JUDICIAL OFFICERS & CONFLICT OF INTEREST CASE LAW

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JUDICIAL OFFICERS & CONFLICT OF INTEREST CASE LAW

 

1.     Philip Tunoi v Judicial Service Commission and another

The applicants had made a formal application by notice of motion seeking the recusal of the presiding judges; the Hon. Mr. Justice G. B. M. Kariuki, and the Hon. Mr. Justice Milton Asike Makhandia from hearing an appeal. The appeal in question concerned a petition that had been dismissed in the High Court relating to the retirement age of the applicants as Court of Appeal judges. 

The applicants sought the recusal of Hon. Mr. Justice G. B. M. Kariuki on the basis that he had previously been convicted of contempt of court in the Court of Appeal by a bench that included the first appellant. Secondly, the Hon. Mr. Justice Milton Asike Makhandia regularly frequented Karen Country Club in the company of the attorney general who is a member of the JSC (the 1st respondent) and had regularly discussed this matter with the AG.

The court acknowledged the test for recusal that, ‘in considering the possibility of bias, it is not the mind of the judge that is considered but the impression given to reasonable people.’ The court went ahead to determine whether bias was discernible from the material before the Court in the eyes of a right thinking or reasonable person or fair-minded and informed person or observer. It held that the decision in question on the retirement of judges would not be personal to the 1st applicant. Further, a fair minded and informed observer would not think that the presiding judge would, 22 years after the conviction in the People case, be biased against the 1st applicant when the facts reveal that the issue for determination in the appeal rests squarely on the interpretation of the law and the Constitution as regards retirement age of all judges of the Superior Courts who were appointed prior to the date of promulgation. The application for recusal was thus dismissed.

 

 

2.     Kenya Hotel Proprietors Limited v The Attorney General & 4 others

The petitioner made an informal application seeking the recusal of the Hon. J.L. Onguto. The application was premised on the grounds that the learned judge had earlier expressed doubts as to the court’s remit to entertain the application and the petition in its entirety.

The court stated that that an application for the recusal of a judicial officer must be grounded on proper and appropriate factual foundation. This application was made solely on the basis of informal inquiries and observations made by the court as to jurisdiction. The petitioner’s case was that the presiding judge made inquiries that suggested that he was convinced there was no jurisdiction. There were no court records to this end and the other parties present opted not to state their recollection of the events. The court held that the petitioner was entitled to the benefit of the doubt and the learned judge proceeded to disqualify himself from the proceedings.

 

3.     Kamlesh Pattni and another v Republic

The applicants sought orders in the High Court to prohibit a chief magistrate from hearing or continuing to hear Criminal Cases No.s 4053/94, 1474/97, 392/99 and 741/99. The chief magistrate had made statements that the 1st applicant was a man who had stuffed himself full of public resources and a pilferer and looter. The Court of Appeal held that the chief magistrate was biased and should withdraw from the case as there was a real danger of bias.

 

4.     Trust Bank Ltd v Midco International (K) Ltd. & 4 others

Justice N RO Ombija had entered judgment on admission against the applicant for a sum of Kshs. 165, 398,567. The applicant made an application for recusal when the plaintiff/decree holder was executing the decree. The application was premised on the grounds that the honorable judge had personally acted for the plaintiff when he was in private practice.

The court stated that the reasons for disqualification of judges must be cogent and sufficient. It further stated that parties should apply for disqualification where there is an apprehension of bias. This means that the bias need not be real or proved. The court held that it was the responsibility of the learned judge and the respondent who ought to have disclosed the past relationship to the applicant. The failure to do so meant that the applicant suffered a miscarriage of justice as it was denied an opportunity to raise the issue of disqualification. The court further held that a reasonable person looking at the circumstances could have the impression that there was a real danger of bias on the part of the judge due to his past relationship with the respondent. The previous ruling was set aside on these grounds.

