A judicial staff indicated that there is timely management of station communication through the internet services.
“We are able to access the station email anytime and correspondences are responded to without delay. This has enabled communication to flow smoothly.”
The officer also indicated that previously they had to wait for power to resume so as to type and update the cause list, fill succession forms and place court orders in the website.
“This would be an inconvenience to both the court users, litigants and even judicial officers but with the solar panel, it has been effective, ensuring that no delays both in typing and updating.”
In today’s fast-moving economy, the use of electricity to drive quality service has become an important element in communication and day-to-day operations of Government institutions. Disparities in electricity connectivity and frequent power outages can hamper productivity of an institution. The Court Users Committee at Kilungu Law Court saw the importance of placing solar panels at the court to ensure that justice is not denied nor delayed due to power outages. The Kilungu Law Court is now operating efficiently in the administration of justice to the people of Kilungu.
Last year, JPIP supported 78 CUCs with small grants amounting to Sh31 million geared towards improving links to court users and potential users. CUCs are established under the National Council on the Administration of Justice (NCAJ) that brings together actors in the administration of justice to address problems within the justice sector. They serve to promote accountability and improve performances by the courts. Some of the activities that were conducted by the 78 CUCs are construction of holding cells, waiting bays, procurement of computers; outreach programmes and public barazas, sensitization workshops, prisons and children home visits, transport expenses for witnesses and Legal Aid clinics just to mention a few.
Down memory lane; Kilungu Nunguni Pioneer Court
Established in 1918, Kilungu Law Courts lying at the peak of Nunguni town is among the native Courts that were established by the British protectorate.
The Native Court was headed by a Division Officer and District Commissioner who had both administrative and judicial powers.
Matters that were brought before them were first heard by the elders then brought to the DC and DO who formed a quorum for them to prosecute. The native Court was headed by an African Court officer who was British and was the link between the other lower courts and the High Court.
The first African magistrate of the court, now retired, Mr Jonathan Kiia, said the current court building was built in 1952, and was the first African Court in the region. Kiia served as a court clerk from 1962, and having been among the few Kenyans who had secondary education, he was shortlisted to attend a one year special course on administration at Kabete College and that qualified him to become a magistrate. There were no universities then, so the qualification to magistracy was the Special Course.
He became the first magistrate of the court in 1967; he was the first African to head the Court at Kilungu and exercised more judicial powers.
The Court mostly handles land disputes arising from a myriad land adjudication complexities ranging from lack of land demarcation that has led to increased crimes arising from land disputes.
The court building, partly wooden, still majestically stands in position, but now with two additional Court rooms. The 99 year old court has many tales to tell on the history of matters justice.
Legal Empowerment & Aid Delivery (PLEAD) programme launched
Chief Justice David Maraga launched the Legal Empowerment & Aid Delivery(PLEAD) programme, a 5-year partnership between the Government of Kenya, the EU, legal aid civil society actors, the UNODC & the UNDP. It aims at contributing to improving access to justice and legal aid in Kenya.
Kapenguria law courts, a court with a difference
As early as 8 am on a weekday, Kapenguria Law Courts is abuzz with activities, to meet the judicial needs of residents in West Pokot County.
At its entrance, one would not miss to spot the lower court’s criminal and traffic registries. Here, officers attend to litigants and other court users from all walks of life.
Quite noticeable, is the evident human traffic that throngs the court to seek court services, every single day, in a county spread over a 9,169 square-kilometer area.
By 9 am the only courtroom, gradually fill to the brink as members of public and staff ready themselves for the day’s business even as other court officials help litigants and other visitors to locate their destinations in the court’s precincts.
On arrival, we are received by a staff, who guides us into the Executive Officer’s office, popularly referred to as the EO’s office. Here, we meet Mr Samuel Okodoi, from whom we learn has served in the station for close to four years running. Like in other stations, the officer is responsible for administration, a duty he executes in liaison with the head of station.
Later, we accompany him to Hon. Phoebe Kulecho’s chambers and then to Judge Stephen Githinji’s chambers. We are informed that the chambers also double as courtrooms.
