Ethics & Anti-Corruption Commission v Otieno & 5 others (Anti-Corruption and Economic Crimes Civil Suit 24 of 2018)  KEHC 2435 (KLR) (Anti-Corruption and Economic Crimes) (23 March 2023) (Ruling)
Neutral citation:  KEHC 2435 (KLR)
Republic of Kenya
Anti-Corruption and Economic Crimes Civil Suit 24 of 2018
EN Maina, J
March 23, 2023
Ethics & Anti-Corruption Commission
Bob Kephas Otieno
Carolyne Chepkemoi Sang
Maurice Odiwuor Amek
Michael Owino Ooro
Isaac Ouso Nyandege
Judith Akinyi Omogi
1.The 3rd Defendant/Applicant’s Notice of Motion dated January 10, 2023 which is brought under Order 51 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act and Article 50 of the Constitution seeks the following orders:-1)Spent.2.The Honourable Justice Esther Nyambura Maina be pleased to recuse herself from any further conduct of this matter.3.This matter be placed before any other court having sufficient jurisdiction for its just and conclusive determination.4.The costs of this application be in the determination.”
2.The grounds for the application as stated on its face and the supporting affidavit are that:- this suit was filed on September 20, 2018, simultaneously with the proceedings in Homabay CMACC No 1 of 2018 where the Applicant together with 6 others were charged with 11 counts relating to the embezzlement of public funds amounting to Kshs 27,872,278 belonging to the County Assembly of Homabay; that the applicant and his co-Defendants herein were on June 14, 2022 convicted in the said ACC 1 of 2018; that the Defendants preferred an Appeal against the judgment in this court vide ACEC Appeal No 4 of 2020 consolidated with ACEC Appeal No E005 of 2022 which was heard and determined by the Hon Lady Justice Esther Maina; that in her judgment delivered on December 15, 2022 this court upheld the conviction of the 3rd Defendant/Applicant and his co-defendants; that the Applicant is apprehensive therefore, that they will not get a fair and impartial trial in this court; that the judgment delivered by this court on December 15, 2022 was prejudicial to the Applicant and as such there is sufficient cause to warrant granting of the orders sought as there is a reasonable probability that the Honourable Judge would be influenced by its findings in the judgment in HCACEC Appeal No 4 of 2022 delivered on December 15, 2022.
3.The Plaintiff opposed the application through a replying affidavit sworn by Jarso Dida on February 20, 2023 and submissions dated March 14, 2023. The Plaintiff contends that the mere apprehension of bias cannot be a basis for recusal. That the allegations of bias must be factual and proven. That this court should not recuse itself simply because it has pronounced itself on a question of law in a related matter. Further, that this court has a duty to sit on a matter on which it ought to sit and should not recuse itself where there is no bias and that to entertain such a proposition would amount to an abdication of duty. It was also argued that the consolidated appeals in HCACEC Appeal No 4 of 2022 were heard and determined on merit and the Applicant has not appealed.
Issues for determination
4.Whether the Hon Lady Justice Esther Maina should recuse herself from these proceedings.
Analysis and Determination
5.The recusal of Judges and judicial officers is guided by the Judicial Service (Code of Conduct and Ethics) Regulations 2020. Under Regulation 21 Part Il of the said Code of Conduct, a Judge can recuse himself or herself in any of the proceedings in which his or her impartiality might reasonably be questioned where the Judge;
6.The above principles are to be considered together with the Bangalore Principles of Judicial Conduct which provide as follows in regard to bias:-
7.In the case of Phillip Tunoi & Another v Judicial Service Commission & Another (Civil Application No 6 of 2016)  eKLR the Court of Appeal stated as follows:-
8.The same position was taken by the Supreme Court (as per Ibrahim SCJ) in Jasbir Rai and 3 Others v Tarlochan Singh Rai and 4 Others SCK Petition No 4 of 2012  eKLR where he observed that:-
9.It is clear therefore that the test to be applied in an application for recusal of a judge is an objective one. The test is that of a fair minded and informed observer.
10.The gist of the Applicant’s application is that he is apprehensive that the Judge is likely to be biased against him by virtue of having heard an appeal and hence made a finding in a matter directly related to this suit. That this court has had the benefit of interacting with the facts and evidence produced in the related criminal case and therefore has a pre-determined mind on the matter. The question then would be whether a reasonable man who is well informed would conclude that having heard the appeal and dismissed it this court is likely to be biased against him in this suit. My answer to that question is in the negative. In the case of Republic v IEBC ex parte Wavinya Ndeti  eKLR the court held as follows:-
11.I associate myself fully with the above finding. There is no possibility that a reasonable person, properly informed and viewing the circumstances of this case would conclude that the Honourable Judge would be biased against the Applicant merely on account of having dealt with the Applicant’s appeal. No factual circumstances and/or proof of bias has been shown by the Applicant. This court is an independent umpire and is expected to apply its mind to the facts and the law and make a determination in favour of any of the parties to the suit. In my view, this application is a serious affront to Judicial independence as guaranteed under Article 160 of the Constitution. It would also be an abdication of duty for a court to recuse itself on the grounds cited. Should the Applicant be aggrieved by the outcome of his appeal in ACEC Appeal E004/2022, the proper remedy would be to file an appeal against the judgment but not to ask this court to step aside every time a case related to the criminal one is brought before it. (See the case of Republic v Kenya Motorsports Federation Ltd & Another ex parte Rory Hugh Thomas Mckean and another (Suing through the parents and next friend)  eKLR).
12.In the circumstances, the Applicant has failed to meet the threshold for grant of orders sought and accordingly, it is my finding that the application dated January 10, 2023 lacks merit and it is hereby dismissed with costs to the Plaintiff/Respondent.
SIGNED, DATED AND DELIVERED VIRTUALLY THIS 23RD DAY OF MARCH 2023.E N MAINAJUDGE