Delayed Justice

It is believed the reason courts exist is to do justice, guarantee liberty, enhance social order, resolve disputes, maintain rule of law, provide for equal protection and to ensure due process of law. If these are the reasons why people go to court to seek redress, then how long should a court case run? if cases take eternity to resolve, some now over 40 years, several others over 35 years and still running with no verdict yet, is that still justice or a miscarriage of justice? or is blatant injustice? Kenya’s courts are riddled with a mountain of cases that remain unresolved, some spanning into decades, and still some where the parties hoped would be heard and determined in the reasonably shortest time possible. But, these hopes turned into nightmares for some, and dreamy music for others – depending on interests of each of the parties. Many of the cases that have unnecessarily found a home in the courts lie in the family division – succession cases. Three cases; the Mbiyu Koinange estate succession cause 527 of 1981 now forty-two years, JM Kariuki succession cause no.26 of 1985 that has been doing time in the courts for 38 years and that of Patrick Roki Wanyee succession cause 225 of 1985 that has a running case 3992/1988, now 35 years are among the longest-running in court. There is also criminal case no.75 of 2011, the murder of lawyer Anthony Nahashon Ngunjiri has also never been determined 12 years later, and many others. . Mbiyu Koinange Estate Succession – 42 years in court Mbiyu Koinange was a powerful minister in the Jomo Kenyatta Government, serving in cabinet and also a close confidante of the head of state. He died in 1981, and there began the battle for his estate, which in 2020 was estimated to be worth nearly 20 billion shillings and could be more. Original parties were the late cabinet minister’s first and second wives, both of whom are now deceased - Joyce Njeri Njunu and Leah Wanjiku Koinange as the applicants versus the respondents: his third and fourth wives Margaret Njeri Mbiyu and Eddah Wanjiru Mbiyu alongside his son David Njunu Koinange. In 2020 Justice Aggrey Muchelule ended the succession battle after being in court for 39 years ruling that all of Koinange’s 10 children and his two surviving widows had equal stake in his properties spread across the country which should be sold and shared equally among his beneficiaries. But, no sooner had the dust settled than Koinange’s grandchildren filled two other applications, separately, on 3^rd and 17^th February, 2021, seeking new parties to substitute late David Waiganjo, the late minister’s son. The matter went to the court of appeal and was referred back to high court where it remains active, bringing the case to 42 years in court, and counting. Chief Justice Martha Koome once handled the matter while sitting as high court judge in January 2005. She described the never-ending feud as an endless show, calling out parties and advocates involved. Reports indicate that more then 50 parallel cases have been filed since the case was registered in court. JM Kariuki Estate Succession – 35 years in court A second longest running court case in the family division is succession cause no. 26 of 1985, in the matter of the estate of JM Kariuki. Josiah Mwangi Kariuki, the former Member of Parliament for Nyandarua North was a wealthy and flamboyant man. On 2^nd March 1975, the vocal legislator was assassinated. For ten years his family could not agree on legal beneficiaries of his estate. Lee Muthoga who was JM KARIUKI’S lawyer, and handled the dispute for 11 years, failed to strike a consensus, eventually handing the matter to public trustee before it went to court. The tug of war was, and remains to be, Doris Nyambura Kariuki, JM Kariuki’s 1^ST widow as the applicant, versus his other wife, Terry Wanjiku Kariuki and Mark Kariuki Mwangi as respondents VS Maina Wa Ihuthia and Riara Kanyuira as contemnors. For 48 years now, 38 of them in court, Doris Nyambura has fought for her space as JM Kariuki’s only legal widow, who, she argues, should be allowed to inherent the estate. “In regard to the law as it stood then, it did not recognize polygamy, so indeed Nyambura is right to say she was the only lawful wife, but reality was different. JM lived reality not law which is that he had 3 wives, they were living together, its not that they did not know each other” - Lee Muthoga – JM KariukI’S former lawyer A section of the family accused Muthoga of destroying JM’s will