Judiciary must act to ensure speedy delivery of justice

By Judy Thongori
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The need to sort out family conflict quickly cannot be overstated: a family in conflict is confused and loses a lot emotionally, physically and financially.

Dear Judicial officers, please understand that  the  family cases  pending before you are not just files; they are the  lives of those people subject to those cases and so you literary hold the lives of those people in your hands.

Delay hurts people like you would never imagine; people come to court for a decision and when the decision does not come in good time, justice is surely denied.   

We know that you are overburdened and not always sufficiently supported by the stakeholders but we also do know that   even with the existing resources, there can be  better justice delivery  and that in fact some of you are  delivering.

To the Judicial Service Commission and those that employ judicial officers, the demand for justice in our courts is beyond the current team’s capacity to deliver

In the Nairobi Family Division for example, a daily list has about 45 cases per Judge between Monday  and Wednesday. Within those cases are people seeking to access the estates of their deceased relatives; among them are heirs who cannot agree on how to share the property of their parents. 

The following is a normal scene in the Family Division at Nairobi;

Judge: Call out the next case

Clerk:  Case 324/ 1992 In the matter of the estate of the late Mwangi Bosire Kamau

Judge:  Who is who?

The men: We are the sons of the deceased

The women: We are the daughters of the deceased

Judge: Have you agreed on how to share the estate of your late father?

The men: Yes we have and it is in the papers filed in court

The women:  That is not true.  We have not agreed. Our brothers made us sign documents that we did not understand and now they want to take all our father’s property and leave us out.

The men: But  all our sisters are married. Do they want to take our father’s wealth to their husbands?

The women: ( shouting) But  the brothers  are also married. Do they  want to take our father’s  wealth to their wives. Our father loved us equally and we want what is ours!

The Judge:  Since there is no agreement, I will listen to you at 11.30.

The next case could be a case in which a man had two wives and there is a dispute between the first and second family.  They are told to come back at 12.30pm.

By the time the Judge has gone through the cases he is visibly exhausted and irritable. Some of the emotional burden of the litigants has been transferred to him. In time, the transferred emotional trauma will take its toll on the Judge. The following two days are much the same being Tuesday and Wednesday.

On Thursday, the Family Division hears case of marital disputes;  divorce causes, disputes over matrimonial property etc. The cause list may have about 18 cases. Another full day and pressure is mounted on the Judge because some parties want to stop the others from selling property urgently; others want urgent maintenance; others  want to divorce.

Friday is no dress down day in the Family Division as that is when adoption cases are heard.

The proposed adoptive parents may be foreigners who have left their jobs and family members in their home countries and now need to get back.  They have also bonded with the little babies in respect of whom they seek adoption and cannot imagine that a court could say no to the adoption; In the meantime, the babies crawl, shriek or walk in the corridors of the courts untroubled.

The lawyers wait for their client’s cases to be called, evidently tense because if the cases are not heard, they know that their clients will not be amused to await the next date.

All that tension is transferred to the Judge as he is told of the best interests of the child and of the urgency  of the case. Ultimately, he has to decide how the best interests of the child are best served. As he considers a date for judgment, he has to reckon with the other rulings that he has already promised to deliver previously. The client nudges the lawyer to seek an early date and the lawyer reluctantly gets up to make the request because she knows the state of the Judge’s diary. The Judge gives a date three weeks away.

Good people, Judicial officers are hardly coping. We need to determine how to move forward. Do we increase Judicial officers especially in the Family Division? Do we put more efforts in mediation and arbitration? Whatever the case, it is super urgent.