Judicial Reforms and Access To Justice in Kenya

Judicial Reforms and
Access to Justice in Kenya:

Realizing the Promise of the New Constitution
A report of a study commissioned by

The Kenya Civil Society Strengthening Program
October 20th, 2011
Judicial Reforms & Access to Justice in Kenya: Realizing the Promise of the New Constitution | 1
Judicial Reforms & Access to Justice in Kenya:
Realizing the Promise of the New Constitution
Research Report Prepared for the Kenya Civil Society Strengthening Program (KCSSP)
by Law & Development Initiatives
Final Report
20 October, 2011
By
Prof. Migai Akech
Prof. Patricia Kameri-Mbote
Dr. Collins Odote
Gabriel Mwangi
The study and production of this report is made possible by the support of the American people through the United States Agency for International
Development (USAID). The views expressed herein are responsibility of KCSSP and do not necessarily reflect the views of USAID and the United
States Government.
ACKNOWLEDGEMENTS
We take this opportunity to thank the Law & Development Initiatives; Prof. Patricia Kameri Mbote,
Prof. Migai Akech, Dr. Collins Odote and Gabriel Mwangi for carrying out the research, conducting vali-
dation of the Study and putting it together.
We appreciate Joy Mdivo, Mary Goretti Nyariki, Elsy Sainna, Peter Ochola, Beatrice Chelangat, Dennis
Diffu, Lumumba Odenda and Felix Makoyo for their invaluable contributions during the validation of
the Study. We wish to thank the KCSSP program staff for devoting their time to edit and give in their in-
put into the study; Henry Kuria, Felesia Muyia, Geoffrey Muga, Peter Ngure, Tony Iha, Roselyn Mungai,
Beverline Ongaro and Fidelia Imai of Law & Development Initiatives. Additionally, we also thank Fred
Odhiambo for his illustrations and Ngele Ali for design and layout of the Study.
Anthony Kariuki
Chief Executive Officer, Act!
TABLE OF CONTENTS
EXECUTIVE SUMMARY 6
INTRODUCTION 8
STUDY METHODOLOGY AND LIMITATIONS 9

Methodology 9
Data sources and data collection techniques 9
Site selection 9
Sampling and sampling procedure 10
Data Collection 10
Data analysis, interpretation and presentation 10
Limitations 10
CONCEPTUALIZING JUDICIAL REFORMS AND ACCESS TO JUSTICE 12

Judicial Independence and Accountability 12
Judicial Ethics and Integrity 13
Judicial Administration and Management 15
Need to Separate Technical and Administrative Functions 15
Dealing with Delay and Backlog through Case Flow Management 15
Judicial Processes and Procedures 16
Performance Evaluation 16
Use of Information communications Technologies (ICT) 18
Access to Justice 18
THE STATE OF JUDICIAL REFORMS IN KENYA 20

Real, Contentious and Imagined Reforms of the Past 20
Pre-1990 Period and the Commencement of Judicial Reforms 20
Judicial Reforms as Constitutional Reforms 21
Judicial Reforms as Transition from the Moi Era 21
The Charge of First Post-Moi Chief Justice 22
From Talk to Action – Reforms in the New Constitutional Order 27
Transforming the Judiciary 27
Problems and Challenges - What Continues to Ail the Judiciary? 33
The Challenges of Creating a Transformative Judiciary 51
Interaction with specialised Courts, Quasi Judicial Tribunals and
Traditional Dispute Resolution Mechanisms 52
COMPARATIVE AND INTERNATIONAL EXPERIENCE AND STANDARDS 54

International Benchmarks 54
Bangalore Principles of Judicial Conduct 2002 54
The Commonwealth (Latimer House) Principles on the Three
Branches of Government 54
Select Countries’ experiences 55
England 55
The United States of America 57
India 59
Rwanda 60
Emerging Lessons 62
REFORM PROPOSALS, PRIORITIES AND STRATEGIES 63
Reforms Needed 63
Vesting Judicial power in the Kenyan People 64
Institutionalization of the offices of the Chief Justice, Deputy Chief Justice,
Principal Judge, Presiding Judges, Chief Registrar, heads of station and the
Judicial Service Commission 64
Institutionalizing the Supreme Court and alignment of jurisdiction with
that of the Court of Appeal and the High Court 65
Case Management 65
Judicial Independence and Accountability 66
Ethics and Integrity 67
Infrastructure 67
Training 68
Human Resources 69
Linkages with other justice sector stakeholders 69
Communicating with the public 71
Institutionalize the Employment and Labour Relations Court and the
Land and Environment Courts 71
Role for Civil Society Actors in Enhancing Judicial Reforms
and Access to Justice 73
Civic empowerment and participation in Judicial Processes and Reform 74
Enhancing Ethics and Integrity within the Judiciary 73
Case management and dealing with backlog 75
Judicial Training 75
Linking judiciary to other stakeholders 75
Notes 76
EXECUTIVE SUMMARY
This report discusses the issues of judicial reforms and access to justice in Kenya within the context of
the Constitution of Kenya 2010. It proceeds from the premise that there have been many reports detail-
ing the required reforms in the Kenyan judiciary over the last fifteen years and argues that the new
Constitution and the post-election violence that preceded the promulgation of this Constitution provide
the necessary impetus and drive for reforming the judiciary. The report drew from both primary and
secondary sources of information on judicial reforms and their impact on access to justice at different
levels – different court stations, different stakeholders and commentators on reforms.
In assessing the reforms in Chapter III, the report conceptualizes judicial reforms and access to justice
under five themes:
• Judicial independence and accountability focusing on decisional and institutional aspects;
• Judicial ethics and integrity focusing on professionalism and trustworthiness;
• Judicial administration and management focusing on technical and administrative functions;
case flow management to address delays and backlog; processes and procedures and perfor-
mance evaluation at the institutional and individual levels.
• Information communication technologies as a crosscutting imperative for all aspects of judicial
reforms – data processing, management and archiving and for internal and external communi-
cation; and
• Access to justice – financial, infrastructural, understanding of normative entitlements and
procedural rules that mediate access and integration of alternative dispute resolution mecha-
nisms including informal traditional justice systems’ rules that do not offend constitutional
guarantees.
In Chapter IV, it traces judicial reforms from the pre-1990 period when the concern was to delink the
judicial arm of government from the Public Service and its elevation from a department in Attorney
General’s Chambers where it lacked financial autonomy. It then canvasses the issue of judicial reforms
as constitutional reforms through discussions of proposals made to and by the Constitution of Kenya
Review Commission and internal reports generated by the judiciary on improving its role in the admin-
istration of justice. Judicial reforms also took centre stage in the transition from the Moi era in 2002
when the ‘Radical Surgery’ was carried out pursuant to the report of the Integrity and Anti-Corruption
Committee headed by Justice Aaron Ringera, then a judge of the High Court. The Ringera Committee’s
mandate was to investigate and report on “the magnitude and level of corruption in the judiciary, its
nature and forms, causes and impact on the performance of the judiciary” and to identify corrupt mem-
bers of the judiciary which it did. The authors problematize the premature public naming and admoni-
tion of individual judges and magistrates as corrupt and the subsequent pressure on them to resign and
the impact this had on the administration of justice.
The first post-Moi Chief Justice’s role in judicial reforms is highlighted and reforms he instituted
included: strategic planning in the judiciary; introduction of annual judges’ colloquia; review of Civil
Procedure Rules and the institution of committees on: Ethics and Governance reporting in 2005; and
Ethics and Governance of the Judiciary reporting in 2007. The Government also set up a Task Force on
Judicial Reforms in 2010, which was specifically in response to the crisis of confidence in the judiciary
after the post-election political crisis. It recommended among other things: the expansion of Judicial
Service Commission membership and enhanced functions to include promoting, facilitating and up-
holding the independence and accountability of the Judiciary; development and adoption of a perfor-
mance management system and an independent complaints and disciplinary procedure; amendment of
the Judicature Act to increase the number of Court of Appeal Judges to 30 and High Court Judges to
120; the construction of more court houses across the country; creation of mobile courts and stations;
adoption of efficient case management system; vetting of all sitting judges and magistrates training of
judicial officers on alternative dispute resolution among other things; improved access to judicial educa-
tion; and decentralization of power within Judiciary.
Most of these recommendations were adopted in Chapter Ten of the Constitution of Kenya 2010 and
some of them such as the dispersal and devolution of judicial power; the appointment of a revamped
JSC; and the appointment of judicial officers through open, transparent and competitive processes have
been realised.
The report however also identifies issues that continue to hamper access to justice and which need to be
tackled if judicial reforms are to yield the expected results. These issues revolve around independence
and accountability in the new constitutional dispensation considering the role of the JSC vis á vis that
of the Judiciary and the Chief Justice particularly; ethics and integrity against the backdrop of an im-
minent vetting process; administration and management; and institutionalisation of the new judiciary
as envisioned in the Constitution.
Chapter V draws from international standards and other jurisdictions for benchmarking and proven
experience. At the international level, the Bangalore and Latimer House principles are discussed while
country experiences from England, the United States of America, India and Rwanda are discussed. Each
of these countries offers lessons including rules and procedures; appointment of judges and perfor-
mance evaluation; addressing diversity in administration of justice; alternative dispute resolution and
use of information communication technologies in the administration of justice.
In Part VI, the report lays out the reforms needed which include vesting judicial power in the Kenyan
people; institutionalization of the Constitutional offices and the courts established by the Constitution;
case flow management; training; infrastructure; linkages with other justice sector stakeholders; and
reform of other justice sector actors. The report also highlights the role that civil society actors can play
in deepening and enhancing judicial reforms and access to justice. These include civic empowerment and
participation in judicial processes and reforms.
INTRODUCTION
The adoption of the Constitution in August 2010 marked the culmination of decades of struggle for
fundamental reforms within the governance framework in Kenya. The clamour for reforms was driven
by the need for better lives for Kenyans, a limited and accountable government, protection of funda-
mental rights and freedoms, adherence to the rule of law, and equitable distribution and transparent
management of national resources. The reform of institutions such as the executive, the legislature, the
judiciary, the police, the electoral commission, land management institutions and other institutions of
government occupied a central place in the clamour for a new constitutional dispensation.
The new Constitution, which is based on the views of Kenyans, provides principles and mechanisms
that can ensure the reform of these institutions of government. One such institution is the judiciary.
The need to reform the judiciary and the wider justice sector generally draws from accepted premise
that a country without a credible judiciary and functioning justice sector cannot respect the rule of
law. An effective and legitimate judiciary is a prerequisite for the realization of the ideals of democratic
governance. It is within this context that KCSSP commissioned a study to take stock of on-going and
envisaged reforms in the judiciary and develop reform priorities and roles of various actors in actualiz-
ing those reforms. The study is designed within the wider context of actualizing access to justice. While
judicial reforms need to be seen within the wider justice sector, involving such institutions as the police,
the State Law Office, the office of the Director of Public Prosecutions and Prisons, the report focuses on
the judicial reforms in the narrow sense, dealing only with courts and tribunals.
The study proceeds from the backdrop that much research has been carried out on the judicial sector in
the last 15 years. Not surprisingly, many commissions and taskforces have been established to propose
necessary reforms in the justice sector1. The rationale for the study is not too far to find. While it is gen-
erally accepted that the judicial sector is a critical player in the implementation of the new Constitution,
for instance, it is evident that the public has had little confidence in it and would like to see it reformed.
At the height of the 2008 crisis precipitated by a disputed presidential poll, the protagonists in the con-
test were categorical that they would not submit their grievances to the courts as they did not believe
they would be neutral arbiters. This position has been reiterated in discussions on whether perpetrators
of post election violence should be tried locally or at the International Criminal Court at The Hague,
with a majority of Kenyans expressing their support for trials at The Hague.
This assignment is commissioned by the Kenya Civil Society Strengthening Programme (KCSSP), a joint
Programme implemented by Pact and Act! as part of its mandate of building constituencies for critical
reforms in the democracy and governance sector in Kenya. It also seeks to take stock of all the reforms
expected to take place in the judiciary and develop a body of knowledge on what needs to be done to
fully reform the judiciary. It is coming at a time when the reform process has already commenced with
mixed results. A Judicial Service Commission has already been constituted, the first ever Supreme
Court of Kenya has been constituted, and there is a new Chief Justice, Deputy Chief Justice and Chief
Registrar, new high court judges drawn from inside and outside of the judiciary and a reorganization of
the operations of the High court to reflect competences of the judicial officers. Additionally, the Magis-
trates and Judges Vetting Board has also been constituted, changes made to the way judicial officers are
dressed and addressed and a Judiciary Transformation Programme Implementation Steering Com-
mittee bringing together judicial officers, academia and the private sector put in place to shepherd the
reforms.
The report is divided into six parts. Part I is the introduction; Part II lays out the study methodology
while highlighting the limitations; Part III outlines the conceptual framework for the study; Part IV
documents the state of judicial reforms in Kenya followed by international comparative experience and
standards drawn from selected countries in Part V. Part VI comprises the conclusions and also lays out
the reform proposals, priorities and strategies.
STUDY METHODOLOGY AND LIMITATIONS
METHODOLOGY
The methodology used for the study was broadly qualitative with primary and secondary sources of in-
formation used to get a good sense of the judicial reforms that have been going on, the impact of those
reforms on access to justice at the court level, perceptions of stakeholders on reforms in the justice sec-
tor and benchmark these against experiences in other countries.
Data sources and data collection techniques

Data was elicited from both secondary and primary sources pertinent to the subject under inquiry.
i. Library research to review a wide range of accounts of judicial reforms in Kenya and select
jurisdictions was drawn from:
a. Legal and social science texts; journals; relevant laws; reports of commissions
established to deal with the judiciary; and other materials on judicial reforms available
on the internet.
b. Legislative debates, reports of proceedings of the Judicial Service Commission and
relevant newspaper articles.
ii. Primary data was also collected using field research consisting of:
a. In-depth interviews with select key informants such as judges; magistrates; court staff;
civil society organizations; police officers; law reform officials; legal scholars; donors
working in the judicial sector; users of judicial services; members of the Judicial Service
Commission; and three key justice sector donors2. We had also set out to interview
members of the Commission on the Implementation of the Constitution (CIC) and the
relevant departmental parliamentary Committee but this was not possible because of
the timing, an issue we will address in the limitations section below.
b. Focus group discussions with the researched community (justice sector actors) and civil
society organizations3. The focus group discussion with the justice sector actors was a
challenge but two of the researchers had the opportunity of being rapporteurs for the
8th Judges colloquium held in August 2011. This gave them an invaluable opportunity
to glean the plan for the transformation of the judiciary from the new Chief Justice,
Deputy Chief Justice, members of the Judicial Service Commission and the judges of
the Court of Appeal and High Court. In addition, a focus group discussion was held with
the magistrates in Mombasa Law Courts.
c. Observation during the visits to the courts and during the colloquium also provided
the researchers with invaluable information that helped in perceiving what the short,
medium and long term priorities of the judiciary are going forward.
d. Workshops were inbuilt in the research process to provide opportunities for eliciting
relevant data and also for validating the information that had been collected.
Site selection
The stations chosen for this study were:
• Kibera - Law Courts used by marginalized communities
• Milimani - Commercial courts to represent commercial matters
• Meru- a rural court with many land and criminal cases.
• Mombasa - an urban area out of Nairobi, serving Muslims and handling unique cases including
piracy and terrorism.
• Eldoret - the pilot Information Communication and Technology (ICT) project within
the judiciary.
• Nairobi Central Law Courts- as the seat of the head of the Judiciary and of the Supreme Court.
• Kakamega – a rural court, with experiences with traditional justice resolution mechanisms and
also where a member of the Judicial Service Commission was the resident judge.
Sampling and sampling procedure

The target of this study were judicial sector actors drawn from across the country with particular ac-
tors and stations focused on to elaborate specific issues thus providing a holistic reform mosaic. A
multi-stage sampling procedure was applied for the study in as far as respondents at the stations were
concerned. The total number of respondents was 80 drawn from the following categories: the Resident
Judge; the Deputy Registrar; magistrates in the station; select members of the court users’ committees;
donor representatives; members of the JSC and individuals knowledgeable about the justice sector.
Because of the nature of the study, demographic variables including age, education, gender and marital
status, though important, were not emphasized.
In the first instance, court stations and actors in the justice sector were identified and then the relevant
subjects were isolated randomly using a multi-level criteria based on the roles that the persons played
in the justice sector. Purposive selection was applied for all key informants and the civil society focus
group discussion. The judiciary focus group discussion, as noted above, was not convened by the re-
searchers save for magistrates at Mombasa Law Courts but they chanced, in the course of their work, on
a gathering of more judges than they could have managed to rally for an FGD. Significantly, the theme of
the colloquium which the researchers substituted for the FGD was Rebuilding Confidence in the Kenya
Judiciary had reform and transformation as the major rallying calls and was therefore an excellent
source of data for the study.
Data Collection
Data was collected using a key informant guide, a focus group discussion guide and a theme guide. These
were developed to reflect the issues relevant to the study objectives. The purpose of these interviews
and discussions was to determine reform progress and priorities to complement the existing wealth of
information on judicial reforms.
Data analysis, interpretation and presentation

Various methods and techniques were applied to analyze the data collected depending on their nature.
Qualitative tools and methods were applied on data elicited from FGDs and in-depth interviews to
cross-check and corroborate data obtained from other sources. The data was interpreted using accept-
able sociological and legal analytical models such as deduction from and triangulation with the reviewed
literature. The findings are presented in the form of a research report containing appropriate illustra-
tions and themes that speak to the study objectives.

LIMITATIONS
The following were the limitations to the study:
• The delay in contracting after the negotiations presented difficulties in timing on the part of
the research time for the three researchers and the research assistant.
• Timing: The study was undertaken when a lot of activity was ongoing in the judiciary.
• The recruitment of the Chief Justice; the Deputy Chief Justice; and the judges of the
Supreme Court and of the High Court. These processes took a lot of the time of some key
informants and it was therefore difficult to get them. The vacancy in the Chief Justice’s
office and the uncertainty in the run up to the hiring of the new Chief Justice who was
expected to give authorization for the study presented a slight delay. However, this limi-
tation turned out to be providential because the process of recruitment was a vital source
of data for the study.
• The researchers were unable to interview the members of the Commission for the
Implementation of the Constitution because the research took place when this Commis-
sion was both institutionalizing as well carrying out a lot of legislative work to beat the
deadline of 27th August 2011.
• The members of the Parliamentary Committees were also very busy owing to the need to
meet the deadlines set by the Constitution. The committees we needed to interview were
right in the eye of the storm with regard to the hiring and other legislative activities.
• The looming vetting process for judges and magistrates was a big elephant in the room
in most of the interviews. Many of the judicial officers were anxious which made some of
them unenthusiastic. This was not helped by the broad coverage of the grueling recruit-
ment process of judicial officers where the serving officers were having a hard time before
the JSC.
• Another limitation was the failure to include a survey in the study design. The survey would
have helped us glean from a representative sample of the Kenyan population what people
perceived to be the reform priorities. Instead the research team relied on discussions with CSOs
at both the FGD and validation meetings. We also looked at previous surveys, for example, the
Steadman omnibus survey of December 2009, and household surveys by the GJLOS and ICJ
Kenya.
• There have been very many reports on the judiciary generating very many reform proposals.
Some of these are in nascent stages of implementation while others are still in the books. Siev-
ing all the proposals and following up on the ones that have been taken up for implementation
was a challenge.
• Related to the limitation above is the flurry of activities going on in the judiciary. The judiciary
has become a major focus in the reforms under the new Constitution and has undergone very
many changes. Trying to keep up with these changes was like trying to board a moving bus.
We addressed some of these limitations by examining documents coming out of activities under the
reform processes, for example, looking at parliamentary interviews of candidates for the office of Chief
Justice and Deputy Chief Justice, and interviews conducted by the Judicial Service Commissions to hire
new judges of the High Court. We also resolved the difficulty of seeing key judicial actors by participat-
ing in the 2011 Judges’ Colloquium, whose theme “Rebuilding Confidence in Kenya’s Judiciary” ad-
dressed many of the project’s research questions. Finally, the client resolved the delay in contracting by
extending the duration of the contract.
CONCEPTUALIZING JUDICIAL REFORMS AND
ACCESS TO JUSTICE
The objective of this Part is simply to provide a theory to connect all aspects of judicial reforms and ac-
cess to justice, with a view to giving the empirical study some coherence. It constitutes what we see as
the ideal in terms of judicial reforms and access to justice.
Over the last two decades, international development organizations such as the World Bank have
sought to enhance the quality of institutions in developing countries, out of a recognition that develop-
ment cannot occur in a context in which governance is wanting. They conceptualize governance as the
manner in which people are ruled and the affairs of state administered and regulated. Further, they
see the ideal of the rule of law – which may be defined as universal rules uniformly applied – as being
instrumental to the attainment of good governance. The rule of law ideal requires that the prescriptions
of law should be applied consistently, in the sense that there must be “considerable congruence between
the rules promulgated and their actual application to specific cases4.” The realization of the rule of law
ideal requires suitable “application mechanisms,” including an independent and professional judiciary,
easy access to dispute resolution mechanisms such as litigation, and reliable enforcement agencies5.
An independent and impartial judiciary is said to be critical if the rule of law ideal is to be attained. It is
argued that only such a judiciary would be capable of holding executive power to account, guaranteeing
the observance of basic human and civil rights, promoting an atmosphere conducive to economic devel-
opment, and providing basic security to citizens.
This explains why international development organizations, such as the World Bank, have invested
heavily in judicial reform. However, their motivations have varied. One motivation has been based on
economic theory, namely the need to support the market by providing a judiciary that will secure invest-
ments and property rights and adjudicate commercial disputes. This viewpoint sees judicial reform as
“part of a larger effort to make the legal systems in developing countries and transition economies more
market friendly5.” A second, and increasingly influential motivation, is based on the work of Amartya
Sen, who argues that development should be seen as a process of expanding the real freedoms and
rights that people enjoy7. In particular, Sen sees justice as fundamental to the creation of social op-
portunities and the expansion of human capabilities because it contributes directly to the quality of life.
From this perspective, enhancing access to justice for the poor and marginalized is seen as a significant
means of realizing development. Consequently judicial reform in this perspective should strive to en-
sure that the rights and freedoms of all especially the marginalised is guaranteed and protected.
Across this spectrum of motivations, judicial reform has taken four main forms, namely: judicial
independence and accountability, judicial ethics and integrity which targets corruption; judicial admin-
istration and management which includes performance evaluation, vetting; the use of information and
communication technologies; and access to justice.
JUDICIAL INDEPENDENCE AND ACCOUNTABILITY8

Reform initiatives relating to independence and accountability seek to ensure that judicial power – that
is, the power to decide controversies between citizens and between citizens and the State – is exercised
in a legitimate and accountable manner. According to Merriam Webster’s Collegiate Dictionary, the
word “independent” means “not subject to the control of others.” From this perspective, independence
means “complete autonomy and insusceptibility to external guidance, influence or control9.” While such
complete autonomy may not necessarily be desirable, giving judges a considerable measure of inde-
pendence is said to be instrumental to the realization of the rule of law. In the view of Charles Gardner
Geyh, judicial independence not only
facilitates impartial decision-making, it
also preserves the integrity of the judiciary
as a separate branch of government10.
In his opinion, “if we want judges to…
decide cases on the basis of facts as they
find them and law as they construe it to
be written – then we must insulate them
from external influences that could corrupt
their integrity or impartiality11.” The idea
of judicial independence thus seeks to give
judges security in their positions so that
they are encouraged to decide cases with-
out fear or favour, as required by the rule
of law ideal12. Measures to give judges such
security include affording them security of
tenure and assuring them a compensation
that may not be diminished during their
term13.
However, even judges who are independent can abuse their power. This raises the need for accountabil-
ity mechanisms, which facilitate the answerability of the judiciary and judges to the public. Accountabil-
ity is critical because it ensures that those who wield power whose exercise may adversely impact upon
the vital interests of citizens are answerable for its exercise. Accountability denotes a relationship be-
tween “power-wielders and those holding them to account” in which the latter have the right to hold the
former “to a set of standards, to judge whether they have fulfilled their responsibilities in light of these
standards, and to impose sanctions if they determine that these responsibilities have not been met14.”
Accountability mechanisms ensure that power is exercised fairly and justly, thereby ensuring that it
does not unduly compromise the liberties and livelihoods of the individuals and groups that make up
society. In the case of the judiciary, there is a need for mechanisms that facilitate its accountability as a
public institution, and also the accountability of judges for their behaviour and decisions15.
According to Geyh, judicial accountability promotes three important values: first, it promotes the rule
of law by deterring conduct that could compromise judicial independence, integrity and impartiality;
second, it promotes public confidence in judges and the judiciary; and third, it “promotes institutional
responsibility by rendering the judiciary responsive to the needs of the public it serves as a separate
branch of government16.”
JUDICIAL ETHICS AND INTEGRITY

