REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL REVISION CASE 524 OF 2020

REPUBLIC.............................................APPLICANT

VERSUS

ASSA KIBAGENDI NYAKUNDI.....RESPONDENT

RULING

This matter has come up before this court, a penal of 3 honourable Judges, Justices G. Nzioka, D. Ogembo Ogola and J. Nyaga for the hearing of the application of the applicant, ASSA KIBAGENDI NYAKUNDI, dated 22.9.2021 and filed herein on 21.10.2021. The application is brought under articles 2, 3, 10, 20, 25(1), 50(1), 165(4) and 259 of the Constitution of Kenya. The same seeks 2 prayers, that;

1. THAT the honourable Mr. Justice Daniel Ogembo and the Honourable Lady Justice Grace Nzioka do recuse themselves from this matter.

2. THAT this matter be returned to the Honourable the Chief Justice to empanel a new bench that excludes the 2 Honourable Judges.

The applicant has sworn an affidavit in support of this application. This application was canvassed by the way of written submissions, the highlighting of which were conducted before the court in a virtual session on 12.11.2021.

On the issue of recusal, the applicant relied on the case of Charity Muthoni Gitabi Versus Joseph Gichangi Gitabi (2017)eKLR, and Kalpana H. Rawal Versus Judicial Service Commission and 2 others (2016)eKLR, were the Court of Appeal held;

“An application for recusal of a Judge is a necessary evil. On the one hand, it calls into a question the fairness of a judge who has sworn to do justice impartially, the accordance with the constitution without any fear, favour bias, affection, ill will, prejudice, political, religion or other influence. In such applications, the impartially 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 the 2 evils. The alternative is to risk. Violating a cardinal guarantee of the constitution, namely the right to a 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 by independent and impartial court …..”

Applicant also relied on Philip K. Tunoi & Another Versus Judicial Service Commission & Another (2016), where the CA held;

“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 balance approach and will neither be complacent nor be unduly sensitive or suspicious in determining whether or suspicious in determining whether or not there is real possibility of bias.”

The applicant further relied on many other decisions on the issue of recusal of Judges, including Republic Versus Gough (1993)AC 646, Porter Versus Magill (2002) ALLER 465, Benson Kapoya Mosire & Another Versus Republic, Jashir Singh Rai & 3 Others Versus Tarlochan Singh Rai & 4 Others (no citation) Rachuonyo & Rachuonyo Advocates Versus NBK (K) limited (2021)eKLR, David Makali & others Versus Republic, NAI Cr. No. 4 and 5/1995, President of the Republic of SA & 2 others Versus SA Rugby Football Union & others (1999), Republic Versus Eric Mungera Isabwa & 6 others (2020)eKLR, and lastly, the famous case of Uhuru Highway Development Limited Versus CBK, Civil Appeal No. 36/1996.

The Respondent has opposed this application on grounds that the applicant has proved on ground worthy of a recusal or disqualification of a Judge. That the 2 Judges have performed their duties in a fair independent manner and no bias has been pointed out. Counsel urged the court to dismiss this application.

We have considered the submissions of both the applicant and the state Respondent. First and foremost, it is noted that while highlighting on the submissions filed, the applicants applied for withdrawal of this application in respect of the Hon. Lady Nzioka. Appropriate orders of withdrawal were accordingly made in respect of the Honourable Judge. This application would therefore only be considered in respect of the Honourable Justice Ogembo.

The law on recusal of a Judge from a trial on the grounds of bias or likelihood of bias are well settled as shown on the submissions of the applicant and conceded to by the Respondent. The many authorities relied on by the parties confirm the position that for the existence or otherwise of bias, the test to be applied is that of a fair minded and informed observer who would adopt a balanced approach on the same.

The application for recusal of the Hon Justice Ogembo seems to arise out of the ruling the Honourable Judge made in HCCR case No. 35 of 2019, dismissing an application by the applicant herein. Sections of the ruling have been reproduced by the applicant at paragraph 29 of the affidavit in support of this application. With respect, these were considered findings of the Honourable Judge which in our considered view can only be properly challenged by way of appeal. Indeed the applicant has intimated to court that he has accordingly filed an appeal against the same at the Court of Appeal. This, in our view, on its own cannot amount to a bias or proof of likelihood of bias.

We have however, considered the averments of the applicant, both on the affidavit in support of the application, the submissions on the oral highlights done before the court. The same appear to us to be personal attacks on the Honourable Judges. Be that as it may, we have considered the entire matter. As the edge goes, Justice must not only be done. It must also seen to be done. It is on this basis that the Hon. Justice Ogembo has opted to recuse himself from this matter.

We accordingly therefore make the following orders;

i. THAT the Honourable Mr. Justice D. Ogembo recuses himself from this matter.

ii. THAT the application for recusal in respect of the Hon. Justice G. Nzioka is hereby marked as withdrawn.

iii. THAT this matter is hereby referred to the Honourable the Chief Justice for reconstitution of a bench herein.

iv. Parties will be informed accordingly.

Orders accordingly.

DATED AT NAIROBI THIS 28^TH DAY OF FEBRUARY, 2022

HON LADY JUSTICE G. NZIOKA    HON. JUSTICE D. OGEMBO                        

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HON. JUSTICE J. NYAGA.

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