Wanyonyi & 2 others v County Government of Trans Nzoia & 4 others (Environment & Land Case 47 of 2021) [2024] KEELC 14134 (KLR) (10 December 2024) (Ruling)
Neutral citation:
[2024] KEELC 14134 (KLR)
Republic of Kenya
Environment & Land Case 47 of 2021
FO Nyagaka, J
December 10, 2024
Between
Isaiah Wanyonyi
1st Plaintiff
Robert Makona
2nd Plaintiff
Wanjala Wesela
3rd Plaintiff
and
County Government of Trans Nzoia
1st Defendant
G. H. Tanna & Sons Limited
2nd Defendant
Barnabas Keino Ngetich
3rd Defendant
Chief Lands Registrar
4th Defendant
Meshack Kimutai Keter
5th Defendant
Ruling
1.By a Notice of Motion dated 05/12/2024 the Plaintiffs moved this court Certificate of Urgency for a number of reliefs. They brought the Application under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Article 50 of the Constitution, and Order 51 of the Civil Procedure Rules. They sought the following prayers:1....spent2....spent3.That the Honorable Justice Dr. Iur Fred Nyagaka be pleased to recuse and/or disqualify himself from any further conduct of this matter.4.That this matter be placed before any other court of competent jurisdiction for its just and conclusive determination.5.That the cost of this application be in the determination.
2.The application was based on a number of grounds, nineteen (19) in number. The first ground was that the applicants filed an application dated 23/01/2024 for review of orders made on 24/10/2023 dismissing the suit herein, and another one dated 31/01/2024 for stay of execution of orders made on 26/01/2024. The Defendants responded to the applications. The court directed one Philip Makini and Naomi Rop, both Land Registrars, to swear affidavits regarding the authenticity of the documents attached to the Affidavit sworn by the applicants.
3.The Land Registrars swore affidavits on 29/07/2023 disputing the authenticity of the documents in issue hence, technically, they became witnesses for the defendants. When the affidavits were filed, the honorable judge immediately believed their contents and started treating the application with suspicion. He ordered the applicants to start attending court in person despite being represented by an advocate. Further, the court openly started treating the applicants with suspicion and he did not want to listen to any explanation from them. Further, the two Land Registrars had not been examined (sic) over their affidavits.
4.On various occasions, particularly, 30/10/2024, 07/11/2024 and 04/12/2024, the judge stated that he knew the signatures of the Land Registrars, particularly, he unequivocally stated in open court that he knew how Naomi Rop signs (documents) and, the signature appearing on the documents filed by the Applicants did not belong to her. These sentiments clearly supported the defense case and placed the judge in a compromising position devoid of judicial independence, as they eroded the appearance of impartiality and public confidence in the administration of justice. From the judge’s conduct, the directions he will take in the ruling herein, if the matter were to proceed, would render it already known: it is just a matter of time.
5.On many occasions when the matter has been in court, the judge has shown bias. He has already taken the position that the applicants committed fraud in getting the documents they relied on in court, despite their explanation that they got the documents from the land's office, and they have enough evidence, including recordings, to prove that they were given the documents from the lands office. On 24/10/2024, the court issued a warrant of arrest against the applicants for failing to attend court yet they had an advocate who had not advised them that they were required to attend court in person.
6.On 30/10/2024, the applicants applied to withdraw their applications they had made, but the judge informed them that the applications could only be withdrawn if the applicants had made a report on fraud to the Directorate of Criminal Investigation Offices (DCIO) in Kitale. Then the judge summoned the DCIO to attend court and confirm whether the applicants had reported to him the said matter and he had commenced investigations. On 04/12/2024 the DCIO attended court and confirmed that the applicants had made a report about the fraud involving officials from the Lands Office, Kitale and Nairobi in relation to the matter and issued with Occurrence Book (OB) number 54/8/11/2024. When DCIO confirmed the report, the court stated that the applicants had not reported to him what they had been required to report. The court stated that the applicants had been ordered to report to him relation to the case of false swearing of affidavits and he was to limit himself to the affidavits sworn by the Two Land Registrars, a position fundamentally different from what the applicants were informed when they first applied to withdraw their applications.
