GAZETTE NOTICE NO. 12385

IN ACCORDANCE with the requirement under section 5 (2) (b ) of the Judicial Service Act, 2011, the chief Justice of the Republic of Kenya, publishes the State of the Judiciary and the Administration of Justice Annual Report 2020–2021. FOREWORD FROM THE CHIE F JUSTICE The State of the Judiciary and the Administration of Justice Report (SOJAR) is a constitutional and statutory imperative drawn from Article 159 of the Constitution which assigns judicial authority and its exercise. The principles outlined in the Constitution guide judicial operations to do justice to all irrespective of status, to administer justice without undue delay, to explore alternative forms of dispute resolution, to administer justice without undue regard to procedural technicalities and to protect the purpose and principles of the Constitution. This 10th Edition of the State of the Judiciary and the Administration of Justice Report presents the outcomes of judicial operations during the 2020/2021 Financial Year, notably the pandemic period. It highlights technological and other innovations employed by the Judiciary to uphold the mandate bestowed by the Constitution to administer justice in every respect. This period was navigated under the stewardship of Hon. Chief Justice David Maraga, emeritus, whose leadership during a tough global period sustained judiciary transformation, especially the use of technology and ICT related interventions as a tool of access to justice. The pandemic altered the modalities of work throughout the world and forced us to rethink governance, the workplace, and approaches to leadership. During this period, the Judiciary transitioned from the traditional face to face proceedings to online court processes supported by internet technology. This presented an opportunity to bring to fruition previous efforts to automate the Judiciary’s processes and accelerated passage to virtual workspaces. The pandemic placed exceptional strain upon the justice sector. However, as the report reveals, the Kenyan Judiciary and sector in general demonstrated admirable resilience and agility. Jointly, we reviewed bail and bond terms, prison decongestion measures, remand arrangements, registry access and other collaborative ventures that kept the sector ashore. 144,000 cases were heard through the virtual courts, 356,997 new cases were filed, 295, 837 cases were heard and determined. Notably, 1,359,768 cases were processed through the Case Tracking System (CTS). In some instances, the sector experienced a surge in workload while others reported a reduction in demand. Criminal cases rose while civil cases declined signalling the effect of the pandemic on our communities and the economy. The ICT complement of the Judiciary continues to grow as demonstrated by the development of the Case Tracking System (CTS), Judiciary Finance Management Information System (JFMIS) and the Court Recording and Transcription System (CRTS) which are now being used to file cases, manage our fee collection, and provide transcription services thus ensuring that courts are digitised. We are committed to enhance our services by maximising the use of technology to support e-justice. As we continue to discharge our mandate, we are also clear that the dispensation of justice ought to serve the wider societal objectives of ensuring that every person is given an opportunity to realise their full potential. This means that the avenues of accessing justice should be open to all citizens wherever they may be in the Republic of Kenya. The geographical spread of our courts continues to increase. We are committed to have a High Court in every County and a Magistrate’s Court in every sub-County. The completion of 28 courts during this reporting period is testament to this commitment. We also recognise that the doorways of justice should be expanded beyond the formal court systems. The Constitution guides that alternative forms of dispute resolution including reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms ought to be promoted. The Judiciary has prioritised alternative forms of dispute resolution bearing in mind that most Kenyans may not be able to submit their disputes to the 8:37 AM THE KENYA GAZETTE 17th November, 2021 6172 6172 formal court system for various reasons including challenges in accessing courts, cost of litigation and the complexities and rigidities of the formal justice system. So far, Kshs. 11.89 billion has been ploughed back into the economy through mediation. I acknowledge that despite the difficulties experienced during this pandemic