Courts, and Employment and Labour Relations Courts; and the Supreme Court, which hears appeals from the Court of Appeal and other high-level cases (Kenyan Judiciary 2021).<sup>7</sup> The Kenyan judiciary does not employ a jury system. This means that judges alone are able to decide the outcomes of cases, which implies that bias among judges can have especially serious consequences. For most cases in most courts, there is only one judge. An exception is in Courts of Appeal, where the majority of cases are composed of multi-judge panels.

In August 2010, the judicial system was overhauled by the implementation of a new constitution. The Constitution led to a wide range of reforms, including in the judiciary (Akech 2010). The judicial reforms were designed to reduce executive branch control over judicial outcomes, eliminate the system of bribing judges, increase transparency in judge selection, reduce the large backlog of cases, and increase female participation (Akech 2011; Gainer 2016). The reforms included the appointment of an ombudsperson to address corruption complaints; the creation of a meritocratic judge appointment process, separate from the oversight of the executive; the design of a standardized case management system; a doubling of the judicial budget; and the creation of the requirement (applied across elective and appointive bodies throughout the government) that no more than two-thirds of Kenyan judges be of the same gender. Although not all of these reforms have been fully enacted, progress has been made on many dimensions (Gainer 2015; Mutunga 2011; IDLO 2020). These reforms could have important implications for in-group bias and its effects. For one, some of the reforms, such as the reduction of corruption and increase in meritocratic assignment, could potentially reduce overt bias. Moreover, with more women in the judiciary, the aggregate effects of in-group bias for women would be less severe.

As we show in the summary statistics section, below, there has been substantial progress towards gender parity in the judiciary–though there is still a long way to go to achieve equality. Inequalities in the judiciary are reflective of broader gender inequalities in Kenyan society. According to the 2020 United Nations Development Programme’s Gender Inequality Index, which scores countries based on gender gaps related to representation in government, educational attainment, and labor force participation, Kenya ranks 126th out of 189 countries. Notably, women hold only 23 percent of seats in parliament (UNDP 2020).

Inequalities are also widespread along ethnic lines, a fact which provided an impetus for the adoption of the new constitution and its measures to devolve power (Akech 2010). As we show below, some groups are underrepresented in the judiciary relative to their share of the population, whereas others are overrepresented. This finding showcases relative differences in access to justice and judicial representation across ethnicities.

# **3 Data**

## **3.1 Variable Construction**

The main data source used in our analysis is the Kenyan Judiciary’s publicly available database for court cases.<sup>8</sup> The database includes 159,645 cases, almost exclusively from the Superior Courts, over the period of 1976 to 2020. Kenya Law, an organization within the Kenya Judiciary, began uploading case information in 2006. They upload all cases that are sent to them from the individual courts. Judicial officers in Superior Courts have a mandate to send cases to Kenya Law. For cases prior to 2006, Kenya Law has made (and continues to make) efforts to gather and upload case information.

In order to build our dataset for analysis from this database, we scraped the metadata and full text decision associated with each case. In doing so, we were able to directly extract the following for most cases: the names of plaintiffs, defendants, and judges; the type of case; the court in which the case was heard; whether the case was appealed; and the year the judgement was delivered. We also used the history associated with each case to determine whether it was an appeal.

To determine gender and ethnicity and remove non-human cases (i.e., cases with companies, organizations, or the state as litigants), we used the name information scraped from the database. Cases without gender or

> 7According to our data, the Court of Appeals almost exclusively hears civil cases; the Environment and Land Courts are largely split between civil cases and environment and land cases; the Employment and Labour Relations Courts are largely split between labor cases and civil cases; and the High Courts frequently hear a wide range of cases, including civil cases, land and environment cases, labor cases, criminal cases, and others. We have little data on Supreme Court cases, but it appears to hear mostly civil cases. Despite these general trends, the data appears to show that the courts are generally not restricted in the cases they hear, as they all tend to hear a wide range of case types.

> 8See http://kenyalaw.org/caselaw/.

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