OPINIONPeople Daily

How Delays compromise delivery of justice

 Martin Nyakundi O’Barimo

Victims of crime and most accused persons have been heard in various platforms complaining that frequent adjournments have denied them justice to the extent that they do not have confidence in the courts for this single most reason.

Renowned Lord Justice Hewart observed in R v Sussex Justices, Ex parte McCarthy ([1924] that “justice delayed is justice denied”, and that: “justice must not be said to be done but must be manifestly seen to be done” Section 205 of The Criminal Procedure Code (CPC) provides that: “The court may, before or during the hearing of a case, adjourn the hearing to a certain time and place…”

However, the same section sets conditions “…provided that no such adjournment shall be for more than thirty clear days, or, if the accused person has been committed to prison, for more than fifteen clear days, the day following that on which the adjournment is made being counted as the first day…”

However, the courts ignore the requirements of the proviso, such that a matter can be adjourned for periods longer than those provided on the discretion of the courts. The reasons for adjournment have now been extended to the absurd, and depict the courts as avenues of injustice, drama and absurdities.

In James Mulu Mulewa v Republic [2015] eKLR, the court declined to grant any further adjournments after a murder trial was adjourned frequently for a period of three years! Frequent and continuous adjournments are a sure way of defeating justice, as witnesses may lose interest in the case or may not afford to attend court when required.

Where the process is unnecessarily slow, then the freedom of the individual is affected. Every person has the right to freedom and security, which includes the right not to be deprived of freedom arbitrarily or without just cause.

On the other hand, the victims, particularly those deprived of their property would want to see the end of the process and know the truth and have their property returned to them or generally have justice prevailing.

These were the grounds of a petition in Peter Maina Gacheru v Attorney General [2009] eKLR where the petitioner wanted his trial dismissed. The entire prosecution process is an administrative process.

Therefore, both the accused and the victim or/and their families have a right to an administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

Where the entire process is subjected to delays and adjournments, it cannot be said to be “expeditious and efficient” – where the accused is unnecessarily kept in custody where they have been denied bail or cannot afford it in the circumstances, and witnesses get tired of the entire process and lose interest in the case.

This defeats justice and the victim becomes discouraged and feels abandoned by the very avenues of justice. Society is subjected to the closure of the gates of justice and refuge. The result is lawlessness and disrespect for the Rule of Law, which forms the foundation of peace and tranquility of our society. The writer is an advocate of the High Court of Kenya [email protected]

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