period, we have received immense support from our partners and stakeholders. The administration of justice involves many players. The coming years will undoubtedly require our continued collaboration to deliver our common mandate. The Judiciary remains committed to discharge its constitutional duty through dialogic and cooperative engagements to meet the justice needs of all Kenyans. HON. JUSTICE MARTHA K. KOOME, EBS Chief Justice and President, Supreme Court of Kenya. CHAPTER 1—LEADERSHIP AND MANAGEMENT 1.1 Leadership and Management The Constitution of Kenya frames the holistic common vision for the Judiciary. Judicial authority derives from the people and shall not be subject to the control or direction of any person or authority and must be exercised guided by the following principles: justice shall be done to all irrespective of status; justice shall not be delayed; alternative forms of dispute resolution shall be promoted; the Judiciary shall administer justice without undue regard to procedural technicalities; and the Judiciary shall protect and promote the purpose and principles of the Constitution. Towards achieving these constitutional principles, leadership in the institution shall adhere to the national values and principles of good governance contained under Article 10 as well as the values and principles of public service under Article 232. The Constitution establishes three leadership offices in the Judiciary: the Chief Justice, who is the Head of the Judiciary; the Deputy Chief Justice, who is the Deputy Head of the Judiciary; and the Chief Registrar of the Judiciary, who is the chief administrator and accounting officer of the Judiciary. Pursuant to the Constitution, the Court of Appeal (Organization and Administration) (No. 28 of 2015), the High Court (Organization and Administration) (No. 27 of 2015), the Environment and Land Court (No. 19 of 2011), and the Employment and Labour Relations Court (No. 20 of 2011), and a number of other leadership offices have been established within the Judiciary. These are the President of the Court of Appeal, the Principal Judge of the High Court, the Presiding Judge of the Environment and Land Court (ELC), and the Principal Judge of the Employment and Labour Relations Court (ELRC). The Heads of the different courts, in consultation with the Chief Registrar, are each responsible for the administration of their respective Court and are accountable to the Chief Justice for the overall administration and management of their court. They also form part of the Judiciary Leadership Team which assists the Chief Justice and the Chief Registrar in the efficient administration of the Judiciary. Leadership is further cascaded to individual court stations through Leadership and Management Teams (LMTs) and CUCs as well as various committees. In carrying out their respective mandates, the courts and tribunals are facilitated by administrative services provided through the Office of the Chief Registrar, who is the chief administrator and accounting officer of the Judiciary. The Chief Registrar is responsible to the Chief Justice for the overall administration of the Judiciary and is assisted in this regard by the registrars and deputy registrars of the courts as well as the directors and heads of administrative units who are mandated with various responsibilities that support delivery of judicial services. 1.2 Judiciary Committees The leadership of the Judiciary is assisted by various committees to oversee certain tasks and advise the leadership on specific sectors. Arising from the reforms proposed in the Judiciary Blueprint, Sustaining Judiciary Transformation: A Service Delivery Agenda, (2017-2021) launched by Chief Justice Emeritus David Maraga, the retired Chief Justice expanded and renamed the former Judiciary Leadership Advisory Committee (JLAC) to the Judiciary Leadership Team (JLT) in January 2021. JLT comprises the following: (a) The Chief Justice as the Chairperson (b) Deputy Chief Justice as the Vice Chairperson (c) President of the Court of Appeal (d) Principal Judge of the High Court (e) Presiding Judge of the Environment & Land Court (f) Principal Judge of the Employment and Labour Relations Court (g) Chief Registrar of the Judiciary (h) Registrar, Magistrates’ Courts (i) Any other person that the Chief Justice may co-opt In addition to the JLT, the following Committees were established to ensure smooth and coordinated operations within the Judiciary. Judiciary Management Committee (JMC) comprising the following: (a) Deputy Chief Justice as the Chairperson (b) Chief