With respect to judicial ethics and integrity, reform initiatives have been concerned with ensuring that
judicial officers and other personnel of the judiciary are persons of integrity. Here, it is said that the
realization of the rule of law requires persons of the right professional character, “whose intentions are
aimed at the public interest17.” That is, the professional character of the judge “should be sound and
his prudence should be worthy of trust18.” Further, it is asserted that the integrity of judicial officers
enhances public trust in the institution of the judiciary19. The judicial integrity ideal requires that judi-
cial authority should be “exercised with the utmost degree of propriety20.” Accordingly, judicial officers
should avoid “not only impropriety, but also the appearance of impropriety in all of their activities,” and
at all times, whether on the bench or off the bench21.
At the international level, attempts have been made to establish standards of judicial conduct, with a
view to safeguarding judicial integrity. One such set of standards is found in the Bangalore Principles of
Judicial Conduct of 2002, which were developed by senior judicial officers from around the world, work-
ing under the auspices of the Judicial Group on Strengthening Judicial Integrity. The Bangalore Prin-
ciples centre around six fundamental values: independence, impartiality, integrity, propriety, equality,
and competence and diligence. Indeed, the Principles have been accepted by the different sectors of the
global judiciary and international agencies interested in the integrity of the judicial process22.
Value number 3 of the Bangalore Principles states that “Integrity is essential to the proper discharge of
the judicial office.” It requires a judge to “ensure that his or her conduct is above reproach in the view
of a reasonable observer.” It also provides that “The behaviour and conduct of a judge must reaffirm the
people’s faith in the integrity of the judiciary,” citing the adage that “justice must not merely be done
but must also be seen to be done.” It then requires national judiciaries to adopt effective measures to
provide mechanisms to implement the principles. Typically, implementation entails the establishment
and enforcement of judicial codes of conduct. In some cases, such as the United States, these codes are
enacted into law23. Further, these codes are usually enforced by judicial councils consisting of judges,
lawyers and non-lawyer representatives of the public. The councils usually receive complaints against
judicial officers, investigate complaints, file and prosecute formal charges, hold hearings, make find-
ings of fact, and impose sanctions. Sanctions include: private admonition, reprimand or censure; public
reprimand or censure; temporary suspension from office; retirement or removal from office. It should be
noted that in enforcing the codes of conduct, the judicial councils “rarely institute proceedings against a
judge on the basis of a decision rendered by him or her24.” This approach is based on the need to respect
judicial independence, which requires that a judge should not be subject to disciplinary action merely
because he or she may have made an incorrect ruling25. In any case, incorrect rulings can be corrected
on appeal26. Nevertheless, flagrant legal errors, legal errors motivated by bad faith, or a continuous pat-
tern of legal error may be considered to violate the judicial codes of conduct27.
The codes of conduct usually require judicial officers to disqualify themselves from hearing matters in
which they have a personal bias or prejudice concerning a party. The standard that is applied in enforc-
ing this requirement is whether a reasonable person – that is a person outside the judicial system –
knowing and understanding all the relevant facts would recuse the judge28. In addition, a trial judge’s
refusal to recuse himself or herself is often subject to appellate review29. Another typical requirement is
that judicial officers should avoid impropriety and the appearance of impropriety in all their activities30.
The codes may also prohibit “conduct prejudicial to the effective and expeditious administration of the
business of the courts31.” In transitional justice contexts, reforms also seek to ensure that judicial of-
ficers selected after a conflict are qualified and committed to a legal system based on the rule of law, the
goal being to restore public confidence in the judiciary32. However, in order for these enforcement mech-
anisms to foster confidence in the judiciary, they must be visible: that is, they must not only be made
known to potential complainants, but the results of the process must be made known to the public33. In
addition, the scope of the rules of ethics needs to be drawn carefully to ensure that they do not become
instruments that will form the basis of unfounded criticism and intimidation of judicial officers34.
JUDICIAL ADMINISTRATION AND MANAGEMENT

Reforms that target judicial administration and management see the administration of justice as an
important public good35. From this perspective, a need arises to ensure that the delivery of this pub-
lic good is not only efficient, but is also accountable to the public. At the same time, sensitivity to the
ideal of judicial independence has often ensured that the administration of justice is treated as a special
good36. For example, it has “been cushioned from some of the rigours of public accountability that oper-
ate elsewhere in the public sector37.” Nevertheless, there is a concern that many judicial systems have
huge case backlogs and are inefficient and ineffective in their performance38.
Need to Separate Technical and Administrative Functions

Judicial administration and management therefore deals with the environment in which the justice
system functions. It is concerned not just with the technical function of dispensing justice, but also the
non-judicial function of facilitating the delivery of justice. The idea is that the business of courts should
be administered like any other business, and by non-judicial personnel who have particular skills and
competence39. It therefore entails separating judicial from non-judicial functions. In the words of Marco
Fabri, judicial administration “is a question of accepting the idea that it is one thing to dispense justice
and another to manage, to run the courts which are complex organizations40.” The non-judicial func-
tions are performed by court administrators and include: setting goals for the courts in coordination
with judicial officers; analyzing court operations and case management strategies; conducting research
and measuring court performance; formulating and implementing management policies; coordinat-
ing relationships with external stakeholders; and, exercising administrative control of all operational
and administrative support activities such as human resources, accounting, auditing, procurement and
estate management41.
Dealing with Delay and Backlog through Case Flow Management

Among other things, running the courts entails delay reduction, case flow management, management
of court facilities, use of technology in the administration of justice, and performance evaluation42. In
particular, case flow management is an important tool of judicial administration and management. Case
flow refers to the process by which cases go through courts from the time they are filed until the juris-
diction of the court ends43. It entails active monitoring, supervising and managing of cases so that they
move through the court without undue delay44. Another important management tool is to establish
workload measures, which then facilitate the allocation of caseloads that can be handled by courts45.
Further, workload measures make it possible to create standards that can be used for performance ap-
praisal and forecasting future judicial needs46.

Judicial Processes and Procedures
Reforms also target judicial processes and procedures. In this regard, there has been a concern that
the adversarial system, in which the progress of cases is controlled by the litigants, not only makes the
administration of justice slow, expensive and complex, but also hinders access to justice by the poor47.
In the common law tradition, judges should not be involved in the preparation of cases for trial. The ra-
tionale for this hands-off approach is located in the ideal of judicial independence, which forces “judges
to be disengaged from and dispassionate about the dispute in order to ultimately ensure the fairness
and impartiality of outcomes48.” In this tradition, litigants are presumed to be autonomous, and are
therefore expected to use their own devices to define and shape the pre-trial aspects of disputes49. Over
time, however, factors such as escalation in the volume of the work of courts and increasing public per-
ceptions that courts are inefficient and costly led to the need for pre-trial judicial case management50.
In England, for example, reforms have therefore shifted the responsibility from the management of civil
litigation from litigants to the courts. For example, the reforms have given judges the power to “facili-
tate and encourage earlier settlement through earlier identification and determination of the issues and
tighter timetables51.”
The tools now at the disposal of judges to achieve these objectives include case management conferences
which take place right after the pleading stage, and pre-trial reviews which take place shortly before
the commencement of trials. Thanks to these reforms, English judges now enjoy significant managerial
powers, including: “encouraging party cooperation, using alternative dispute resolution and settlement;
identifying the issues at an early stage and determining which issues can be disposed of and which
require full investigation; considering and assessing the costs to be spent on issues in relation to their
financial and substantive weight; fixing timetables and controlling the progression of litigation; and
directing the parties to ensure that trial proceeds quickly and efficiently52.” In addition, they have power
to separate or consolidate issues in the interest of common evidence and efficiency, to determine the
substantive merit of claims from the outset and exclude issues from consideration53.
Performance Evaluation
Another important facet of reforms is performance evaluation, which is a mechanism that not only
enables the judiciary to assess its effectiveness but also facilitates accountability to the public. Per-
formance evaluation entails “assessing judges individually and the judicial system as a whole54.” This
dichotomy is premised on the experience that although judges could be performing well, the system as
a whole might not be doing so55. Conversely, the judicial system might be functioning reasonably well,
but not some individual judges56. On the one hand, judges are evaluated on the basis of three main
standards:
(i) suitability of qualifications and training;
(ii) competence in managing, deciding and finalizing cases; and
(iii) good conduct57.
As far as training is concerned, an attempt is usually made to provide regular opportunities for retrain-
ing judicial officers. Judicial competence assesses the ability of individual judges to manage cases, to
manage lawyers, parties and witnesses, and to make timely and legally sound decisions. In the United
States, judicial performance commissions typically consider the following evaluation criteria: integrity;
knowledge and understanding of substantive, procedural and evidentiary law; communication skills;
preparation, attentiveness and control over judicial proceedings; sentencing practices; docket manage-
ment and prompt case disposition; administrative skills; punctuality; effectiveness in working with
participants in the judicial process; and service to the legal profession and the public58.
Competence is assessed using different instruments, including: self-assessment by affected judges;

observation and comments by other judges, lawyers and litigants; surveys of the performance of judges
involving witnesses, experts and interest groups. In particular, the involvement of citizens in evaluat-
ing judicial performance is considered to be necessary for establishing and maintaining popular ac-
countability of the judiciary59. These instruments are administered regularly using established uniform
procedures. The primary goal of the evaluations is to enable individual judges to improve their perfor-
mance, and they are only made public in cases of serious misconduct or prolonged failure of a judge to
perform60.
As far as conduct is concerned, judicial officers are typically prohibited from engaging in conduct that is
prejudicial to the administration of justice, or acting in bad faith61. Such conduct include: sitting on the
bench under the influence of an intoxicant, receiving money for dismissal of criminal charges, and fail-
ing to keep records in a safe place. For a judicial officer to be held culpable, the evidence of misconduct
must be “clear and convincing62.”
On the other hand, methods for assessing the judicial system include: (i) setting targets for courts and
other departments of the judiciary to meet; (ii) using statistics; and (iii) carrying out regular qualita-
tive reviews63. Targets include establishing the number of cases that courts are supposed to dispose
of within specified time frames, reducing backlogs, and enhancing public confidence in the judicial
system64. The use of statistics entails gathering quantitative information on matters concerning the
administration of justice, such as the rate of disposal of cases in different court stations. And qualitative
review takes forms such as surveys of interested parties, commissioned research on various aspects of
the judiciary, and commissions of inquiry and task forces. It is important to note that the performance
of the judicial system, though dependent primarily on judicial officers, it is impacted greatly by other
justice sector actors. The most critical of these is normally lawyers, who play a significant role in the
dispensation of justice.
They represent clients,
and shape the direction
that the dispensation
of justice takes. This
explains their tag as “of-
ficers of the courts.” Their
effectiveness, levels of in-
tegrity and dedication to
the rule of law, all impact
directly on the quality
and speed of justice and
the performance of the
judiciary.
USE OF INFORMATION COMMUNICATIONS TECHNOLOGIES (ICT)
The use of Information communications Technologies (ICT) has also received considerable attention in
the quest for judicial performance improvement. It is seen as critical in improving institutional per-
formance and enhancing impacts65. ICT is a cross-cutting imperative for all aspects of judicial reforms
– independence and accountability, ethics and integrity administration and management and access to
justice. It can be used for data management, facilitating internal and external communication, speeding
up data processing and secure archiving of information. Writing on Latin American countries, Malik
points out that ICT systems can be used to improve overall justice sector governance, the courts’ opera-
tion systems, judicial and paralegal officers’ operations and to promote “user access” and linkages66. The
ICT interventions however need to link to specific issues in judicial reforms so that they are not a stand
alone facet. They should also be tailored to specific reform needs and initiatives such as use of ICT in
recording proceedings to facilitate faster delivery of rulings and judgments; provision to judicial officers
of access to legislation and learned commentaries as a quick reference in decision-making and delivering
rulings and case tracking for court users among others. Given that many Kenyan courts were built long
before the onset of ICT, there should be a deliberate process of making them ICT ready while ensuring
that new courts are built to accommodate the technologies. Underlying ICT use in judicial reforms is
the need for training and procurement of technology applications tailored for specific aspects of judicial
reforms. Moreover, for successful use of ICT, there is need to carry on board all court users including the
bar.
ACCESS TO JUSTICE
Last but not least, judicial reform initiatives have grappled with how to facilitate or enhance access to
justice. Essentially, the concept of access to justice entails the provision of dispute resolution mecha-
nisms which are affordable, proximate, and ensure speedy justice, and whose processes and procedures
are understood by users. All dispute resolution mechanisms – whether they require litigation, media-
tion, arbitration or the use of other methods – should possess these characteristics if they are to be
deemed accessible. It should be noted that the concept of access to justice emerged out of the observa-
tion that formal courts of law are often costly and slow, and intimidate and confuse parties by their for-
mal procedures67. In this regard, enhancing access to justice has involved removing barriers such as high
monetary costs, time costs, limited knowledge of legal rules and procedures (which may be the result
of absence of information about law), cultural barriers and language barriers68. In addition, it is now
increasingly recognized that methods such as arbitration and mediation “may work better, and even
more justly, than resorting to the formal court system69.” In the African context, recognizing traditional
mechanisms of resolving disputes is also key for enhancing access to justice. However, it is emphasized
that these non-formal methods ought to ensure the protection of public law values, including due pro-
cess rights, respect for human rights and accountability. Further, the need to protect public law values
is seen to necessitate the linkage of formal and non-formal dispute resolution mechanisms through a
regulatory framework. Another concern of the access to justice movement is that in providing support
to justice sector reform in developing countries, donors have focused on the formal legal system at the
expense of informal justice systems70. To address this oversight, reformers have been urged to “create
a workable interface between local, informal practices and the formal national legal system through
recognition, incorporation, and standardization of elements of these informal practices where appropri-
ate71.” It is further argued that responding to local concepts and realities of justice in this manner would
enhance the effectiveness of technical judicial reform initiatives72.
Access to justice also focuses on ensuring that the justice system is responsive to the needs and social
realities of society, imbues public confidence and communicates. Especially for the marginalised seg-
ments of society, justice is not just the dry-letters of the law and their enforcement, but the extent to
which their issues are handled in a humane manner and within their reach and in accordance to their
social realities. Viewed in this manner issues about accessibility of courts, language of court proceedings
including availability of interpretation services, court fees, public involvement in the administration of
justice, accessibility to persons with disability, availability of information all become critical questions in
the quest for access to justice.
THE STATE OF JUDICIAL REFORMS IN KENYA
REAL, CONTENTIOUS AND IMAGINED REFORMS OF THE PAST
Pre-1990 Period and the Commencement of Judicial Reforms

The first major reform initiative in the judiciary took place in 1989 when the institution was delinked
from the Public Service and placed under the charge of the Chief Justice. Prior to this change, the judi-
ciary was treated as a branch of the Public Service,73 and a mere department of the Attorney-General’s
Office at that. As a result, the judiciary lacked financial independence. Apart from creating an institu-
tional framework that would, at least in theory, enhance the autonomy of the judiciary from the Execu-
tive, delinking the judiciary from the Public Service only enhanced the powers of the Chief Justice.
For a long time, the judiciary did not therefore enjoy financial autonomy, and its budget was controlled
by the Ministry of Finance (Treasury). As a result, the courts were in a perpetual resource crunch even
as the demand for judicial services increased. Over the years, the judiciary reached an agreement with
the Treasury to retain part of the monies collected by the courts as court fees and recovered costs.
However, fines collected through criminal proceedings had to be surrendered to the Treasury74. Fines,
together with budgetary appropriations were subjected to scrutiny by the Controller and Auditor Gen-
eral, whose reports often disclosed evidence of financial mismanagement in the judiciary. At the district
level, the judiciary’s finances were kept at the District Treasury like other Government Ministries and
Departments. Retrieving these funds, more specifically the legal deposits which were expected to be
refunded to the litigants, was cumbersome leading to delays and in the process denting the image of the
judiciary75.
Judicial Reforms as Constitutional Reforms76

Secondly, there was much talk, and some action, about judicial reforms in the context of the clamour for
constitutional reform of the 1990s, culminating in the enactment of the Constitution of Kenya Review
Act and initiation of the constitutional review process in 200077. Among other things, this Act estab-
lished a body of experts, known as the Constitution of Kenya Review Commission, to produce a draft
constitution through a participatory process. By this time, the Judiciary had become a discredited in-
stitution, and, in the estimation of various commentators, commanded little respect from the public78.
According to one commentator, for example, “the judiciary had by mid and late 1990s, become more
executive-minded than the executive, ineffectual in its work and much reviled by the public. Judges and
the judiciary were seen as increasingly compliant, corrupt and inept79.”
This verdict was supported by both internal and external inquiries into the workings of the judiciary.
One such inquiry was instituted by Chief Justice Chesoni in 1998 in response to persistent public
complaints over judicial corruption. In this instance, the Chief Justice asked a Committee on the
Administration of Justice (also known as the Kwach Committee after its chair) to inquire into “judicial
rectitude, moral uprightness, righteousness or correctness of judicial officers in the discharge of their
judicial functions.” The Committee established the existence of various practices that made the judiciary
and judicial officers vulnerable to corruption, including engagement in business activities, lack of proper
vetting in the appointment process, lack of transparency in the discharge of the judicial function, and
lack of a transparent and merit-based judicial appointment system80. In particular, the Kwach Commit-
tee reported cases of “actual payment of money to judges and magistrates to influence their decisions81.”
After the Kwach Committee delivered its report, there was also a much-publicized public quarrel among
judges of the Court of Appeal, when one judge accused his colleagues of changing their minds after they
had all agreed to allow an appeal82.
A subsequent inquiry by the Advisory Panel of Eminent Commonwealth Judicial Experts delivered a
similar verdict in 200283. This Advisory Panel found that “the Kenyan judicial system suffers from a
serious lack of public confidence and is generally perceived as being in need of fundamental structural
reform84.” Further, the Advisory Panel found that two forms of corruption were commonplace, namely
“bribery and political pressure or influence on a judge or magistrate to decide a case other than in ac-
cordance with the law and the evidence before the court85.” It also found “examples of incompetence in
the Judiciary, and the frequency with which judges change their views of the law, delivering inconsis-
tent judgments so that decisions even of senior judges have little value as precedent86.” In addition, the
Panel lamented the lack of “public exposure and consultation” in the appointment of judicial officers
and concluded that “Lack of transparency in the manner in which judges are appointed has undermined
public confidence in the quality of those named to judicial office87.”
The Kenyan Section of International Commission of Jurists (ICJ-K) also conducted an inquiry into the
judiciary, which reported that “Many people are of the opinion that the courts have very little regard for
the decisions of higher courts or courts of equal rank” and that “There exists a casual disregard for bind-
ing authority and precedents that has left judicial officers, advocates and litigants in the dark88.” In ad-
dition, the ICJ reported that “There is a well-founded feeling that constructive criticism of the judiciary
is not tolerated89.”
Having collected and collated the views of Kenyans and experts, the Constitution of Kenya Review Com-
mission prepared a report, in which it noted that there was evidence that judges have been appointed
for the wrong reasons and that many had demonstrated neither competence nor integrity90. Further,
the Commission came up with a draft constitution that sought to radically restructure the Judiciary.
Judicial Reforms as Transition from the Moi Era

The stage was therefore set for a transformation of the judiciary. This was not to be; however, as Presi-
dent Daniel Arap Moi granted the judiciary a stay of execution by dissolving Parliament in October
2002 thereby derailing the constitutional review process91. Nevertheless, upon succeeding KANU, the
new NARC Government sought to transform the judiciary, which many Kenyans still thought required
a major overhaul. President Mwai Kibaki’s first move was to suspend Chief Justice Chunga and set up
a tribunal to investigate him on charges of corruption92. The President then appointed Justice Evans
Gicheru of the Court of Appeal as acting Chief Justice. In the meantime, Chief Justice Chunga chose to
resign. Chief Justice Gicheru then embarked on what came to be known as the “Radical Surgery” of the
judiciary.
In March 2003, he appointed an “Integrity and Anti-Corruption Committee” which was headed by
Justice Aaron Ringera, then judge of the High Court. The Ringera Committee’s mandate was to investi-
gate and report on “the magnitude and level of corruption in the judiciary, its nature and forms, causes
and impact on the performance of the judiciary” and to identify corrupt members of the judiciary93. The
Ringera Committee reported back to the Chief Justice six months later, and caused its list of the judges
and magistrates it thought had engaged in corruption to be published in the popular media. The Chief
Justice then advised the affected judges and magistrates to resign within two weeks, or be suspended
without pay and face tribunals of inquiry94. A good number of the judges concerned duly heeded the
advice of the Chief Justice.
The Radical Surgery was principally focused on the removal of allegedly corrupt judges and magistrates
and the appointment of new persons to replace them. While the initiative initially commanded public
approval and was seen as a commitment to tackle corruption in the Judiciary, it was later criticized for
ignoring constitutional guarantees of security of tenure for judges and international principles on the
independence of the Judiciary that state that the examination of the matter at the initial stage shall be
kept confidential unless otherwise requested by the judge. Some judges were not even informed of the
action that was to be taken against them.
The premature public naming and admonition of individual judges and magistrates as corrupt and the
subsequent pressure on them to resign through an ultimatum, constituted a serious violation of the
security of tenure. Such undue pressure was amplified by the immediate withdrawal of salaries and
benefits from judges and magistrates and the clear warnings that they could retain their benefits only
if they accepted retirement. Furthermore, the ultimatum to magistrates to resign or defend themselves
expired long before they were even notified of the accusations by the Judicial Service Commission (JSC).
After they submitted written defences to the JSC, the majority of the magistrates were retired ostensi-
bly in the public interest, but without any hearing.
The violation of security of tenure and due process rights of judges and magistrates subsequently engen-
dered a low sense of morale among members of the Judiciary. During a mission by ICJ-Kenya, some of
the judges conveyed a distinct and continuing sense of insecurity about their tenure, which was affect-
ing the way they carried out their judicial functions95. The possibility that they could be next in line to
be publicly castigated and removed from office without due process served to lower the “general esprit
de corps of the judiciary as a whole.”
The Charge of First Post-Moi Chief Justices

a. Strategic planning
Once he took office, Chief Justice Gicheru also initiated various administrative and manage-
rial reforms. Under his leadership, the Judiciary institutionalized the practice of manage-
ment through strategic planning. The Judiciary launched its first ever strategic plan in March
2005, with a view to facilitating the efficient and accessible administration of justice96. Under
this Plan, the Judiciary sought to ensure greater access to justice through a more decentral-
ized court system, simplified court procedures, law-reporting and reduced costs of the court
processes; strengthened integrity, competence and independence of the judiciary through im-
proved human resource policies, legislative and judicial measures; and improved infrastruc-
ture of court-houses and facilities – both physical and electronic97. The Judiciary also saw the
Strategic Plan as a tool it could use to overcome challenges such as “access to court, appropri-
ate staffing and motivation, proper resource mobilization and utilization, objective appraisal,
strategic direction, policy priorities, strategic issues, activities, monitoring and evaluation98.”
major objective of the Plan was for the Judiciary “To adopt and institutionalize appropriate
information and communication technology (ICT) and other facilities to improve efficiency in
operations.” Subsequently, it set up an ICT Committee to implement this strategic objective,
which Committee has achieved the following during the life of the Strategic Plan99:
• Completed a situation analysis and needs assessment.
• Drawn up an ICT Policy and Strategic Plan clarifying its vision and mission.
• Began process of conversion of Court of Appeal and High Court files into electronic
format.
• Established Local Area Networks (LANs) in all High Court Stations in the country and
initiated plans for Wider Area Networks (WANs) to link different court stations.
• Re-designed and launched the Judiciary Website.
• Purchased computers and other ICT hardware for courts around the country.
• Developed a new scheme of service for ICT officers.
• Established the first Tele-presence link (Video Conferencing) in the Court of Appeal
between Nairobi and Mombasa and launched it in September, 2010.
• Developed a short message system (SMS) for cause list alerts.
During the period of that Strategic Plan, the Judiciary established a Public Relations Department,
constructed more court room facilities in some parts of the country and divided the High Court sta-
tion in Nairobi into several arms to ease delivery of Justice. It has also improved physical facilities,
established public complaints mechanisms, and continues to develop a code of conduct for members of
staff. However, the Plan faced various challenges the most prevalent being: the lack of an appropriate
mechanism for implementation; absence of a monitoring and evaluation system; inadequate staffing;
lack of sufficient funds to carry out the proposals to completion; and lack of sufficient political goodwill
for judicial reforms100. It should be noted that the Judiciary launched its second strategic plan for the
period 2009-2012 in March 2009, whose estimated cost of implementation is KES 5.627 billion. That
plan set out seven strategic objectives for the judiciary to realise by 2012. First was to enhance judicial
independence to enable the judiciary to carry out its key functions effectively101.
The Strategic Plan identified lack of adequate human and financial resources as the key threats to
judicial independence in addition to lack of complete autonomy from the public service. The second
objective was to enhance the image of the judiciary.102 This would be addressed by adequate public
communication and addressing the challenges of corruption, case back log, delays and incompetence
amongst judicial officers. Thirdly, the plan sought to build capacity in human resource management and
development.103 Other issues included, adopting and institutionalizing appropriate ICT facilities and
technologies, enhancing and streamlining financial management and procurement systems and improv-
ing institutional structures.104
One of the key issues addressed by the 2009-2012 Strategic Plan is access to justice. The plan catego-
rised access to justice into three distinct components: access to courts, knowledge of the court process
and quality of justice dispensed105. To address these issues, the plan prioritised the following issues:
• Building of more court stations;
• Improvement of legal aid and pauper briefs system;
• Simplifying and modifying rules and procedures in courts, including introduction of
Alternative Dispute Resolution (ADR); and
• Improving juvenile justice.106
It should be noted that while the plan identified the issue of access to justice as a priority, both in its
conceptualization and suggested interventions it had a limited and inward looking view of access to
justice. For the Plan, access to justice had three limbs, comprising physical access to courts, knowledge
of the court process and quality of justice dispensed. Although the plan period has not ended, a quick
review of the activities set out to be undertaken by the judiciary under the plan reveals that in several
areas including the reform of the Judicial Service Commission and increasing court stations, some prog-
ress has been made. However in many areas like ICT, enhanced case management, establishment of a
public communications and enhancing the image of the judiciary, to enhanced human resource manage-
ment and procurement, there is still tremendous work to be done and little time remaining before the
plan ends. Additionally there is need to use the occasion of the new constitution and new administra-
tion within the judiciary to develop a new Strategic Plan, that captures the aspirations and realities of
the moment.
b. Review of Civil Procedure Rules

In terms of developments, a notable change has been the overhaul of the rules of civil proce-
dure. The Rules Committee, which was chaired by a judge of the Court of Appeal, prepared a
draft law which was enacted by Parliament as Act No. 6 of 2009. This Act amended the Civil
Procedure Act, with the objective of ensuring certainty in the determination of disputes
without undue delay and without undue regard to technicalities and formalities of procedure.
Section 1A of the amended Civil Procedure Act now provides that the overriding objective in
civil litigation is the facilitation of just, expeditious proportionate and affordable resolution
of civil disputes. Courts are bound to give effect to this overriding objective in interpreting
the provisions of the Act, while litigants and their advocates are obliged to assist the court in
furthering this objective. Similar provisions were introduced in the Appellate Jurisdiction Act
Cap 9 as Sections 3A and 3B. The new rules took effect in December 2010.
c. Committees and Task Forces