Justice Githinji is the first judge to be posted to the station after the Judiciary gazetted the station as a High Court, in 2015.
This visit, obviously, has disrupted the officer’s schedules, yet normal activities continue uninterrupted. We are accorded audience during the 20-minute interview as we get to understand the county, the court, the type of cases the court handles and the challenges that impinge on service delivery in the county.
We are later taken around the courts, to the new court construction site and the famous Kapenguria six cells, currently, the Kapenguria Museum. While at his office, Mr Okodoi explains that the station has one courtroom as well as the Judge’s and Magistrates chambers.
“Kapenguria Law Courts happens to be the only court station in the vast West Pokot County, established during colonial period,” Mr Okodoi explains.
He adds: “The magistrates and Judge’s chambers double up as courtrooms due to limited space at the station.”
In 2017 alone, 54 cases were filed at the High Court while 1,133 at the criminal and 82 civil cases at the lower courts.
“Most common cases are those that arise from land related issues, murder and sexual offences Act,” says Judge Githinji.
He adds: “The greatest challenge here is the vastness of the county and the nomadic life that makes it difficult for the police to avail witnesses in court.”
According to the 2009 Population Census, over 512,690 people, reside in this vast county, which practice predominantly nomadic pastoralism and crop farming as well as mining and other commercial activities.
Ultra-modern court building
Meanwhile, the competing noise of bulldozers, excavator machines, and concrete mixers blended with sound from heavy vehicles, characterise the environment that surround the Kapenguria law court station.
A glimpse of hope is gradually becoming visible as the Judiciary through the World Bank funded Judiciary Performance Improvement Project (JPIP), construct an ultra-modern High Court building in the area.
The court building being constructed at the cost of Ksh400, 963, 501 in Kapenguria town, will have eight courtrooms, 11 chambers, spacious registries, separate cells for male, female and juveniles.
“It will provide rooms for witness protection and lactating mothers for staff and litigants. It also provides rooms for children, ICT and security facilities, library and lounges for judges and magistrates,” explains Nicholas Simani, the JPIP Communications Consultant.
He adds: “The new court facility will provide a conducive environment for employees and court users, improve access to information and in turn enhance service delivery.”
The first court
Remembered for hosting the leading Kenyan nationalists – the Kapenguria six, West Pokot County boasts of a court established way back before independence as the first African Court.
The current Chewoyet secondary school stands where the six leading Kenyan nationalists were tried but jailed at Kapenguria where the cells were located, currently next to the West Pokot County Assembly.
The current court building was donated by the County Government of West Pokot. This constitutes the working space for the 25 staff and three judicial officers, who operate from the premises as they await the construction of a new court building, located a couple of meters away.
Establishing more High Courts in marginalised areas
When Kapenguria court station was made a High Court in 2015, a judge was immediately posted. The lower court is served by two magistrates. Kapenguria Law Courts operates two mobile courts; one at Sigor, located 80 Kms away from Kapenguria town and another at Alale, located about 180 Kms away.
The Kapenguria High Court is among 14 others the Judiciary established in 2015 to bring court services closer to the people. The establishment of Kapenguria High Court saw High Court cases from West Pokot County that were being handled at Kitale, moved to the new court.
“Most of the current caseload at the High Court was inherited from the High Court of Kitale,” says the Judge.
The Judiciary established other High Courts in Turkana, Marsabit, Baringo, Tana River, Taita Taveta, Laikipia, Nyamira, Siaya, Tharaka Nithi, Migori, Kajiado, Kitui and Bomet counties. The courts include: Lodwar, Marsabit, Kabarnet, Tana River, Voi, Nanyuki, Nyamira, Siaya, Chuka, Migori, Kajiado, Kitui and Bomet High Courts. This brought to 34, the number of High Court stations in the country in 2015. So far, there are 39 High Courts in the country.
The establishment of more High Courts was informed by the need to reduce long distances citizens have to cover to access courts. Other factors that played a role in the establishment of more courts are: the empirical data such as caseload for each Station/Division and the constitutional and statutory considerations including principles of equity, inclusivity, de-marginalisation, and support for devolution.