Registrar of the Judiciary (c) Chairpersons of the six standing committees (d) Secretaries of the six standing committees (ex-officio) (e) Any other person as may be appointed by the Chief Justice. Six standing committees whose membership represent the breadth of personnel in both judicial and administrative functions in the Judiciary. These standing committees are: 1. Administration of Justice and Court Performance Committee (AJCPC) 2. Planning and Budget Implementation Committee (BIC) 3. Human Resource Management & Administration Committee (HRMAC) 17th November, 2021 THE KENYA GAZETTE 4. ICT & Integrated Case Management Systems Committee (ICMS) 5. Buildings, Infrastructure & Facilities Development Committee (BIDC) 6. Public Affairs and Communication Committee (PAC) Each committee is required to hold a meeting and prepare a report to the JMT at least once every quarter. The Standing Committees, in reporting to the Chief Justice through the JMT and JLT, provide the Hon. Chief Justice with a holistic, comprehensive, contextual and current status across the institution. They are designed to work within their mandate and not to displace or detract from specific statutory, regulatory and administrative committees such as those established by the Chief Registrar in the execution of the constitutional and statutory mandate of that office. They do however provide oversight, prevent overlap, enhance coordination and ensure that decision-making is well informed and that action areas are monitored and duly accomplished. 1.3 Awards and Recognitions International Awards Certificate of Commendation – United Nations Office in Nairobi Hon. Justice Martha Koome, EBS was awarded the runner-up, United Nations Person of the Year Award (2020) Jurist of the Year Award - The Center for International Human Rights Hon. Justice Grace Mumbi Ngugi was honoured with the Fifth Annual Global Jurist of the Year Award on18 th Feb 2021. Justice Ngugi is a long- time advocate of human rights in Kenya and a leading architect of its emerging human rights jurisprudence. National Honours Over the years, Judges, Judicial Officers and Staff who offer exemplary service have received national honours conferred by His Excellency the President in terms of Article 132(4)(c) of the Constitution. Pursuant to the provisions of the National Honours Act, 2013, the Judiciary Honours Advisory Committee transmitted its nominees to the National Honours Secretariat for consideration. The following 18 persons were honoured: Chief of the Order of the Burning Spear (CBS) Hon. Mr. Justice William Ouko Hon. Mr. Justice Patrick Kiage Elder of the Order of the Burning Spear (EBS) Hon. Mr. Justice Ole Sankale Kantai Hon. Lady Justice Maureen Odero Akinyi Hon. Mr. Justice Kimaru Luka Kiplagat Hon. Lady Justice Aroni Abida Ali Hon. Lady Justice Muchemi Florence Nyaguthii Hon. Lady Justice (Rtd.) Sitati Ruth Nekoye Hon. Mr. Justice Karanja Joseph Raphael Hon. Mr. Justice Sergon Joseph Kiplagat Moran of the Order of the Burning Spear (MBS) Hon. Justice Angote Oscar Amugo Hon. Were Joseph Maloba Order of the Grand Warrior of Kenya (OGW) Hon. Andayi Francis Weche Hon. Kihara James Muriithi Mr. Kinuthia Benjamin James Head of State Commendation (HSC) Civilian Division Ms. Gacheri Harriet Mrs. Omari Irene Moraa Mr. Kanegeni Stephen Kariuki 1.4 Guiding Strategies and Plans The Sustaining Judiciary Transformation: A Service Delivery Agenda (2017-2021) (SJT) blueprint has guided service delivery and the administration of justice in the Judiciary since it was launched by Hon. Chief Justice Emeritus David Maraga in January 2017. The thrust of the SJT was to build on the gains of the previous blueprint, the Judiciary Transformation Framework (2012-2016) (JTF) that was spearheaded by Hon. Chief Justice Emeritus Dr. Willy Mutunga, by accelerating service delivery using the initial structures and systems that were put in place during the JTF phase. The Judiciary Strategic Plan 2019-2023 guides institutional strategies and provides annual targets for implementation. The Strategic Plan carefully identified and evaluated the Judiciary’s priorities, internal and external environment, as well as the risks and threats to the performance of its core mandate. An evaluation of the previous Strategic Plan revealed that the Judiciary had an overall success rate of 50 per cent on all the targets that had been set in 2014. The Strategic Plan identified eight areas of emphasis and targeted strategic activities for the Judiciary until 2023. These areas are: • Enhancing access to justice • Expeditious delivery of justice • Growth of jurisprudence and knowledge management • Improved governance and transformational leadership • Improved human capital management and organisational performance • Modernised registry operations for operational efficiency • Enhanced public confidence and awareness and image of the Judiciary • Resource mobilisation and utilisation and stakeholder engagement. 