Successive Chief Justices107 have also set up committees to inquire into various aspects of
judicial reforms and the administration of justice. Apart from the Kwach Committee of 1998
and the Ringera Committee of 2003, which we have mentioned, Chief Justice Gicheru set up
the following committees: the Sub-Committee on Ethics and Governance of 2005 (the
Onyango Otieno Committee); and the Committee on Ethics and Governance of the Judiciary
of 2007 (the Kihara Kariuki Committee). The Government also set up the Task Force on
Judicial Reforms of 2010 (the William Ouko Task Force). Although these sub-committees,
committees and task forces made useful recommendations, many of these recommendations
have not been implemented. As the Kihara Kariuki Committee observed, although various
integrity committees had identified the major problems facing the judiciary and how they
could be addressed, “The challenge however is that majority of recommendations have to date
not been implemented.”108 This suggests that political will, within and outside the Judiciary,
has generally been in short supply. In many cases, one therefore finds the subsequent
inquiries recommending the implementation of the recommendations of the prior ones. A
case in point is the Kwach Committee’s recommendation for the introduction of tools for case
monitoring to determine the performance and output of judicial officers. This matter has
been discussed in the subsequent inquiries, without firm action being taken. Nevertheless,
these inquiries have made a useful contribution to judicial reforms. For example, the Kwach
Committee recommended the creation of a Judicial Code of Ethics to deal with the problem
of corruption. As we shall see, a judicial code of ethics and conduct was created and is now
being reviewed.
Many of the recommendations of the Ouko Task Force on restructuring the administration of
the Judiciary and reconstituting the Judicial Service Commission have also been incorpo-
rated in the new Constitution. In addition, the Onyango Otieno Committee recommended
that there should be frequent meetings in all stations between the Judiciary and stakeholders
in the justice sector to enhance a harmonious working relationship. This recommendation
was amplified by the Ouko Committee which specifically called them Court Users Commit-
tees, proposed their membership and detailed mandate. These Court Users’ Committees have
since been formed across the country, even though not all of them are in existence and
uniformly active. The Onyango Otieno Committee also recommended the establishment of
small claims courts and petty crimes courts and use of alternative dispute resolution mecha-
nisms to ensure speedy resolution of cases and decongestion of courts. A draft Small Claims
Courts Bill has been generated by the Ministry of Justice Cohesion and Constitutional
Affairs. The Onyango Otieno Committee also recommended the provision of security of
tenure for magistrates and kadhis. Another recommendation which it made, and has since
been implemented, was the creation of a Litigants’ Charter, which it defined as “a compilation
of critical information for use by court users [including] basic information about the court
system, court process and procedures, services provided by different judicial officers, informa-
tion relating to the role of other agencies in the justice system, information on the rights and
obligations of litigants in relation to the court, procedures relating to complaints [and]
information relating to legal aid.”109 In addressing the issue of legal aid and thus enhancing
access to justice, the Ministry of Justice, National Cohesion and Constitutional Affairs in
partnership with stakeholders has launched a pilot legal aid scheme and drafted a Legal Aid
Policy and Legal Aid Bill.
Among other things, the Kihara Kariuki Committee dealt with the important issue of the
propriety, efficacy and implementation of a system of standards and measurement of judicial
performance. It considered this issue in the context of public debate of whether the Judiciary
should adopt performance contracting and the opposition of a considerable number of
judicial officers to such a prospect. It recommended the application of performance evalua-
tion to all institutions and individuals in the judicial system as a tool for improving the
administration of justice. It stated that performance evaluation criteria, which should be
developed in a consultative manner, should at a minimum include “legal ability and compe-
tence; integrity and impartiality; communication skills; professionalism and temperament;
administrative capacity as well as other appropriate criteria for specialized or appellate
courts.”110 It also recommended that the Judiciary should address the problem of case
backlogs by adopting a comprehensive case management strategy, involving the automation
of court processes, digitalization of court records, and standardization of registry procedures.
Finally, the Ouko Task Force, which included members from outside the Judiciary, sought to
respond to the crisis of confidence that the Judiciary suffered as a result of the post-election
political crisis of December 2007 to February 2008. Many people attributed the breakdown of
law and order in the aftermath of the announcement of the results of the disputed presiden-
tial election of 2007 to the Judiciary. They perceived the Judiciary to have been a partisan
arbiter that could not therefore provide a civil avenue for the resolution of the disputes
generated by this election. Judicial reform was therefore seen as constituting a key compo-
nent of the Kenya National Dialogue and Reconciliation Agreement reached between the
Party of National Unity (PNU) and Orange Democratic Movement (ODM) parties.111 At the
same time, the Government saw the Task Force as an opportunity to undertake reforms that
would convince the International Criminal Court that Kenyan courts were capable of trying
the post-election violence cases in a speedy and fair manner.
The Ouko Task Force recommended the expansion of the membership of the Judicial Service
Commission and the enhancement of its functions to include promoting, facilitating and
upholding the independence and accountability of the Judiciary. It also recommended the
development and adoption of a performance management system, and an independent
complaints and disciplinary procedure. Observing that the use of non-transparent procedures
in the appointment of judges has been a cause of loss of public confidence in the Judiciary, it
recommended that appointments should be preceded by advertisement, vetting and inter-
views so as to attract talent and reduce risks of political appointments. With respect to the
perennial problem of case backlog, it recommended the amendment of the Judicature Act to
increase the number of Court of Appeal Judges to 30 and High Court Judges to 120, the
construction of more court houses across the country, the adoption of an efficient case
management system, and the adoption and training of judicial officers on alternative dispute
resolution mechanisms. It also recommended the decentralization of power within the
Judiciary (including the creation of the offices of President of the Court of Appeal and
Principal Judge of the High Court), and the separation of court administration from judicial
functions. To deal with the problem of corruption, it recommended the establishment of an
independent tribunal to vet all sitting judges and magistrates on their ethics and integrity
status. In order to enhance access to justice, it recommended the administration of justice
without regard to procedural technicalities, creation of mobile courts and stations in margin-
alized areas, regular review and simplification of rules of procedure, and improvement in
access to judicial information. It also recommended the establishment of a National Council
on the Administration of Justice to enhance inter-agency collaboration within the justice
sector. Many of these recommendations were incorporated in the new Constitution.
Since 2005, the Judiciary has also held an annual colloquium for judges during the August
court vacation, taking the opportunity to bring judges of the High Court and Court of Appeal
together to share experiences and perspectives from their respective judicial postings. This
forum provides an opportunity for the judges to seek solutions to emerging legal problems.
This is done by passing resolutions, whose implementation are later tracked in the subse-
quent colloquium. Both the 2010 and 2011 colloquia have been very historical within the
journey of judicial reforms. The 2010 Judges’ Colloquium was held shortly before the
promulgation of the new Constitution on August 27, 2010. At this Colloquium, the judges
appreciated that the new Constitution provided firm anchorage for reforms in the Judicia-
ry.112 They also acknowledged the need for the Judiciary to improve its public image and
improve communications and interactions with the public. The 2011 colloquium on the other
hand came one year after the promulgation and within the context of the appointment of a
new Chief Justice and Deputy, members of the Supreme Court and reconstitution and
expansion of the Judicial Service Commission all of whom attended the colloquium. These
colloquium should be institutionalized and expanded to also have one involving magistrates.
FROM TALK TO ACTION – REFORMS IN THE NEW CONSTITUTIONAL ORDER
Transforming the Judiciary

a. Context113
The new Constitution seeks to transform the Judiciary in significant respects. Indeed, it is
already doing so. In order to appreciate the magnitude of the changes brought about by the
new Constitution, it is necessary to examine them in the context of the nature and exercise of
judicial power under the old constitution. The constitutional amendments of the 1960s,
which sought to enhance the powers of the president, weakened the judiciary. On the basis
that an impartial and independent judiciary would be required if the rule of law were to
thrive in Kenya, section 184 of the Independence Constitution established a Judicial Service
Commission (JSC) to regulate matters such as judicial appointments and disciplinary
matters. The JSC comprised the Chief Justice (as Chairman), two judges nominated by the
Governor-General (acting in consultation with the Chief Justice), and two members of the
Public Service Commission nominated by the Governor-General acting in consultation with
the chairman of the Public Service Commission. Under section 172 of this constitution, the
Chief Justice was appointed by the governor-general, acting in accordance with the advice of
the Prime Minister, while other judges were appointed by the Governor-General acting in
accordance with the advice of the JSC. Judges could only be removed from office for inability
to perform functions or misbehaviour, a determination made by an impartial tribunal
appointed by the Governor-General with the possibility of appeal to the Judicial Committee
of the Privy Council in England, whose decision the Governor-General would act upon.114 The
JSC was also given the power to appoint other judicial officers, such as magistrates.
Following the said constitutional amendments, the power to appoint the Chief Justice was
transferred to the President, who was no longer required to consult with anyone.115 In
addition, while the President was now required to consult the JSC in appointing judges, little
if any consultation occurred in practice.116 The President then appointed all the members of
the JSC—the Chief Justice (who was the chairman), the attorney general, two judges (one
from the High Court and the other from the Court of Appeals), and the chairman of the
Public Service Commission.117 The functions of the JSC were to appoint, discipline, and
dismiss magistrates, the registrar or deputy registrar of the High Court (who are also the
main administrative officers), and all other paralegal officers.118 In practice, however, the JSC
delegated all these powers to the Chief Justice.119
The system for appointing judges was open to abuse because it established no standards or
criteria for vetting candidates. A task force established to examine the question of judicial
reform noted that “[t]he process through which candidates for appointment are currently
identified and vetted by the JSC is neither transparent, nor based on any publicly known or
measurable criteria” and is certainly not competitive.120 Accordingly, the individuals who
became judicial officers were not necessarily the most deserving. Even lawyers with disciplin-
ary proceedings pending before the Law Society of Kenya were appointed as judges. Arguably,
such judicial officers were likely to perceive it to be in their best interest to protect the
interests, and even misdeeds, of the appointing authority. Furthermore, section 61 of the
Independence Constitution (as amended) gave the President the power to appoint judges in
an acting capacity. Again, this power enabled the executive to control the Judiciary to the
detriment of judicial independence, proving that judges were not insulated from external
influences. With respect to the removal of judges, section 62 of the Independence Constitu-
tion provided that the Chief Justice and other judges could be dismissed by the President—
for inability to perform the functions of their office or for misbehaviour—if an impartial
tribunal recommended their removal. Unfortunately, it failed to establish due process
mechanisms to ensure that the process of removal—including the exercise of the power to
recommend the establishment of a tribunal—was transparent, impartial, and fair. In these
circumstances, the threat of removal then operated as the proverbial sword of Damocles, in
the sense that judicial officers never knew when it might strike.121
In addition, it should be noted that the Chief Justice wielded immense power that could
threaten the decisional independence of judges. As the head of the judiciary, the Chief Justice
possessed wide-ranging but unregulated powers, including determining which judges heard
what cases and where litigants could file their cases, supervising and disciplining judicial
officers, allocating office space and housing, transporting judicial officers, transferring judicial
officers from one geographic station to another, and initiating the process of removing
judges.122 Because the exercise of these powers was not circumscribed, they could be abused
to the detriment of judicial independence and accountability. Thus, judges confronted with
these powers may have been inclined to do the bidding of the Chief Justice.
In this authoritarian order, the failure to regulate the President and Chief Justice’s powers of
appointment and dismissal and the administrative powers of the latter, often aided corrup-
tion and undermined the legitimacy of the judiciary. As the preceding paragraph indicates,
these powers were exercised in ways that undermined the institutional autonomy of the
judiciary and the decisional independence of judicial officers, respectively.
How, then, does the new Constitution enhance the independence and accountability of the
Judiciary? First, it disperses judicial authority. Although the Chief Justice is still the head of
the judiciary, the new Constitution establishes three superior courts (in addition to various
subordinate courts): the Supreme Court, the Court of Appeal, and the High Court.123
It also establishes the offices of Deputy Chief Justice (as the deputy head of the Judiciary),
and Chief Registrar of the Judiciary who shall be the chief administrator and accounting
officer of the Judiciary. It further provides that the Chief Justice will preside over the
Supreme Court, while the Court of Appeal and the High Court will be presided over by a judge
elected by the judges of these courts from among themselves pursuant to Article 164.124
Second, Article 166 of the new constitution gives the Judiciary autonomy from the Executive.
It provides that the President will now appoint the Chief Justice and judges of the superior
courts subject to the recommendations of the Judicial Service Commission and the approval
of the National Assembly.125 The Constitution broadens the membership of the Judicial
Service Commission, which now includes representatives of subordinate courts and practic-
ing lawyers.126 Further, it empowers the President to appoint one man and one woman who
are not lawyers to “represent the public” in the Commission.127 The new JSC is therefore a
more legitimate body, and promises to enhance the accountability of the Judiciary to the
public.
In addition, the Constitution grants the Judiciary financial autonomy from the Executive.
Article 173 creates a Judiciary Fund, which is to be administered by the Chief Registrar.
Unlike before, funds for the expenditure of the Judiciary will be paid directly into this fund
once they have been approved by the National Assembly.
Third, Article 168 of the new Constitution circumscribes the power to dismiss judges. Unlike
before, the process of removal of the Chief Justice and judges will now be initiated by the
JSC. Acting on its own motion, or on the petition of “any person,” the JSC is required to hold
a hearing regarding the affected judge and to send the petition to the President only when
there are legitimate grounds for removal.128 Upon receiving the petition, the President is
then required to establish a tribunal to inquire into the matter.129 The new constitution
therefore introduces due process and certainty in the exercise of the power to dismiss judges
and is therefore likely to enhance security of tenure and independence of judges.
Another notable feature of the new Constitution is that it seeks to rid the judiciary of regime
actors and provides a framework for the removal of “unsuitable” judges. First, it provides that
the Chief Justice shall vacate office within six months after it takes effect.130 Secondly, within
one year of the constitution taking effect, Parliament must enact a law establishing mecha-
nisms and procedures for vetting the suitability of all judges and magistrates, ensuring they
continue to serve in accordance with the values and principles established in Articles 10 and
159.131 The provisions on vetting of judicial officers should also be seen in the context of
Chapter 6 of the Constitution, which establishes principles on leadership and integrity which
all public officers, including judicial officers, are required to uphold.
Article 159 of the new Constitution also establishes principles to regulate the exercise of
judicial authority. These principles include the following: judicial authority is derived from
the people; justice shall be done to all, irrespective of status; justice shall not be delayed;
alternative forms of dispute resolution shall be promoted; justice shall be done without
undue regard to procedural technicalities; the Judiciary shall protect and promote the
purpose and principles of the Constitution. In addition, the provisions of the Constitution on
leadership and integrity establish important principles for the regulation of judicial ethics.
Article 75 characterizes the mandate of all State Officers, including judges and magistrates, as
a “public trust.”132 It provides that all such officers carry “the responsibility to serve the
people, rather than the power to rule them.” It requires State Officers to “shall behave,
whether in public and official life, in private life, or in association with other persons, in a
manner that avoids – (a) any conflict between personal interests and public or official duties;
(b) compromising any public or official interest in favour of a personal interest; or (c) de-
meaning the office the officer holds.” In cases of breach, it provides for the application of
appropriate disciplinary procedures as laid down by law, in respect of the relevant category of
State Officer. And concerning access to justice, article 48 of the constitution provides that
“The State shall ensure access to justice for all persons and, if any fee is required, it shall be
reasonable and shall not impede access to justice.”
Evidently, the Constitution addresses our four main reform areas: judicial independence and
accountability; judicial ethics and integrity; judicial administration and management; and
access to justice. But what are the prospects that the envisaged reforms will be implemented
fully and in a timely manner, or will change be resisted and to what extent? We sought to
gauge the prospects of implementation by speaking to various actors in the justice system to
enable us to gain a deeper understanding of the problems and challenges facing the Judiciary,
and by observing the political dynamics of change.
b. Walking the Constitutional Talk

In furtherance of the constitutional provisions, several actions have already commenced
evidencing the dawn of a new era in judicial reforms. As required by the Constitution, the
Chief Justice at the time of the adoption of the Constitution, Justice Gicheru, vacated office
and exercised the option to retire. The Constitution required that a new Chief Justice be
appointed.133 The initial efforts by the President to nominate Justice Alnashir Visram of the
Court of Appeal as the next chief Justice met with hue and cry from several quarters within
the country. Civil society and political leaders criticized the move with the Prime Minister
publicly indicating that he had not been consulted as required by the Constitution. The
Judicial Service Commission and the Constitution Implementation Commission both issued
public statements stating that the action was in contravention of the Constitution.
The matter divided the political class down the middle and the matter went to both the
speaker of the National Assembly and the High Court for determination. The Speaker in his
ruling stated that the nominations did not meet the constitutional requirements,134 a posi-
tion that was also reached by Justice Musinga in a constitutional case filed before the High
court.135 Following this rulings the President publicly withdrew the nominations. The conse-
quence was that the Judicial Service Commission then in accordance with Article 166 of the
Constitution publicly interviewed for the position of Chief Justice and Deputy Chief Justice
following public advertisement and short listing process.
The interviews were carried live in national television and following the conclusion of the
process they short listed Dr Willy Mutunga and Nancy Baraza and recommended them for
appointment by the President in consultation with the Prime Minister as Chief Justice and
Deputy Chief Justice Respectively. The President then nominated the two and following
approval by parliament they were appointed as Chief Justice and Deputy Chief Justice and
sworn into office.
The public and competitive appointment process and recruitment of both the Chief Justice
and Deputy Chief Justice from outside the Judiciary marked a turning point in judicial
reforms. It signalled the intention of the country to tackle the long challenge of lack of
independence and accountability within the judiciary. The Constitution makes these two
offices to be at the head of the Judiciary. The Chief Justice is to hold office for a term of ten
years or until they retire on attaining the age of seventy years whichever is earlier. This en-
sures that one can only be head of the judiciary for a maximum period of ten years. Secondly
that henceforth there will be a deputy Chief Justice as the substantive deputy of the Chief
Justice. The Constitution also creates the office of the Chief Registrar of the Judiciary as the
Chief administrator and accounting officer of the judiciary.136 Following competitive recruit-
ment, the Judicial Service Commission appointed a new Chief Registrar.
The reconstitution and expansion of the membership of the judicial Service Commission have
been key features of calls for enhancing the independence of the judiciary. The Constitution
made provision for the creation of this reformed Judicial Service Commission.137 The mem-
bership of the Judicial Service Commission is to consist of:
• The Chief Justice as chairperson
• One Supreme Court Judge elected by the judges of the Supreme Court
• One Court of Appeal Judges elected by the judges of the Court of Appeal
• One High Court judge and magistrate, one man and one woman elected by the
association of judges and magistrates
• One person nominated by the Public Service Commission
• Two advocates, one woman and one man, each of at least fifteen years experience elected
by the statutory body responsible for professional regulation of advocates
• One woman and one man representing the public and not being lawyers to be appointed
by president with approval of the National Assembly.
The JSC’s mandate has also been expanded and focuses on promoting and facilitating the
independence and accountability of the judiciary and the efficient, effective and transparent
administration of justice.138 In discharging their mandate the Judicial Service Commission is
specifically empowered to:
• Recommend to the President persons for appointment as judges
• Review and make recommendations on conditions of service for judges, judicial officers
and other staff of the judiciary
• Appoint, receive complaints, investigate and discipline registrars, magistrates and other
judicial staff
• Prepare and implement programmes for the continuous education and training of judges,
judicial officers
• Advise the national government on improving the efficiency and the administration of
justice.139
To enhance the provisions of the Constitution on the Judicial Service Commission and better
provide for the administration of Justice, the National Assembly passed the Judicial Service
Act.140 The President assented to this Act on 21st March 2011 and it came into force on the
22nd March 2011. The passage of the Act marked a milestone in efforts to grant complete
operational independence to the judiciary and anchor the Judicial Service Commission as an
independent body responsible for the running of the judiciary, the same way that we have the
Public Service Commission with its own Act,141 and the Parliamentary Service Commission
with its own act too. The Judicial Service Commission Act provide for the establishment
of an independent secretariat of the Judicial Service Commission, delinking it from the
Registrar.143 To further enhance the independence of the Judiciary, following the adoption of
the constitution and as a consequence of these financial changes, the budgetary allocations
for the judiciary was enhanced tremendously with the Judiciary being allocated 9.3 billion
in the financial year 2011/2012 “to prioritize the implementation of the Constitution and
continue to implement strategies that will lead to reduced case backlog, improved access to
justice and modernize the court system.”144
Regarding the Supreme Court, in addition to the Constitution, Parliament has also passed the
Supreme Court Act. Following a competitive recruitment process, on the recommendation of
the Judicial Service Commission and with the approval of the National Assembly, the Presi-
dent appointed Justice Mohammed Ibrahim, Justice (Prof.) Jackton Ojwang, Njoki Ndungu,
Dr. Smokin Wanjala and Justice Phillip Tunoi to join the Chief Justice and Deputy Chief
Justice as members of the Supreme Court. However the appointment of the five members
of the Supreme Court was challenged for being against the constitutional requirement that
not more than two-thirds of any appointive position be from either gender. Following the
appointments, FIDA Kenya filed a constitutional case challenging the appointments. In the
case of Federation of Women Lawyers Kenya (FIDA-K) and five others Versus Attorney General and
Another145 the Court on 25 August 2011 gave a ruling rejecting the petition and paving the
way for the swearing the Judges of the supreme court. The Supreme Court has the original
jurisdiction to hear and determine elections petitions relating to presidential elections and
appeal from the Court of Appeal and from any other court or tribunal as stated by national
legislation.146 During interviews questions were raised on the jurisdiction of the Supreme
Court with one School holding that it is the court of last resort and other pointing out that it
should view its mandate very restrictively so as to ensure it is not bogged down with all man-
ner of cases.
The numbers and terms of service of judicial staff has been another issue of focus. The Judi-
cial Service Commission recently hired 28 Judges in a transparent manner whose highlights
included fifty percent of those hired being women and a good number of serving magistrates
being promoted too. Interestingly no male magistrate who had applied was successful in the
interviews. On 5th September, 2011 the Chief Justice posted all the newly recruited judges
and carried out a comprehensive reshuffle within the judiciary.147 The notable aspects of the
reshuffle was the creation of a Constitutional and Human Rights Division of the High Court,
posting of a resident judge for the first time to Garissa, increase in the number of judges in
Mombasa and the Commercial Division.
The Chief Justice also appointed new judges to the Land and Environment Division. These
changes during the reshuffle are pointers to a determination on the part of the Chief Jus-
tice to deal with perennial problems bedevilling the judiciary. The judges to the commercial
division are all new to the division; to have a constitutional and human rights division is
a signal to the high premium being placed on constitutional and human rights cases. The
most significant of the changes in terms of access to justice especially for the marginalised is
without doubt the establishment of a High Court in Garissa. This will reduce the distance that
litigants have to travel so as to access the High Court. In the past residents of these areas had
to travel to either Meru or Nairobi to have their cases heard by a High Court.
Problems and Challenges - What Continues to Ail the Judiciary?

a. Independence and Accountability
It is expected that the revamped Judicial Service Commission (JSC) will enhance judicial
independence and accountability. However, there have been reservations about the powers of
the JSC, especially among judicial officers. They are apprehensive that the JSC will micro-
manage the Judiciary and judicial officers, thereby undermining judicial independence. They
see the JSC as a policy setting, as opposed to management, body.148 Their apprehension is
informed by statements by members of the JSC to the effect that they will not only interpret
their mandate expansively, but will also review decisions of judicial officers where there has
been miscarriage of justice, misrepresentation or blatant disregard of law.149 Article 172 (1)
of the Constitution gives the JSC power to “promote and facilitate the independence and
accountability of the judiciary and the efficient, effective and transparent administration of
justice.” According to some judges, this power does not mean that they are employees of the
JSC or that the Judiciary is subservient to the JSC.150 In their estimation, judicial indepen-
dence prevents the JSC from questioning their decisions, and that recourse to appeals
provides an avenue for dealing with contested judicial decisions. However, members of the
JSC maintain that it is important that judicial officers “get it right in the first place.”151 A
need therefore arises to balance accountability to the JSC with institutional and decisional
independence of the Judiciary and judges. In this regard it will be important to ensure that
mechanisms for evaluating judicial performance do not compromise the decisional indepen-
dence of individual judges. In the process of exercising their role, the JSC should deal with
cases where particular judges consistently misapply the law without resorting to being a
micro-manager of judges or some sort of court of appeal or review court over decisions of
individual judges.
Judicial officers have also expressed reservations about the process adopted by the JSC in
appointing judges under new Constitution. They feel that although live interviews are
welcome, the manner in which they are executed may lack decorum and demean those
interviewed, and that there is a need to protect the dignity of candidates.152 They have also
suggested that the interviewing process should be subject to a standard protocol, because at
present candidates are being asked different questions.153 They are particularly concerned
that complaints are raised in the interview room about candidates who have had no prior
opportunity to counter them, and that such complaints are not made under oath. They have
also suggested that the JSC should disclose the marks earned by all the interviewed candi-
dates to enhance the transparency and accountability of the hiring process.154 The concern is
that unless the JSC discloses reasons informing its decisions to hire certain individuals and
not others, then the credibility of the process may be undermined, to the detriment of
judicial independence. The feeling that the process of hiring though more transparent
requires further improvement and that the members of the Judicial Service Commission
conducting the interview should do so with decorum is a view shared by many actors in the
justice sector and one that requires to be addressed in subsequent processes.The specialized
courts created by Article 162(1) of the Constitution – that is, the employment and labour
relations court, and the court for the environment and the use and occupation of, and title to,
land – also raise issues of accountability. It is not clear from the text of the Constitution
whether these courts are part of the Judiciary, or subject to regulation by the Judicial Service
Commission.155 In order to ensure that these courts are accountable for the exercise of
judicial power, it will be important for the legislation operationalizing them to clarify that
they form part and parcel of the Judiciary, and are subject to regulation by the JSC. The
Environment and Land Court Act156 already passed by parliament does not resolve this issue.
It is not clear from that Act who will appoint the judges of that court and what the relation-
ship between its registrar and the Chief Registrar of the Judiciary shall be. In practice, how
will that court relate to the high court division of land and environment currently headed by
Lady Justice Martha Koome Despite the enactment of the Act, the place of the court within
the judicial structure remains unresolved, a fact that is not helped by the development of this
law having been spearheaded by the Ministry of Environment and Mineral Resources, leading
to some quipping whether the Court will operate as a tribunal.157 On the employment and
labour relations court, what is the fate of the current members of the Industrial Court? Are
they part of the Judiciary; accountable to the JSC, noting as we do that they were not sworn
afresh under the new Constitution? Will they be subject to vetting? Will they transition to
the new employment and labour relations court?
Judges have also continued to point out that the practice of the President appointing them to
serve as chairs or members of commissions of inquiry is problematic.158 Not only are such
judges drawn into political controversies when they serve on such commissions, but their
determinations therein are frequently challenged in courts of law.159 While it is no doubt
desirable that the findings of such commissions should be subject to judicial review, appoint-
ing sitting judges as commissioners in non-judicial processes may undermine the authority of
such judges and the judiciary in general.160 As the Judicial Commission of Inquiry into the
Goldenberg Affair observed, “judges who serve in politically motivated inquiries run the risk
of being dragged into politics and having their reputation for impartiality ruined.”161 It
therefore recommended, among other things, that “no sitting judge should be appointed to
participate in a public inquiry unless the Chief Justice has satisfied himself that the nature of
the intended public inquiry has no political implications.”162
It is also worth noting that magistrates do not enjoy the same protection of their indepen-
dence as judges. While security of tenure is explicitly guaranteed for the judges of the
superior courts, this is not the case with regard to magistrates. Moreover, because the new
Constitution, like the old one, only gives security of tenure to judges and not magistrates, the
latter can be dismissed without recourse to a tribunal, with only the opportunity to defend
themselves before the JSC. Related to this is the past view of magistrates within the judicial
structure, a view that failed to recognise the key roles of magistrates in dispensing justice to
majority of citizens. It has also been contended that a conflict of interest may arise in the
performance of the functions of the Chief Registrar under the new Constitution, section
171(3) of which makes the Chief Registrar the Secretary to the JSC. The apprehension is that
there disciplinary issues, which are to be determined by the JSC, could arise between magis-
trates and the Registrar, meaning that the Chief Registrar would be performing the dual roles
of investigator and judge.163 Similar concerns have also been raised about the role of the
Chief Justice, who not only heads the Judiciary, but also chairs the JSC.164
It should be noted that, in an effort to involve the public in judicial process thereby enhanc-
ing the public accountability and legitimacy of the Judiciary, the Kenya Magistrates and
Judges Association (KMJA) came up with the idea of establishing Court Users’ Committees
(CUCs) in 2006.165 The KMJA “believed that involving the public in the judicial processes
through meetings with the various stakeholders would foster mutual understanding, open up
the judiciary to public scrutiny and participation in decision making and therefore help to
cure the public perception of the judiciary and judicial officers from being perceived as
endemically corrupt and unsuitable to serve, to a capable and responsive institution of
justice.”166 The CUCs are not just an accountability mechanism, but can also enhance access to
justice. They are now institutionalized by the Judicial Service Act, 2011. The Act provides for
the establishment of the National Council for the Administration of Justice (NCAJ), which is
chaired by the chief Justice and whose task is to enable stakeholders to dialogue and improve
the administration of justice with specific reference to justice within the judiciary. Its
principal function is to ensure a co-ordinated, efficient, effective and consultative approach
in the administration of justice and reform of the justice system.167 A critical mandate of the
NCAJ is facilitate the establishment of CUCs at the county level. Presumably, this mandate
entails adopting rules on the membership, addressing issues of financing, and training of
members of the CUCs on their roles and responsibilities, and other management issues like
running of meetings. The Chief Justice has already launched the NCAJ although it is too early
to assess its performance.
The CUCs bring together state and non-state actors in the justice system, including represen-
tatives of the following organizations: courts, police (including traffic officers) prisons, local
area bar associations, the Law Society of Kenya, Ministry of Health, Lands Office, NGOs such
as Maendeleo ya Wanawake, Children’s Department, Probation Department, State Law
Office, Kenya Wildlife Service, Forestry Department, Physical Planning Department, and
local authorities. They are convened by judicial officers, and are supposed to meet regularly,
say quarterly. They also meet when specific issues that require urgent attention arise. The idea
is for the various actors to come together and identify the ills in the operations of the justice
system and decide on ways to tackle them.168 Such problems include congestion in prisons,
lack of vehicles to transport prisoners, lack of court rooms, poor drafting of charge sheets,
court backlogs, corruption. The membership of a CUC may therefore be expanded to include
other institutions whose contribution is deemed necessary.
At present, CUCs lack uniformity and for the most part, their operations have been guided by
practice in different stations, which means that their effectiveness varies from one court
station to another.169 The large size of the CUCs, which have many members with diverse
interests, can also be problematic.170 Indeed, some court stations do not have CUCs.171
According to some judicial officers, the CUCs only succeed where there is good will, and in
particular, where the members have confidence in the chairperson, who is typically a magis-
trate.172 In the absence of such confidence, for example, members do not attend meetings.
The effective CUCs have clear vision, map plans and designated team leaders to enable the
group to track progress in resolving problems. In Nkubu, for example, the CUC has managed
to obtain a plot from the local authority on which it plans to build a new court house.173 And
in Narok, the CUC assisted in the construction of houses for prison warders.174 In Kakamega
CUCs have helped to resolve the problem of accused persons not getting access to witness
statements by collecting money to enable the police prosecutors to buy printing papers and
photocopy the statements.175 All in all, the CUCs play a vital role, and have greatly improved
relations among justice sector institutions, who in many cases now see themselves as
partners. The NCAJ should therefore act quickly to give them the support they require,
including funding, standardizing their operations, and instituting an exchange program so
that the various court stations can learn from one another.176
A number of judicial officers we interviewed also recommended the establishment of forums