7.Upon the applicants seeing the change of position they withdrew their earlier requests to withdraw their applications. The judge showed an open annoyance and gave the applicants an intimidating long stare. He ordered them to get to the witness box to proceed with being cross-examined over the contents of their affidavits and those sworn by the Land Registrars. It took the applicants a very hard time convincing the court that they needed to be given ample time to prepare for hearing. The judge reluctantly ordered the applicants to attend court on Friday 06/12/2024 for hearing, and this came as a surprise since the first applicant was unwell, having presented medical documents to the court and it would have been reasonable for the court to give him time to prepare for hearing. On 04/12/2024, the judge ordered the DCIO to complete its investigations within two weeks and report so that the judge could deal with the file before he went on transfer. This move was suspicious considering how the judge had been conducting himself and threatening the applicants.
8.These events pushed the applicants to believe that the court had already taken a position. In the matter details only a matter of time. That the same is pronounced. It is a principle of law that justice must not only be done, but it must also be seen to be done. The court, having expressed its mind on the critical questions that are before the judge for determination, was not suited to determine the same. The applicants are apprehensive that they will not get justice before the Court. It was therefore prudent that and in the interest of justice that the orders sought be granted.
9.The Application was supported by an affidavit sworn by Isaiah Wanyonyi on 05/12/2024. He repeated in deposition form the contents of the grounds in support of the application save that he annexed to the application copies of several documents which he marked as IW-1. The copies of the documents consisted of identity cards of the plaintiffs, the application dated 23/01/2024 together with a bundle of documents dated 22/01/2024, a Supplementary Plaintiffs’ List of documents dated 22/01/2024, the application dated 31/01/2024 and another one dated 23/01/2024, the affidavits sworn by the two Land Registrars together with the annextures thereto, and the copies of the medical records in respect of Isaiah Wanyonyi, the 1st Plaintiff, being one dated 26/11/2024 issued by Kitale County Hospital, another by Brantley Medical Clinic, Kitale and one by Mount Elgon View Cardiology, Kitale.
10.The application was opposed through a Statement of Grounds of Opposition filed by the 2nd Respondent. They were dated 16/12/2024. He raised 10 grounds against the application. One was that the specific grounds asking the judge to recuse himself from the matter did not meet the threshold and they were mere perceptions or suspicions which any reasonable mind could not entertain. The judge handling the matter was bound by Rule 36 of the Judicial Service Code of Conduct and Ethics Regulations 2020 to carry out his duties with impartiality and objectivity in regard with Articles 10, 27, 73(2)(b) and 232 of the Constitution. He had no personal knowledge of the disputed evidentiary facts concerning the proceedings, but he is only informed by the pleadings on record and the proceedings thereof. The applicants had not demonstrated any actual bias or prejudice concerning a party herein, nor shown that the judge had personal interest in the outcome of the matter. The applicants had the opportunity to cross examine the witnesses in the matter on their sworn affidavits hence the judge was very fair having accorded them such opportunities to controvert the allegations by the opposing parties. The judicial officer should discharge their duties to sit and not to accede too readily to suggestions of appearance of bias to encourage parties to believe that by seeking the disqualification of a judge, they would have their case tried by someone else thought to be more likely to decide the case in their favor. There were no reasonable or compelling reasons for the judge to recuse himself. The judge took a solemn oath of office to defend the Constitution and do justice without fear or favor. The other allegations against the judge set out in the body of the application were done (sic) within the judge’s mandates or jurisdiction in discharging his duties and were not a manifestation of bias at all but were informed by the pleadings filed and proceedings so far, the application ought to be dismissed.