8:37 AM THE KENYA GAZETTE 17th November, 2021 6174 6174 These core areas of focus have been cascaded down to the courts and delivery units in the Judiciary and implemented through the policies formulated and incorporated in the annual work plans. 1.5 Legal and Policy Framework The Judiciary has embraced the use of empirical evidence to inform policy and administrative decisions for better carrying out of its mandate. During the period under review, a research paper titled ‘Effect of COVID-19 Pandemic on Resolution of Cases in Courts’ was undertaken and the final paper published and disseminated. The paper provided numerous policy actions and recommendations to guide increased resolution of cases and an access to justice, during and post COVID-19 pandemic period. The policy actions and recommendations are at diverse stages of implementation. 1.6 Impact of COVID-19 Pandemic on the Judiciary After the first case of COVID-19 in Kenya was announced on 13 th March, 2020, a special session of the NCAJ was called and the justice sector collectively decided to scale down operations for the safety of the public and personnel. The Judiciary took a number of measures to curb the spread of the virus. These include: • All non-essential staff were directed to work from home or take leave. • All staff above 58 years were also directed to work from home. • Use of non-contact media to serve clients was prioritised. These included e-filing and enhanced use of virtual courts. More importantly and in order to entrench and institutionalise adaptability in the event of such cases in future, the Judiciary commenced the development of a Business Continuity and Disaster Recovery Plan (BCDRP). The policy will guide the Judiciary on measures necessary to sustain operations during emergencies and pandemics such as COVID-19. 1.7 Leadership Transition Upon the retirement of the Chief Justice Emeritus, Justice David K. Maraga on 12th January 2021, the Deputy Chief Justice, Hon. Lady Justice Philomena Mbete Mwilu, assumed the Office of Chief Justice in an acting capacity pending the recruitment and appointment of a new Chief Justice. Established leadership and institutional structures within the institution ensured that the transition was seamless and that litigants and the public continued to access judicial services uninterrupted. As an illustration of this continuity, Deputy Chief Justice, Hon. Lady Justice Philomena Mbete Mwilu presided over the admission of 428 lawyers to the Roll of Advocates during the period she served as Acting Chief Justice. She also opened sub-registries of the High Court and the Environment and Land Court at Kilgoris Law Courts on 21 st January 2021, and launched the first Small Claims Courts (SCC) at Milimani Law Courts on 26th April 2021. The SCC in Milimani is the first court established under Section 4 (1) of the Small Claims Act 2016 as a subordinate court pursuant to Article 169 (1) (d) of the Constitution. These courts have significant potential to enhance access to justice as the statutory turn around for the cases filed is 60 days from the date of filing. The Nairobi SCC started its operations immediately. An Acting Registrar of the Court was appointed and an implementation committee chaired by the Hon Justice Alfred Mabeya, Presiding Judge, Commercial & Tax Division was also established. The Acting Chief Justice also administered the oath of office to the Chairperson and member of the Teacher’s Service Commission on 3 rd May 2021, and members of the Selection Panel for Commissioners of the Independent Electoral and Boundaries Commission on 28 th April 2021. The swearing in of 27 chairs and members of various tribunals facilitated the hearing and determination of 2,700 pending cases. The Acting Chief Justice also attended the East Africa Community Chief Justices Forum (EACJF) and the inaugural Joint Conference of Chief Justices and the East African Judicial Education Committee, held from the 10 th to 12 th May 2021 in Kigali, Rwanda during which the Judiciary of Kenya took over as the chair of the regional forum. 