1.The application by the plaintiff seeks that the Hon Judge recuses himself from hearing this matter on the basis that he has already made up his mind about their case. The Plaintiff avers that they are constrained to make the application due to the position expressed by this court in an earlier ruling in this matter on November 24, 2022.
2.The Plaintiff affirms that this court in the cited ruling, particularly at paragraph 20 thereof in very clear terms took the position that the suit property is private property going by an earlier decision of the Court of Appeal. The Plaintiff states that the court pronounced itself in such a way that did not leave any chance or indication that the issue was open for argument. The pronouncement by the court led the Board of Management of the Plaintiff to conclude that their case was more or less concluded since the main issue in the case is actually whether the subject property is private or public.
3.The plaintiff therefore feels already prejudiced by the court’s pronouncement. The plaintiff pleads that I disqualify myself from the case and allow the case to be heard by another judge.
4.The defendant vehemently opposed the application by the plaintiff arguing that the plaintiff’s allegations are baseless and the application therefore unmerited. The defendant avers that there is no justifiable cause demonstrated by the plaintiff to justify my recusal from the case.
5.The defendant avers that the only recourse available to the plaintiff is to either appeal from the said ruling or apply to review it before me. It is the defendant’s position that the application by the Plaintiff is an abuse of the process of court and an attempt to delay the expedient disposal of this suit. The defendant urges the court to strike out the plaintiff’s application with costs.
6.None of the interested parties replied to the application.
7.The court’s directions were that the application be canvassed by way of written submissions. Both parties (the plaintiff and the defendant) have complied and the court has had the opportunity to read through the submissions. The issue for determination is whether the plaintiff’s application meets the threshold for recusal of a Judge.
Analysis and Determination
9.Chadwick LJ, however, argued that it is important for a Judge to resist that impulse to recuse himself any time an application is presented before him.
11.Recusal of a Judge is certainly a grave matter that must not be taken lightly at any one time. Precedents have established the threshold that must be met in order for an application for recusal to be successful. The defendant in this case has in its submissions made reference to a number of those decisions.
12.In the case of Kaplana H Rawal vs Judicial Service Commission & 2 others (2016) eKLR, the Court of Appeal of Kenya cited with approval the decision of the East African Court of Justice in the case of the Attorney General of Kenya vs Anyang Nyong’, App No 1 of 2006 (EACJ) which set out the test for bias in the following words;
14.It is clear that the applicant bears the onus of rebutting the presumption of judicial impartiality. have carefully considered the Plaintiff’s application against the principles and the objective test spelt out in the above cited decisions. At paragraph 20 of the ruling of November 24, 2022, this court did not make a finding; rather, the court merely pointed out at the decision of the Court of Appeal. Indeed, the court at paragraph 34 of the ruling expressed its wish not to ‘summarily and finally determine the contested issues in the case’ at that stage. I am conscious that this case is yet to be heard and will therefore go no farther than I have already done.
15.The apprehension by the plaintiff that the court has already made up its mind cannot therefore, in the circumstances, by all standards be said to be reasonable. The application, with due respect falls short of the objective test. This court remains true to its oath of office, to diligently serve the people and the republic, to impartially do justice without any fear, favour, bias, affection, ill-will, prejudice or any political, religious or other influence.
16.The upshot is that I find no merit in the application by the plaintiff and hereby dismiss the same with costs to the defendant.
17.It is so ordered.