This enabled court stations hitherto serving several counties, and therefore bearing huge caseloads drawn from such large catchment areas, release part of their caseload.
Mobile Courts: Taking justice to the people in Kapenguria
Kapenguria Law Courts is located in Kapenguria town West Pokot County. Justice Stephen Githinji is the Presiding
Judge and has a jurisdiction of the entire West Pokot region. He was the first judge to be posted there following the
establishment of the High Court station in September 2015.
Kapenguria Law Court, Executive Officer, Samuel Okodoi, demonstrates the distance covered by court officials to take the mobile courts to the people
“The work load is growing since most people find it easier to come here, services have been taken closer to the people
although at the moment we are operating in a small court building donated by the County Government of West Pokot,” said
The Judge said that however, all is not lost after the demolition of an old court building that housed the magistrates’ courts because a new court building funded by the Judicial Improvement Project- JPIP is under construction.
The Kapenguria Court station has one judge and two magistrates who conduct mobile courts in Sigor and Alale areas which are 70
kilometers and 180 kilometers respectively.
“We conduct mobile courts four days a month. The roads are bad and it takes about six hours to Alale but so far we have not
encountered any instances of insecurity when conducting mobile courts although there are reports of raids in the region,”
said Resident Magistrate Hon. Y. Kulecho.
Although the Court has only a case backlog of only 58 cases inherited from Kitale Law Courts, it faces a challenge of absentee
witnesses because of poverty and nomadism practiced by the local communities.
Justice Githinji said residents prefer traditional ways of solving disputes and only resort to court after exhausting such traditional channels.
Executive Officer Samuel Okodoi revealed that the first court was established at Chewoyet Secondary School where the late Kijana Wamalwa and George Saitoti schooled.
“This court was established before independence and it was 3kms away from the current court. It is now a museum and is where the famous Kapenguria six including the founding father President Jomo Kenyatta were tried and sentenced,” said Okodoi.
DCJ MWILU LAUNCHES THE JUSTICE NEEDS SURVEY REPORT
Mauritis Barendrecth, Research Director, The Hague Institute for Institutionalization of Law (HiiL), presents the Justice Needs Survey Report in Kenya to the Deputy Chief Justice Philomena Mwilu during its launch at a Nairobi Hotel. .
Deputy Chief Justice Philomena Mwilu has lauded the research and launch of the Justice Needs Survey Report in Kenya terming it as insightful, extremely useful and beneficial to the Judiciary leadership and implementing units which will increasingly be able to base their decisions and strategies on authentic data and well-researched reports and studies.
Speaking during the launch of the report which was authored by the Hague Institute for Institutionalization of Law (Hiil) and supported by the World Bank and the Judiciary Training Institute, the Deputy Chief Justice said the Survey contributes to the growing database of comprehensive and functional research and data on the Judiciary and various aspects of access to justice.
“The Judiciary, through the Performance Management Directorate has produced studies such as the Court User and Employees Satisfaction and Work Environment Survey; the Case Census and Institutional Capacity Survey; and the Performance Management and Measurement Understandings Evaluation Reports that have steadily enhanced our strategy formulation and helped to better target our interventions and initiatives,” said Mwilu.
She added that along with the Judiciary’s increasingly accurate and exhaustive annual reports, (the State of the Judiciary and Administration of Justice (SOJA) reports) the Judiciary has entrenched a culture of purposive data collection, management, and analysis.
“Understandably, our research has often necessarily had a narrower focus, on our internal and external customers and court users. The Judiciary is however acutely alive to the bigger picture of justice provision as is evinced in the Judiciary’s support for and participation in multi-disciplinary and multi-sectoral research projects such as the 2016 Audit of the Criminal Justice System in Kenya,” she said.
The Deputy Chief Justice said that the study takes a broader view of justice, is not limited to formal dispute resolution through the courts but adopts a more realistic, sociological approach that appreciates the entire spectrum of justice provision, formal and informal, judicial and administrative, state and societal.