1.7.1 Recruitment of the Chief Justice The vacancy of the Office of the Chief Justice was declared on January 18, 2021 vide notice No 386. On January 20, 2021, the Commission advertised in the local dailies the position of Chief Justice and Judge of the Supreme Court. The advertisement was further posted on the website and circulated to lawyers’ professional Bodies. Upon closure of the application period which lasted for 21 days, the Commission received thirteen applications for the position of the Chief Justice and shortlisted ten candidates who met the minimum requirement for appointment of a Chief Justice. The recruitment process was broadcast by all media houses and also on the Judiciary’s social media handles. Upon completion of the interview process the Commission nominated Lady Justice Martha Karambu Koome for the position of the Chief Justice on 27 th April 2021. Upon receipt of the nominee’s name, H.E the President of the Republic of Kenya transmitted it to Parliament who vetted and approved the nominee on 18 th May 2021. Lady Justice Martha Karambu Koome was appointed by the President and sworn in as the 15 th Chief Justice of the Republic of Kenya on 21st May, 2021. 1.7.2 Recruitment of Supreme Court Judge The position of Supreme Court Judge was advertised on January 20, 2021. Upon closure of the application period the JSC shortlisted nine candidates who met the minimum requirement for appointment and commenced the interview process. Hon. Justice William Ouko was nominated by JSC as Supreme Court Judge on 5th May, 2021 and subsequently appointed by the President to the Position on 19th March, 2021. The appointment ensured that the Supreme Court was fully constituted and operating at 100 per cent of its constitutional establishment. Hon Justice Ouko was replaced as President of the Court of Appeal by the Hon. Mr. Justice Daniel K. Musinga who took office on 11 th June 2021. CHAPTER 2 ACCESS TO JUSTICE STRATEGIC INITIATIVES FOR ENHANCING ACCESS TO JUSTICE 2.1 Introduction The right of a citizen to access justice is guaranteed under Article 48 of the Constitution and the Judiciary undertook various initiatives, as provided under its mandate, to actualize this right. Primarily, access to justice is rendered through the exercise of judicial authority by courts. The authority, guaranteed under Article 159 of the Constitution, is exercised in a manner that underpins non- discrimination in service delivery, and which strives to minimize delay and procedural technicalities by courts while resolving disputes. This Chapter, which has been organized into four sections, provides the milestones realized by the Judiciary on enhancement of access to justice. The first section highlights the strategic initiatives for enhancing access to justice while the second section provides the achievements on dispute resolution by courts as the core of access to justice. The third section provides progress on entrenchment of Alternative Dispute Resolution (ADR) mechanisms as envisaged in Article 159 (2) (c) of the Constitution. Lastly, the Chapter accentuates the strides made on improvement of the Judiciary infrastructure as a strategy for strengthening physical access to justice. 2.2 Strategic Initiatives for Enhancing Access to Justice The strategic initiatives for enhancing access to justice draws inspiration from the Judiciary policy documents namely, Sustaining Judiciary Transformation (SJT) (2017-2021) blueprint and the Strategic Plan (SP) (2019-2023). These initiatives include: operationalisation of Small Claims 17th November, 2021 THE KENYA GAZETTE Court; digitisation of judicial functions; recruitment and retention of adequate and quality workforce; establishment and construction of courts; undertaking of research to inform policy and administrative decisions; entrenchment of ADR mechanisms for expeditious resolution of disputes; and collaborative engagement with other players in the justice sector. The milestones realised in the FY 2020/21 for each of the strategic initiative are expounded in the following subsections. Institutionalisation of Small Claims Court: A Small Claims Court (SCC) is a subordinate court with jurisdiction to determine cases that involve claims of small amounts of money through a process characterized by procedural simplicity, efficiency and expeditiousness in delivery of decisions. In Kenya, the SCC is established under Section 4 (1) of the SCC Act No. 2 of 2016 as a subordinate court in the structure of courts provided for under Article 169 (1) of the Constitution. In the conduct of its operations, the court is guided by provisions of Article 159 (2) that require that justice shall not be delayed. The SCC was operationalised on 26th April, 2021 vide