Submissions
11.The Applicants submitted that the respondents did not file a Replying Affidavit to dispute the facts stated in the application for recusal hence the facts were uncontroverted. Further, fair hearing was a fundamental right provided for and protected under Article 50 (1) of the Constitution. In exercising their mandate of adjudication, Judges were required to observe fundamental principles some of which were codified in the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 under the Judicial Service Act (No. 1 of 2011). They referred to Rule 36 which provides for carrying out of duties with impartiality and objectivity in line with Articles 10, 27, 73(2) (b) and 232 of the Constitution. They stated that a Judge was required to avoid favoritism, nepotism, tribalism, cronyism, religious bias, or engaging in corrupt or unethical practices. Also, Judges were expected to uphold and apply the law and observe fairness and impartiality while performing their duties impartially, competently, and diligently, without bias.
12.They added that where impartiality could not be assured, a Judge ought to recuse himself as provided for under Rule 47 which they quoted verbatim. They relied on the case of English case of Metropolitan Properties (Fg-C) Ltd Vs. Lannon & Others [1969] 1 QB 577 where it was stated that “Disqualification was imperative even in the absence of a real likelihood of bias if a reasonable man would reasonably suspect bias.” They also referred to the case of R vs Liverpool City Justices, ex parte Topping [1983] 1 WLR 119 where it was stated that “The Court has to address its mind to the question as to whether a reasonable and fair - minded man sitting in Court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the applicant was not possible. If the answer is in the affirmative, disqualification will be inevitable.” Further, thy relied on the case of Martha Wangari Karua & Another v Independent Electoral & Boundaries Commission & 3 Athers [2018] eKLR and Civil Appeal No. 6 of 2016 Philip K. Tunoi & Another -V- Judicial Service Commission & Another (2016) eKLR the Court of Appeal stated that “In Tumaini v R. (supra) Mwakasendo J held, rightly in our view, that “in considering the possibility of bias, it is not the mind of the Judge which is considered but the impression given to reasonable people...”
13.They summed it that the question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the court was biased. Then they summarized the facts as deposed in the Affidavit in support of the Application especially that herein the learned trial judge stated that he knew the signatures of the Land Registrars yet the judge was not a handwriting expert. Also, the learned judge stated unequivocally in open court, in the presence of the public, that he knew how Naomi Rop signs and that the signature appearing on the documents filed by the applicants did not belong to her. They argued that this meant that the judge supported the Defence case and it flew against the requirement of Rule 47(1)(c) of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 since the judge confirmed having personal knowledge of disputed evidentiary facts concerning the proceedings. They submitted that their application was merited.
14.The second Respondent submitted that Regulation 21 of the Judicial Service Code of Conduct and Ethics Regulation 2020 provides for the grounds for recusal of a judge or officer from any matter or proceedings. The applicants had not proven any of the grounds as against the judge handling the matter herein for him to recuse himself from the proceedings. They had not demonstrated that any of their grounds applied to the judge and had not shown that the judge would be compromised in exercising his jurisdiction over the matter. Further, if the prayers sought were granted, they would hinder the conduct of the litigation and prejudice the second respondent who was keen in conducting the matter promptly. The applicants had established any valid grounds for the judge to recuse himself but had made mere suspicions and perceptions which did not meet the required threshold. They relied on the case of Mtaani versus Judicial Service Commission: High Court, Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E160 of 2023.
Issue, Analysis And Determination
15.This Court has considered the issues raised by the parties herein. The Court is called upon to consider whether or not it should recuse itself. It has considered the application, the law and the rival submissions of the parties. Only two issues lie before the Court for determination. The first one is whether the application is merited. The second one is, who to bear the costs of the application. Before delving into the determination, this Court makes some observations below.
16.The law on recusal of a judge or judicial officer is not a difficult one to understand. The way a judge or judicial officer ought to conduct himself/ herself in any matter before him/her is interwoven in the legal principles enunciated in the Constitution of Kenya, particularly, Article 10, 70 - 77 and 232 of the Constitution of Kenya as read with several other domestic statutes and international instruments such as the Bangalore Principles on Judicial Conduct. or them. It is governed by. Did you dish your code of conduct? Pads. Enacted under the Judicial. Service Act. For the agent. The guided by. Would be. Principals initiated in the bungalow. Principles on judicial conduct.