and siding with one of the parties but Muthoga insists there was never a will and the allegations came after he had left the matter. He adds that one day after the slain MP had been buried, a team of security officers led by the late Patrick Shaw visited the house in Gilgil and begun dusting several places including the ceiling which the family and people present found it strange because the vocal legislator had been assassinated in Nairobi and not in his rural house. He states that once they left, a duplicate file of income tax was found on the table which caught everyone by surprise and had to be shredded and set on fire. For forty eight years, the Kariukis have tussled and haggled. One of the three widows, Mwikali, is now deceased. According to Muthoga, two issues that cropped up after JM’s murder were determination of who was the legal wife or wives and then the property left behind which could not be discussed since the first one was not solved. He bowed out. “ There’s nothing that gives me greater pain than knowledge that this estate has never gotten resolved.Koinange is another, these things are painful. If in 1975 they would have agreed and shared out it could have greately benefitted the family, but now selfishness has clouded them. It pains me because JM was almost family” -Lee Muthoga –JM Kariuki’s former lawyer Patrick Wanyee Estate Succession – 35 years in court Patrick Roki Wanyee died on 6^TH February 1984, not having done a will. The following year, a fight for his estate kicked-in, succession cause no. 225 of 1985. Peter Kamau Njui and Stephen Kamau Njuguna were the applicants VS Sharon Louise Wanyee and Boaz Reuben Shuma as respondents. His widow Sharon Louise Wanyee and Boaz Shuma petitioned the court for grant of letters of administration intestate. Intestate refers to a situation of not having made a will before one dies. According to court records, the grant was issued on 27^th may 1985 confirming the estate could be distributed to the deceased’s family. One of the properties of the deceased was Dagoreti/Riruta/63 measuring 20.6 acres. On 7^th September 2021 Peter Njui and Stephen Njuguna made an application for the revocation of the grant that had been issued and confirmed. The two are grandsons of the late Stephano Wanyee and the late Teresia Wanyee. On 1^st October 2021 the applicants sought to halt the effecting of an eviction notice dated 30^th June 2021, which was served upon them. An application that was opposed and is pending hearing. The initial defendants in the suit are deceased. The long-drawn matter has seen a turnover of lawyers, with Eunice Lumallas being the 6^th lawyer representing Sharon Wanyee, the widow in case no. 3992/1988. She states that despite the matter being taken to court in 1988, it only got a second hearing of the main suit in 2021 after 33 years. When contacted for a comment on the matter, Khan company Advocates, who appear for the applicants, declined to grant an interview despite having agreed to do so earlier. “ The file is riddled with change of advocates, application to replace and substitute parties, applications for adjournment. The matter was never heard on merit totally”- Eunice Lumallas, Sharon Wanyee’s lawyer. The 35-year old case continues after another court entertained a new petition after the court had ended the case and eviction orders issued. Just like the Koinange and JM Kariuki succession cases, the Wanyee succession matter appears to have also had its fair share of intrigues. Lawyer Anthony Ngunjiri Murder case– 12 years in court Criminal case no. 75 of 2011 is now 12-years-old. It is the Republic versus Mohamed Ismail Madey, Abdi Elmoge Abdi, David Kihara Muchiri and Joseph Muchiri Macharia who are the accused persons and facing a charge of murder, on the accusation that on 21^st September, 2011, at Thome area within Nairobi County, jointly with others murdered Anthony Nahashon Ngunjiri, one of then-President Mwai Kibaki’s lawyers. Ngunjiri was and was shot dead by two police officers at Garden Estate where he had gone to serve court papers to an individual involved in a property case. The person Ngunjiri was going to serve the documents had reportedly mobilised a gang of youth to block him from doing so. Official documents further indicate that pandemonium reigned prompting the lawyer to draw a pistol, and forcing the gang to scamper for safety. But, using his connections in the police, the individual in question allegedly called Kasarani police station