Mwilu urged that the Survey be widely disseminated to all court stations, all judges, judicial officers and judiciary staff saying this is particularly important because, under the SJT, the improvement of service delivery in the Judiciary is a bottom-up process, driven by each unit by strategies and initiatives developed by those units on the basis of each of their particular contexts.
“The study is doubly useful in this regard as it provides not only recommendations, but also, more importantly, a tool through which we can assess and respond to the justice needs of court users and the wider public,” said the Deputy Chief Justice.
Mauritis Barendrecth, Research Director, The Hague Institute for Institutionalization of Law (HiiL), presented the report to the Deputy Chief Justice. Others who made presentations are Dr. Steve Ouma, Deputy Director, Judiciary Training Institute (JTI), Mr. Duncan Okello, Executive Director, National Council on the Administration of Justice (NCAJ), and Ms. Nancy Kanyago, Coordinator, Judiciary Performance Improvement Project (JPIP).
Court beats odds amid constraints
In the hustle and bustle that is characteristic of Kitale town in Trans Nzoia County, lies Kitale Law Courts located on the busy Moi Avenue.
The court, comprising of a High Court, Environment and Land Court (ELC) and the lower courts (Magistrates and Kadhis courts), is a beehive of activities as evidenced by the court users who mill in the corridors of justice seeking court services.
Quite notable, is the busy customer care desk with an officer on his feet, distributing IEC materials, forms and assisting court users to locate court rooms, chambers and registries. Further, and for a clear perspective of the caseload at this station, in 2016 alone, 8,041 matters were filed at the lower court, 185 at ELC and 374 at the High Court.
Since its inception, Kitale Law Courts served only as a magistrate court until 1997 when a High Court registry was established with a visiting judge from the Eldoret High Court. The superior court was established at the station and a judge deployed to handle High Court matters. Further, Kitale was among the first stations to get a judge to handle environment and land matters after the promulgation of the Constitution of Kenya 2010.
The lower court was initially headed by a Resident Magistrate, then by Senior Resident Magistrate, Principal Magistrate and between 1995 and 2005, by a Senior Principal Magistrate.
“The first Chief Magistrate was deployed to head the station in 2005,” Mr Stephen Omuse, the court’s Executive Officer, explained.
This is the only court in Trans Nzoia County serving a population of 966,197, which reside in the three sub-counties comprising of five constituencies. The station also serves parts of Elgeyo Marakwet County.
Kitale court building comprise of six courtrooms, nine chambers and two rooms that carter for four registries, namely; Civil, Probate, criminal and traffic registries. One courtroom serves a High Court judge, another, the ELC judge, while the remaining four, serve four magistrates. The station has a total of two judges, seven magistrates and 70 members of staff.
The station operates Kachibora mobile court, located 30 Kilometres from Kitale town. To deliver service effectively to the residents living in county, Kitale law Courts proposed two more mobile courts, one at Kiminini and another at Endebes.
“A mobile court at Kachibora that is now operational was launched in June 2017,” said Head of Station, Chief Magistrate, Valentine Wandera.
He added: “We have requested for two more mobile courts to be established at Endebes and Kiminini centres so as to take services closer to the people and other court users.”
Further, the court’s administration has proposed the construction of a new court building to provide more space for administration of justice. Specifically, the court requires space for two more courtrooms and rooms to provide for separate cells for women, men and children.
“We have requested for funds to put up a new building that would provide more working space for staff as well as courtrooms, chambers and registries,” said Hon Wandera.
He added that the court has developed a case management system that enables litigants to establish the status of their cases through the SMS function.
“This helps us address concerns of litigants instead of coming to court to confirm dates that they would have otherwise checked on their phones,” the Chief Magistrate explained. This has enabled the court to manage, organize and expedite its matters.
However, amid the space and other constraints, the first evaluation exercise conducted to measure the performance of courts between October and December 2016, indicated that Kitale emerged the best overall performing court in the category of High Courts with 500 and below initiated cases.