17.Courts have also in several instances made decisions on recusal of either judges or judicial officers. Thus, this Court, besides giving due consideration to the law as it understands it, shall not re-invent the wheel as it makes the determination below. It is trite that a judge has a duty to sit, and the duty must seldom be abdicated. It only should occur in the clearest of cases that there is bound to be an injustice in the administration of the justice but to conduct of a judge or judicial officer which runs counter to his/oath of office. The rebuttable presumption is that the judge or judicial officer is a qualified, impartial arbiter who must not in any way be biased or influenced or motivated by anything else than the quest for justice in his decision-making.
18.Following the allegations leveled against this court about bias and impartiality the learned trial judge has pondered very deeply about who a judge or judicial officer is. I have asked myself and given a deep reflection whether Judges are human. What the Judge has in mind is the question whether judges, while handling matters, they ought to just sit there as (unintelligent) robots or zombies: just pretending not to state that they have noticed some things or instances that neither make sense nor accord with the issues and facts under argument by parties before them; that they should just sit and watch the court process being abused and defiled or in obvious cases of frivolity all in the quest of being impartial. For instance, assuming a party is abusing the court process should he not be informed about summarily rather than he, rejoicing that he had a day in court, is let to wait for a determination of his issue? Alternatively, should a judge, upon noticing something peculiar, not inquire from the party whether, indeed, things are as they appear, or an illusion or misapprehension hence the need for clarification?
19.While Judges and judicial officers should not be influenced by other factors than impartiality and fidelity to the law as applied to the facts of a case, how should they handle matters that test their feelings and emotions to the core? Alas! I am concluding my bewilderment by finding that, yes, Judges are human, but they need (and should be given) more understanding than ordinary human beings. Yes, they too need to have the patience the saints.
20.The plaintiffs complained that the judge indicated during the instant application that he knew the signatures of the Land Registrars in charge of Trans Nzoia County who ultimately swore affidavits in respect of the instant application. This followed directions the Court gave upon noticing that the signatory of one of the Land Registrars who on previous occasions had written to court over other matters and testified in them was diametrically different from the familiar one, and purported signatories to a letter alleged to have emanated from the office of the Land Registrar Trans Nzoia were of persons the Court had never been referred to as being land registrars in the said office.
21.When the Affidavits of the Registrars were served to all parties, and it turned out that the two officers disowned both the signature of the named Land Registrar and those of individuals unknown to the said office, this incensed the Plaintiffs. They then moved the Court through the instant application, making the allegations hereinabove summarized. The question the Court poses at this point is, what would have been better and fair for the parties, particularly the plaintiffs? Would it have been reasonable for the judge to sit there pretending not to know the signatures of these two individuals who regularly appear before the judge to testify including some which the Plaintiff’s learned counsel represents some of them and just rule that the documents appear not genuine and dismiss the application? Was it not for the benefit of the Plaintiffs that they too know whether the documents they presented to Court might ultimately pass the test of genuineness for their application to be successful? Should the Judge have sat mechanically, quietly, ‘impartially’ by not asking the participants for any clarification? That said, I now get into the merits of the transfer.
22.Starting with the first issue for determination, is it not gainsaid that the duty to sit is a paramount and fundamental point of any judicial authority. A judge bears the duty which necessarily arises by implication of the oath of office. Thus, he/she should not recuse himself or herself simply because a litigant has wished him/her to do so. The reason for an application of that nature, is that recusal (applications) must be objective and based on the real apprehension and evidence that there is a likelihood of the administration of justice being hampered. In Dobbs v Tridios Bank NV [2005] EWCA 468, it was held:
23.Recusal of a judge is not new in legal practice. It has been in existence since courts were established. It can be traced indirectly to the times of the Common Law and its contention for space with the Court of Chancery. Litigants at that time often complained and accused judges of the Common Law as having been rigid and therefore not flexing decisions in their favour and therefore complained to the King for him to look at the conduct of judges and perhaps give another person to relook at the decisions of the judges. Then were born the Principles of Equity.