 

5.    Stephen Njoroge Gichuha v Fred Nyagaka Ongarora & another

This was an application for the disqualification of Hon. Waithaka J on the basis of conflict of interest. This was on the basis that one of the defendant’s witnesses, Dr. Julius Ogeto, is the judge’s husband and a brother in law to the 2nd defendant. The applicant argued that the existence of this filial relationship between the trial judge, the 2nd defendant and the said witness created a real possibility of real bias affecting the judge’s impartiality.

The court allowed the application holding that an independent and honorable judiciary must maintain and enforce a high standard of conduct so that the integrity and independence of the judiciary is preserved.

 

6.     Gladys Boss Shollei v Judicial Service Commission and another

The first respondent had made a formal application seeking the recusal of Maraga C.J, P. Mwilu, DCJ, V.P. Ojwang and Njoki, SCJJ from hearing the petitioner’s appeal. If granted, only two judges would hear the petition in contravention to article 163(2) of the Constitution which requires the Supreme Court to be properly constituted of five judges. 

The court denied the application as on the basis of the doctrine of necessity and the duty to sit. The court appreciated that the Supreme Court has a constitutional mandate that cannot be delegated to any other forum in the entire governance set-up. Hence, an application for recusal of a Supreme Court Judge cannot be determined in a similar manner as that of a judge of other courts due to the special consideration that must be given as to its quorum. On the duty to sit, Justice M.K. Ibrahim reiterated that every judge has a duty to sit in a matter which he should sit. This doctrine is a key component of constitutionalism. To this end the honorable judge held that judges of the Supreme Court had a duty to sit in this matter to affirm constitutionalism. 

Justice Njoki Ndungu SCJ further held that a state organ (the 1st respondent) cannot claim prejudice or bias when an individual citizen is seeking to exercise their constitutional right to be heard. The learned judge further emphasized that the doctrine of necessity and the duty to sit entitle every party to be heard by a court before which he or she appears even though it is perceived conflicted, if there is no other court to which he or she can go. In essence, the application for recusal was dismissed by a unanimous decision of the court.

    A Formal Application for the Recusal of a Judge


REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT NAIROBI

CIVIL SUIT NO. 47 OF 2021

MARTIN MUGURE………………........................................... PLAINTIFF/APPLICANT

-VERSUS-

NEWSPACE CREATIONS LTD...........................……….DEFENDANT/RESPONDENT

NOTICE OF MOTION

TAKE NOTICE that this Honorable Court shall be moved on the      day of                        2021 at 9:00 o’clock in the forenoon or soon thereafter so that Counsel for the Plaintiff/Applicant may be heard on application for

ORDERS:

 

  1. THAT the Hon. Waithera J. does disqualify herself from hearing this matter and the entire matter be referred to another court for hearing and determination.

 

  1. THAT all the proceedings and judgement of the Hon. Waithera J. be set aside ex debito justiciae.

 

WHICH APPLICATION is based on the following GROUNDS:

  1. THAT the applicant in the month of September 2021, discovered that the Hon. Waithera J. had personally acted for the respondents (Newspace Creations Ltd) when she was in private practice and practicing under the firm of Waithera & Company Advocates.

 

  1. THAT this private relationship between the honorable judge and the respondents creates a conflict of interest.

 

 

  1. THAT there is a real possibility of bias if the learned judge continues to preside over this matter.

 

  1. THAT it is therefore, in the circumstances only fair and just to have the honorable judge disqualify herself from hearing this matter and that all the proceedings and judgment of the honorable judge be set aside ex debito justiciae. 

 

  1. THAT unless the orders sought herein are granted, the Plaintiff/Applicant’s right to fair trial as provided for under Article 50(1) of the Constitution of Kenya, 2010 risks being abrogated.

 

AND WHICH APPLICATION is FURTHER SUPPORTED by the annexed Affidavit of MARTIN MUGURE duly sworn together with other reasons to be adduced at the hearing of this application.