This exercise sought to establish the extent to which implementing units n the Judiciary had achieved negotiated targets, identify areas that need improvement and in turn provide credible reliable and useful performance information, for effective decision-making. During this period, the court recorded a case clearance rate of 200 per cent.
“One of the major challenges is the lack of a sign language officer at the court. This has made it difficult to handle matters with speed especially involving people with hearing disabilities,” Mr Stephen Omuse said.
This he says delay cases due to bureaucracies encountered in outsourcing for the personnel to perform the function.
In the meantime, the court has established workstations with lockable cabinets, organised court archives for better filing system and established a sports ground.
Maua Law Courts Excels in Records Digitization
The Integrated Case Management Systems – ICMS Committee started its work in earnest under the leadership of Principal Judge Richard Mwongo having been appointed by then Chief Justice Dr Willy Mutunga in 2014 to spearhead the digitization of Judiciary processes.
The digitalization processes in the past hit a snag because the choice of technology was not done with users in mind. The Judiciary also came up with the Judiciary Information Communication Technology draft policy which was to guide the automation of the Judiciary systems.
Some court stations have taken it upon themselves to go ahead of the Integrated Case Management Systems-ICMS Committee. Maua Law Courts is one such court stations. At Maua Law Courts, staff have gone ahead to improvise a way to ensure that they digitize their court records.
Proceedings, rulings and judgments are scanned, and then stored in a retrieval system online. “The records are now intact, all you need to do is just a click and you can access whatever information you need on a specific case as long as you have the case number,” said Chief Magistrate Oscar Wanyagah.
The records are categorized by dates and nature of cases for easy retrieval once required by litigants and other stakeholders. The system has gone a long way to ensure zero cases of lost files. At Maua Law Courts, movement of files does not affect access to the records. This is because the user will simply log on to the system and retrieve the records required anywhere they are without necessarily having to move around.
Covering the 2017 Presidential Petition: A DPAC Story
The Judiciary was a beehive of activities ahead of the hearing and determination of the Presidential Election Petition at the Supreme Court held in August. Among other activities meant to prepare for the disputed presidential election was organizing the media houses to cover the event that attracted local and international attention.
Over 50 media houses including vernacular radio stations as well as foreign and international media were accredited to cover the petition. This is the second time the court was preparing to handle a case of such magnitude. The court heard and determined the disputed 2013 Presidential election. Similar media arrangements were made to cover the case.
The Judiciary put in place elaborate measures to facilitate live coverage of the event. These also included screens placed at strategic areas to cater for advocates, journalists and other guests to follow the proceedings.
Activities at the registry and the court sessions were relayed live in all local TV stations making it easy for members of public to follow the proceedings. The measures were intended to ensure events at the registry and court sessions were adequately covered.
This is part of efforts to facilitate open court sessions to public in line with the Constitution that envisions transparency and accountability in handling court cases. The planning activities involved holding meetings with media personalities to work out modalities and details on how to efficiently capture the proceedings and relay to public.
Alternative Justice System bears fruit at Nkubu Law Courts
Nkubu Law Courts concluded over 250 matters between February and June 2017, through Alternative Justice System [AJS]. This follows an initiative by Nkubu Law Courts Magistrate Hon Joan Irura in conjunction with the local probation office.
“Alternative Justice System has really reduced case backlog especially of old cases in the court,” said Hon Irura. She added that at the time she was introducing AJS at the court, there were over 700 old cases pending.
AJS is an approach to justice that allows victims and offenders to mediate and come to an agreement that is acceptable to all the parties. This process also involves the community.
Hon Irura’s statement was echoed by Stephen Wambua, the probation officer, Nkubu Law Courts who said that AJS has had an impact in the region with parties’ living harmoniously after being reconciled through mediation.
“The process has led to a huge case backlog reduction”, Said Mr
The court utilized mediation as an alternative justice system where parties agree to settle their matters out of court. Hon Irura however, observed that there was need to sensitize the public on the existence of AJS.
This is in line with Chief Justice David Maraga’s blue print Sustaining Judiciary Transformation which emphasizes cascading of Court Annexed Mediation in all court stations to help clear case backlog.