24.Among the first cases that dealt with recusal in the history of litigation was the locus classicus of R v Sussex Justices, ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233). It addressed the impartiality and recusal of judges and established the famous legal principle that the mere appearance of bias is sufficient to overturn a judicial decision. It thus, established the all-time enduring principle that "Not only must Justice be done; it must also be seen to be done.
25.Definitions abound. In Kenya, in Jasbir Singh Rai & 3 Others Vs. Tarlochan Singh Rai & 4 Others Petition No. 4 of 2012 [2013] eKLR as follows:
26.In this country where forum shopping is not uncommon courts and where is has now become commonplace for judges and judicial officers to be ‘crucified’ in the alter of the public gallery day-in-day-out through unsubstantiated claims bias or corruption or partiality yet they have no forum for rejoinder, courts must be very careful and guard against shallow unsupported allegations. These claims, including any for recusal of a judge or judicial officer should be established beyond peradventure in order for them to hold sway. It is a rebuttable presumption that a Judge or Judicial officer shall be fair and impartial in all circumstances. This view is supported by the South African decision in the Republic of South Africa vs. The South African Rugby Football Union & Others Case CCT 16/98, where the Court held as follow:
27.Additionally, Cory J in R. vs. S. (R.D.) [1977] 3 SCR 484 stated:
28.Therefore, in Nathan Obwana v. Robert Bisakaya Wanyera & 2 Others [2013] eKLR, the learned judge held,
29.Also, in the case of Republic Vs. David Makali & 3 Others, Criminal Application Nos. Nai 4 & 5 of 1994 (unreported) Per Tunoi JA summarized the legal position on recusal in Kenya as follows:
30.Additionally, in Porter v. Magill [2002] 1 All ER 465 when the House of Lords in opined that the words “a real danger” in the test served no useful purpose and accordingly held that:
31.Also, in Philip K. Tunoi & another v Judicial Service Commission & Another [2016] eKLR:
32.The New Zealand Supreme Court held, in Saxmere Company Ltd-vs- Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35, thus;
33.Thus, recusal of judges or judicial officers is not a matter to be handled carelessly and at the whims of an applicant since it goes against the very core of the duty to sit. The allegations aimed at dislodging the judge from sitting also against the oath of office of the judge or judicial officer to act impartially and without bias or ill-will. Thus, the onus is on the party alleging bias, partiality, misconduct or other ground for recusal to go beyond mere imaginations, feelings, perceptions and the like and avail cogent evidence warranting recusal. In as much as judges and judicial officers must remain steadfast and singular to the course of justice, for we all must at one time appear before the righteous judge of the universe for our judgment, in the same manner as all parties who appear before them need fairness in the way their matters are, judges and judicial officers too expect that to be to them: they are human.
34.Thus, in Gladys Boss Shollei v Judicial Service Commission & another, Petition No. 34 of 2014; [2018] eKLR (Justice Ibrahim, SCJ) made this point in his concurring opinion at paragraph 25}}:
35.Thus, the duty to sit may be impugned in many instances. But it must be objective and cogent. In Jasbir Singh Rai v. Talochan Singh Raii:
36.Further, Justice Ibrahim JSC stated in the matter (Jasbir Rai (supra)) as follows:
37.Indeed, the circumstances are wide and various. Each case must be looked at against on its facts. Thus, in the President of the Republic of South Africa [supra], the Court had this to say:
38.Also, in Republic v Speaker of the Senate & another Ex parte Afrison Export Import Limited & Another [2018] eKLR:
39.Bias is defined in the Black’s Law Dictionary as an inclination; prejudice or predilection. It may manifest in two forms; actual or perceived. Actual bias is defined as genuine prejudice that a judge, juror, witness, or other person has against some person or relevant subject. Perceived (or implied) bias is defined as prejudice that is inferred from the experiences or relationships of a judge, juror, witness, or other person.
