Why Kenya's Judiciary struggles to deliver justice despite promised funding

“Our Judiciary is now, without doubt, Kenya’s biggest constitutional dividend”.

Do we remember this quote?  It comes from President William Ruto’s inauguration speech of September 13, 2022, in which he also referred to devolution (and sharing of power and resources) as “not just a national value and principle of governance in the Constitution, but…the crown jewel of our Constitution and the proudest achievement of the citizens of Kenya”.

This was our heady post-2022 election moment, when the Independent Electoral and Boundaries Commission was also praised in the address for “the courage to do the right thing in difficult circumstances…(setting) a new standard in public service that is uncompromising, professional and exemplary (and) raising the bar of integrity of our public officials and institutions”, while our security services were especially commended for their “service and heroic sacrifices…beyond the call of duty”.

Many promises, or commitments, were made in that speech, but recent media attention has focused on those made to the Judiciary, and specifically, its budget. To again reference that presidential address: “my administration will scale up the budgetary allocation to the Judiciary by an additional Sh3 billion annually for the next five years to support the bottom-up scaling of justice”.

This resource boost targeted an increase in the number of Small Claims Courts from 25 to 100, new High Courts in the remaining seven of Kenya’s 47 counties and new Magistrates Courts in the remaining 123 out of our 300-odd sub-counties and ongoing support to digitisation. Towards impartial, expedited justice regarding corruption cases, commercial disputes and other matters.

The timing of recent press is as interesting as it is appropriate.  Interesting as it comes at a time when the Judiciary faces tough individual and institutional accountability questions while dispensing justice and delivering judgements, and rulings in line with the constitution. Appropriate as we finalise the 2025/26 budget, with the second supplementary budget of 2024/25 just passed.

And both interesting and appropriate as a reminder of those commitments of 2022.  Though it is worth remembering that it is the Constitution (hence, the institution of Parliament), and not the President (or National Treasury) that drives people-led resource allocation and budget-making.

Nevertheless, the core Judiciary received a Sh2.5 billion mid-2022/23 financial year increase to Sh21.1 billion – from Sh18.6 billion in 2021/22 – immediately this administration assumed office.  So, with further raises as promised, we should be looking at roughly Sh27 billion in current 2024/25 and Sh30 billion in forthcoming 2025/26.  However, Supplementary II estimates for 2024/25 show an allocation Sh22.7 billion, while the Budget Policy Statement allocation for 2025/26 is Sh25.9 billion.  This data refers to the core Judiciary, excluding its oversight Judiciary Service Commission (JSC).

Beyond the correct call for leadership accountability on promises or commitments not delivered, the immediate temptation here is to engage in the usual “Judiciary is underfunded” conversation, while drawing public notice to the perennial ritual of budget cuts that interrupt planned Judiciary investments in human capital (judges, judicial officers and judiciary staff), infrastructure and ICT.

Yet the reality everywhere is that public budgeting and resource allocation is as political as it is technical, institutions notwithstanding.  It is also true that the political horse-trading that informs the budget process — especially ours — tends to be far more allocative (sharing the cake) than generative (baking the cake).  How do we change, even elevate, the Judiciary budget conversation?

The first step might be to understand history.  When the Constitution was promulgated in 2010, the Judiciary was running a budget of Sh3 billion (0.5 per cent of the national government budget).

Through astute technical work and determined political engagement led by Judiciary leadership and JSC, the first post-constitution budget (2011/12) doubled to Sh8 billion, then doubled again to Sh16 billion the following year (2012/13).  This was Kibaki’s legacy — a Judiciary budget over one per cent of a national government budget that had also expanded with a new constitution.

In the following Jubilee decade before the aforementioned 2022/23 adjustment, this budget basically flat-lined in nominal terms and fell in real terms, even as hundreds of new Judges and other officers were hired, trained and deployed, courts were built and supporting infrastructure acquired — the latter items essentially through the support of international development partners.

It is no surprise that, technology notwithstanding, justice and service delivery has come under the greatest pressure when you have a significantly higher capacity in the Judiciary operating with large funding shortfalls.  As a case in point, the estimated resource requirement for forthcoming 2025/26 is Sh40 billion — a third (Sh10 billion) above where it would be if 2022 promises were kept.

That political engagement is important cannot be gainsaid, but what is the incentive?  This is where the philosophy behind the Judiciary budget conversation emerges.  The idea that justice is not just a public good in the way that education or health or security are, but that it actually underpins them is where this conversation begins. 

It is tempting to compare the Judiciary – as an arm of government – with Parliament, whose Sh49 billion 2025/26 budget allocation (from a Sh64 billion request) is almost double theirs even without another Sh26 billion in CDF (down from Sh54 billion in 2024/25 which MPs want reinstated even though CDF ends in June 2026).

But better conversations might ask why we must spend twice as much - Sh52 billion on intelligence than justice in a human rights protecting and respecting state; or a third more — Sh38 billion — on corrections in a restorative not retributive justice system.  That’s your 2025/26 test!

Once we deal with these political and philosophical questions of national and public interest, then the third conversation is mostly technical.  This is about budget methodology and mechanics.

A key advantage the Judiciary holds over the rest of public sector is its impressive data, information and knowledge warehouse of service delivery-level output data such as caseloads which are within its control.  And it has already taken steps to leverage this data into budget arguments.  For example, in its 2023/24 State of the Judiciary and Administration of Justice report, the cost per case estimate of its optimal funding is Sh64 billion based on that year’s caseload.

But here is where the method matters.  The caseload on which this funding is calculated is based on a 98-99 per cent case clearance rate (cases cleared versus cases filed) when pending — unresolved — cases amount to 120-150 per cent of cases filed of which backlog is 40 per cent.  In simple math, to make real progress clearing backlogs, cases cleared must far exceed cases filed.

We also know that at current caseloads, the Judiciary has 50 per cent staffing shortfalls across judges and magistrates in an overall 30 per cent shortfall.  Surveys and studies further show that one or two of every three formal cases are filed in the formal courts, and the Judiciary only handles 10 per cent of the estimated total of seven million legal problems requiring justice resolution every year, including problems handled through informal or alternative justice systems.

Throw in all of these variables and we are looking at a different Judiciary budget.  But it needs a conversation that respects history and understands politics.