The Judiciary rolled out the court-annexed mediation pilot program to entrench out-of-court settlement of disputes in May 2016. This was aimed at enhancing access to Justice for all and ensuring speedy resolution of disputes as well as reducing the cost of dispute resolution.
The process, conducted under the umbrella of the court, is in line with Article 159 (2) (c) of the Constitution of Kenya. The Constitution recognizes mediation and encourages it as a form of dispute resolution to be applied by courts. Mediation is intended to enhance access to justice for all, assist in reduction of case backlog and ensure speedy resolution of disputes. It is also intended to create an atmosphere of accommodation and tolerance. The resolutions achieved in AJS are to suit parties’ needs, encourage voluntary compliance of parties with resolutions, restore pre-dispute relationships and increase in foreign investment.
Down memory lane; Kilungu Nunguni Pioneer Court
Established in 1918, Kilungu Law Courts lying at the peak of Nunguni town is among the native Courts that were established by the British protectorate.
The Native Court was headed by a Division Officer and District Commissioner who had both administrative and judicial powers.
Matters that were brought before them were first heard by the elders then brought to the DC and DO who formed a quorum for them to prosecute. The native Court was headed by an African Court officer who was British and was
the link between the other lower courts and the High Court. The first African magistrate of the court, now retired, Mr Jonathan Kiia, said the current court building was built in 1952, and was the first African Court in the region.
Kiia served as a court clerk from 1962, and having been among the few Kenyans who had secondary education, he was shortlisted to attend a one year special course on administration at Kabete College and that qualified him to become a magistrate. There were no universities then, so the qualification to magistracy was the Special Course.
He became the first magistrate of the court in 1967; he was the first African to head the Court at Kilungu and exercised more judicial powers. The Court mostly handles land disputes arising from a myriad land adjudication complexities ranging from lack of land demarcation that has led to increased crimes arising from land disputes.
The court building, partly wooden, still majestically stands in position, but now with two additional Court rooms. The 99 year old court has many tales to tell on the history of matters justice.
Nyeri Court of Appeal succeeds in reducing appeal time
Nyeri Court of Appeal has reduced waiting time for appeal cases from seven years in 2013 to one year in 2017 as a result of the decentralization of the court of Appeal.
The court’s Deputy Registrar, Harrison Adika, says while that is commendable, they are working to achieve real-time hearing of the cases, meaning the public would get a hearing date fixed at the time of filing.
Nyeri Court was the first ever devolved Court of Appeal, inaugurated on June 24, 2013, by former Chief Justice Willy Mutunga.
Hon Adika noted that before then, the Appeal Court in Nairobi would make circuits in Nyeri twice a year, hence making it difficult to clear cases.
“It would take about seven years for a matter to be listed for hearing, be heard, and judged,” said Hon Adika.
Nyeri LSK branch chairman, Wahome Gikonyo, said that the establishment of the court at Nyeri has been of great benefit to litigants and advocates since cases are been dispensed with in a timeous manner compared to when the court could sit twice a year.
“Matters filed under certificate of urgency are heard and determined expeditiously compared to before then the files had to be taken to Nairobi for a date to be allocated,” said Mr Gikonyo.
He however, felt that cases could be dealt with real-time if the court jurisdiction would not have been expanded to include the larger Nakuru region.
There are three resident judges in Nyeri – a presiding judge and two assistants. Since 2013, the court has had three Benches and is currently headed by Justice George B. M. Kariuki assisted by Lady Justice Fatuma Sichale and Justice Sankale Ole Kantai. It also sits as a circuit court in Nakuru and Meru at least once a month.
The court hears appeals arising from High Court stations in the Mt. Kenya and Nakuru regions, and serves Marsabit, Kericho, Bomet and Narok. Mr Adika said that due to the many regions covered by the court, appeals are still taking longer than expected.
Article 164 of the Constitution establishes the Court of Appeal, which before promulgation of the 2010 Constitution was the highest court in Kenya. It hears appeals from the High Court and any other court or tribunal as prescribed by an Act of Parliament.
