REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
CIVIL APPEAL NO. 35 OF 2013
CHARITY MUTHONI GITABI…………..…PROTESTOR/RESPONDENT
VERSUS
JOSEPH GICHANGI GITABI (substituted by)
MICHAEL WACHIRA GITABI…….……………OBJECTOR/APPLICANT
DIRECTIONS
1. As per the court’s ruling on 8th March, 2017, the Appellant was to paginate the original Record of Appeal and mark the paragraphs on the original record. The matter came up for mention on 6th April, 2017 whereby it was confirmed that the appellant had paginated the Record of Appeal.
2. The Respondent pointed out that there were three applications filed by the appellant pending hearing dated 9th November, 2011, 7th August, 2012 and 22nd July, 2013. He filed replying affidavits and also raised Preliminary Objection on two of the applications. Thereafter on 10th December, 2013, the parties entered into a consent that the Preliminary Objection be disposed by way of written submissions which they duly filed.
3. In response, the appellant indicated that the appeal has been pending for the last seven years. The appeal was heard by the Judge almost to its conclusion. He prayed that the court recuses itself since it had dealt with the matter.
4. The Respondent however, stated that the appellant has been trying to shop for judges. That he has even tried to transfer the case to Nairobi. Therefore if he wants the court to recuse itself, he can make a formal application.
5. Recusal is a matter of discretion by the Judge concerned and the practice in our courts has seen judges recusing themselves from hearing matters where they feel they may not appear to be fair or where they feel their impartiality would be called into question.
Philip K. Tunoi & another v Judicial Service Commission & another [2016]eKLR the Court of Appeal in considering an application for recusal stated:
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.……
The House of Lords held in R v. Gough [1993] AC 646 that the test to be applied in all cases of apparent bias was the same, whether being applied by the Judge during the trial or by the Court of Appeal when considering the matter on appeal, namely whether in all the circumstances of the case, there appeared to be a real danger of bias, concerning the member of the tribunal in question so that justice required that the decision should not stand.
The test in R v. Gough was subsequently adjusted by the House of Lords in Porter v Magill [2002] 1 All ER 465 when the House of Lords opined that the words “a real danger” in the test served no useful purpose and accordingly held 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 tribunal was biased.”
6. In determining the existence or otherwise of bias, the test to be applied is that of a fair-minded and informed observer who will adopt a balanced approach and will neither be complacent nor be unduly sensitive or suspicious in determining whether or not there is a real possibility of bias.
7. Kaplana H. Rawal Judicial Service Commission & 2 others [2016] eKLR the Court of Appeal in considering an application for recusal stated:
“An application for recusal of a judge is a necessary evil. On the one hand it calls into question the fairness of a judge who has sworn to do justice impartially, in accordance with the Constitution without any fear, favour, bias, affection, ill-will, prejudice, political, religious, or other influence. In such applications, the impartiality of the judge is called into question and his independence is impugned. On the other hand, the oath of office notwithstanding, the judge is all too human and above all the Constitution does guarantee all litigants the right to a fair hearing by an independent and impartial judge. When reasonable basis for requesting a judge to recuse himself or herself exists, the application has to be made, unpleasant as it may be. That is the lesser of two evils. The alternative is to risk violating a cardinal guarantee of the Constitution, namely the right to fair trial, upon which the entire judicial edifice is built. Allowing a judge who is reasonably suspected of bias to sit in a matter would be in violation of the constitutional guarantee of a trial y an independent and impartial court………
An application for recusal of a judge in which actual bias is established on the part of the judge hardly poses any difficulties: the judge must, without more, recuse himself. Such is the situation where a judge is a party to the suit or has a direct financial or proprietary interest in the outcome of the case. In that scenario bias is presumed to exist and the judge is automatically disqualified. The challenge however, arises where, like in the present case, the application is founded on appearance of bias attributable to behavior or conduct of a judge…….”
8. Firstly, it is obvious from the test above that there is no basis for the rather elastic test propounded by Dr. Khaminwa, where a judge must automatically recuse himself or herself upon the making of a mere allegation by any of the parties. We have not come across any authority in support of the proposition and Dr. Khaminwa did not cite any. On the contrary decisions abound that judges should not recuse themselves on flimsy and baseless allegations.
The Court of Appeal proceeded to state that:
“It cannot be gainsaid that the applicant bears the duty of establish the facts upon which the inference is to be drawn that a fair minded and informed observer will conclude that the judge is biased. It is not enough to just make a bare allegation. Reasonable grounds must be presented from which an inference of bias may be drawn.”
9. The appellant therefore bore the burden of proving that the court might be biased. In this case, the appellant’s reason for recusal was that the court had dealt with the matter. I have taken the trouble to peruse the record of the lower court and of the High court. I have never dealt with the matter as a magistrate or a Deputy Registrar. As per the proceedings, the lower court Succession Cause No. 192 of 1992, was heard by Maina E. M., Wanjiku F. F. and later Nyaga Njage. The appeal at Nyeri HCCA No. 19 of 2002 was heard M.S.A. Makhandia. This appeal Kerugoya HCCA No. 35 of 2013 was heard by J. I. Ongundi, B. N. Olao, Justice Nyamwea, Mwongo P.J. and R. Limo J.,. I have never handled the matter before as proved by the records. The appellant should file a formal application stating the grounds upon which he seeks the court to recuse itself for consideration. Application be filed within 21 days.
Dated and delivered at Kerugoya this 9th day of November, 2017.
L. W. GITARI
JUDGE