In the period preceding 2010, the Court of Appeal was the highest court in the land. Today it is the second highest court after the Supreme Court. Prior to 2012, and for the reasons of numbers, infrastructure and other resources the Court of Appeal was centralized in Nairobi with occasional circuit sessions in Mombasa, Kisumu and Nyeri. However with the promulgation of the Constitution in 2010, the increased complement of Judges and the growing need for judicial services, the Court was fully decentralized to Malindi (because of lack of a court building in Mombasa whose refurbishment is now complete), Kisumu and Nyeri. At the time of the decentralization there were 27 Judges; three each deployed in Malindi, Kisumu and Nyeri while the rest (18) remained in Nairobi, due to the heavy caseload in Nairobi. With passage time, this number (27) has gradually shrunk to 15 today following retirement of several Judges, appointment of others to (other) higher Government offices, and this week, the sudden death of Hon. Prof. Justice James Otieno Odek.
The 15 Judges include the President of the Court, the Court’s Representative to the Judicial Service Commission (JSC) and the Director of the Judiciary Training Institute (JTI). In effect therefore, the country has only 12 Judges in the Court of Appeal who sit full-time. Of the 12 Judges three are serving in Mombasa and three, until the passing on of Hon. Prof. Justice Odek, were serving at Kisumu. With this distribution, the Court at Nairobi with nearly 3,000 appeals and applications can only mount two benches, a far cry from internationally accepted ratio.
It will be recalled that in the month of April, 2019, the sittings at the Nyeri Court of Appeal were suspended indefinitely, again as a result of shortage of Judges. This situation has now been exacerbated by the death of Hon. Prof. Justice Odek. Kisumu now has only two Judges.
As the Court prepares to proceed on its Christmas Recess, and in view of the evolving circumstances, it has become necessary to revisit the decentralization of the Court as it is currently not tenable.
Pursuant to the provisions of section 13 of the Court of Appeal (Organization and Administration) Act, 2015 and in consultation with the Hon. The Chief Justice, it has been decided that, as long as the situation with regard to the number of Judges in the Court of Appeal remains, the sittings of the Court outside Nairobi are suspended with effect from 13th January, 2020, the date of commencement of the Court’s new term.
The Judges in Mombasa and Kisumu will relocate to Nairobi with effect from that date. The affected court stations, including Nyeri will be served from Nairobi through circuit sessions conducted once a month to each station.
This decision is highly regrettable but beyond our control.
Hon. Mr. Justice William Ouko
The President of the Court of Appeal