and reported that an armed thug had stormed his home. Two junior police officers, Mohamed Ismail Madey and Abdi Elmoge Abdi, were dispatched to the home and shot Ngunjiri dead. A trial for the four accused commenced on 24^th January, 2012, before justice Luka Kimaru who would later be transferred to another station. Twelve years and the murder case is still pending despite justice James Wakiaga putting all the accused on their defense on 17^th July, 2019. PENDING CASES According to State of the Judiciary and the Administration of Justice annual report for the Financial Year 2021/22, as at June 2022 there were 678,697 pending cases across all courts, a decrease from the previous year’s 679,597 cases. In June 2022, there were more pending criminal cases than there were in 2021 - 294,278 against 293,605. Pending civil cases reduced from 385,992 to 384,419. CASE BACKLOG Article 159(2)(b) of the constitution envisages that justice shall be rendered expeditiously. In the Judiciary, the desirable timeline for determination of most case types is pegged at a maximum 1 year from their date of filing, therefore any case that surpasses 1 year from its filing date is classified as backlog. The report reveals that at the end of the 2021/2022 financial year, case backlog in all courts stood at 336,426 cases. The highest proportion is in Magistrates’ court at 69.3% followed by High Court at 15.7% begging the question, just how long should it take to resolve cases in court? APPEAL COURT BACKLOG The appellate court had four stations Kisumu, Mombasa, Nairobi and Nyeri during the period under review. Kisumu and Nyeri stations did not operate because of insufficient number of judges in court, forcing their matters to be handled in Nairobi. From the 10,404 pending cases in the Court Of Appeal, 5,869 cases were classified as backlog as they had surpassed the set timeline of resolution of 360 days from the date of filing. There were 3,556 cases that had been at the appellate court for between 1 to 3 years, and 2,313 that had been there for more than 3 years. HIGH COURT BACKLOG Out of the 82,852pending cases in the 40 High Court stations, 52,920 were backlog. Those between 1-3 years were about 33,300, then those that were more than 3 years stood at about 19,600. At the Magistrates’ Courts, of the 521,891 cases that were pending, 233,374 were backlog. The Employment and Labour Relations Court has a huge proportion of its pending cases being pending cases being backlog at 85 per cent. Lee Muthoga aptly captures the problem in the revelations and situation at the Judiciary. In one of the cases which I participated, we heard the case, finished and judgment was reserved to be delivered on notice. We waited 1,2,3 years…the 5^th year I called the lawyer for the other party, we had to agree on how land was to be shared and it was still not decided until 3 years later” Lee Muthoga WHO IS THE WEAK LINK? There are three components in a court case. The parties involved, their legal teams and the court. So, who is responsible for the delayed justice or the weak link in chain of justice? It is a classic case of blame game and swiftly swung ping-pong on who is responsible for the injustices meted on people in what should be the halls of justice. Judiciary Chief Registrar Anne Amadi says in criminal cases most adjournments are done by the office of director public prosecutions because either something is missing from police who supply them with documentation, witnesses not being available etc. “In civil cases its advocates, that’s not to say judiciary does cause delays. We also have situations where judges are indisposed, or a key event taking place in the Judiciary” -Anne Amadi – Judiciary Chief Registrar Law Society of Kenya President Eric Theuri says the delay in dispensing justice makes a mockery of the judicial process. “ Judiciary will tell you that its advocates who delay, the question then would be, who is in charge of the court, it’s the judiciary and they ought to take steps” Eric Theuri, LSK President Chief Registrar Amadi says much as its judiciary handling the matter, behavior of litigants has a bigger role to play. “We want pple to come to court to get justice, but also asking players also be fair to themselves and judiciary because litigation has to come to an end because those that don’t end make nonsense of the justice process, we need to stop the abuse of the justice process” Anne Amadi, Chief Registrar

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