 

DATED at NAIROBI on this 20th day of September 2021

MARKICIA AND COMPANY ADVOCATES LLP

ADVOCATES FOR THE PLAINTIFF/APPLICANT

 

 

DRAWN & FILED BY:

Markicia & Company Advocates LLP

2nd Floor, Condo Apartments, off Nairobi-Arusha Highway

P.O BOX 21577 01100 Kajiado,

Tel: +254726266545/254792487311,

Email: Markicia.company@hotmail.com

 

 

TO BE SERVED UPON:

NEWSPACE CREATIONS LTD

P.O. BOX 139867-00100

NAIROBI

Email: info@newspacecreations.org

 

 “If any party served does not appear at the time and place aforementioned, such order will be made and proceedings taken as the court may think just and expedient”

 


 

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT NAIROBI

CIVIL SUIT NO. 47 OF 2021

MARTIN MUGURE………………........................................... PLAINTIFF/APPLICANT

-VERSUS-

NEWSPACE CREATIONS LTD...........................……….DEFENDANT/RESPONDENT

SUPPORTING AFFIDAVIT

I, MARTIN MUGURE of Postal Office Box Number 56977-00100 Nairobi, within the Republic of Kenya, do hereby make oath and solemnly state as follows:

 

  1. THAT I am the Plaintiff/Applicant herein thus fully conversant with the facts of the instant application hence competent to swear this affidavit.

 

  1. THAT the Defendant/Respondents and I executed a sale agreement for the sale of LR 246/1997 situated in Kajiado in 19th October 2019.

(Attached herewith and marked as “SA-1” is a copy of the said sale agreement).

 

  1. THAT subsequent thereto, a dispute arose over the subject sale agreement as a result of the clear breach of the terms of the agreement by the Defendant/Respondents herein.

 

  1. THAT pursuant to the terms of the Sale Agreement, the dispute was referred to litigation by this honorable court for determination.

 

  1. THAT in the month of September 2021, I discovered a correspondence between the respondents and the firm of Waithera & Company Advocates which shows that the respondents had retained the said firm as their advocates between 1998-2010.

 

(Attached herewith and marked as CR-2 is a copy of the said correspondence dated 28th February 2008).

 

  1.  THAT within that period, the honorable judge was in private practice and was the managing partner at the said firm between 2000 and 2008.

 

  1. THAT I have been advised by my advocates on record, which advice I verily believe to be true that the hearing and determination of this suit by the Hon. Waithera J prejudices the tenets of the right to a fair and honest trial.

 

  1.  THAT I am further informed that there is a real possibility of bias if the learned judge continues to preside over this matter.

 

 

  1. THAT in the circumstances, it is only fair and just to have the Hon. Waithera J recuse herself from hearing this matter.

 

  1. THAT unless the orders sought herein are granted and the instant application allowed, my right to a fair and honest trial shall be abrogated without any legal justifications in law.

 

  1. THAT I swear this affidavit in support of this application and pray that the same be allowed as prayed.

 

  1. THAT what is deposed to herein above is true to the best of my knowledge, information and belief save for sources whereof have been duly disclosed.

SWORN at NAIROBI by the said           ]

MARTIN MUGURE                                ]

 

On this ____ day of ______________ 2021

BEFORE ME                                     

                                                               ]    ________________________________

                                                               ]                  DEPONENT

                                                               ]

                                                               ]

COMMISSIONER FOR OATHS      

 

DRAWN & FILED BY:

Markicia & Company Advocates LLP

2nd Floor, Condo Apartments, off Nairobi-Arusha Highway

P.O BOX 21577 01100 Kajiado,

Tel: +254726266545/254792487311,

Email: Markicia.company@hotmail.com



TO BE SERVED UPON:

NEWSPACE CREATIONS LTD

P.O. BOX 139867-00100

NAIROBI

Email: info@newspacecreations.org

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