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

others

High Court, at Kisumu November 1, 2004

Ibrahim J

Civil Case No 336 of 2001

Judicial Officer - disqualification of Judicial Officer – presiding judge– judgment on admission given against defendant - defendant later discovering that the presiding judge had previously acted as the plaintiff’s advocate – defendant applying for review or setting aside of judgment on admission–– whether defendant had been prejudiced – test to be applied in assessing the danger of bias or impartiality of a judicial officer – whether presiding judge and plaintiff were under an obligation to disclose the previous relationship.

Civil Practice and Procedure–– review – review of a ruling upon discovery of new and important matter – applicant discovering that the presiding judge had previously acted as the plaintiff’s advocate – whether such discovery sufficient grounds for review or setting aside of the judge’s ruling.

On December 18, 2002, the High Court (Ombija J) delivered a ruling in favour of the plaintiff and entered judgment on admission against the fifth defendant, one Ajay Shah. The fifth defendant brought this application asking for an order reviewing or setting aside that ruling. The grounds of the application were that in April 2004, he had discovered that the presiding judge had personally acted for the plaintiff bank at the time when he was in legal practice. He further stated that neither the judge nor the plaintiff had disclosed that fact to him during or after the hearing of the application for judgment on admission and consequently, that there existed a conflict of interest or likelihood of mischief which had caused a miscarriage of justice and a breach of his constitutional rights.

The plaintiff bank, while not denying that the judge had previously acted for it, opposed the application. It argued that there had been no miscarriage of justice or likelihood of bias and that in any case, the fifth defendant had admitted the debt and failed to file a replying affidavit in the application before the judge, so that the outcome would have been the same regardless of which judge had presided over it.

Held:

1. The test to be applied is usually whether, having regard to the relevant circumstances, there was a real danger of bias on the presiding judge, in the sense that he might unfairly regard or have unfairly regarded with favour or disfavour the case of a party to the same issue under consideration by him.

2. The purpose of the disqualification is to preserve the administration of justice from any suspicion of impartiality.

3. On the evidence, it was clear that M/S Ombija & Co Advocates had been retained and did act for the plaintiff Bank in a High Court civil case in which the Bank had an interest in the suit property.

4. The discovery by the fifth defendant that the presiding judge had acted as an advocate for the plaintiff amounted to the discovery of new and important matter which after the exercise of due diligence, was not within his knowledge at the time the order was made.

5. It was the duty and obligation of the presiding judge and the plaintiff

Bank to have disclosed or declared the existence of the past relationship. Having not been given the opportunity to raise the issue of disqualification before the presiding judge and judgment having been entered against him, the fifth defendant had suffered a miscarriage of justice.

6. A reasonable person looking at the situation would have the impression that there could have been a real danger of bias on the part of the judge due to his past relationship with the plaintiff.

Application allowed, ruling of Ombija J set aside.

Cases

1.Galaxy Paints Co Ltd v Falcon Guards Ltd [2000] 2 EA 385

2. Pattni, Kamlesh Mansukhlal & another v Republic Civil Application No 301 of 1999

3. R v Gough [1993] 2 All ER 724; [1993] AC 646; [1993] 2 WLR 883

4. Uhuru Highway Development Limited v Central Bank of Kenya and 2 others Civil Appeal No 36 of 1996

5. Republic v David Makali & 3 others Criminal Application Nos 4 & 5 of 1994 (Consolidated)

6. Saint Benoiste Plantations Limited v Felix (1954) 21 EACA 105

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXI rules 22, 24; order XLIV rule 4

2. Constitution of Kenya section 77

Advocates

Mr Billing for the Applicant

Mr Oyatsi for the Respondent

[RULING] Civil Practice and Procedure-transfer of suit-on grounds that the cause of action related to a contract of insurance entered into by the parties within Kisumu, hence transfer of the suit sought from Nairobi to Kisumu-validity of the application