MAORE ITHULA
Kenya’s Judiciary is a victim of corruption, lethargy and incompetence that is threatening to cripple the other two arms of Government, an official says.
In an exclusive interview with the Nairobi Law Monthly last month, Kennedy Bidali, the Judiciary Ombudsperson, says because of these ills, courts across the country are becoming a clogged, ineffective lot.
Bidali’s office is mandated to receive complains and compliments on the administration of justice in the Judiciary.
“My office is mandated to investigate and address complaints of maladministration or a violation of rights. This helps us make recommendations for the Chief Justice on administrative actions.”
But the office of the Judiciary’s Ombudsperson has its limitations; it does not offer any legal advice.
The Judiciary Ombudsman is also different from the national Ombudsman in that whereas the latter deals with all manner of complaints against government from members of public, the former concentrates on matters within the courts. Thus while the National Ombudsman is a constitutional office, this office is an appointee of the Judiciary. Both are independent, however.
Bidali concedes that, based on the many complaints landing on his desk, there is a serious problem in Kenya’s Judiciary. He says five categories of grievances form the bulk of complaints that appear at his desk.
“Many litigants and defendants complain to us of delays in hearing, ruling and judgment of their cases.”
These delays, he says, are caused by unnecessary adjournments and shortage of judicial officers.
Even with the ongoing vetting, Kenya’s Judiciary is infested with a critical mass of officers with integrity problems that hinders smooth administration of justice.
Bidali (above) points out, “We receive complaints of missing files. These vital documents are usually hidden by court officials and clerks. In other cases, our investigations on this type of complaints often establish that some judicial officers make judgments not based on law and evidence presented to them, but on other curious and unlawful considerations.”
The Judiciary is also a consumer like other organisations. Thus suppliers and contractors get entangled in the web of corruption in the system, willingly or unwillingly. When this happens, they get anxious. Inevitably, Bidali gets complaints.
“Merchants come here with an array of woes. A few of them will be facing auctioneers because of delayed payments, others will be complaining of their competitors winning contracts unfairly while the rest will be aggrieved by delayed issuance of Local Service/Purchase Orders. Many more want settlement of accounts and refund of deposits.”
In Kenya’s Government offices, a file can go missing any time. But when such a vital document disappears in a court’s registry, justice is not only delayed; it is subverted. Dangerous as it may appear, this is the norm rather than an exception in the Judiciary.
“The Registry in the Judiciary is not efficient. Therefore, many times people come here to complain of missing files. However when this happens, we recover most of them. I would say we recover about 90 percent of all missing files. But a few disappear completely.”
In instances where files disappear forever, the Judiciary Ombudsman embarks on the task of restituting the document. This is done under the direction of the Chief Justice.
To reconstruct a lost file both parties must avail their copies of pleadings and proceedings of the case. Then the file is harmonised and pieced together again.
But either of the parties or an interested party may be behind the disappearance of the document and may therefore not be interested in providing correct information to restore the lost file. Bidali explains:
“In such an eventuality, we refer the matter to the Chief Justice for direction. And in all cases, the purported culprit of the missing file will not be very keen to face charges of obstructing justice. Thus with the emergence of such unforeseen threats, the facts needed for the restitution of the original file resurface quickly.”
Because crime is like a hydra, it mutates many times over. Hence if the beast does not help a file to find its way out of a court’s registry ‘in the cover darkness’ in daylight, the hydra cannibalises the file, says Bidali.
“A defence advocate, litigant or an interested party in collusion with a corrupt insider in the Judiciary often mutilates files. Important documents are removed from the file. Materials that might go missing include expert opinions that solidify the case. This is one of the most dangerous ways of influencing outcomes of cases but it happens. We receive a number of complains in this regard.
“If this happens, we establish the missing documents by perusing the file. The cannibalised material can be identified because pages in files are usually paginated or marked. The material is then reconstructed at the expense of the judiciary,” he says.
In all cases, administrative action is taken on any judicial officer(s) or staff found culpable of subverting justice by any or all of the above means.
Among these ills bedevilling the Judiciary, cannibalism of files is the most outrageous, Bidali concedes. There are at least 15 cannibalised files that are yet to be restituted among the many unresolved complaints since this office came into being.
So, how were complaints of maladaministration handled before 2011?
Bidali reveals that before this office came into existence complaints were filed almost everywhere within the judicial system. Most of the complaints, he reveals, were presented to the Registrar of High Court.
Interestingly the same registry generates most of these complaints. Therefore, few if any of these complaints were resolved. In fact the more Kenyans complained to the Registrar of High Court, the more complicated there problems became.
Therefore, Bidali notes, most of the grievances his office is dealing with today, date back very many years.
Although few Kenyans know of the office of Judiciary’s Ombudsman, the department is seriously overwhelmed.
Bidali attributes this to the carry-over of maladministration of justice in the past and present, short handedness of judicial officers and the biting corruption and lethargy affecting the country in general.
The strengths of his office include its free service, independence of judicial hierarchy, its impartiality and informality. ^
Land, environment cases make up bulk of complaints
One morning last month, the Nairobi Law Monthly visited this unique office to establish what services Kenyans seek there.
Just as we got there, we were joined by a frail elderly man accompanied by two young men. Apparently, the newcomers were not strangers in the office.
Speaking in Swahili, the old man asked us whether we had been served. Without revealing our mission, we said we hadn’t.
“I am Kamau and I come from Nyeri. For the last seven years, I have a running case at the High Court in Nyeri over a piece of land that a tycoon has grabbed from me. The court has failed to make a ruling because my case file went missing,” he started.
“Then three months ago, I learnt from a neighbor that there is an Ombudsman in Nairobi who can help to recover the lost file. It was found after two weeks and two trips to the city. A ruling date was set after the file reappeared. The ruling was to be made three days ago. However that was not to be because, several leaves of paper that formed part of the proceedings were missing from the file. So I am back here to seek assistance in locating the missing documents. The court cannot make its decision if the documents are missing.”
After talking to a few more of the people streaming into the office, we established that many of the people go to the Ombudsman’s office complain about delayed justice. Majority have land cases in and around Nairobi and adjacent counties.
Among them was Jeremiah Kinyua. Unlike the rest, Kinyua was an aggrieved tenant whose landlord had evicted him from a business premises in the city centre against a court order barring such action before a lease of tenancy between the two parties expired.
Kinyua’s story of his experience in the hands of a judicial officer is mind-boggling. On the August 27th, 2009, the Principal Magistrate Ms W Mokaya sitting at the Milimani Commercial Courts compelled John Karanu Ikinu, his (Kinyua’s) landlord, to allow Kinyua access to the Shop No F7, Superior Arcade Building, on LR No 209/525/11 pending the hearing and determination of his case.
That the court also ordered Kinyua to continue paying monthly rent for the premises to Ikinu as directed by a valid lease that existed between the two parties. Kinyua complied. All went well until Kinyua’s case file was moved to another magistrate’s court.
After the case was transferred, Kinyua says, Ikinu proceeded to forcibly evict Kinyua, 10 months before the expiry of the lease.
Says Kinyua: “Through my subsequent legal counsels, I notified the court that the defendant had ignored court orders. “But the Court did not treat my concerns with the urgency they deserved to protect both its (court’s) dignity and my lawful rights.
After filing his complaints with the Ombudsman, the court made the ruling three months ago, which stated in part, “…Since the premises have been pulled down and rebuilt and the complainant is no longer a tenant, the court order lacks merit…”
Kinyua explains, “I was thrown out because of inertia by the court. Who will compensate me for the lost income? Should I sue the court or my former landlord?”
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