The Implication Of Case Backlog On The Right To Access To Justice In Kenya; A Case Study Of Mavoko Law Courts.

Abstract

The Constitution at Article 48 thereof guarantees the right of access to justice through which the administration of justice in Kenya is premised. By dint of Article 159 and 232 of the Constitution, the fundamental pillars of the right of access to justice which are premised on the equality before the law and to equal protection and equal benefit of the law forms the foundation for the extent policy, legal and organizational framework for administration of justice in Kenya. The concept and normative content of the right to access to justice is recognized under the various international and regional legal instruments which Kenya has specifically ratified and forms part of the Laws of Kenya by dint of Article 2(5) and (6) of the Constitution, 2010. The four fold objectives of this study is: (a) to appraise the current status of case backlog in Mavoko Law Courts; (b) to evaluate the legal implication of backlog of cases on the right to access to justice in within Mavoko Law Court; (c) to evaluate the appropriateness of the current intervening measures to address the problem of case backlog in Kenya based on a case study of Mavoko Law Court; and (d) to consider appropriate legislative, policy and administrative measures to address the problem of case backlog in Kenya. The study establishes that that the judicial system for administration of justice and guaranteeing the right to access to justice in Kenya falls short of the legitimate expectations of Kenyans. In particular, the study established that: (a) Mavoko Law Court is currently served by three Magistrates against the optimum number of six Magistrates; (b) there are no guidelines on file allocation. The allocation is unique to each Court station and is based on whims and dictates of viii the head of station; (c) more traffic cases are filed compared to civil and criminal cases partly because the Court serves a major transport corridor comprising of the Nairobi-Mombasa Highway and the several feeder roads linking several estates in the area; (d) most traffic cases were finalized at 96. 8% of the base of cases filed, followed by Criminal cases at 81.1 % of the bases of the number of criminal cases finalized. Most civil cases remain pending with the number finalized being at 35. 4 %. When this data was presented to the judicial officers and the litigants, the running justification for such a trend was that civil cases are subject to many interlocutory applications with strict procedural requirements compared to Traffic cases. Further, both civil and criminal cases are prone to many adjournments as delay tactics to avoid the finalization of the matters. For traffic cases, it was explained that in most cases, the accused persons normally enter a plea of guilt which then closes the case upon sentencing; (e) Court and advocates fees account for 40 % of the factors that impede access to justice. Though case backlog as a factor was at a paltry 11%, the study found out that this is a compounding factor since it leads to jostling over justice dispensation which ultimately breeds corruption that favours the rich at the expense of the poor; (f) 90% of the respondents were of the opinion that the current rules of procedure and the evidence rules were too complex to facilitate access to justice by those not learned in law hence the justification to resort to lawyers to represent them in most of the cases; (g) Only 46% of the respondents were aware of the Judiciary Transformation Plan hence urgent need to undertake sensitization programme; (h) while most respondents at 59% were aware of Arbitration, Mediation, Adjudication, expert Determination and Negotiations as mechanism of alternative dispute resolution, only 18 % had used resorted to the mechanisms as opposed to litigation. Of the 18% of the respondents who have resorted to the alternative ix mechanism, 80% of the cases were for settling non-capital offences out of court with the assistance of the clan elders, family members and the prosecutor. In response to these gaps, the study addresses pertinent conceptual issues and recommends various imperative reform measures for the efficient delivery of justice. The proposed reforms draw from the conceptual, theoretical, desktop reviews and statistical data in chapters one, two and three respectively of this study. The study presents a compelling case for reform and strengthening, as the case may be of the policy, legal and administrative framework within which judicial authority is exercised in order to safeguard and guarantee the right of access to justice.