Ethics and Anti-Corruption Commission v Kinyua & 2 others (Anti-Corruption and Economic Crimes Civil Suit E013 of 2022)  KEHC 376 (KLR) (Anti-Corruption and Economic Crimes) (26 January 2023) (Ruling)
Neutral citation:  KEHC 376 (KLR)
Republic of Kenya
Anti-Corruption and Economic Crimes Civil Suit E013 of 2022
EN Maina, J
January 26, 2023
Ethics and Anti-Corruption Commission
Jeremiah Kamau Kinyua
Bestline Entreprises Limited
Cherya Entreprises Limited
1.The Defendants/Applicants filed a Notice of Motion under a Certificate of Urgency dated 27th June 2022 supported by an affidavit sworn by the 1st Defendant/ Applicant on even date. The Application is brought under Article 25(c) and 50(1) of the Constitution, Section 5(10) of the Public Officers Ethics Act and Rule 3(8) of the Judicial Service Code of Conduct & Ethics. The same seeks the following orders:
2.The Application is premised on the following grounds stated on the face of it and in the supporting affidavit sworn by JeremiahKamau Kinyua on 27th June, 2021:-
3.The Application is opposed by the Respondent vide the Replying affidavit of Danson Siba sworn on 4th August 2022. In summary the deponent states that the fact that a court has made an adverse determination against a party is not a ground for imputing bias on the court; that the applications filed by the Applicants herein were determined on merit and no appeals were preferred; and that a preservation order and the same lapses upon conclusion of the investigations and filing of a forfeiture application; that contrary to the applicant’s submissions this court could not interrogate the manner of acquisition of the properties at the preservation stage; that this court did not determine the application for warrants to investigate and so the Applicants should not allege bias. Further that the Applicants are aware that this court is the only one mandated to hear and determine anti-corruption cases and hence this application is mischievous. The deponent urges that the applicants are merely unhappy with the outcome of their application and now seek to shop for a court sympathetic to their case
The Defendants/Applicants’ case
4.The Applicants reiterate the grounds on the face of the Application and contend that the impugned Judge has treated them unequally as opposed to the Plaintiff; that in their Application dated 21st October 2021 to set aside orders issued on the 7th October 2021 in Misc. App Case No. E029 of 2021, they informed the court that the Plaintiff had filed a similar matter in Chief Magistrate Misc. Application No. E1791 of 2021 (Ethics and Anti-corruption Commission vs Jeremiah Kamau Kinyua) where the Honourable Magistrate issued an order giving the Plaintiff 10 days from the date of the Judgement to take the necessary action that followed completion of investigations or alternatively return the goods if no action was intended. That the Plaintiff did not comply with the said order but instead moved this court for preservation orders which were granted in the Ruling of 27th January 2022. Further that, on 7th October 2021, the court ordered the surrender of M/v KCH 625 v ex parte without hearing the Defendants; That the Presiding Judge has demonstrated bias against the Defendants by always ruling in favour of the Plaintiff.
5.They submit that the file should be placed before the Hon. Chief Justice for allocation to a different Judge as the impugned Judge is currently the only Judge in the Anti-Corruption Division. They cited the following authorities to support their submisisons: Mike Sonko Mbuvi Kioko v Director of Public Prosecutions & 5 others; Council of Governors & 2 Others (Interested Parties)  eKLR on recusal in the event of conflict of interest; Rishad Hamid Ahmend and Another v Independent Electoral and Boundaries Commission  eKLR , Alliance Media Kenya Limited v Monier 2000 ltd and Njoroge Regeru HCCC No. 370 of 2007; Jasbir Singh Rai and 3 others v Tarlochan Sighn Rai and 4 others; South Africa Defence Force and Others v Monning and Others  (3) SA 482(A), Jan Bonde Nielson v Herman Phillipus Steyn & 2 others  eKLR and Itobu Imanyara & 3 others v Attorney General  eKLR.
6.The Applicants urged that the matter be heard by an independent and impartial Judge in the interest of justice.