40.In Kenya, Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020 largely replicates from the Bangalore Principles. It provides as follows:
41.As a parting shot, on the grounds listed in the above provisions, the Court notes that the Judge is versed in Bangalore Principles of Judicial Conduct (2002) which espouse six (6) values, and he has adhered to them always. The Plaintiff in this matter has the onus of proving one or two or all of the grounds listed above. What it means is that whichever allegation she has against the Judge ought to fall under one or the heads above and be proven to be indeed so.
42.In the instant application, the Plaintiffs alleged that the Court was biased, it had made remarks that it knew the signatures of the Land Registrars hence it knew the outcomes of the application, that since the time the two Land Registrars of Trans Nzoia swore and filed their affidavits denying the information by the 1st Plaintiff on oath by a deposition, the Court had become hostile to the applicants, including the date they applied to withdraw the application, the judge looked at them with intimidating eyes in annoyance. Further, the judge was not a handwriting expert to discern the signatures allegedly not belonging to one Naomi Rop.
43.I have considered all the grounds and alleged factual circumstances of the application. I have weighed all of them against the law. I did not find any that merits, because the reality is that in regard to the signatures allegedly belonging to Naomi Rop, it is a fact that the court has interacted with the said Land Registrar’s signature on several occasions before when handling other matters wherein she has signed documents. The signatures on the documents presented by the plaintiffs in the instant application as those of Land Registrar were manifestly different than hers as known to the court. Further, not only have the two Land Registrars sworn affidavits denying the one presented by the plaintiffs. This is in sharp contradistinction with the evidence of the applicants’ depositions in this matter.
44.The allegations do not support any of the grounds for the recusal of a Judge. In an event, the complaint by the plaintiffs that the Judge is not a handwriting expert flies past the fact of the law particularly Section 76(1) and (2) of the Evidence Act which empowers the judge or judicial officer to compare writings of people when it is necessary and make a finding on the same. The court, in such circumstances, does not become and is not a handwriting expert yet it makes an impression that it uses to determine the matter before it. There is no difference between that legal authority and the one the court exercised discretion over in the instant matter. The said provisions, Section 76(1) and (2) stipulates:
45.Furthermore, the Court wonders whether the Plaintiffs are experts in appearances of people as to make a finding whether a person is annoyed, stressed or mesmerized at some arguments.
46.It is worthy of note to all parties in this matter that lies do not take anyone anywhere because with time the truth comes out. It is important to live by the truth and it always sets one free. Additionally, they need to remember that false accusations constitute sin, and everyone under the universe ought to prepare to give an account of all their deeds on earth here soon and very soon. This is because, if the second defendant is a Bishop in truth as he claims to be, he needs to teach his two co-plaintiffs the truth and ask them to live by it, “For we must all appear before the judgment seat of Christ, so that each of us may receive what is due us for the things done while in the body, whether good or bad” (2 Corinthians 5: 10). There is no escape or excuse on that Great Judgment Day, “For God shall bring every work into judgment, with every secret thing, whether it be good, or whether it be evil” (Ecclesiastes 12: 14). The promise by God is that “every work” whether of making fake documents to convince courts to making determinations in favour of persons not entitled to be declared owners or parties lying to courts to sway judgment into their favour, and any other, shall be brought into Judgment one day when this life stops. Similarly, making false accusations against neighbours, especially judges and judicial officers is the work of the father of lies, Satan, and is shall be punished on that Great Judgment Day.
47.The upshot is that the Application is unmeritorious and is dismissed with costs.
48.Orders accordingly.
RULING DATED, SIGNED AND DELIVERED AT KITALE IN OPEN COURT THIS 10TH DAY OF DECEMBER, 2024.HON. DR. IUR F. NYAGAKA,JUDGE, ELC KITALEIn the presence of:Teti Advocate for the PlaintiffsMs. Rutto Advocate for the 1st DefendantMr. Onyancha Advocate for the 2nd Defendant