in the various court stations where judicial officers could talk to the public, for example,
communicate issues to the latter so that they do not misunderstand the actions taken by the
former.177 Some also suggested that judicial officers should use their courts to communicate
to the public, arguing that they are currently too detached.178
b. Ethics and Integrity

On the subject of ethics and integrity, judicial officers have pointed out that the current Ju-
dicial Code of Conduct and Ethics (2003), and which is now being reviewed, presupposes that
disciplinary measures other than removal may be applied. However, the Judiciary has not yet
established proper enforcement measures for the maintenance of judicial ethics. As Justice
(Prof.) J. B. Ojwang has observed, existing measures “are not only random and trifling, but
are of a grasping type, such as may lead to abuse of discretion.”179 In his view, the main chal-
lenge of judicial ethics is “to set up a regular procedure for disciplinary action falling short of
the removal of a judge from office.” Such a framework should allow for confidential hearings,
peer-review, counselling, and suitable sanctions. It should also address the factors that cause
the public’s lack of confidence in the Judiciary, including: unfair decisions, bias, conflict of
interest, repulsive judicial conduct, corruption, collusion, disreputable associations, and

unwarranted exclusion from the seat of justice. It should be noted that the Ouko Task Force
recommended the creation of such a mechanism “to continuously receive, investigate, evalu-
ate and act upon complaints against judges, other judicial officers and staff.”180
Judicial officers have also stated that there is a need to clarify the kinds of actions that would
amount to judicial misconduct or conduct unbecoming of a judge.181 They are also concerned
that there is no mechanism for making private preliminary inquiries into the circumstances
leading to breach by judge of particular principles of the code of conduct and ethics. They
recommend the creation of an internal mechanism for making confidential inquiries for pur-
poses of protecting the reputation of judges and the integrity of the Judiciary.
According to Justice Ojwang, efforts to address judicial ethics should be informed by three
considerations.182 First, there is a glaring conflict between the resources available to the
judge, on the one hand, and the colossal burden of work occasioned by the frequency of
litigation, on the other. This leads to what he termed a “quality-quantity conflict” in the sense
that the judge is faced with a dilemma of whether to deliver judgments expeditiously, yet
expedition may undermine the quality of judgments. Second, the management-establishment
should bring equity to bear on allocations of work, and assignment of responsibility. Further,
there should be a co-ordination of information systems, enabling a proper tracking of the
incidence of court-work. Finally, there is a need to establish a peer-review mechanism, involv-
ing a limited membership that is partly open-ended and may include additional members,
from time to time. But while there is a need to create a regular procedure for disciplinary
action to discourage judicial impunity, it should be borne in mind that judging is an area in
which the customer is not always right.183 It is therefore important that if judges are to do
their work without fear or favour then the complaints body has to be robust in rejecting mali-
cious complaints.
Corruption remains one of the greatest challenges to the Judiciary. The Ouko Task Force
observes that “whereas there have been measures to address corruption within the Judiciary,
the results have been suboptimal as borne out by the number of judicial officers and staff who
have been disciplined by the JSC on corruption claims or otherwise faced corruption charges
in the courts of law.”184 As detailed in the report, and all other previous ethics committee
reports on the judiciary(Ringera, Onyango Otieno and Kihara) forms of judicial corruption
include bribery, abuse of judicial office such as manipulating or doctoring records of evidence
and proceedings, and receiving favours such as sexual favours and employment of relatives
and friends of judicial officers in exchange for favourable decisions. Such corruption is often
facilitated by advocates, who convey or offer bribes or other forms of improper inducement to
judicial officers on behalf of their clients. In order to deal with the problem of judicial corrup-
tion, the Task Force makes a number of recommendations, including:
• Developing and implementing a corruption prevention policy.
• Carrying out a mapping exercise within the judiciary, with a view to identifying and
taking remedial measures on the main areas that are prone to corruption. In this regard,
the Judiciary has been working with the Kenya Anti-Corruption Commission on an
integrity-testing program with the objective of identifying the areas prone to corruption
in the judiciary.
• Establishing mechanisms for regular monitoring of the exercise of discretion by judicial
officers to ensure judicial transparency and accountability.
• Establishing an Inspectorate Unit to carry out regular inspections of judicial systems.
In terms of dealing with corruption, a need also arises to increase the salaries of judicial
officers, especially magistrates. Arguably, many of them are tempted because they are
poorly paid. In this respect, it is noteworthy that the starting monthly salary for a magis-
trate is about KES 30,000 while chief magistrates earn about KES 110,000.
c. Administration and Management
Many issues of administration and management remain unresolved, while new ones have
arisen since the promulgation of the new Constitution. In the latter context, there is a
concern that the elective positions of the Presiding Judge of the Court of Appeal and the
Principal Judge of the High Court could give rise to potential conflicts and power play.185 A
need therefore arises to create processes, structures and rules for the decentralization and
democratization of power in the Judiciary.
Courts continue to be managed by judicial officers, typically of the ranks of Senior Resident
Magistrate or Chief Magistrate.186 This arrangement is not efficient because judicial officers
are not sufficiently trained to handle administrative issues. Their administrative tasks include
financial matters such as signing vouchers and dealing with accounts, attending to litigants
with problems such as missing court files, proof reading and certifying proceedings, signing
court orders. Typically, the senior most magistrate is the holder of authority to incur expendi-
ture (AIE), and accounts to the Judiciary on the financial affairs of the court station. For the
most part they have no training in managerial, personnel and financial matters.187 The dual
roles mean that judicial officers have heavy workloads, yet they are not provided with
adequate financial and human resources to enable them to perform their duties efficiently. As
a result, a good number of them are often forced to carry files home to write judgments and
rulings.188 The dual role also impacts negatively on access to justice and public perceptions of
judicial performance. According to one judicial officer, for example, when members of the
public do not see them in open court, there is a perception that they are not working.189 Past
reform measures have failed to effectively address this problem. Several reform suggestions
that have been made include separating the structure of the courts into two- the administra-
tive part and the judicial part. This reform measure is long overdue. Judicial officers should be
left to concentrate on their core business and professional administrators hired to manage
courts. At the same time, it should be noted that some judicial officers take the view that they
should continue to play some role in administration.190
There is also a concern that the administrative roles and accountability frameworks of the
Registrar (now Chief Registrar), Deputy Registrar and Resident Judge are poorly defined.191
The magistrate who runs a court station is designated as the Deputy Registrar. Every court
station also has an Executive Officer who is supposed to work under the direction of the
Deputy Registrar. First, there is no mechanism making the courts accountable to the Regis-
trar. Second, in practice the Resident Judge does not deal with matters of administration, and
is not answerable to the Registrar. The presence of the Resident Judge is not felt in many
cases, even when the court station is falling apart. But according to one judge, the Resident
Judge is a ceremonial position: the holder is a point of reference from the Chief Justice and
The Registrar, speaks for the station, receives visitors, resolves issues of wider implications
for jurisdiction, and supervises the courts with the Chief Magistrate.192 Third, in the court
stations, administrative matters are handled by the Deputy Registrar, including assigning
cases to other magistrates. Fourth, the heads of the departments - for example, of finance or
human resources – sometimes transfer clerks and secretaries without consulting judicial
officers. Fifth, the Executive Officer deals with paralegal staff. The lack of clear definition of
roles has created a situation in which the executive officers of the courts exercise much power
by default. A need clearly arises to clarify roles remove overlaps and facilitate accountability
and efficient administration.
The manual record keeping system is also problematic. Judges and Magistrates take notes by
hand as cases proceed. For the most part, their judgments are also handwritten. Information
on cases or any disputes brought to the courts are filed. The registry maintains a file for every
case that is before the court. The files are confidential and the courts do not allow access to
these files except to authorized parties to the case. Perusal of a file is allowed to authorized
people at a cost. The filing system is laborious as a result of all the paperwork that has to be
done. This leads to inefficiencies such as misplacing of court files and lack of space. The
inefficiencies have also led to a bribe culture as access to court files is a cumbersome matter.
The Pictures below indicate the state of registries in the various court stations.
While it has been suggested that the Judiciary should adopt the use of ICT in the filing and
storage of files, this idea has not yet been fully implemented. Nevertheless, the Judiciary has
piloted an electronic Case Management System (CMS) in the Eldoret Law courts, with
support from the USAID. The National Law Reporting Commission provided technical
support for the project. The project sought to address various challenges faced by courts in
records management. In particular, while court infrastructure and facilities have not expand-
ed at the same rate as litigation, registry space and other areas for file storage have remained
constant. Further, the use of ICT in the administration of justice is seen as mechanism for
minimizing the incidences of missing or misplaced court files and the associated potential for
corruption. The project has created an electronic registry, which facilitates access to court
records and information regarding court proceedings by magistrates, court staff and mem-
bers of the public. The CMS has four components:
(1) document management – scanning of documents and attaching them to each file;
(2) search engine;
(3) SMS inquiry system; and
(4) a Web-based system to enable a person to log in even when away from station, but
which has not yet been integrated.193
Further, additional storage space was created for files by providing a container which is
adjacent to the court building. This has helped to decongest the registries, revealed files which
could not be traced, and enabled the identification of inactive files. Another achievement is
that cause lists are now displayed on a TV screen, which has eliminated court brokers and
reduced idlers in court corridors, as litigants can find their cases more easily.194 Members of
the public are also able to know the status of their cases simply by sending short text mes-
sages to a designated number. It also enables the court station to know the case load for every
court on a daily basis. The Experience of the Eldoret Law Court clearly demonstrates the
importance of using ICT in court processes. In addition to managing filing of cases electroni-
cally, court proceedings should now be transcribed by stenographers and voice recorders.
Further, there is a need to enhance the ICT skills of personnel, and replicate the project
throughout the country.
It should also be noted that the use of ICT has been hampered by management problems. In
Mombasa, for example, the Judiciary installed a telepresence link in 2010. But while it pays
KES 400,000 per month to Safaricom, the service provider, the link is reserved for the use of
the Court of Appeal, and the High Court in some cases; magistrates do not use it, due to the
Judiciary’s hierarchical order.195 The argument is that there are no rules to enable magistrates
to use the link. This approach also governs the use of physical facilities in this station, with
the result that although the Court of Appeal is only present in Mombasa for one month in a
year, the building reserved for its use is not available to magistrates when it is not sitting.196
Physical facilities also need to be augmented. In court stations such as Meru, we learnt that
some judicial officers use their offices as court rooms.197 It was also reported that in Kangun-
do, two courts share a court room, resulting in the courts sitting in turns. Many courts
stations are also understaffed. In Meru, for example, a judicial officer estimated that the work
load of the High Court there requires 5 judges, yet there are only 2 judges.198 Here, if an
individual were charged with a serious criminal offence such as murder in July of 2011, his or
her case would be heard in March 2012 at the earliest. Similar concerns were expressed with
respect to the Kangundo Law Court, which only has one court room, yet it operates two
courts: one court uses this room in the fore noon, the other in the afternoon.199 This court
also serves a very large area. There is a need for the Judiciary to audit the workloads of the
various court stations to enable it to staff them with the requisite number of personnel.200
But the lack of adequate physical facilities means that it will not be sufficient to simply
increase personnel without building new court facilities so that, for example, the new judges
would have court rooms from which they could work.
While the Judiciary has not yet established robust performance evaluation mechanisms,
monthly returns on cases received and disposed of, and revenue received from cases have
served this purpose.201 Although the monthly returns do not give a full picture of the
performance of courts, they can be used as a tool for appraisal. Further, the returns consti-
tute a useful means of assessing the quantity of cases handled by the courts. However, they
are not an effective mechanism for evaluating the quality of judicial work. For example, the
returns are a poor tool for analyzing situations where a judge takes 30 days to handle a
difficult case, while another handles 60 easy cases in the same duration. Their usefulness as a
tool for performance evaluation is therefore limited. At the same time, the Judiciary devel-
oped performance appraisal forms for magistrates and senior paralegals, which were initially
used to assess performance and training needs.202 However, these forms no longer serve this
purpose. Judicial officers have heavy workloads due to insufficient personnel (including lack
of research assistants), which leads to backlogs, thereby forcing judicial officers to dispose of
as many cases as possible.203 They have little or no time to write reasoned judgments, which
exposes them to accusations of incompetence. It should be noted, however, that the Judiciary
is currently working with the Attorney General’s Office to ensure that the Judicature Act is
amended to remove the ceiling on the numbers of the judges of the High Court and the Court
of Appeal. Once this amendment is passed by Parliament, the Judiciary then plans to employ
more judges, which will considerably ease the heavy workloads.
In assessing the performance of judicial officers, it is important to place their work in the
context of the performance of these other actors in the justice sector. This is due to the fact
that there is a perception that the courts control all the actors in the justice system, such as
the police, prisons department, and advocates.204 As a result, the courts are often blamed for
the deficiencies of these actors. Thus when prisoners are not brought to court in good time,
or when prosecutors or advocates present shoddy evidence, the public blame the court when
these deficiencies result in unfavourable judgments. Further, the work of advocates is poor in
many cases, yet they are not amenable to regulation by the courts. As a result, incompetent
advocates often make judicial officers appear to be incompetent. The police also contribute to
delays in the determination of criminal cases, for example, failing to avail witnesses or police
files. And when delays occur, then litigants seek to corrupt the system to fast track their
cases.205 There are no formal procedures for transfers, withdrawal of work, refusal to grant
permission to attend workshops, or refusal to grant leave.206 The process of transfer is
plagued by a number of problems, namely: (i) lack of clear policy or consistency in transfers;
(ii) some judicial officers and staff are transferred frequently, while other are not; (iii)
transfers without adequate notice; and (iv) there is a perception that transfers are used as a
form of punishment.207 The manner in which transfers are effected has also made it exceed-
ingly difficult for many judicial officers to register for, and attend, training courses or further
their education.208
The induction of newly appointed judicial officers continues to be poor. These officers are
expected to know the rules of judging, yet they are not taught, the assumption being that
knowledge of such rules is inherent in the appointees.209 A related concern is that there is a
disconnect between magistrates and judges, which is not conducive for the development of a
cohesive and collegial institution.210 For example, while the Judiciary hosts an annual
colloquium for judges, there is no similar forum for magistrates. Judicial incompetence
remains a problem. Apart from streamlining appointment procedures, there is a need for
continuing education for all judicial officers.211 The Judicial Training Institute is expected to
play a key role in this regard. To do so there is need to develop a comprehensive training
programme. Although in the recent reallocation of duties the Chief Justice reduced the court
workload of Justice Kihara Kariuki 2 days at the Milimani Commercial Court to enable him to
devote most of his time to the JTI, it would be ideal if he were enabled to focus exclusively on
the JTI. At present, judicial officers have various issues with existing training programs or
courses.212 First, they say that there is no proper planning, with the result that some officers
are invited for refresher courses of seminar while others are not. Second, they doubt the
quality of their trainers, whom they claim to lack exposure. Third, they say training is a closed
affair, in the sense that if involves judicial officers and other staff training their colleagues.
Fourth, there is a need to ensure that the JTI meets the training needs of all the different
court stations. In Mombasa, for example, it was pointed out that there should be training on
issues of piracy, drug trafficking, prostitution.213 They also suggest that the JTI should be
linked to a university.
The computerization process has been painfully slow since its inception in 2004.214 Accord-
ing to some judicial officers, the stakeholders do not know what is happening, which points
to lack of communication from the leadership. There is also need for training to ensure that
stakeholders are computer literate. A major concern has been the lapse of time between
training and supply of computers to staff. This results in the erosion of the competence
acquired by staff in the training. Internet connectivity is also unreliable in some cases.
Further, unlike judges, magistrates do not however have access to the services of the National
Council for Law Reporting (NCLR). The judicial officer we spoke to in Meru confirmed that
they have no access to the NCLR website; that is, they don not have computers or access to
the Internet.215 There is also a need for uniformity and basic standards of ICT so that all
personnel enjoy the same facilities. In addition the process of adopting ICT despite the
formation of an ICT committee is yet to deliver tangible results. The implementation of the
new Civil Procedure Rules is experiencing various teething problems.216 Many judicial officers
have not received training on these rules, and are therefore not able to apply them properly.
The shortage of judicial personnel has made it difficult for judicial officers to find time to hold
case conferences. Case conferences would only be effective if the Judiciary trained and
appointed case managers, but this has not yet been done. Adhering to the time lines estab-
lished by these rules is challenging. The use of written submissions is not regulated and some
advocates submit treatises, which end up taking a lot of the court’s time to process. The public
also need to be educated on these rules to enable them to file cases without the help of
advocates.
In the area of criminal law enforcement, the facilities of prisons are overstretched and they
hold large numbers of prisoners of all categories.217 The Commissioner of Prisons has no say
on who goes to prison. While the international standard is 1 prisoner per 40 square feet
space, Kenya is far from meeting this threshold. One of the causes of prison congestion, and
which the Judiciary is responsible for, is the non-use of alternative sentencing options to
custody for example community service orders. Congestion affects delivery of services to
inmates and thus hampers correctional services. It causes a strain on the budget, prisoners
and declined standards of human rights. Many offences are amenable to CSO and Section 362
of Criminal Procedure Code gives the High Court the power to revise sentences. However,
judges rarely have the time to undertake this review. A need therefore arises to give judges
time to deal with the problem and sensitize lower courts of their powers to commit eligible
convict to community service.218 Again, many judges may not know which cases are amenable
to revision.219 Resident judges need help through a coordinated and systemized way of
bringing matters requiring revision to their attention.
A major issue, which is causing untold anxiety and uncertainty among judicial officers, is the
vetting of judicial officers as required by the Constitution.220 This process could either destroy
the Judiciary or enhance its legitimacy in the eyes of the public. Already, an act governing the
process – the Vetting of Judges and Magistrates Act of 2011 – has been enacted by Parlia-
ment, and the Vetting Board established by this Act has been constituted. The Act provides
that the Board “shall at all times, be guided by the principles and standards of judicial
independence, natural justice and international best practice.”221 The Board will carry out its
mandate through three panels, which shall work concurrently.222
In determining the suitability of a judge or magistrate, the Act requires the Board to consider
the following factors:
(a) whether the judge or magistrate meets the constitutional criteria for appointment;
(b) past work record of the judge or magistrate;
(c) any pending or concluded criminal cases before a court of law against the judge
or magistrate;
(d) any recommendation for prosecution of the judge or magistrate by the Attorney-General
or the Kenya Anti-Corruption Commission; and
(e) pending complaints or other relevant information received from any person or body.223
Further, in considering factors (a) and (b) above, the Act obliges the Board to take the
following additional factors into account:
(i) professional competence;
(ii) written and oral communication skills;
(iii) integrity;
(iv) fairness;
(v) temperament;
(vi) good judgment;
(vii) legal and life experience; and
(viii) demonstrable commitment to public and community service.224
The Act further provides that a judge or magistrate who is dissatisfied with the decision of the
Board may request a review, but which can only be entertained by the same panel.225 In
addition, the Board will only grant a request for review if it is based:
(a) “on the discovery of a new and important matter which was not within the knowledge of,
or could not be produced by the judge or magistrate at the time the determination or finding
sought to be reviewed was made”; or
(b) on some mistake or error apparent on the face of the record.226 The decision of the Board
“shall be final.”227
These provisions are problematic in a number of respects. First, the evaluation criteria are not
weighted, although this could simply mean that the intention of Parliament was that the
criteria were to carry equal weights. Second, assuming the criteria could be weighted objec-
tively, there is no threshold; that is, it is not clear how well a judge or magistrate should
perform with respect to each criterion to be deemed suitable. Assuming we could all agree on
the weights to be attached to the various factors, would an overall performance of 40%, for
example, mean that a particular judge or magistrate is suitable? In this regard, it should be
noted that some civil society groups such as ICJ-Kenya have attempted to weight the factors
and establish thresholds. However, this endeavour remains subjective, at best. In one
formulation, these groups have given more weight to factors such as constitutional propriety
and work record (23.5%), personal and financial integrity (27%) and legal and life experience
(14.5%), and less weight to factors such as communication (3%), fairness (6%), temperament
(3%), and public and community service (3%). In this formulation, a score of 50% is poor,
meaning presumably that an individual with this score would not be considered suitable for
judicial office. If, indeed, the constitutional and statutory criteria are capable of being, and
were intended to be, weighted in this manner, then a need arises for a participatory process
that incorporates the views of all stakeholders, including the public.
Otherwise the process could very easily be used to get rid of individuals who are not deemed
to be suitable by the designers of such formulae. Second, the Act denies affected judicial
officers the right to challenge the entire decision of the Board, a right which is invariably
available to all litigants to contest the decision of a judicial tribunal. It appears that the aim of
restricting the grounds of appeal, and precluding appeals to the courts, was to ensure that the
vetting process would be concluded in a timely manner. However, a robust right to appeal
not only facilitates accountability and acts as a check on abuse of power by a tribunal of first
instance, but constitutes a fundamental part of the right to a fair hearing.
Third, the Act establishes a time-limited process that may not be conducive to building the
institutional capacity of the Judiciary to police itself. Apart from its commendable due
process mechanisms, this ad hoc approach is comparable to the Radical Surgery of 2003,
which resulted in the removal of judges without enabling the Judiciary to institutionalize
complaints mechanisms. Arguably, entrusting a reconstituted JSC with vetting would
facilitate the much needed institutionalization. This perhaps explains why the Ouko Task
Force on Judicial Reforms 2010 recommended the creation of a Complaints Sub- Commission
in the JSC to continuously receive and investigate complaints against judicial officers and
staff and discipline judges. This approach has been followed in other countries where judicial
councils including representatives of the public ensure accountability of the Judiciary. The
fact that the Radical Surgery of 2003 did not obviate the need for vetting judicial officers
barely seven years later indicates that vetting should be an on-going mechanism for safe-
guarding the integrity of the Judiciary.
Four, evaluating judges and magistrates in isolation from other actors in a context in which
the entire justice sector has been the subject of public complaints is problematic. In essence,
the rot in the justice sector is systemic and not limited to the serving judicial officers; it may
be traceable to legal training and practice in the bar. Indeed, in an adversarial system228 such
as ours, the quality of justice depends as much on the competence of advocates as on judges
and magistrates. Other justice sector actors should also be vetted if real reform is to take
place. Five, all aspirants for judicial office should be vetted to ensure that they are above
reproach. This will ensure fairness for all officers and mitigate further erosion of public
confidence in this vital institution. The Act’s considerations in determining the suitability of
sitting judicial officers to serve are also pertinent in the selection of new judges and magis-
trates. Unfortunately, the hiring of the new judges has not been subjected to the same
criteria. Indeed, there were no standard protocols in this hiring process. It may later prove to
be a source of conflict among judicial officers that would hinder the development of collegial-
ity without which it will be difficult for the Judiciary to pull in one direction.
Finally, the Supreme Court Act of 2011, which operationalizes this court, gives it special
jurisdiction to review the judgments and decisions of any judge who has, under the Vetting of
Judges and Magistrates Act 2011, been removed from office either through a legally consti-
tuted tribunal or has retired pursuant to the provisions of this Act. According to Justice
Alnashir Visram, this special jurisdiction may be amenable to challenge as being ultra vires
the powers of Parliament, and therefore, unconstitutional.229 He reasons that article 163 of
constitution gives the Supreme Court specific jurisdiction, and does not contemplate the
special jurisdiction that the Supreme Court Act now purports to give this court. In his view,
the Supreme Court only has the following jurisdiction: (i) original jurisdiction to hear and
determine disputes relating to the elections of the Office of President; (ii) appellate
jurisdiction; and (iii) advisory jurisdiction with respect to any matter concerning county
government.
d. Access to Justice
A number of concerns have been noted with respect to access to justice. The court structure
does not afford equal access to justice for all. Most of the courts are found in major towns and
at times far from rural areas. Many people therefore have to travel long distances to access
the courts. For example, Ouko Task Force notes that in Northern Kenya courts are situated as
far as 500 kilometres away from the users and that in such marginal areas, there is a dearth of
legal service providers.230 It proposed the establishment of court stations and mobile courts
in marginalized areas and regions that have no geographical access to courts.231 For those who
manage to access the courts, many still have problems locating them and most of the times it
is the court security staff that provide assistance to those unable to locate their courts. There
are no professional mechanisms put in place within the various court stations to provide
directions and simplify the process of locating courts for members of public.232 Litigants also
feel that they are excluded from the conversations of the actors of the justice system, and
that they are therefore not involved in court proceedings.233 A need arises to demystify the
court process for the ordinary citizen by, for example, simplifying procedures.234
There is currently a shortage of court stations. According to a research done by the Kenya
AIDS NGO Consortium in 2004, for example, most districts had only one magistrate in the
entire District, while North Eastern Province did not have a visiting Judge.235 Further, the
court infrastructure does not accommodate persons with physical disabilities and women
with children. Wheelchair ramps only serve the ground floor in most court structures with no
elevators to the upper floors. The amenities provided do not cater for the special needs of the
disabled. The Ouko Task Force proposed that:
• physical facilities of courts should be made more accessible to persons with physical
disabilities and other vulnerable groups;
• courts should administer substantive justice without undue regard to procedural techni-
calities;
• rules of procedure of Kadhis courts should be developed and enacted to standardize the
procedures and practices of the courts; and
• court rules and procedures should be reviewed regularly to ensure that they are efficient
and simple.236
A second concern relates to financial access. Court fees are unaffordable for ordinary citizens,
as a result of which they do not take their disputes to the courts. A survey carried out to
determine whether the court fees prevent people from accessing justice showed that a major-
ity of those who had paid court fees found them to be prohibitive.237 They are also unable to
afford lawyers’ fees, which are high compared to the median income.238
Currently, the state provides minimum legal aid which does not cover all people who cannot
afford legal services. The state only provides legal aid for persons charged with murder and
conditional legal aid for child offenders who have no other recourse to legal assistance.239
The Civil Procedure Act also makes provision for pauper briefs where people who do not have
sufficient means may apply to the Court to be allowed to sue as paupers.240 Such applications
are however dependent on the availability of lawyers to take up the briefs. The Ministry for
Justice, National Cohesion and Constitutional Affairs has also piloted a National Legal Aid
Scheme in select sites in the country. However, this is yet to be rolled out across the entire
country.
Consequently, most free legal aid and associated clinics for disadvantaged groups of people
especially children, women and the poor are run by non-governmental organizations.241
For example the Federation of Women Lawyers (FIDA) Kenya offers legal assistance to
women who earn less than Ksh. 5000 per month and who have also undergone physical and
emotional trauma. Kituo Cha Sheria also runs a free legal awareness and representation
to indigent members of society. Some advocates do offer legal advice pro-bono. But these
instances are few and far between. Free legal advice from NGO participants is restricted by
the fact that they do not have a countrywide presence. Some NGO’s and the Kenya National
Commission on Human Rights (KNCHR) offer free legal aid clinics but the assistance does
not extend much further than providing legal opinions. Due to the overwhelming number of
people needing legal aid, FIDA started a programme with the assistance of the World Bank
to facilitate litigants in self-representation. They coach them and monitor their performance,
constantly providing feedback.
A number of suggestions on how to improve access to justice can be found in several reports
on the Judiciary. These include:
• Establishing small claims courts;
• Establishing a government funded legal office to represent people who cannot afford
legal fees;
• Strengthening arbitration systems as well as recognizing and incorporating traditional
and non-state justice systems.
• Establishing a national legal aid system. In this regard, it should be noted that in Novem-
ber 2007, the Government established a National Legal Aid (and Awareness) Steering
Committee to oversee, co-ordinate, monitor and provide policy direction to the National
Legal Aid (and Awareness) Programme.
• Adopting and implementing public interest litigation guidelines to facilitate access to
justice on issues of public interest.242
There are many paralegals in Kenya who provide an important source of legal assistance due
to the absence of a sufficient cadre of lawyers. Kenya is home to several paralegal networks
which have received some legal training and work for free in many communities. The parale-
gals spread awareness of human rights and make referrals to appropriate services. In a few
cases, paralegals serve as monitors for legal aid organizations, sending them information
collected from the grassroots level and submitting monthly reports. However, there are not
nearly enough paralegals in the country to take these important services to scale. Kallan and
Cohen, quote a review carried out for the United Kingdom Department for International
Development (DFID) that approximately 1,000 paralegals had been trained in Kenya as of
2005.243 They point out that approximately 20 paralegal projects were operating nationwide
supported by various donors and NGOs, of which 15 were located within a 250 kilometer
radius of Nairobi and that there are virtually no programs in Kenya that provide salaries to
paralegals beyond a small “motivational token,” or that support them after their training
for costs such as transportation.244 Data elicited from respondents in the Steadman Survey
indicated that there are Kenyans who have limited access to justice. Indeed, an overwhelming
majority (87%) said that there are Kenyans that have limited access to justice while only 17%
responded to the contrary. This would imply that most Kenyans do not access justice in its
broadest sense.
The establishment of small claims courts could also enhance access to justice. However,
Kenya has not yet established such courts. All legal disputes regardless of their magnitude are
determined through the same court system. This has led to a backlog of cases in courts and
has also prevented determination of cases whose subject matter value is less compared to the
court expenses. The establishment of small claims courts is necessary to enable the majority
of the Kenyan population access justice. Presently, even the magistrates’ courts, the lowest in
the judicial hierarchy are not accessible to the greater part of the population. Filing claims in
these courts is still too expensive and complicated for the rural Kenyan. Court filing fees are
determined by the Chief Justice in accordance with section 10 of the Judicature Act, and are
revised from time to time. However, public opinion surveys have demonstrated that the court
fees are prohibitive for many litigants.245
There are on-going efforts to establish small claims courts. The Ouko Task Force recommends
the establishment of such courts.246 A Small Claims Court Bill of 2010 has been drafted, and
it incorporates the provisions of a similar bill published in 2007 by the Law Reform Com-
mission but which was not debated by Parliament. Concerns have also been raised that the
existing modes of judicial dress and address hinder access to justice.247 One view is that the
modes of dress and address are necessary symbols of the authority of courts; they ensure the
courts have presence, distinction, dignity and respect. An alternative view, which is held by
many citizens, is that they are alienating and scare court users; they make the Judiciary seem
cold, aloof and arrogant. From this perspective, they symbolize the detachment of the Judi-
ciary from the people. This viewpoint is confirmed by some judicial officers, who say that the
public see the dress code as alien, and that the judicial system is mystified, a scenario which is
exacerbated by lack of communication with the public.248
A question also arises as to whether, and the extent to which traditional and other non-state
justice systems should be recognized by the judicial system.249 Many Kenyans settle their
grievances and conflicts in alternative justice systems, such as traditional systems, peace or
reconciliation forums, Islamic courts, and local chiefs. Additionally, in most of the rural parts
of Kenya, justice is sought through the use of non state justice systems such as a council of
elders or extended family members, and religious institutions.250 In Western province, for
example, there is a system of dispute resolution involving village elders and the provincial
administration.251 Cases which are most commonly brought to these institutions include
land disputes, livestock disputes, marital and domestic disputes, including domestic violence.
Some crimes such as assault and sexual violence are also referred to the elders for
resolution.252
However, the legal system acknowledges only Kadhi’s courts as the only religious courts in
Kenya. The explanation for this exception is historical.253 In an Agreement of 14th December
1895 between Great Britain and the Sultan of Zanzibar, Kenya’s Coastal Strip was placed un-
der the administration and protection of Great Britain. This agreement was extended follow-
ing independence, when an Exchange of Letters between the then Prime Minister of Kenya
(the late Hon. Jomo Kenyatta) and the Prime Minister of Zanzibar (the late Hon. M. Shamte)
dated the 5th October 1963, preserved the jurisdiction of the Chief Kadhi and of all the other
Kadhis in the Coastal Strip and extended it to determination of questions of Muslim personal
law in proceedings in which all parties are Muslims. This state of affairs was recognized by the
Independence Constitution, which provided for the establishment of courts subordinate to
the High Court, including Kadhis Courts. But section 179(4) of this constitution confined the
jurisdiction of Kadhi’s courts to the Coastal Strip. However, the Kadhis Courts Act (No. 14 of
1967) was subsequently enacted, and in section 4(2) it extended the jurisdiction of Kadhis
Courts beyond the Coastal Strip. It is also noteworthy that section 3 of this Act empowered
the President, not the Judicial Service Commission, to prescribe the number of Kadhis by
order in the Gazette. So that although Islam had expanded beyond the Coastal Strip, the
provision of the Independence Constitution that had limited the jurisdiction of the Kadhis
Courts to the Coastal Strip remained unchanged. Thus section 4(2) of the Kadhis Courts Act
was unconstitutional. Although the status of Kadhis courts has been the subject of much
controversy and debate in a society that is dominated by Christians, Article 170 of the new
Constitution substantially retained the provisions the repealed Constitution. Indeed, Article
170(4) of the new Constitution has extended their jurisdiction by providing that a Kadhi’s
court shall have “jurisdiction within Kenya.”
A need now arises to ensure that there are sufficient kadhis courts to meet the justice needs
of Kenyan Muslims. In addition, although the Kadhis Courts Act requires the Chief Justice to
make rules of practice and procedure for these courts, to date this has not been done.254 In
order for these courts to fulfil their mandate, the Chief Justice needs to make these rules so
that they can use the correct Islamic law procedures, practice and evidence.255
It also appears that there is a disjunct between the formal criminal justice system and in-
formal community justice systems. While many people are often reluctant witnesses in the
formal criminal trials, for example, they participate freely in community justice processes.
Indeed, crimes such as assault and sexual violence are often referred to community elders for
resolution. It could be that the people deem the informal justice systems to be more legiti-
mate, or that they are motivated by a desire to preserve harmonious relations with their
neighbours, a factor which the formal criminal justice system does not recognize or facilitate.
But in practice, formal institutions and informal institutions of criminal justice can work
together to provide the necessary incentives and limits on behaviour. For example, many
judicial officers are often influenced by the views of the communities in which they work
in exercising the power to grant bail.256 Unfortunately, our legal system has not recognized
customary or informal criminal justice systems. Several government-led activities and reform
programs either aim to support conflict resolution at the local level or focus on providing
improved access to justice by improving the formal system. The Provincial Administration
is currently training chiefs in conflict resolution. The National Steering Committee on Peace
Building and Conflict Management, coordinated from within the Office of the President, is
in the process of developing a policy framework with the aim coordinating and harmonizing
peace building and conflict management interventions. Generally, the Government has not
made any effort recognize these non-state justice systems. As a result, there is no regulation
to ensure that the proceedings before these forums of justice conform to international law
and constitutional standards of due process and human rights.
However, the new Constitution provides a framework for dealing with this problem. Article
159 of the Constitution provides that in exercising judicial authority, courts and tribunals
should be guided by, among others, the principle of promoting alternative forms of dispute
resolution including traditional dispute resolution mechanisms, to the extent that they are
not repugnant to justice and morality or contravene the bill of rights. In this context, a need
arises to carry out empirical studies of how formal and informal criminal justice systems and
institutions interact.257 Such studies could facilitate the integration of formal and informal
criminal justice systems, thereby enhancing the legitimacy of the institution of criminal jus-
tice. It should be noted that the World Bank has already carried out such studies in Northern
Kenya as part of its Justice for the Poor Project.258 More importantly, perhaps, the Judiciary
should lead the process of integrating formal and informal dispute resolution mechanisms.
For example, it could play the oversight role of ensuring that these mechanisms, for example,
respect human rights and due process norms. To facilitate this process, a need arises to map
all informal dispute resolution systems, with a view to documenting what they do, how they
do it, and the capacities at their disposal.259 While the Constitution recognises the use of
traditional dispute resolution mechanisms, it points out that they will not be applied in a way
that contravenes the Bill of Rights, is repugnant to justice and morality of results in outcomes
that are repugnant to justice or morality or in a manner inconsistent with the Constitution
or any written law.260 Operationalizing traditional dispute resolution mechanisms and their
integration with the formal justice system is critical to avoiding their neglect and conflicts
as happened to the Land Disputes Tribunal of 1990 that sought to rely on the institution of
elders to resolve land problems. Related to this is the operationalization of the use of alter-
native dispute resolution mechanisms including arbitration and mediation. Clarifying the
distinction between ADR and TDR and creating rules for their operations and functions and
links to courts and quasi-judicial tribunals is fundamental for greater access to justice.
e. Role of Lawyers
While the focus of judicial reforms is on the judiciary and paralegal staff, lawyers impact
greatly on the independence of the judiciary, their performance (in terms of case manage-
ment), and their integrity and in access to justice. On ethics, for example, previous integrity
reports have indicted the legal profession for contributing to the state of corruption within
the judiciary. In addition, lawyers have been accused of corruption and unethical conduct.
There are many public reported cases where, for example, lawyers are accused of having
received compensation from insurance companies on behalf of their clients following a
successful judgment and failing to remit the same to the clients. Other complaints against
lawyers include deliberately delaying the conclusion of court cases, a fact that led the former
Chief Justice, Evans Gicheru, to direct that judges should exercise their discretion in granting
adjournments very sparingly so as to reduce the delays in case disposal. On access to justice
issues that stand out include: focus of training of lawyers, the role of the Continuous Legal
Education (CLE) programme, numbers and geographical spread of lawyers and legal fees
for representation by lawyers. On training, from an initial one Law School at the University
of Nairobi to an additional school at Moi University, law is now offered in almost all public
and private universities, largely as a result of the advent of Module two programmes in the
universities. The increase in the numbers of universities while resulting in increased numbers
of law graduates has raised two challenges relating to quality of training and curriculum and
also strain on the number of qualified legal scholars to teach and supervise students in all
the law schools. There continues to be very limited number of law teachers in the country
especially with PhD level qualification. Once they graduate, lawyers are expected to undertake
one year combined pupillage and a stint at the Kenya School of Law, whose attendance is now
mandatory for all law students. The strain on the facility calls for expansion of the School to
handle the increased numbers. After the pupillage and the bar exams, lawyers get admitted as
Advocates of the High Court and thus become eligible to practice law. For long, the focus has
been and continues to be on private practice, with the majority of lawyers getting employed
in Private law firms and some later establishing their own practices. The majority of these law
firms are concentrated in urban areas. Ensuring that legal services are available in rural areas
will require not only improving the status of remote towns through the devolved govern-
ments, but also greater reliance on the services of paralegals to ensure that even in rural
areas citizens have access to at least basic legal services. Through Continuous Legal Education
introduced by the Law Society of Kenya in 2004, it should also be possible to require lawyers
to provide a minimum number of pro bono legal services as a condition to renewing their
practising certificates.
But the greatest issue that needs to be addressed relates to the levels of integrity and en-
hanced performance within the legal profession. The current mechanisms for disciplining
advocates are the Advocates Complaints Mechanisms under the Attorney General’s Office and
the Disciplinary Committee of the Law Society of Kenya. Both are, however, not effective and
fully independent in the discharge of their mandate.261 Judicial reforms can only be effective
if they also focus on reforms within the legal profession, including reforming and democratis-
ing the Law Society of Kenya, improving the system for regulating and disciplining lawyers,
developing and implementing a code of ethics for the legal profession and improving the
quality and relevance of legal education in the country.
The Challenges of Creating a Transformative Judiciary