The Plaintiff/ Respondents’ case
7.The Plaintiff opposed the Application on the grounds that the Application is frivolous and amounts to an abuse of the court process; that the Defendant’s apprehension of bias is unfounded and is only but a delaying tactic and an attempt at forum shopping; That the Applications filed by the Defendants in ACEC No. E029 of2021 andACEC no. 035 of2021 (EACC vsJeremiah. Kamau Kinyua& ORS) seeking to discharge the preservation orders were heard on merit and dismissed by this court; that the Defendants did not appeal against the rulings and cannot be heard to claim bias against the Judge and further that mere apprehension of bias cannot be a ground for recusal. The Respondent placed reliance on the case of Nathan Obwana v Robert Bisakwaya Wanyera & 2 Others  eKLR where Chitembwe J, stated:-
8.The Plaintiff urged the court to dismiss the Application with costs. Counsel also relied on the case of John Karani Mwenda v Japhet Bundi Chabari  eKLR, the case of Republic v Kenya Motorsports Federation Ltd & Another ex parte Rory Hugh Thomas McKean and another (suing through parents and next friend)  eKLR.
Analysis and determination
9.The gravamen of this Application is that the Defendants/Applicants allege that based on the previous rulings of this case in the interlocutory applications in this matter, this court has already pre-determined this suit in favor of the Plaintiff and as such it is biased against the Defendants/Applicants.
10.The issue of recusal of Judges was the subject of proceedings in the Supreme Court case of Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others  eKLR, where the court held that the test is that of a “well-informed, thoughtful observer who understands all the facts, and who has examined the record and the law and thus, “unsubstantiated suspicion of personal bias or prejudice will not suffice.” The rationale and objective for recusal is to ensure that justice is uncompromised, the due process of law is realized and be seen to have had its role in the matter in question.
11.The test laid by the Supreme court finds support in Commentaries on the Bangalore Principles of Judicial Conduct by the Judicial Integrity Group, that the generally accepted criterion for disqualification is the reasonable apprehension of bias.
12.Different tests have been applied to determine whether there is an apprehension of bias or prejudgment. These range from “a high probability” of bias to “a real likelihood”, “a substantial possibility”, and “a reasonable suspicion” of bias.
13.However, the apprehension of bias must be a reasonable one, held by reasonable, fair minded and informed persons, who apply themselves to the question and obtain the required information. It is therefore an objective rather than a substantive test.
14.The test is “what would such a fair-minded person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would such person think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly.” The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge will not bring an impartial mind to bear on the adjudication of the case.
15.The Applicant’s argument that the decisions of this court are all in favour of the Plaintiff perse do not disclose any bias as those decisions arise from applications which were anchored on different facts and the law and although they concerned the issues in dispute in this suit the rulings were based on the facts, the law and circumstances brought before the court.
16.While litigants have the right to apply for the recusal of judicial officers and judges where there is a reasonable apprehension that they will not decide a case impartially, this does not give them the right to object to their cases being heard by particular Judges merely because they believe that such judges will be less likely to decide the case in their favour. Moreover, the fact that a judge has previously ruled in favour of the applicant’s opponent is surely a ground for appeal but not for recusal of a judge. I would in this matter align myself with the observation of Odunga J in the case of Republic v Independent Electoral & Boundaries Commission & Another ex parte Coalition For Reforms & Democracy (CORD) HC NBI Misc. Appl. No. 648 of 2016  eKLR that:-
17.The decisions of this court and the interlocutory directions made in the two previous matters are based on the law and rules of procedure. Applying the test in the case of Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai (supra), no fair-minded and informed observer, having considered the facts, would conclude that there is a possibility that this Court will not be impartial or fair or will be biased.
18.The upshot is that the Application has failed to meet the threshold for my recusal and it is therefore dismissed with costs to the Plaintiff/Respondent.
SIGNED, DATED AND DELIVERED VIRTUALLY THIS 26TH DAY OF JANUARY, 2023.E N MAINAJUDGE