It has been described as the ‘Court of Last Resort for the vast majority of legal matters, ‘ by chief justice Martha Koome, a sign of how integral the Court of Appeal is in the dispensing of justice.
This same court however had suffered a chronic manpower crisis until the swearing in of seven judges a week ago with justice Daniel Musinga as their new president.
The court was actually in danger of being deemed in breach of the constitution because of the quorum hitch which according to chapter 10 article 164 1a of the supreme law stipulates that, ….”there is a court of appeal which shall consist of the number of judges, being not fewer than 12,”
The attrition of Judges from the court has been attributed to the retirement of some and promotion of others, including Justices Koome and William Ouko, who were elevated to the supreme court.
According to the state of the Judiciary report 2020/2021 there were 2620 cases filed at the Court of Appeal in the financial year 2019/2020, less than 50% at 1074 were resolved.
Meanwhile, at the high court 23,602 cases were filed with almost 90% of them being resolved at 22,735.
The judges now have the heavy task of tackling the backlog that has accumulated to 8,412 cases.
A congested in-tray for the new president of the court Justice Daniel Musinga who has been handed some manpower that his predecessor did not enjoy in the swearing in of the seven court of appeal judges.
“I am glad to announce that the court of appeal judges will now revert to sitting in the court of appeal stations outside of Nairobi that have been inoperative since 2019 due to the shortage of appeal judges,” CJ Martha Koome said on Friday.
But the president of the court was also challenged to uphold the independence and integrity of the court at a time when apellate judges have been accused of overriding decisions of judges of lower courts in an irregular manner.
“It is in no doubt that you have the wherewithal to resurrect the COA from the graveyard of progressive jurisprudence one there is a widely held view that the COA is mapped by the executive,” LSK President Nelson Havi said.
As the country grapples with a sluggish economy weighed down by debt and the COVID-19 pandemic, the courts play a crucial role in the quick dispensation of justice which will allow the release of money and assets tied up in litigitation for many years. The manpower issue at the Judiciary, however, has truly hindered access to justice for Kenyans.
“Further, in the Environment & Land Court if you filed a case today, you would get a hearing date in late 2022 if you are lucky. In the employment and Labour relations court, cases could not even be listed for hearing as there were not enough judges. For instance, the single judge currently serving in this court in Kisumu county also serves another 9 neighboring counties,” CJ Koome said.
The court of appeal will remain in sharp focus with 10 slots still vacant and four judges in limbo with their appointments to that court declined by President Uhuru Kenyatta.