Since taking office in June 2011, the new leadership of the Judiciary (that is the Chief Justice and the
Deputy Chief Justice) has embarked on creating what it terms a “transformative judiciary.” According
to the Chief Justice, the process of transforming the judiciary will be guided by the new Constitution’s
values of the rule of law, public participation, inclusiveness, integrity, transparency and accountability,
and human rights.262 He sees the Judiciary as playing a critical role in the construction of a just soci-
ety. To realize this vision of a just society in which the Judiciary is people centred and provides respon-
sive, prompt, effective, impartial and equitable service to all, it has created a Judicial Transformation
Implementation Steering Committee to oversee the implementation of the transformation process. The
Deputy Chief Justice heads this committee. It has also launched the National Council for the Adminis-
tration of Justice (NCAJ) to champion coordinated reform of the justice system, and establish linkages
with Court Users Committees and Bar-Bench committees in all counties. The Chief Justice has also cre-
ated the office of Judiciary Ombudsperson, which will receive and filter all complaints or grievances that
members of the public may have against the institution of the Judiciary or specific members of staff.
And he has initiated a process of auditing the Judiciary for national cohesion, with a view to ensuring
that it represents the face of Kenya in terms of diversity.263
As part of a process of ridding the Judiciary of what the Chief Justice terms as “the culture of monar-
chism,” and which in his view has served to alienate it from the public, he has banned the use of wigs
and ordered that judges will no longer be addressed as “my lord” or “my lady”; instead, they will hence-
forth be addressed as “your honour” or “Mheshimiwa.”264 According to the Chief Justice, magistrates
will, through their association, deliberate on whether or not to wear robes and each court will determine
its dress code. A related measure has been affecting a comprehensive reshuffle of judges while posting
the new judges who were recently recruited by the JSC. Following this reshuffle, younger judges will
now lead their older colleagues as they have been appointed as heads of court divisions or stations. For
an organization that has been famous for being hierarchical, this change is quite seismic. It remains
to be seen how the old and new judges will work together. In this respect, it should be noted that once
the new Constitution was promulgated, the judges of the High Court and the Court of Appeal quickly
elected their Principal Judge and Presiding Judge respectively. But in the case of the High Court, new
judges have now come into the picture. It is likely that the new judges may demand a fresh election on
the ground that since they did not participate in the election of the current Principal Judge, he does
not have their mandate. And similar arguments will be made once new judges of the Court of Appeal
are appointed. It will therefore be important for the Judiciary to establish procedural rules to ensure
the democratic governance of these courts, including rules on how the elections will be held, and how
frequently.
The vetting process could also derail the transformation process, particularly if more new judges are
not appointed to enable the Judiciary to transition from the old to the new order. It is therefore crucial
that a sufficient number of new judges are recruited once the ceiling on the number of judges erected by
the Judicature Act is dismantled. However, the vetting process has suffered a setback since two of the
foreigners who were appointed to serve as members of the Board have declined to take up the positions.
A political decision now needs to be made whether other foreigners should be appointed to replace the
two, or whether the Act should be amended so that the foreigners can be replaced by citizens. In our
view, although the former option may delay the commencement of the process, it is preferable since it
would ensure that the Board benefits from international experience and best practice.
Nevertheless, the prospects that the envisaged reforms will be implemented are quite promising due
to the radical approach adopted by the JSC and the Judiciary’s new leadership. Whilst the former
appointed outsiders to the positions of CJ and DCJ, the latter has reorganized the administration of
the divisions of the High Court in Nairobi and the court stations. This approach has ensured that the
leadership in place is not beholden to the status quo, and its existing power networks and loyalties. It
is also likely to ensure that the policy directives of the new leadership are implemented. However, the
new leadership now needs to ensure that the critical leadership positions of Principal Judge of the High
Court and Presiding Judge of the Court of Appeal are held by persons loyal to it, which would mean that
these positions should also go to new judges.
Interaction with specialised Courts, Quasi Judicial Tribunals and Traditional Dispute
Resolution Mechanisms
The Constitution established the employment and labour relations and the environment and land
courts as courts with the status of the High Court whose jurisdiction and functions is to be determined
by Parliament. While it is clear that the intention was to have these courts as part of the judiciary, the
establishment of the courts seems to have proceeded on the premise that these are independent courts.
There is no linkage between them and the office of the Chief Registrar who is the chief administrator
and accounting officer of the judiciary. There is also no link to the JSC and with regard to the Environ-
ment and Land Court; it purports to establish the position of the Principal Judge for the Environment
and Land Court referring to Article 165 of the Constitution in designating a Principal Judge. This is
inaccurate as there can be only one Principal Judge of the High Court elected by High Court Judges
from among themselves. Indeed there is already a Principal Judge so elected and there may be another
election following the appointment of the new judges.
In the recent reorganisation of the High Court, the Land and Environment Division which was estab-
lished in 2007 was reorganised with a judge placed in charge of three other judges. It is not clear how
this division relates to the Environment and Land Court established under the Environment and Land
Court Act 2011. Outside the court system, Kenya has a quasi-judicial system of asserting rights. This
takes the form of administrative tribunals established subject to the provisions of the enabling legisla-
tion. They are established to ensure that certain types of civil disputes are given specialized judicial
attention, either due to their complexity, urgency, and large number of cases or other unique attribute.
Tribunals operate with fewer adherences to rules of procedure and are perceived to be less expensive.
There has been a proliferation of such tribunals especially in legislations coming into force after the mid
1990s. These include the Rent Restriction Tribunal, Public Procurement and Disposal Review Board,
Water Appeals Board, the Seeds and Plant Varieties Tribunal and the Capital Markets Tribunal, the
Sugar Tribunal, the Cooperatives Tribunal and the Business Premises Rent Tribunals and the National
Environment Tribunal. How these tribunals will be dealt with in the transformation of the judiciary will
impact on the success of the reforms. For instance, should the Water Appeals Board and the National
Environment Tribunal be amalgamated and placed under the supervisory jurisdiction of the Land and
Environment Court? What happens to the proposed Land Acquisition Compensation Tribunal under
the proposed Land Bill? If tribunals are established to facilitate easy disposal of cases, there should
be clear rules on what issues the tribunal can entertain and what happens to those matters if they are
brought directly to the High Court as has happened with respect to matters under the Environmental
Management and Coordination Act 2000.
With regard to traditional dispute resolution mechanisms, the issue of the rules to be followed in chan-
nelling these issues to the formal courts should be outlined. Failing to do so will replicate the current
experiences with the land dispute tribunals whose decisions are almost invariably overturned by the
High Court. The relationship between the formal and informal systems needs to be clearly spelt out.
COMPARATIVE AND INTERNATIONAL EXPERIENCE AND STANDARDS
INTERNATIONAL BENCHMARKS
a. Bangalore Principles of Judicial Conduct 2002
In selecting the benchmarks against which reforms in the Kenyan judiciary ought to mea-
sured, the study focused on the Bangalore Principles of Judicial Conduct 2002 and the
Commonwealth (Latimer House) Principles on the Three Branches of Government 2003. As
pointed out above, the Bangalore Principles of Judicial Conduct are intended to establish
standards for ethical conduct of judges and to provide guidance to judges and to afford the ju-
diciary a framework for regulating judicial conduct. They are also intended to assist members
of the executive and the legislature, and lawyers and the public in general, to better under-
stand and support the judiciary.
The Bangalore Principles consist of six values with corresponding principles. The values are
independence, impartiality, integrity, propriety, equality, competence and diligence. Inde-
pendence has been well covered in the conceptual framework. Impartiality “ is essential to
the proper discharge of the judicial office… applies not only to the decision itself but also to
the process by which the decision is made”. Judges are enjoined to perform their functions
without favour, bias or prejudice. Judges should ensure that their conduct, in and out of
court, maintains the public’s confidence in the judiciary. On the value of integrity, it is stated
that “integrity is essential to the proper discharge of the judicial office.” The application of the
principle involves ensuring that a judge’s conduct is beyond reproach in the view of a reason-
able observer. On propriety, it is stated that “propriety, and the appearance of propriety, are
essential to the performance all of the activities of a judge.” The application of the principle
includes the avoidance of impropriety and the acceptance of personal restrictions so as to up-
hold the dignity of a judge’s office. A judge should be familiar with his personal and fiduciary
financial interests as well as those of members of his family and should not allow his family
or social relationships to improperly influence judicial conduct.
On equality, a judge is expected to appreciate diversity in society and is prohibited from being
prejudiced against any person in the performance of his judicial duties. A judge should carry
out his duties with appropriate consideration for all persons, such as the parties, lawyers and
judicial colleagues and court staff and without differentiation on irrelevant grounds. Finally,
on competence and diligence, judicial duties should take precedence over all other activi-
ties and a judge should devote his professional activities to judicial duties. Judges are also
expected to take advantage of training to increase their knowledge and skills and should keep
themselves informed on developments in international law. Decisions should also be deliv-
ered efficiently, fairly and with reasonable promptness.
There is an ongoing process of reviewing the Kenya Judicial Code of Conduct to align it with
the Bangalore Principles. Particular emphasis has been placed on filling gaps with regard to
independence; impartiality; integrity; professional and personal propriety; equality; compe-
tence and diligence.
b. The Commonwealth (Latimer House) Principles on the Three Branches of Government