Before it was devolved to the counties, the Court was highly centralized, sitting only in Nairobi. Although its statutory establishment was 14 judges, it, by 2011, operated with only seven judges. This caused unprecedented case backlog, especially in criminal appeals. For instance, criminal appeals in Kamiti Maximum Security Prison were 142 in the Court of Appeal, with the oldest running from 1994 to 2013, with a further 498 stalled at the High Court.
Under the new constitutional dispensation, and in the spirit of devolution, the Court of Appeal has now been decentralised to Nyeri, Kisumu and Mombasa.
An amendment to the Judicature Act has further raised the threshold for the Court of Appeal from 14 to 30 judges.
Judiciary Museum: A memorable gem at the Supreme Court building
A display of artifacts in the Judiciary Museum
The Judiciary Museum opened its doors to the public in June 2016. The facility is located in the Eastern wing of the Supreme Court Building basement, and one of its kind in East Africa and beyond. It showcases the rich history of the Judiciary featuring documents and objects of great judicial heritage value.
The project was implemented in partnership with the National Museums of Kenya (NMK) over three years and cost the taxpayer Sh70 Million. The idea behind developing a museum originated from the need to open the Judiciary to the public to create understanding and awareness of its history, development and role in society aimed at demystifying the public perception of the institution.
It also purposes to educate the public about Kenya’s unique legal history and judicial processes in general. The Judiciary has gone through several era of development as showcased in the museum.
The pre-colonial period when disputes were resolved by traditional organs like village elders; the colonial period when it was an instrument of the colonial power designed for purposes of administering an occupied people with limited legal rights; and the independence period where the Judiciary served the interests of political administrations that shaped the country’s Constitution to autocratic ends.
With the onset of the democratization process in the 1990s’ and the promulgation of a new constitution in 2010 the institution has been transformed into an independent organ of justice.
The Museum narrates the story of Judiciary’s long and arduous journey, the achievements, failures and challenges it has realized. It brings together all the important reminders of Kenya’s judicial heritage and makes this part of its history. The museum is unique and a first in the East African region.
In interpreting the history of the Judiciary in Kenya, the thematic framework focused on topical issues embedded in a chronological outline. Major Milestones showcased in the Kenyan Judiciary, include but not limited to:
• African systems of Administration of justice
• Introduction of formal judicial systems
• Constitutional changes and its impact on the Kenya Judiciary
• Landmark cases and rulings,
• Outstanding personalities in justice delivery,
• Controversial rulings,
• Reforms in the Judiciary,
• Relations between the Judiciary and the Executive,
• Judiciary and the Bench
• Future of the Judiciary
The Judiciary Museum, being a specialized
institution, targets audiences drawn from the
• Law Students
• History teachers and students
• Visitors from institutions of learning at all levels
• General public
The Judiciary Museum is a sight to behold and a must visit for the people interested in Kenya’s history.
Martin Filler, a famous American Architecture critic once stated that the most basic task of any museum must be the protection of works of cultural significance entrusted to its care for the edification and pleasure of future generations. This is exactly what judiciary has envisaged and done decades after Martin’s quote.
Milimani Law Courts Carol Service
Deputy Chief Justice Philomena Mwilu joined the Milimani law courts judicial officers and staff in holding the Christmas carols service. The event was organized by the Milimani Leadership Management team which is chaired by Justice Jessie Lesiit.
KITALE LAW COURTS
Employment and Labour Relations Court (ELRC) team led by the court’s Registrar Kennedy Kandet, meets members of Kitale Law Courts CUC to discuss establishment of ELRC Registry in Kitale.
Hon Lady Justice Roselyne Ekirapa Aburili on her graduation with a Masters Degree in Public Policy from the Kenyatta University on 4thAugust.
Justice Aburili who is a judge in the Judicial Review Division is also currently undertaking her masters LLM Degree at the University of Nairobi School of Law. This is in addition to her Bachelors Degree in Law from the University of Nairobi and a Diploma from the Kenya School of Law.
MIGORI LAW COURTS
Migori new staff mark anniversary.