The Commonwealth Principles on the Accountability and the Relationship between the Three
Branches of Government265 provide a framework for the implementation of the Common-
wealth’s fundamental values by governments, parliaments and judiciaries. On the relation-
ship between Parliament and the Judiciary, the Principles stress that the primary responsi-
bility of law making belongs to parliament and the judiciary’s responsibility is to interpret
and apply the law. Moreover, relations between the two institutions should be governed by
respect for those responsibilities.
To engender public confidence and dispensing justice, the Principles require that judicial ap-
pointments be made on the basis of clearly defined criteria, security of tenure and adequate
sources for the judiciary. They also require that court proceedings be open to the public unless
the law or public interest dictates otherwise and decisions of superior courts are published
and accessible. The Principles assert that a competent legal profession is fundamental to
upholding the rule of law and the independence of the judiciary. To safeguard judicial inde-
pendence, appointments should be merit based. On funding, it is recommended that the
judiciary should have sufficient and sustainable funding. Once voted for by parliament, the
funds should be protected from alienation. Judicial salaries and benefits should be set by an
independent body and their value maintained. Judicial training is also encouraged and should
be organised, systematic and ongoing and under the control of an adequately funded judicial
body.
Moreover, the Principles require the adoption of guidelines for ethical conduct. With respect
to judicial accountability, the Principles assert that judges should be accountable to the Con-
stitution and to the law which they must apply honestly, independently and with integrity.
This underpins public confidence in the judicial system and the importance of the judiciary as
one of the three pillars upon which a responsible government relies. Disciplinary procedures
should be proper, fair and objective. A judge who is at risk of removal has the right to be
fully informed of the charges against him, to be represented, to make a full defence and to be
judged by an independent and impartial tribunal. Disciplinary procedures should not include
the public admonition of a judge. On the other hand, it is acknowledged that legitimate public
criticism is a means of ensuring judicial accountability. However, the use of criminal law and
contempt proceedings to prevent legitimate criticism of the performance of judicial functions
are discouraged. The Principles also affirm the importance of judicial review in scrutinising
the actions of governments to ensure that decisions taken comply with the Constitution,
with relevant statutes and other law, including the law relating to the principles of natural
justice. These principles are very important in the reform process in Kenya. They touch on the
core tenets of the reform programme and should inform the implementation of transforma-
tion initiatives currently going on in the judiciary.
SELECT COUNTRIES’ EXPERIENCES

a. England
The English judiciary has traditionally suffered from the twin problems of complexity of court
procedure and the costs of litigation. Naturally therefore, the major initiatives on judicial re-
forms have, as far back in time as the nineteenth century, been focused on making law more
affordable, accessible and available to the rich and the poor equally.266
To this end, the Common Law Amendment Act of 1838 was passed to simplify procedure,
reduce legal fees and cut the length of proceedings. County Courts were also established in
1846 to provide a means by which tradesmen could recover credit without an excessive in-
vestment of time and money. However, by 1930, the London Chamber of Commerce reported
that English legal procedure was still expensive and beyond the reach of the majority of the
people.
It recommended simplification of procedure, fixed trial dates and acceptance of documents
unless challenged. These efforts at reforms in the judiciary culminated in the celebrated Lord
Woolf Inquiry into Access to Justice of 1994-1996, to which we now turn.267
In order to resolve the problems that plagued the English Civil Justice System, the Final
Report contained recommendations touching on case management, procedure and evidence,
special areas, rules of court and maintaining the pace of change. On the civil practice and
procedure, it was proposed that a claim should contain a succinct statement of the facts
entitling the claimant to a remedy; the remedy or remedies claimed; any matters of law aris-
ing out of the stated facts which entitle the plaintiff to a remedy; and the legal nature of the
claim where it would otherwise not be clear. Likewise, a defence should contain the parts of
the claim admitted and not admitted; the defendant’s version of the facts so far as differ-
ent from those stated in the claim; specific defences and any grounds for denying the claim
arising out of the facts stated by the defendant, or for disputing its value or denying entitle-
ment to a particular remedy; and where no specific facts or legal grounds are relied upon, that
the defendant does not know whether the facts stated in the claim are true and requires the
plaintiff to prove them and, if appropriate, why this is required. It was also proposed that the
term ‘pleading’ should be replaced with the term ‘statement of case’.
Kenya’s Civil Procedure rules were amended in 2010 with a view to moving from the tra-
ditional adversarial systems of litigation. Remarkably, they introduce alternative dispute
resolution to ease the burden on courts; require strict time lines, early identification of issues
through case management to encourage early disposal and the appointment of case managers
within the shortest time possible.
On case management, the UK Report recommended that the responsibility to manage cases
should be shifted from litigants and their legal advisers to the courts. A case tracking system
was proposed as follows: an expanded small claims jurisdiction; fast tracking for straight
forward cases up with strictly limited procedures, fixed timetables and fixed costs; and a new
multi track for cases above £10,000, providing individual hands on management by judicial
teams for the heaviest cases, and standard or tailor made directions where these are appro-
priate. The Report recommended sanctions for failure to comply with the case management
system which would prevent rather than punish.
Lord Woolf proposed the establishment of a new independent and representative IT strategy
body to in due course become attached, as a sub-committee, to the proposed Civil Justice
Council. Its responsibilities would include the promotion of the development of long term IT
strategy to be implemented by the Court Service for the entire civil justice system; it should
be a review body through which the medium term IT plans of the Court Service should be
passed; and thirdly, the body should monitor and report on the progress and co-ordinate
initiatives in other parts of the justice system. Finally, it was proposed that where there is a
satisfactory alternative to the resolution of disputes in court, use of which would be an ad-
vantage to the litigants, then the courts should encourage the use of this alternative: for this
purpose, it was proposed that the staff and the judiciary must be aware of the forms of ADR
which exist and what can be achieved.268
In terms of the impact of the Lord Woolf reforms, there has been increased support for alter-
native dispute resolution mechanisms, such as through the enactment of new Civil Procedure
Rules that empowered courts to manage cases before them such as ordering parties to use
ADR. Moreover, courts have held that there is a duty upon parties to pursue ADR before
entering the judicial process,269 there is a duty on the parties to a dispute to consider seriously
the possibility of trying to resolve the dispute by means of ADR270 and the judge will decide
whether a refusal to mediate was justified.
Most recently, in January 2009, Lord Justice Rupert Jackson271 was asked to conduct a
review into the costs of civil litigation. He presented the final report in January 2010 and
its main findings and recommendations included: the costs system should be based on legal
expenses that reflect the nature/complexity of the case; success fees after the event insur-
ance premiums should not be recoverable in no win, no fee cases; general damages awards
for personal injuries and other civil wrongs should be increased by 10%; referral fees should
be scrapped; claimants should only make a small contribution to defendant costs if a claim
is unsuccessful (as long as they have behaved reasonably); there should be fixed costs for
“fast track” cases; a Costs Council should be established to annually review fixed costs and
lawyers’ hourly rages; lawyers should be allowed to enter into Contingency Fee Agreements;
and ‘before the event’ legal insurance should be promoted. These reforms have informed
Kenya’s review of the Civil Procedure rules. The implementation of these rules is still in the
nascent stages and training has been recommended as useful in familiarizing judicial officers
and lawyers with the rules. The Kenya Judicial Training Institute has conducted a number of
training sessions focusing on the rules. There are proposals for similar review of the Criminal
procedure rules but this is yet to begin.
b. The United States of America

As early as 1916, it was acknowledged that the administration of justice in the United States
of America was wanting. The causes for this were identified as multiplicity of courts, waste of
judicial manpower, archaic and rigid procedural rules and lack of an overall authority, respon-
sibility and accountability of judicial operations.272 The discipline of judicial administration
subsequently developed rapidly, as a branch of the administration of justice which was dis-
tinct from the judicial function proper.273 In 1922, the Conference of Senior Circuit Judges,
renamed to the Judicial Conference of the United States in 1948, was formed to develop poli-
cies on the administration of the US Courts. The functions of the Judicial Conference include:
i. Make a comprehensive survey of the conditions of business in the courts of the
United States;
ii. Prepare plans for the assignment of judges to or from courts of appeals or district
courts, where necessary;
iii. Submit suggestions to the various courts in the interest of promoting uniformity of
management procedures and the expeditious conduct of court business;
iv. Exercise authority provided in chapter 16 of title 28 United States Codes for the
Review of Circuit Council Conduct and Disability Orders filed under that chapter;
v. Carry on a continuous study of the operation and effect of the general rules of prac-
tice and procedure in use within the federal courts, as prescribed by the Supreme
Court pursuant to law.274
The American Judicature Society was also established, composed of lawyers and non-lawyers,
which is principally concerned with the effective administration of justice. Several Judicial
Councils composed of judges, lawyers, academics and public members were further created
whose functions were to collect statistics on court dockets and case flow, and to carry out
studies and to make recommendations for the improvement of the administration of jus-
tice.275 In 1939, the Administrative Office of the United States Courts was established while
national associations of court administrators were created in the mid 1960s. The functions of
the Administrative Office of the United States Courts include providing administrative, legal,
financial, management, program, and information technology services to the federal courts
as well as providing support and staff counsel to the Judicial Conference and its commit-
tees.276 The Administrative Office of the United States Courts also facilitates communications
within the Judiciary and with Congress, the Executive Branch, and the public on behalf of the
Judiciary.
During the tenure of Chief Justice Warren Burger in the 1970s, the American judiciary was
substantially funded by the Law Enforcement Assistance Administration. Moreover, several
states simplified the trial court structure and established judicial colleges to train judges. On
the initiative of the Chief Justice, an Institute for Court Management was formed to train
court administrators.277 The Circuit Court Executive Act was passed which authorized but did
not require each judicial circuit to appoint a circuit executive to exercise such administrative
powers and perform such duties as were delegated by the circuit council. The office of the
administrative assistant to the Chief Justice was created with duties to provide the Chief Jus-
tice with research, liaise with organisations dealing with court administration, foster public
education on the judicial system and assist the Chief Justice with internal management of
the Supreme Court.278
Judicial administration in the US has also adopted a multi-disciplinary approach in the

exchange of ideas and concepts. In 1973, the Judicial Fellows Program was created to provide
added creative staff assistance to the Office of the Administrative Assistant to the Chief Jus-
tice, the Directors of the Federal Judicial Centre, and the Administrative Office of the United
States Courts; to interest scholars of other disciplines in the problems of judicial adminis-
tration; to assist scholars’ teaching and writing by giving them first-hand experience in the
field of judicial administration; and, in a pioneering way, to expose those serving in judicial
capacities to the insights of persons trained in other disciplines.279 Moreover, to benefit from
ideas within the judiciary, a Conference of Metropolitan Chief Judges was convened by Chief
Justice Warren Burger whose functions included the development of new ideas and concepts
in organising the work flow, to facilitate communication between judges and the Federal Ju-
dicial Centre and to pool experience. Other reforms under the tenure of Chief Justice Warren
Burger were the replacement of the system of United States Commissioners with magistrates
with broader jurisdiction, jury reforms where the sizes of juries were reduced, innovative
procedures such as the individual calendar, whereby all aspects of a case are assigned to a par-
ticular judge upon filing, court reporter management and the use of video-tape depositions.
As a result of the above, the United States of America witnessed increased judicial productiv-
ity with an increased rate of case disposition per judge.280
Finally, the reforms of the judiciary in the United States of America were not exclusively
focused at the institutional level; they also incorporated the evaluation of judicial perfor-
mance at the individual level. In 1985, the American Bar Association published Guidelines
for the Evaluation of Judicial Performance. The qualities they set out for judges included
integrity, legal knowledge, effective communication, courtroom effectiveness, management
skills, punctuality, service to the community, and the profession and working well with col-
leagues. The information that would form the basis of the evaluations would be sourced from
a wide net of court users and employees including judges, jurors, lawyers, parties, etc.281 The
process of appointing judges in the United States as well as the mechanisms of performance
evaluation can inform Kenya’s processes of vetting and judicial appointments under the new
Constitution.
c. India
Judicial reforms in India provide useful insights on the institutionalisation of the use of tra-
ditional dispute resolution mechanisms in order to ensure access to justice for the common
woman/man. Immediately after India’s independence from the British, Gandhians sought
to do away with the judicial system that was introduced by their former colonial masters and
urged a return to the traditional panchayats.282 Therefore, in the late 1950s, judicial or nyaya
panchayats were established with jurisdiction over specific categories of petty cases. How-
ever, unlike the traditional panchayats, the nyaya panchayats applied statutory law in lieu of
indigenous norms; their decisions were not on the basis of unanimity but a majority; rather
than drawing their membership from leading men of the caste, their members were chosen by
popular election from territorial constituencies. They encountered problems in establishing
their independence from the parties, enforcing their decrees and acting expeditiously hence
they did not enjoy popularity from the villagers on whose behalf they were established. As a
result, their caseload decreased while the caseload of official state courts increased therefore
in less than a decade, they became moribund.283
In the 1980s, a small number of judges and lawyers in India embarked on their own access
to justice initiatives such as the relaxation of requirements of standing, appointment of
investigative commissions, appointment of lawyers as representatives of client groups, and
a so-called “epistolary jurisdiction” in which judges took the initiative to respond proactively
to grievances brought to their attention by third parties, letters, or newspaper accounts.
Rather than relying on adversarial systems, the focus was on informality, conciliation, and
alternative institutions. This led to the establishment of lok adalats which loosely translates
to “people’s courts”. Lok adalats received cases by consent of the parties from local courts or
tribunals. The sessions include one day camps and the cases are mediated by a panel consist-
ing of retired judges or senior advocates. The cases involved auto accidents, family matters,
ordinance violations and minor criminal cases. Permanent lok adalats were established to
resolve disputes between citizens and government departments before they reach the courts.
Apart from lok adalats, similar forums are conducted by voluntary groups as well as the
courts such as People’s Council for Social Justice.
In 1987, the Legal Services Authorities Act was enacted in a bid to institutionalize lok adalats.
The Act was amended in 1994 and then in 2002. While the jurisdiction of lok adalats was pre-
viously over minor matters, the Act visualized lok adalats with jurisdiction over any matter
composed of judicial officers and other qualified members, authorized to proceed according to
its own procedures, which need not be uniform and to be guided by the principles of justice,
equity, fair play and other legal principles. The lok adalats would arrive at a compromise or
settlement rather than an award.
Finally, the resolution of disputes through lok adalats has received recognition in the Indian
Code of Civil Procedure 1908. Section 89 (1) (c) empowers the court to refer a case for judicial
settlement including settlement through lok adalat where it appears that there exist elements
of a settlement which may be acceptable to the parties. Where a dispute was referred to lok
adalat, section 89 (2) (b) stipulated that the provisions of the Legal Services Authorities Act
would apply. India’s experience with a diverse society can inform Kenya’s quest to dispense
justice equally for differently placed subjects seeking access to justice. Similarly, the experi-
ence with alternative dispute resolution in India can provide valuable lessons as Kenya seeks
to enhance the use of these mechanisms.
d. Rwanda
When the Rwandan government decided to set up gacaca jurisdictions after the genocide in
1994, it reduced the number of conventional courts and raised the qualifications for judges.284
The new courts were to resolve cases in a modern professional system. Accordingly, the Law
Reform Commission drafted 13 laws most of which were introduced in the year 2004 dealing
with challenges such as executive interference, judicial competence, judicial corruption and
inadequate guarantees for due process in detentions, arrests and trials. Following changes
in the administrative structure of the government, which reduced the number of provinces
in Rwanda, a problem arose on the jurisdictional limits of the courts which previously were
tied to administrative boundaries. As a result, in March 2006, a new law was introduced to
define the jurisdiction of the courts in line with the new structure. The High Court was given
jurisdiction over serious crimes such as murder and manslaughter, except for crimes commit-
ted during the period of the genocide which were dealt with by gacaca courts and the higher
instance courts. The Supreme Court was introduced as the highest court with appellate juris-
diction over the High Court and the Military High Court. An Inspectorate of Courts with the
mandate to monitor the performance of the courts and investigate complaints of misconduct
of judicial personnel was also introduced under the Supreme Court as part of the reforms.
The Rwandan Constitution of 2003 affirmed the independence of the judiciary.285 The presi-
dent of the Supreme Court was granted the power to hire, discipline, and remove judges with
the approval of the Superior Council of the Judiciary, which was composed of judges elected
by their peers, the president of the National Commission of Human Rights, two representa-
tives of law faculties, and the ombudsman (a national official charged with settling disputes
and monitoring the ethics of officials).286 The president of the Supreme Court was also
charged with the overall supervision of the courts.
The Reforms287 included:
• Streamlining the organization of the judiciary with the Supreme Court restructured to be
one unit under the Chief Justice and given mandate to oversee the functioning of other
courts.
• Review and re-arrangement of courts’ jurisdiction to deal with backlog and to discourage
endless litigation by: empowering primary courts to handle minor cases; establishment
of the Abunzi institution (mediation committees) to handle most of the litigations that
can be solved at grassroots level.
• Review of court procedures for faster justice by: providing for single judge seating even
at appeal level except at Supreme Court; bringing down the time limit for instituting
an appeal to one month instead of three months; hearing litigants in commercial cases
in a preliminary audience to determine the boundaries of a litigation and solving cases
instantly if the parties are agreeable; dismissing suits that are interrupted for a period
of six months and pegging re-adjudication on payment of new legal costs; empowering
the Chief Justice and the President of the High Court to temporarily move judges and
registrars from courts with fewer cases to those with a big backlog.
• Reforms in Criminal Procedure: prosecutors no longer involved in civil matters related to
family and status of persons as was required before; preliminary investigations con-
ducted by Judicial Police Officers removing prosecutors from the role; pre-trial detention
approved by judges and prosecutors not allowed to arrest and detain the accused persons
without this approval; provision for Habeas Corpus procedure not which Civil Law previ-
ously ignored.
• Requiring each court and judicial personnel to submit pledges of actual performance
to be delivered within a defined period and providing for individual accountability and
transparency within the system – to imbue individual accountability and transparency in
court; making monthly returns on the number of cases processed, judgments rendered,
cases postponed and the reasons for postponement; reporting of imperfections and
weaknesses within courts’ functioning by the Inspectorate Department to the quarterly
sessions of Presidents of Courts chaired by the Chief Justice and correcting them as
necessary.
• Establishment of an independent and unified judiciary run by the High Council of
the Judiciary (an institution separate from the Government) made mostly of judges
elected by their peers; the Ombudsman, the Chairperson of the National Commission
for Human Rights; Law School representative and a representative from the Ministry
of Justice. It is chaired by the Chief Justice and deals with policy determination of the
Judiciary, courts’ performance evaluation, appointments, promotion and disciplinary
sanctions of judges and registrars and amendments to laws that can impact on the func-
tioning of courts.
i. The Inspectorate Department (comprising of an Inspector General and four inspec-
tors – all senior judges of the High Court) provides a follow up and performance
evaluation system for the High Council. It intervenes in four areas: courts’ func-
tioning and service delivery to litigants; judges’ and registrars’ discipline; quality
control of judgments; and organization of trainings.
ii. The Judiciary handles its own finances and budget since 2004 and courts’ budgets
are planned and executed by administrative staff under the coordination of a secre-
tary General whose office is the Supreme Court headquarters. Judges and registrars
are not involved in money management.
• Hiring qualified personnel – recruiting learned judges with all current judges having at
least an academic first degree in law; streamlining gender balance in the recruitment of
judicial personnel; ensuring that young judges who are brought on board with little expe-
rience are provided with opportunities for training; and preparation and implementation
of an annual training programme for staff.
• Creating a conducive work environment through renovation of courts; modernization of
court equipment; integration of ICT in the daily work of courts and provision of internet;
Local area networks in all but lower courts; case management software installation to
electronically record all data on cases and produce reports; and the installation of Elec-
tronic Records Management System Software is under way.
As a result of the reforms, some achievements have been noted in the last five years: The
number of judgments given by one judge per year increased from 2 in 2003 to 20 in 2009;
9527 cases were tried and cleared from the backlog of cases filed as of 2008; there are no
more old cases dating as far back as before 2004; Cases filed between 2004 and 2006 were
almost all tried; some courts have cleared all old cases and are only trying those filled in 2009
while others are about to catch up. The main challenge is that as efforts are made to clear
backlogs and improve justice service delivery, the number of litigants has gone up which is a
positive sign that people trust the system but it is a growing burden that challenges the ef-
forts to bolster administration of justice The backlog will grow unless strategies are devised to
deal with the increased litigants. It is within this context that some new strategies have been
devised:
• A number of Draft laws designed to: reinforce mediation committees by setting an ap-
peal level for their jurisdiction and by putting in place a national coordination service
designed to supervise their activities; sensitize the population on alternative dispute
resolution mechanisms; empower registrars to assist judges in handling minor litigation
regarding court proceedings; and limit the jurisdiction of high level courts to serious
matters of great importance.
• Rwanda is on the path towards strengthening the rule of law in the country even though
there is still a lot to be done. There is a quest to build judicial professionalism to uphold
and strengthen the rule of law in Rwanda. Home grown solutions tailored to specific
problems and contexts in Rwanda are encouraged to build a judicial system based on the
aspirations of Rwandan people for fairer and faster justice delivery even as lessons can be
learnt from western judicial systems.
EMERGING LESSONS
At this nascent stage in the major reforms that are being introduced into the Kenyan judiciary, it would
be beneficial to learn from the experiences of other countries that have undertaken reforms of their
judiciaries. Moreover, accepted international standards relating to the judiciary should guide the reform
process. From our study, we found that the following lessons could be useful. Firstly, prohibitive costs of
litigation as well as procedural complexities have real and damaging consequences for access to justice.
These problems had plagued the English civil justice system until the Lord Woolf Inquiry of 1994-1996.
One of the radical reforms that were introduced was shifting the responsibility of case management
from litigants to the court as well as encouraging the settlement of disputes outside the courts. As a
result of these reforms, the English legal landscape has witnessed an increase in the use of alternative
dispute resolution mechanisms which has the effect of reducing the burden of the courts. It is noted
that new set of Civil Procedure Rules came into effect in December 2010 in Kenya. The new rules have
borrowed the spirit of the new English rules in terms of encouraging the settlement of disputes before
they get to court. However, their impact is yet to be observed.
Secondly, it is beneficial to separate the functions of court administration and the judicial function.
Judicial administration should be left to dedicated and professional administrators so that judges can
concentrate on their primary responsibilities of hearing and determining cases. Arguably, where a
judicial officer bears administrative duties in addition to judicial duties, the administration of justice
suffers.
• Thirdly, due to the scarcity of official state courts in many parts of Kenya, it may be
beyond the reach of many Kenyans to access a court to have their disputes resolved. It is
also a fact that informal dispute resolution mechanisms such as the institution of village
elders are being used in rural areas and urban informal settlements. Borrowing from the
experience of traditional dispute resolution mechanisms, judicial reforms in Kenya ought
to acknowledge and take advantage of such forums as part of their efforts to ensure ac-
cess to justice for all.
REFORM PROPOSALS, PRIORITIES AND STRATEGIES
REFORMS NEEDED
As is clear from the foregoing, many reform priorities have been put forward with respect to the judi-
ciary. Indeed the judiciary has been undergoing cycles of reform since independence with more radical
reforms being instituted from 2003. Malik defines judicial reform as the
‘improvement in the quality and efficiency of the administration of justice… simplifying and
rationalizing laws and procedures; strengthening the independence of judges; improving the ad-
ministration of the courts; balancing the costs of justice; upgrading the physical facilities of the
courts; improving legal education, training, and user perception of the legal system; expanding
access to justice for the poor and other disadvantaged groups; enhancing the quality of the legal
profession; providing alternative dispute resolution mechanisms; and strengthening the impact
of court decisions on society at large.’ 288
These components have informed past and ongoing reform initiatives in the judiciary in Kenya. In this
Chapter we highlight the reforms that are needed going forward especially within the context of a new
Constitution, new people at the helm of the judiciary and seizing the opportunities provided by the mo-
mentum for Constitution implementation and the goodwill of Kenyans and development partners. It is
important to note that the implementation of the new Constitution has given fresh impetus for judicial
reforms and provided the necessary context for these reforms. Preparedness for reform is indeed a very
critical issue which facilitates prioritising, scheduling and allocating resources necessary to carry out the
requisite reform measures. Kenya’s judiciary has been going through reform for a long time but there
is fresh impetus and agency for reform now that provides the basis for successful implementation. It
is within this context that the engagement of judicial officers, court users and the non state actors be-
comes critical to the framing of a comprehensive strategy and pre-empt the false starts that have been
witnessed over the years.
The following reforms are needed:
• Actualising the imperative of vesting judicial power in the Kenyan people and exploring
the implications thereof;
• Institutionalization of the offices of the Chief Justice, Deputy Chief Justice, Principal
Judge, Presiding Judges, Chief Registrar, heads of station and the Judicial Service Com-
mission;
• Institutionalizing the Supreme Court and alignment of jurisdiction with that of the
Court of Appeal and the High Court;
• Case management and dealing with delays and backlogs;
• Securing judicial independence and accountability;
• Fostering ethics and integrity;
• Developing the necessary infrastructure for reform;
• Training judicial officers and other justice sector actors;
• Rationalizing and augmenting human resources needed for all aspects of judicial reform;
• Developing linkages with other state and non-state actors in the justice sector;
• Communicating with the public;
• Institutionalising the Employment and Labour Relations Court and the Land and
Environment Court; and
• Mapping interactions with quasi-judicial tribunals and traditional justice systems.
a. Vesting Judicial power in the Kenyan People

Article 159 of the new Constitution provides that judicial power emanates from the people
of Kenya and should be exercised for their benefit. The judiciary therefore needs to shed its
opaque and remains an enigma to the Kenyan public. In actualising the emanation of judicial
power from the people, Chief Justice Willy Mutunga has emphasised the need for a people
centred democratic judiciary which exercises judicial power for the benefit of the people.
This is critical to building public confidence in the judiciary and facilitating access to justice
for all. Access to justice has been hindered by lack of knowledge of rights, prohibitive costs
as well as inadequate infrastructure.289 The new Constitution provides that ‘access to justice
for all persons and, if any fee is required, it shall be reasonable and shall not impede access
to justice’290 and also that ‘justice shall be administered without undue regard to procedural
technicalities’.291 These provisions need to be actualised through tangible mechanisms that
remove delays and other hindrances to accessing justice.
The following measures can be taken to help in actualising these provisions. First, the process
of reviewing the rules of procedure that has been undertaken for civil procedure rules should
be extended to criminal procedure rules. A major obstacle here has been that unlike in the
case of civil procedure, the governing statute does not establish a rules committee for crimi-
nal procedure. The review of criminal procedure should focus on simplifying court procedures
and making it possible for all to be able to access courts and bring their matters without
undue regard to technicalities. The experience of India with their epistolary jurisdiction
would be instructive in this regard. In addition civil society should enhance their activities on
public interest litigation. Further, the Chief Justice should support public interest litigation
be developing, in a consultative manner, suitable regulations.

b. Institutionalization of the offices of the Chief Justice, Deputy Chief Justice, Principal Judge,
Presiding Judges, Chief Registrar, heads of station and the Judicial Service Commission
While the Constitution decentralized and democratized the exercise of power in the judiciary,
there is need to move from the normative provisions to actions. This can be done by resourc-
ing the new offices to ensure that they are able to function and shepherd the reforms. It has
been shown for instance that the centralization of power in the offices of the Chief Justice
and Registrar has hampered efficient operation of the judiciary.
The establishment of other offices alongside that of the Chief Justice will not automatically
decentralize power. Deliberate measures are needed to ensure that decentralization is realized
and that the roles of the different offices clearly outlined to avoid overlaps, contradictions
and gaps. The devolved structure of government should also inform this institutionalization
so that there is iteration between what happens at the centre and what happens at the local
levels where the real test of access to justice is passed or failed. The Chief Justice has already
appointed a Chief of Staff to spearhead the process of institutionalising his office, and to
deal with reforms, outreach and linkages with stakeholders. This effort is commendable. It
is, however, important that there should be clarity on the linkages between this office and
that of the Chief Registrar, which is a constitutional office, to avoid conflicts and duplication.
Concerns have also been raised that the office of Chief of Staff was filled through single sourc-
ing, contrary to the requirements of the Public Procurement and Disposal Act.292
Similarly, a weak JSC was blamed for the problems in the judiciary but we now have a
revamped and strengthened JSC. There is a need to clarify the roles of the JSC vis a vis the ju-
diciary. There is also a need to separate judicial functions from court administration and har-
monization of the administrative and technical functions of the judiciary as a whole and the
individual court stations to ensure that both serve to make justice accessible for all Kenyan
c. Institutionalizing the Supreme Court and alignment of jurisdiction with that of the Court of Appeal
and the High Court
The establishment of the Supreme Court by the Constitution and the adoption of the op-
erational statute are progressive developments. The question that still remains relates to its
jurisdictions. The process of development of the rules of procedure provides an opportunity
to clarify what matters should be brought before the Court. The rules for the Supreme Court,
which have since been gazetted provide criteria for submission of matters to this court. The
delay in institutionalising the Supreme Court, however, provided a backdoor route to execu-
tive and legislative muzzling of the judicial arm of government. For instance, while most
Kenyans expected it to be the Supreme Court’s business to determine the date for the next
general election, Cabinet set in motion a process of amending the Constitution to change the
date for the election from August to December with the Justice Minister arguing that ‘the
rules of procedure for the Supreme Court are not yet prepared and we don’t know how long it
will take’.293 While this reason has since been overtaken by events as a result of the gazette-
ment of the Supreme Court rules, the end result will a two-stage process that will see the
Supreme Court addressing the matter while simultaneously the Cabinet and the legislature
will be proceeding with the amendment process. The likely conflict from this parallel process
may not augur well for judicial independence.
One would have also hoped that the development of the rules for the Supreme Court would
have involved public input. However, there is very little evidence that the public has been
consulted. This should not form the precedent which the Supreme court and the Judiciary
in general will adopt in its engagement with the public, for to do so would fall short of the
constitutional requirement for public involvement in governance and the spirit that judicial
power derives from the people.
d. Case Management
Backlog and delay are major problems in Kenyan courts. The judiciary should assess the
extent of this problem and use the assessment to determine the requisite number of courts
and judicial officers. Mechanisms for case flow, case management and training of new and
serving judicial officers in these can assist in un-clogging the system. The judiciary should
adopt a comprehensive case management strategy involving amongst others, automation of
court processes, digitalizing of court records, standardization of registry procedures, training
of staff and appropriate transfer policy to support the strategy. Other interventions include:
methods of reducing and communicating to parties concerned instances of adjournments oc-
casioned by the court; promotion of out of court settlement of certain disputes; fast tracking
ongoing efforts to develop a court of petty sessions and small claims courts.
e. Judicial Independence and Accountability
The need for an independent and impartial judiciary cannot be overemphasized. It relates to
the cadre of personnel who are appointed as judges and their capacity to ward off undue influ-
ence from external actors and the stature of the institution as a whole. Judges should have
security in their positions to decide cases without fear or favour. The new Constitution has
gone a long way to provide such security. It has also spelt out the professional competences
necessary for one to serve as a judge. Professional qualifications are however, not sufficient
on their own to ensure that the exercise of judicial power benefits Kenyans.
In this regard, the JSC should develop comprehensive criteria for the recruitment of judicial
officers and other court staff to ensure standardization. In these criteria, guidance notes on
high moral character, integrity, impartiality, diligence and intellectual competence should be
provided. The JSC should also develop procedures and regulations for receiving and process-
ing complaints and enforcing disciplinary action against judicial officers and staff.
Related is the need for accountability in the exercise of judicial power. In this regard, it is
important that a set of standards is developed to balance judicial independence with account-
ability. This will comprise mechanisms for evaluating the performance of judges as individu-
als and the judiciary as an institution and should address: transparent decision-making
supported by reasons; full records; public access to records and scrutiny of judgments; use
of judicial codes of conduct to discourage flagrant legal errors, legal errors motivated by bad
faith, or a continuous pattern of legal error on the part of a judicial officer; facilitating timely
settlement of cases.
There is also need to review Kenya’s judicial Code of Conduct taking the Bangalore Principles
into account, and amplifying it in the following areas: independence; impartiality; integ-
rity; professional and personal propriety; equality; competence and diligence. The Kenyan
Code is deficient in a number of respects.294 First, independence, which is perhaps the most
important of the six judicial values of the Bangalore Principles, has only received meagre
treatment. Second, it deals with impartiality only to the extent that certain grounds for
disqualification are enumerated. Third, it omits the value of integrity, an fails to convey its
essence, which is that the behaviour and conduct of a judge must reaffirm the people’s faith
in the integrity of the Judiciary. Fourth, omits 9 out of 16 of the applications of the value
of propriety as expressed in the Bangalore Principles. Fifth, it does not address the value of
equality, yet this value is an essential attribute of justice. There are also significant omissions
in the Kenyan Code relating to the judicial values of competence and diligence. And with
respect to implementation, it is not compatible with the Implementation Measures for the
Bangalore Principles. Mechanisms for implementing the Code should be put in place through:
Public perception surveys; Decisions of the judicial ethics review committee on complaints
of unethical conduct; gauging willingness to participate and actual participation in training
programs; Decisions of appellate courts; Academic review of judgments; Court-user commit-
tees; Public complaints boxes; Case audits to ascertain timeliness in the disposal of cases and
causes for delay; Service delivery surveys among stakeholders; Random court inspections;
Consultative workshops on court administration and case management; Town hall meetings
at which judges address concerns of the community; and Publication of annual reports on
court performance.
In a country like Kenya, the application of law needs to be contextualized to avoid instrumen-
talism. The quest for equal access to justice can be nuanced by gender, cultural and religious
differences raising the need for awareness of the differences to ensure inclusion of marginal-
ized groups. Mechanisms to ensure equal access to justice should be put in place.
f. Ethics and Integrity
Issues of integrity and ethics have dogged Kenya’s judiciary for a long time. There is need to
put in place mechanisms to address these issues. These could include an ethics review body to
handle breaches of professional conduct which do not merit disciplinary action and an Ethics
Advisory body to assist judges when they are faced with issues of propriety.
On the issue of corruption, the implementation of the revised code of conduct for judicial of-
ficers should address this. There is however also need for codes of conduct for paralegal staff
and other court users such as lawyers to seal all avenues of corruption. These codes should
outline expected conduct and punishments for violations. Additionally, the Deputy Chief
Justice has noted the need for corruption mapping strategies for prompt detection of corrup-
tion among judicial officers. Other mechanisms that can be put in place are: the requirement
of declaration of assets by judicial officers; review and improvement of salaries for judicial
staff; limiting stay at one station by judicial officers to avoid too much familiarity; and estab-
lishing a system of vetting of those proposed for appointment as judicial officers. Proper use
of ICT infrastructure for recording proceedings and computerizing registry services can also
reduce corruption by ensuring integrity of data storage and management and pre-empting
rent seeking by those engaged in manually recording the proceedings.
g. Infrastructure
Lack of adequate and modern infrastructure compromises access to justice and the perfor-
mance of the judiciary and judicial officers. There is shortage of court complexes in Kenya
with most of the courts being in major towns and at times far from rural areas. Consequently,
people have to travel far distances to access the courts. The 2010 Report of the Task Force
on Judicial Reforms noted that in Northern Kenya courts are situated as far as 500 km away
from the users. Calls have been made for the establishment of more court stations and mo-
bile courts in marginalized areas and the improvement of available infrastructure. Indeed the
construction of the new Court Building in Milimani is a welcome boost to the infrastructure
capacity. There is still however still great need to enhance infrastructure for the judiciary. The
requirement for a court in every county will call into focus the issue of infrastructure. In this
regard, it is necessary to:
• Establish more courts and align them with the devolved system of government
• Create a conducive work environment through renovation and refurbishment of courts
• Modernize of court furniture and equipment. The Judiciary should develop a master plan
for the modernization of its physical facilities and acquire title deeds for all its land and
buildings
• Integration of ICT in the daily work of courts; internet access; use of social media for
communication; installation of case management software to electronically record all
data on cases and produce reports; installation of electronic Records Management Soft-
ware etc
h. Training
It is now widely accepted that judicial education is an integral part of judicial service. It fa-
cilitates the exercise of the judicial function independently on the basis of the judge’s assess-
ment of the facts and in accordance with a conscientious understanding of the law. It equips
judicial officers with the knowledge, skills and attitudes needed for the performance of their
functions. The Kenya Judiciary Training Institute was established to equip judicial officers
with skills as well as provide opportunities for retooling in new and emerging areas of law.
There is need in this regard for different training opportunities such as:
• Induction to professionalize the needs of new appointees in transition to the bench.
• Continuing judicial education (CJE) to assist officers to keep up to date with recent
developments, develop skills and outlook and exchange experience. Induction; CJE and
ICT use.
Training should be preceded by a needs assessment of individual judicial officers and the
judiciary as an institution. There should also be an almanac of training events that is syn-
chronized with the court calendar. Issues of ethics, ICT, rules among others can be dealt with
in training sessions. There may be need to have a training session for entering and serving
judicial officers on the new Constitution for instance. Training should however, not be limited
to judicial officers but should also include paralegals.
i. Human Resources
Access to justice is hampered by the absence of court stations in many locations forcing
people to travel long distances to access the court. One of the reasons why there are no courts
is the limited number of judicial officers and court facilities. More judicial officers and sup-
porting paralegal staff should be hired. Other issues include rationalisation of staff needs for
an effective judiciary taking into account the population of the country and the number of
courts. The universally accepted ratio of the number of judicial officers per population size is
1: 20,000. Other issues include:
• Reviewing the terms and conditions of service especially for the magistracy;
• Developing mechanisms for recognizing and rewarding hardworking judicial personnel;
• Developing policies on transfers to ensure that the process is not punitive nor disruptive;
• Developing and instituting performance monitoring systems for judicial officers; and
• Hiring interpreters for all courts across the country.
j. Linkages with other justice sector stakeholders

The Judiciary should initiate the development of multi-stakeholder guidelines on admin-
istration of justice outlining the responsibility of every agency which is important for a
multi-sectoral approach to judicial transformation. This can be accomplished by operational-
izing the National Council for the Administration of Justice which was launched in August
2011; establishing Bench-Bar and Bench-Legal Academy collaboration and institutionalizing
and mainstreaming court users’ committees; frequent meetings in all stations between the
judiciary and stakeholders in the justice sector should also be held to enhance a harmonious
working relationship. Although the judiciary introduced an open day concept several years
back, it should now be institutionalized and made more people friendly. During the open
days, judges have appeared in Wigs and Gowns, which only served to alienate the public.
Many litigants have also turned the open days into sessions for registering complaints about
individual cases, an activity that is not compatible with the concept. In addition, open days
should be decentralised. Experiences, where some courts have a once-in a month meeting
with members of the public to discuss general issue relating to access to justice provide useful
models,295 although the time frames need to be re-examined.
Judicial!Service!
Commission! ADR!–!Alternative!Dispute!
Leadership!Management! Resolution!
CommiLee!
Judiciary! Ombudsman! TDR!–!Traditional!Dispute!

Resolution!
Chief!of!Staﬀ!
Chief!Jus5ce! NCAJ!–!National!Council!for!the!
NCAJ!
Administration!of!Justice!
CUCs!
CUCs!–!Court!Users!
Judiciary!Transforma5on! Committees!
Steering!CommiLee!
Deputy!Chief!Jus5ce! Performance!Management!
Directorate!
Supreme!Court!
Chief!Registrar! President!Court!of!Appeal!
Court!of!Appeal!
Regional!Courts!of!Appeal!
Urban!Area!Courts!
Magistrates! (e.g.,!City!Council! ADR! TDR!
High!Court! Courts! Kadhi!Courts! Mechanisms! Mechanisms!
Courts)!
Principal!Judge!High!
Court!
County!High!Court! Land!&!Environment! Employment!&!Labour!

Divisions! Court! Rela5ons!Court! High!Court!Divisions!
Judicial!Training!Ins5tute!
Judicial!Transforma5on! Heads!of!Divisions!&! Land!&! Cons5tu5onal!&!

Secretariat! Court!Sta5ons! Environment! Civil! Family! Judicial!Review! Criminal! Commercial!&!Admiralty!
Deputy!Chief!Registrar!
Registrar! Registrar!Courts! Registrar!High! Registrar!Magistrates! Registrar!Kadhi! Registrar!Urban!

CommiLees! Supreme!Court! of!Appeal! Courts! Courts! Courts! area!Courts!
!
Administra5ve!Departments:!Human!Resources,!Administra5on,!Finance,!Procurement,!etc!
k. Communicating with the public
The Judiciary has been accused of being aloof and opaque to the public. Under the new Con-
stitution, transparency and public participation are required of all institutions. Provision of
information about the Judiciary to the public is needed to demystify image of the judiciary.
The judiciary realizes the need for communication with the public and introduced judiciary
open days to address this need. There is however, need to use different media for communica-
tion. Town hall meetings, social media, and the issuance of a state of the judiciary address are
some ways in which this can be achieved. These initiatives should be under girded by a com-
munication policy for engaging the public and managing the flow of information.
Various committees tasked to review the judiciary had proposed the office of a public rela-
tions officer. This should be evaluated and a decision made on its suitability and fit in the
current judiciary scheme of service. The idea of the litigants Charter that was introduced
some time back is a laudable initiative. The Charter needs to be reviewed in light of the new
Constitution and widely publicized and disseminated. In addition the Judiciary should pub-
lish pamphlets and other public education materials on developments within the judiciary.
All court stations should have a customer care office where members of the public can go and
access information and make inquiries on basic happenings within the judiciary.
l. Institutionalize the Employment and Labour Relations Court and the Land and
Environment Courts
The Constitution has created both the Employment and Labour Relations Court and the
Environment and Land Courts. The Employment and Labour Relations Court is to replace
the current industrial Court. The process of establishing these courts is currently facing some
difficulties. It is important that the JSC takes leadership in the establishment of these courts.
This requires transitioning of the industrial courts and their judges to the new Employment
and Industrial Relations Court. Second, the relationship between the Environment and Land
Court, its establishing Act and the Land and Environment Division of the High Court is im-
portant and needs to be reviewed and harmonized. The process may require amending the Act
establishing the Environment Court to ensure that it fits within structures and operations of
the judiciary not just in Nairobi but across the entire country.
m. Access to Justice
At the heart of Judicial reforms is the need to ensure greater access to justice for citizens.
The reforms within the judiciary should result to faster, affordable and efficient dispensation
of justice, especially for the poor and marginalized sections of Society. To enhance access to
justice it is important that:
• There be a review and rearrangement of the jurisdiction of courts to deal with backlog
and discourage endless litigation
• Empower primary courts to handle minor cases;
• Establish mechanisms for alternative dispute resolutions and traditional dispute resolu-
tion to handle issues that can be handled at the grassroots
• Develop public interest litigation guidelines
• Develop, adopt and implement a legal aid policy based on the national pilot aid scheme
already in place
• Establish court stations and mobile courts in remote locations
• The judiciary should work towards making court facilities accessible to persons with
disabilities
• Review court rules and procedures for faster justice
• Establish the office of Public defender so as to ensure representation to underprivileged
members of society
• Enhance collaboration between stakeholders in the administration of justice sector
i. Devolving Judicial Services
While the Constitution of Kenya has two levels of government, at the national and
county levels, the legislative and executive branches have been devolved constitu-
tionally. However, judicial power is still the preserve of the national government.
Nevertheless, if we are to realise the objects of devolution under Article 174 of the
Constitution, it will be imperative for the judiciary to operate in tandem with the
devolved structures. Citizens as part of the constitution making process com-
plained of lack of accessibility of government and its services. This extended to
judicial services. The Judicial Service Act envisages a county court for every county,
and provides as the function of the Chief Registrar the duty to, “ensure the efficient
devolution of the administrative units to county levels, including a High Court
Division in each county.”296 This task requires the leadership of the Judicial Service
Commission and not just the Chief Registrar. It entails urgent construction of a
High Court Station in every county where none exists and progressive but speedy
posting of resident judges to every county. The process already commenced by the
Chief Justice in posting a judge to Garissa and the signaled construction of new
court buildings across the country is critical.
ii. Operationalising Traditional Dispute and Alternative Dispute Resolution Mechanisms

The constitutional recognition of both traditional dispute and alternative dispute
resolution mechanisms as part of judicial methods of resolving disputes is laudable.
However, there is greater challenge in actualising this recognition. The relationship
especially between traditional dispute resolution mechanisms and formal court sys-
tems is particularly sensitive and requires a lot of thought. Other areas of concern
include the relationship between ADR and TDR, and rules for the operations of
both ADR and TDR.
Civil Society should lobby for the operationalisation of these mechanisms since
they are the most widely used avenues by local communities to access justice. A
study of traditional and alternative dispute resolution mechanisms and their char-
acteristics is much-needed and should be considered and undertaken urgently.
iii. Reforming Other Justice Sector Institutions and Actors

This report has detailed the reforms needed within the judiciary. It is, however,
important to realize that the judiciary, although an important actor, is only one of
several institutions in the delivery of justice. The focus of reforms should extend
to other agencies involved in delivering justice including lawyers, paralegal staff,
the police, prisons and probation departments. In this respect, it is noteworthy
that reforms underway in the Office of the Director of Public Prosecutions and are
anticipated in the Attorney Generals’ office following the appointment of a new
Attorney General. Tracking the reforms in these areas is also important due to their
direct linkages with judicial performance and delivery of justice.
ROLE FOR CIVIL SOCIETY ACTORS IN ENHANCING JUDICIAL REFORMS AND

ACCESS TO JUSTICE
Civil Society Organisations have a key role to play in the implementation of judicial reforms so as to
achieve better justice for citizens. Based on discussions with a number of CSOs, the following are the
priority areas that CSOs should focus on in the process of undertaking and engaging in judicial reforms.
a. Civic empowerment and participation in Judicial Processes and Reform

Civil Society should prioritize their contribution to vesting of judicial power in the people, de-
volving judicial services and enhancing communication between the judiciary and members
of the public. The CSOs can ensure realization of this priority area by:-
• Designing a civic education framework with clear action plans and rolling out the same.
Linkages with the national integrated civic education process being spearheaded by the
Ministry of Justice, National Cohesion and Constitutional Affairs and ensuring
prioritizing civic education on the judiciary would be essential.
• Carrying out sustained and structured public education on the provisions of the consti-
tution.
• Generating Information, Education and Communication (IEC) materials to simplify the
court structures, systems and processes. These could include developing radio and TV
programmes, leaflets on the court structure, simplified copies of the Litigant’s Charter
and other IEC materials.
• Employing creative means of carrying out civic education and participation. For example,
through use of television drama series and theatre.
• Instituting public interest cases through a participatory process. This entails CSOs identi-
fying which cases they can institute with or for members of public. It also involves CSO
coordinating their public interest litigation processes and advocating for the develop-
ment and adoption of guidelines on public interest litigation by the judiciary.
b. Enhancing Ethics and Integrity within the Judiciary

Enhancing ethics and integrity within the judiciary should also form a priority area for
civil society. This should be linked with engaging the process of vetting judicial officers and
supporting the enhancement of judicial independence and accountability. CSOs can ensure
realisation of this priority by:-
i. Engaging in the legislative process around regulations and rules on various aspects of
judicial reforms.
ii. Monitoring the vetting process.
iii. Holding the judiciary to account on their targets and promises to enhance access to
information by the members of public. For example, the CSO could prepare shadow
reports and compare them with the reports generated by the judiciary on judicial
reforms.
iv. Taking part in judiciary “open days” as well mobilizing their constituents to take part
in them.
v. Facilitating interaction between judicial officers and court users committees.
For example, judicial officers visiting facilities that other law enforcement agencies
work in such as prisons, police stations cells akin to ‘Judicial Officers Walks’ in juris-
dictions like India.
vi. Monitoring the conduct of lawyers and engaging with relevant bodies such as the Law
Society of Kenya and Council for Legal Education to improve training on ethics and
integrity within the judiciary.
vii. Engaging with the advocates’ disciplinary committee and advocates complaints com-
mission with a view to enhancing integrity amongst legal practitioners. This should
result in reform of the legal framework and process for ensuring integrity within the
profession.
c. Access to Justice
To contribute to improving access to Justice, CSOs should prioritize: -
i. Engaging in public interest litigation.
ii. Participating in the drafting of public interest litigation rules.
iii. Advocating for the establishment of the office of the public defender.
iv. Advocating for the roll out of the National Legal Aid scheme and for enactment and
implementation of the draft Legal Aid Policy and Legal Aid Bill.
v. Enhancing awareness on ADR and TDR. Further, CSOs could carry out mapping and
studies on existing mechanisms on TDR and ADR and propose modalities for greater
interface between the judiciary and courts on the one hand and ADR and TDR
mechanisms.
vi. Advocating for establishment and operationalization of small claims courts and
courts of petty sessions.
d. Case management and dealing with backlog

The CSO‘s contribution to this reform area should focus on:-
i. Developing practical proposals on the handling of backlog. CSO should, for example,
interrogate how traffic offences which contribute to case backlog can be dispensed
with expeditiously.
ii. Advocating for increased budgetary allocation to the judiciary and monitoring use of
money allocated.
iii. Educating citizens on the use of the community service order.
iv. Advocating for and monitoring the roll out of ICT use within the judiciary including
enhanced allocation of funds for ICT to ensure sustainability beyond donor funding.
v. Advocating for and participating in the operationalization of ADR.
e. Judicial Training
The CSO can ensure realisation of this priority by:-
i. Facilitating and/or collaborating with policy makers for court clerks to be trained in
information management.
ii. Collaborating or partnering with Judicial Training Institute in helping the latter to
carry out its functions. For example, providing input into curriculum development for
judicial officers and carrying out joint training sessions for the officers on areas falling
within the mandate of CSOs.
iii. Advocating for revitalisation of the primary level training of judicial officers at univer-
sities and at the Kenya School of Law (KSL), to include curricula on ethics and integ-
rity. CSO should also advocate for expansion of KSL to enable it admit more students
from universities.
iv. Facilitating and or collaborating with JTI for judicial officers to be sensitised on civil
procedure rules 2010.
f. Linking judiciary to other stakeholders

The CSO can ensure realisation of this priority by:-
i. Developing mechanisms to ensure that CSOs who are members of the NCAJ are ac-
countable to and represent issues of the wider CSO community within the NCAJ.
ii. Mobilizing citizens to participate in judiciary open days.
iii. Advocating for revitalization of CUCs.
iv. Engaging with and advocating for immediate and active engagement of NCAJ in
implementing reforms in the administration of justice.
To ensure that the above reforms are undertaken, we propose that civil society consider establishing
structured networks of organizations working on judicial reforms and access to justice divide the ac-
tions amongst the various organizations and jointly work towards and monitor their implementation.
This could culminate in the preparation and dissemination of a yearly progress report on judicial reform
and access to justice to complement or shadow the anticipated state of the judiciary address to be
delivered by the Chief Justice. Act should consider supporting the establishment of such a network in
addition to supporting the implementation of several reforms flagged in this report. Further a stocktak-
ing study should be carried out midstream the five-year period to document the progress that will have
been made in implementing judicial reforms.
notes
1. See, e.g., Republic of Kenya, Report of the Committee on the Administration of Justice (1998);
Constitution of Kenya Review Commission, Report of the Advisory Panel of Eminent Commonwealth
Judicial Experts (2002); Republic of Kenya, Report of the Integrity and Anti-Corruption Committee (2003); Republic
of Kenya, Report of the Sub-Committee on Ethics and Governance of the Judiciary (2006); Republic of Kenya, Report of
the Committee on Ethics and Governance of the Judiciary (2007); Republic of Kenya, Final Report of the Task Force on
Judicial Reforms (2010).
2. We interviewed 2 Judges, 4 Chief Magistrates, 3 Senior Principal Magistrates, and 1 ICT expert.
3. We held three FGDs – with magistrates, Civil Society Organizations and a Court Users Committee.
4. Andrei Marmor, “The Rule of Law and its Limits,” University of Southern California Law School, Public Policy Research
Paper No. 03-16 at 8 (2003).
5. Ibid.
6. Richard Messick, “Judicial Reform and Economic Development: A Survey of Issues,” 14(1) World Bank Research Ob-
server 117 at 118 (1999).
7. Amartya Sen, Development as Freedom (Random House, 1999).
8. This conceptualization of judicial independence and accountability is based on Migai Akech & Patricia Kameri-Mbote,
“Kenyan Courts and Politics of the Rule of Law in the Post-Authoritarian State,” International Journal of Constitu-
tional Law (Forthcoming, Winter 2012).
9. Charles Gardner Geyh, “Judicial Independence, Judicial Accountability, and the Role of Constitutional Norms in Con-
gressional Regulation of the Courts” 9 (2003).
10. Ibid at 13.
11. Ibid at 13-14.
12. See, e.g., William C. Whitford, “The Rule of Law,” Wisconsin Law Review 723 at 728 (2000).
13. Geyh, supra note 9 at 10.
14. Ruth W. Grant & Robert O. Keohane, “Accountability and Abuses of Power in World Politics” 99 American Political Sci-
ence Review 29(2005).
15. Charles Gardner Geyh, “Rescuing Judicial Accountability from the Realm of Political Rhetoric,” Indiana University
School of Law – Bloomington, Legal Research Paper No. 61 at 5 (2006).
16. Ibid at 7.
17. Jonathan Soeharno, “Is Judicial Integrity a Norm? An Inquiry into the Concept of Judicial Integrity in England and the
Netherlands,” 3(1) Utrecht Law Review 8 at 17 (2007).
18. Ibid at 22.
19. Ibid at 18.
20. Jeffrey M. Sharman, “Judicial Ethics: Independence, Impartiality, and Integrity” 17 (1996).
21. Ibid.
22. United Nations Office of Drugs and Crime (UNODC), “Commentary on the Bangalore Principles of Judicial Conduct” 5
(2007).
23. See, e.g., 28 USC § 351.
24. Sharman, supra note 20 at 10.
25. Ibid at 8.
26. Ibid.
27. Ibid at 9.
28. Arthur D. Hellman, “The Regulation of Judicial Ethics in the Federal System: A Peek Behind Closed Doors,” 69 Univer-
sity of Pittsburgh Law Review 189 at 197 (2007).
29. Ibid at 202.
30. See, e.g., Ronald D. Rotunda, “Judicial Ethics, The Appearance of Impropriety, and the Proposed New ABA Judicial
Code,” 34(4) Hofstra Law Review 1337 (2006).
31. See, e.g., 28 USC § 351(a).
32. See, e.g., United Nations Development Program, “Vetting Public Employees in Post-Conflict Settings: Operational
Guidelines” (2006).
33. Hellman, supra note 28 at 235.
34. Rotunda, supra note 30 at 1377.
35. See, e.g., Gavin Drewry, “Public Management Reform – A Challenge to Judicial Independence?” in The Challenge of
Change for Judicial Systems 93 at 94 (M. Fabri & P.M. Langbroek, eds, IOS Press, 2000).
36. Ibid.
37. Ibid.
38. See, e.g., Marco Fabri, “Selected Issues of Judicial Administration in a Comparative Perspective,” in The Challenge of
Change for Judicial Systems 187 (M. Fabri & P.M. Langbroek, eds, IOS Press, 2000).
39. Ibid at 189.
40. Ibid.
41. Steve Henley & Jo Haynes Suhr, “The Role of Court Administration in the Management, Independence, and Account-
ability of the Courts 78(3) Florida Bar Journal 26 (2004).
42. Fabri supra note 38 at 189.
43. Ibid at 190.
44. Ibid.
45. Ibid at 193.
46. Ibid.
47. See, e.g., Kenneth M. Vorrasi, “England’s Reform to Alleviate the Problems of Civil Process: A Comparison of Judicial
Case Management in England and the United States,” 30(2) Journal of Legislation 361 (2004).
48. Ibid at 362.
49. Ibid.
50. Ibid.
51. Ibid at 368.
52. Ibid at 371.
53. Ibid.
54. D.J. Galligan, “Courts and the Making of Public Policy: Judging Judges” 1 (year unknown), Available at < http://www.
fljs.org/uploads/documents/Galligan_Policy_brief%231%23.pdf>
55. Ibid at 2.
56. Ibid.
57. Ibid at 3.
58. Jean E. Dubofsky, “Judicial Performance Review: A Balance between Judicial Independence and Public Accountability,”
34 Fordham Urban Law Journal 315 at 321 (2007).
59. Penny J. White, “Judging Judges: Securing Judicial Independence by Use of Judicial Performance Evaluations,” 29
Fordham urban Law Journal 1053 at 1064 (2001-2002).
60. Galligan, supra note 54 at 4.
61. Ben F. Overton, “Grounds for Judicial Discipline in the Context of Judicial Disciplinary Commissions,” 54 Chicago-Kent
Law Review 59 at 63 (1977-1978).
62. Ibid.
63. Galligan, supra note 54 at 6.
64. It should be noted that realizing such targets partly depends on factors beyond the control of the judiciary, such as the
conduct of members of the bar and litigants
65. See Waleed H. Malik, “E-justice: Towards a Strategic Use of ICT in Judicial Reform,” The World Bank, Marrakech Con-
ference Strategies for the Modernization of Justice in Arab Countries Organized by POGAR, UNDP/WB/MOJ Morocco
March 15-17, 2002 (On file with the authors)
66. Ibid.
67. Craig A. McEwen & Laura Williams, “Legal Policy and Access to Justice through Courts and Mediation,” 13 Ohio State
Journal on Dispute Resolution 865 at 866 (1998).
68. Laura Klaming & Ivo Giesen, “Access to Justice: The Quality of the Procedure,” Tilburg Institute for Interdisciplinary
Studies of Civil Law and Conflict Resolution Systems, Working Paper Series on Civil Law and Conflict Resolution Sys-
tems, No. 002/2008 (2008); Maaike De Langen & Maurits Barendrecht, “Legal Empowerment of the Poor: Innovating
Access to Justice,” in The State of Access: Success and Failure of Democracies to Create Equal Opportunities 250 at 254-
257 (Brookings Institution Press, 2008).
69. Lawrence M. Friedman, “Access to Justice: Some Historical Comments,” 37 Fordham Urban Law Journal 3 (2010).
70. See, e.g., Ewa Wojkowska, “Doing Justice: How Informal Justice Systems Can Contribute,” United Nations Develop-
ment Program Paper (2006).
71. De Langen & Barendrecht, supra note 68 at 267.
72. See, e.g., Tanja Chopra, “Dispensing Elusive Justice: The Kenyan Judiciary Amongst Pastoralist Societies,” 2 Hague
Journal on the Rule of Law 95 (2010).
73. Paul Mwangi, The Black Bar: Corruption and Political Intrigue within Kenya’s Legal Fraternity 114 (Oakland Media
Services limited, 2001).
74. P. Kameri-Mbote & Migai Akech, Kenya: Justice Sector and the Rule of Law, A review by AfriMAP and the Open Society
Initiative for Eastern Africa, Open Society Foundations (2011) p. 92.
75. Ibid.
76. The discussion in this section is based on Migai Akech & Patricia Kameri-Mbote, “Kenyan Courts and Politics of the Rule
of Law in the Post-Authoritarian State,” Research Report Prepared for the Institute of Development Studies, University
of Helsinki Project on “From Security to Inclusive Development: The Politics of the Rule of Law in Africa’s Democratic
Transition” (2009).
77. For an overview of the constitutional review process in Kenya, see Republic of Kenya, Report of the Committee of Emi-
nent Persons (2006).
78. See, e.g., ICJ-Kenya, The Judiciary in Review 2000-2002 (2002).
79. Wachira Maina, “Strengthening the Fragile Bastion: Blueprint for Judicial Reform in Kenya” 18 (ICJ, 2006).
80. See Republic of Kenya, Report of the Committee on the Administration of Justice (1998).
81. Ibid at 10.
82. Express (K) Limited v. Manu Patel, Nairobi Civil Appeal No. 158 of 2000.
83. Constitution of Kenya Review Commission, Report of the Advisory Panel of Eminent Commonwealth Judicial Experts
(2002). This inquiry was instituted by the Constitution of Kenya Review Commission in fulfilment of its statutory
mandate to “examine and make recommendations on the Judiciary generally and in particular, the establishment and
jurisdiction of the courts, aiming at measures necessary to ensure the competence, accountability, efficiency, discipline,
and independence of the Judiciary.” Constitution of Kenya Review Act, section 17(d) (v).
84. Ibid at 6.
85. Ibid at 18.
86. Ibid at 6.
87. Ibid at 28.
88. ICJ-Kenya, “The Judiciary in Review 2000-2002” at 11 (2002).
89. Ibid.
90. Constitution of Kenya Review Commission, Final Report of the Constitution of Kenya Review Commission (2005).
91. Jill Cottrell & Yash Ghai, “Constitution Making and Democratization in Kenya (2000-2005),” 14(1) Democratization 1
at 7 (2007).
92. See, e.g., ICJ-Kenya, “Judicial Independence, Corruption and Reform” 15 (2005).
93. Republic of Kenya, Report of the Integrity and Anti-Corruption Committee of the Judiciary of Kenya (2003).
94. ICJ-Kenya, “Kenya: Judicial Independence, Corruption and Reform” 19 (2005).
95. The findings of the mission are reported in ICJ-Kenya, “Kenya: Judicial Independence, Corruption and Reform,” (2005).
96. Republic of Kenya, Judiciary Strategic Plan 2005-2008 (2005).
97. Ibid.
98. Ibid at 2.
99. Republic of Kenya, Final Report of the Task Force on Judicial Reforms (2010).
100. Republic of Kenya, Judiciary Strategic Plan 2009 – 2012 at 19.
101. Ibid.
102. Ibid.
103. Ibid.
104. Ibid.
105. Ibid at 30.
106. Ibid at 33-34.
107. The Chief Justices that have established committees include Justice Zacheus Chesoni and Evans Gicheru.
108. Republic of Kenya, Report of the Committee on Ethics and Governance of the Judiciary 17 (2007).
109. Republic of Kenya, Report of the Sub-Committee on Ethics and Governance of the Judiciary 54 (2006).
110. Republic of Kenya, Report of the Committee on Ethics and Governance of the Judiciary 36 (2007).
111. Republic of Kenya, Final Report of the Task Force on Judicial Reforms 4 (2010).
112. Republic of Kenya, Consolidated Report of the 2010 Kenya Judges’ Colloquium (2010).
113. This discussion is drawn from Migai Akech & Patricia Kameri-Mbote, “Kenyan Courts and Politics of the Rule of Law
in the Post-Authoritarian State,” International Journal of Constitutional Law (Forthcoming, winter 2012).
114. G. Kamau Kuria and J.B. Ojwang, Judges and the Rule of Law in the Framework of Politics: The Kenya Case, Public
Law 254 at 267 (1979).
115. Constitution of the Republic of Kenya, art. 61(1) (1963) (Repealed).
116. Ibid, art. 61(2).
117. Ibid, art. 68(1).
118. Ibid, art. 69.
119. Interview with judges, in Nairobi, Kenya (Aug. 2009) [hereinafter Nairobi Interview].
120. Republic of Kenya, Final Report of the Task Force on Judicial Reforms 24 (2010).
121. In this regard, the International Commission of Jurists observes that “[t]he possibility that they could be next in line
to be publicly castigated and removed from office without due process has lowered the general esprit de corps of the
judiciary as a whole.” ICJ-Kenya, “Kenya: Judicial Independence, Corruption and Reform” 16 (2005).
122. See, e.g., Final Report of the Task Force on Judicial Reforms, supra note 120 at 61-62.
123. Constitution of Kenya 2010, arts. 163-165.
124. Ibid, arts. 163(1)(a),164(2),165(2).
125. Ibid, art. 166(1)(a).
126. Ibid, art 171(2)(d),(f).
127. Ibid, art. 171(2)(h).
128. Ibid, art. 168(2)-(4).
129. Ibid, art. 168(5).
130. Ibid, sched. 6 cl. 24(1).
131. Ibid, sched. 6 cl. 23(1).
132. Justice (Prof) J.B. Ojwang, “Judicial Ethics and Judges’ Conduct: The Complaints Mechanism,” Paper Presented at the
Judges Colloquium 2011 at 10-11.
133. Constitution of Kenya 2010, art. 24(2).
134. National Assembly, “Ruling on the Admissibility by of Proposed Motions to Adopt Report of Departmental Commit-
tees of Finance, Planning and Trade and Justice and Legal Affairs on the Nominations of Certain Office Holders,”
delivered by Honourable Kenneth Marende, Speaker of Kenya National Assembly, 17th February, 2011.
135. Centre for Rights Education and Awareness and Others v. Attorney General, Nairobi High Court Petition 16 of 2011.
136. Constitution of Kenya 2010, art. 161.
137. Ibid, art. 171
138. Ibid, art. 172(1).
139. Ibid, art. 172.
140. Kenya Gazette Supplement Number 17( Act Number 1 of 2011).
141. Service Commissions Act, Chapter 185, Laws of Kenya.
142. Parliamentary Service Act, Chapter 185A, Laws of Kenya.
143. Judicial Service Commission Act, section 20.
144. Budget Speech of Finance Minister, June 2011.
145. High Court Petition number 102 of 2011.
146. Article 163(3).
147. See “CJ Mutunga Seeks to Speed up the Wheels of Justice in the First Major Courts Shake Up” Daily
Nation, 8th September 2011, page 2-3.
148. Interview with Judicial Officer, Mombasa Law Courts, 13 July 2011.
149. Republic of Kenya, Consolidated Report of the 2011 Kenya Judges’ Colloquium at 49 (2011)
150. Ibid at 46.
151. Ibid at 49.
152. Interview with Judge, Mombasa Law Courts, 13 July 2011.
153. Ibid.
154. Report of Judges’ Colloquium 2011 at 46-47.
155. Consolidated Report of Judges’ Colloquium, supra note 149 at 37.
156. Act Number 19 of 2011.
157. Comments at Validation Workshop, 6th October, 2011.
158. Republic of Kenya, Consolidated Report of the 2010 Kenya Judges’ Colloquium at 26 (2010).
159. Ibid at 10.
160. See Patricia Kameri-Mbote & Migai Akech, Kenya: Justice Sector and the Rule of Law (Open Society Initiative for
Eastern Africa, 2011).
161. Republic of Kenya, Report of the Judicial Commission of Inquiry into the Goldenberg Affair 25 (2005).
162. Ibid.
164. Ibid.
165. Justice Isaac Lenaola, “Public Participation in Judicial Processes: Mainstreaming Court Users Committees (CUCs),”
Paper Presented at the Kenya Judiciary Annual Judges’ Colloquium 2011 at 4.
166. Ibid at 5.
167. Judicial Service Act, 2011 at Section 35.
168. Interview with Judicial Officer 2, Meru Law Courts, 05 July 2011.
169. Ibid.
172. Ibid.
173. Ibid.
174. Ibid.
175. Focus Group Discussions with CUC members in Kakamega, 21 July, 2011.
177. Interview with Judicial Officer, Meru Law Courts, 05 July 2011.
179. Ojwang, supra note 132 at 19.
180. Report of Ouko Task Force at 29.
181. Consolidated Report of Judges’ Colloquium 2010, supra note 158 at 10-11.
182. Ojwang, supra note 132 at 20-22.
183. Report of Judges’ Colloquium 2011, supra note 149 at 53.
184. Report of Task Force on Judicial Reforms, supra note 120 at 73.
185. Report of Judges’ Colloquium 2011, supra note 149 at 37.
186. FGD with Judicial Officers, Mombasa Law Courts, 13 July 2011.
188. Ibid.
193. FGD with Judicial Officers, Eldoret Law Courts, 02 September, 2011.
194. Ibid.
196. Ibid.
198. This High Court Station serves the following magistrates court stations: Chuka, Nkubu, Marimanti, Maua, Tigania,
Isiolo, Marsabit and Moyale. Ibid.
199. FGD with Civil Society Organizations, Nairobi, 14 September 2011.
201. Consolidate Report of Judges’ Colloquium 2010, supra note 158 at 14.
202. Ibid at 16.
203. Ibid at 15.
204. Consolidated Report of Judges’ Colloquium 2010, supra note 158 at 15.
207. Ibid at 23.
208. Interview with Judicial Officer, Meru Law Courts, 05 July 2011; FGD with Judicial Officers, Mombasa Law Courts,
13 July 2011.
210. Interview with Judicial Officer, Kakamega Law Courts, 21st July 2011.
215. Interview with Judicial Officer, 05 July 2011.
216. Consolidated Report of Judges’ Colloquium 2011, supra note 149 at 61-62.
218. Ibid at 48.
219. Ibid at 49.
220. Consolidated Report of Judges’ Colloquium 2011, supra note 149 at 8, 10.
221. Vetting of Judges and Magistrates Act of 2011, section 5.
222. Ibid, section 17(1).
226. Ibid, section 22 (2).
228. An adversarial system is one where two sides to a case present their respective positions before a neutral tribunal
or judge, who listens and makes a determination on the merits of the case. It differs from an inquisitorial system, in
which the judge takes an active part in the investigation of the case.
230. Final Report of the Task Force on Judicial Reforms, supra note 120 at 86.
231. Ibid. These included Munjila, Masalani, Bute, Laisamis, Marimanti, Kyuso, Wote, Engineer, Chaka Lokitaung,
Lokichar, Wamba, Kesses, Kapsowar, Kabiyet, Chemolingot, Eldama Ravine, Rumuruti, Lokitaung, Lumakanda,
Kapsokwony, Budalangi, Amagoro, Kosele and Mbita.
232. ICJ-Kenya, “Strengthening Judicial Reforms: Performance Indicators – Public Perceptions of the Judiciary” (2001).
233. FGD with Civil Society Actors, Nairobi, 14 September 2011.
234. Ibid.
235. K. Kalla & J. Cohen, “Ensuring Justice for Vulnerable Communities in Kenya: A Review of HIV and Aids-related
Legal Services,” Law and Health Initiative, OSI’s Public Health Programme, Open Society Initiative for East Africa at
42(2007).
236. Final Report of the Task Force on Judicial Reforms, supra note 120 at 87-88.
237. ICJ-Kenya, supra note 232.
238. To open a file with an advocate can cost about $60 and once filing fees and all professional fees are loaded up, a simple
matter can cost upto $300 which most Kenyans cannot afford.
239. Children’s Act 2001, section 186(b).
240. Civil Procedure Rules, Order XXXII.
242. Ibid.
243. Kalla & Cohen, supra note 235 at 29.
244. Ibid.
245. See, e.g., ICJ-Kenya, “Strengthening Judicial Reforms – Performance Indicators: Public Perceptions of the Kenya
Judiciary,” (2001).
249. This paragraph is drawn from Migai Akech & Sarah Kinyanjui, “Pretrial Detention in Kenya: Balancing the Rights
of Criminal Defendants and the Interests of Justice,” Report Prepared for the OSI Global Criminal Justice Fund,
September 2011.
250. This point is buttressed by the findings of the GJLOS Integrated Household Baseline Survey of 2006; please see
<http://www.gjlos.go.ke/gjlos%20final%20report.pdf>
251. Interview with Judge, Kakamega Law Courts, 21 July, 2011.
252. The findings of the National Integrated Household Baseline Survey by GJLOS in 2006 confirmed these facts pointing
out that only 26% of matters are handled by formal courts. See <http://www.gjlos.go.ke/gjlos%20final%20report.
pdf>
253. This account is drawn from the case of Jesse Kamau & 25 Others v. Attorney General [2010] eKLR.
254. Constitution of Kenya Review Commission, Final Report of the Constitution of Kenya Review Commission 204
(2005).
255. Ibid.
256. See, e.g., Akech & Kinyanjui, supra note 248.
257. See, e.g., Leigh T. Toomey, “A Delicate Balance: Building Complementary Customary and State Legal Systems,” Vol.
3(1) Law and Development Review 156 (2010).
258. See Tanja Chopra, “Building Informal Justice in Northern Kenya,” Research report, Justice for the Poor project (World
Bank and Legal Resources Foundation Trust, 2008); Tanja Chopra, “Reconciling Society and the Judiciary in North-
ern Kenya,” Research report, Justice for the Poor project (World Bank and Legal Resources Foundation Trust, 2008).
259. FGD with Civil Society Actors, Nairobi, 14 September 2011.
260. Constitution of Kenya 2010, art 159(3)
261. See Kameri-Mbote & Akech, supra note 74 at 117.
262. Report of Judges’ Colloquium 2011 at 8.
263. See Pamela Jepkemei & Paul Juma, “Judiciary Faces Nepotism Probe,” Saturday Nation, September 17, 2011 at 9.
264. Philip Muyanga, “Wigs Out in CJ Changes on Dress Code,” Daily Nation, 30 August 2011.
265. Agreed by Law Ministers and endorsed by the Commonwealth Heads of Government Meeting, Abuja, Nigeria, 2003
266. Hazel Genn, “Solving Civil Justice Problems What might be best?” Paper presented to the Scottish Consumer Council
Seminar on Civil Justice, January 19, 2005.
267. Available at http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/civil/final/index.htm The Access
to Justice Final Report pointed that a civil justice system that ensures access to justice should: be just in the results it
delivers; be fair in the way it treats litigants; offer appropriate procedures at a reasonable cost; deal with cases with
reasonable speed; be understandable to those who use it; be responsive to the needs of those who use it; provide as
much certainty as the nature of particular cases allows; and be effective: adequately resourced and organised.
268. Lord Woolf envisioned the new civil justice landscape, if his proposals were implemented, to have the following
features:
(a) Litigation will be avoided wherever possible
(b) Litigation will be less adversarial and more cooperative
(c) Litigation will be less complex
(d) The timescale of litigation will be shorter and more certain
(e) The cost of litigation will be more affordable, more predictable, and more proportionate to the
value and complexity of individual cases.
(f) Parties of limited financial means will be able to conduct litigation on a more equal footing.
(g) There will be clear lines of judicial and administrative responsibility for the civil justice system.
(h) The structure of the courts and the deployment of judges will be designed to meet the needs of litigants.
(i) Judges will be deployed effectively so that they can manage litigation in accordance with the new rules
and protocols.
(j) The civil justice system will be responsive to the needs of litigants.
269. Cowl and others v Plymouth City Council, Times Law Reports, January 8 2002.
270. Dunnett v Railtrack PLC 2002.
271. Review of Civil Litigation Costs: Final Report, December 2009.
272. Roscoe Pound “The Causes of Popular Dissatisfaction with the Administration of Justice,” address to the American
Bar Association in 1916.
273. See, e.g., Fabri, supra note 38 at 187-200.
274. http://www.uscourts.gov/FederalCourts/JudicialConference.aspx
275. Fabri, supra note 38.
276. http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/AdministrativeOffice.aspx
277. See Edward A. Tamm & Paul C. Reardon, “Warren E. Burger and the Administration of Justice,” Brigham Young
University Law Review 447 (1981).
278. Ibid.
279. Ibid at 461.
280. Ibid at 467.
281. See Marla N. Greenstein, Dan Hall & Jane Howell, “Improving the Judiciary through Performance Evaluations,” in
The Improvement of the Administration of Justice (Gordon M. Griller & E. Keith Stott Jr., American Bar Association,
2001).
282. See Marc Galanter & Jayanth K. Krishnan, ““Bread for the Poor”: Access to Justice and the Rights of the Needy in
India,” 55 Hastings Law Journal 789 (2004).
283. Ibid.
284. Human Rights Watch, “Law and Reality, Progress in Judicial Reform in Rwanda,” (July 2008), available at <www.
hrw.org>
285. Republic of Rwanda Constitution of 2003, art. 140.
286. Organic Law No.02/2004 of 20/03/2004 Determining the Organization, Powers and Functioning of the Superior
Council of the Judiciary, article 1.
287. Hon. Mr. Justice Francois Regis Rukundakuvuga, Modernizingthe Judiciary and Dual Judicial Systems – Compara-
tive Judicial Practice from the Rwandese Judiciary, Paper presented at the 2010 Judges Colloquium at Serena Beach
Hotel in Mombasa, August, 2010 (on file with the authors).
288. Malik, supra note 65 at 3.
289. Kameri-Mbote & Akech, supra note 4.
290. Constitution of Kenya 2010, Art. 48.
291. Ibid, art. 158 (1) (d)
292. See, e.g., Charles Kanjama, “Let’s Check Judicial Tyranny Clothed in Reform Talk,” Standard, Sunday, October 16,
2011 (faulting “the decision to hire a Chief of Staff, a public servant, through single sourcing.”)
293. “Mutula Backs Bid to Change Polls Date,” Nation, September 17 2011 p. 4.
294. See Consolidated Report of the 2011 Kenya Judges Colloquium, supra note 149 at 54.
295. This is the experience in Kakamega Law Courts currently. Interview with Judicial Officer, Kakamega Law Courts, 21
July 2011.
296. Judicial Service Act, section 8(1) (1).
The Kenyan Civil Society Strengthening Program (KCSSP)
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Kenya Country office
Umeme Plaza first floor, Old Naivasha Road
P.O. Box 76390-00508 Nairobi, Kenya
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Judicial Reforms and

Access to Justice in Kenya:

A report of a study commissioned by

STUDY METHODOLOGY AND LIMITATIONS 9

CONCEPTUALIZING JUDICIAL REFORMS AND ACCESS TO JUSTICE 12

THE STATE OF JUDICIAL REFORMS IN KENYA 20

COMPARATIVE AND INTERNATIONAL EXPERIENCE AND STANDARDS 54

Data sources and data collection techniques

Sampling and sampling procedure

Data analysis, interpretation and presentation

JUDICIAL INDEPENDENCE AND ACCOUNTABILITY8

JUDICIAL ETHICS AND INTEGRITY

JUDICIAL ADMINISTRATION AND MANAGEMENT

Need to Separate Technical and Administrative Functions

Dealing with Delay and Backlog through Case Flow Management

Competence is assessed using different instruments, including: self-assessment by affected judges;

REAL, CONTENTIOUS AND IMAGINED REFORMS OF THE PAST

Pre-1990 Period and the Commencement of Judicial Reforms

Judicial Reforms as Constitutional Reforms76

Judicial Reforms as Transition from the Moi Era

The Charge of First Post-Moi Chief Justices

b. Review of Civil Procedure Rules

c. Committees and Task Forces

FROM TALK TO ACTION – REFORMS IN THE NEW CONSTITUTIONAL ORDER

Transforming the Judiciary

b. Walking the Constitutional Talk

Problems and Challenges - What Continues to Ail the Judiciary?

A number of judicial officers we interviewed also recommended the establishment of forums

b. Ethics and Integrity

interest, repulsive judicial conduct, corruption, collusion, disreputable associations, and

The Challenges of Creating a Transformative Judiciary

b. The Commonwealth (Latimer House) Principles on the Three Branches of Government

SELECT COUNTRIES’ EXPERIENCES

b. The United States of America

Judicial administration in the US has also adopted a multi-disciplinary approach in the

REFORM PROPOSALS, PRIORITIES AND STRATEGIES

a. Vesting Judicial power in the Kenyan People

e. Judicial Independence and Accountability

j. Linkages with other justice sector stakeholders

Judiciary! Ombudsman! TDR!–!Traditional!Dispute!

County!High!Court! Land!&!Environment! Employment!&!Labour!

Judicial!Transforma5on! Heads!of!Divisions!&! Land!&! Cons5tu5onal!&!

Registrar! Registrar!Courts! Registrar!High! Registrar!Magistrates! Registrar!Kadhi! Registrar!Urban!

ii. Operationalising Traditional Dispute and Alternative Dispute Resolution Mechanisms

iii. Reforming Other Justice Sector Institutions and Actors

ROLE FOR CIVIL SOCIETY ACTORS IN ENHANCING JUDICIAL REFORMS AND

a. Civic empowerment and participation in Judicial Processes and Reform

b. Enhancing Ethics and Integrity within the Judiciary

d. Case management and dealing with backlog

f. Linking judiciary to other stakeholders

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