Analysis and determination.
9.I have considered the application, the response, the written submissions and the applicable law. The issue for determination is whether the applicant should be granted the revisionary orders sought.
10.The power of this court in its revisionary jurisdiction is founded under Section 362 of the Criminal Procedure Code (Cap 75) Laws of Kenya which provides that:Article 165(6) of the Constitution provides that:
11.Consequently, this court has jurisdiction to entertain the application before me. In the instant application, the applicant sought a revision of the ruling delivered before the trial court on 17th March 2023. Before the trial court the applicant had filed an application seeking the recusal from the bench hearing his case of Brigadier W.S Wesonga on grounds that he has been appointed to the rank of Provost Marshal. He argued he was now the head of the Military Police responsible for investigations and charging military personnel. He can therefore not be a judge in a case he was responsible for investigating. The court martial dismissed his application in a ruling delivered on 17th March 2023.
12.In the premises, the key issue for consideration is the question whether the proceedings of the lower court and the ruling can be faulted in terms of correctness, legality or propriety. I have considered the impugned ruling. The reasons for denial of the orders sought were that the applicant failed to prove that the new role of the senior member of the bench involved conducting investigations. Secondly, the applicant had already been given an opportunity raise an objection against the participation of the member during the pre-trial stage.
13.The issue of recusal of a member of a bench in the hearing of a case before the court martial has been called into question. Section 160 of the KDF Act provides that a court martial comprises of a Judge Advocate and at least five members consisting of military officers appointed by the Defence Court Martial Administrator, Section 176 of the same Act states that the decisions of the court martial are made by a majority of the members of the court excluding the Judge Advocate.
14.The manner in which a court martial shall make decisions is provided by Section 176 of the KDF Act as hereunder:-The reproduced provision underpins the importance of the members of the court in making a determination whether an accused is found guilty or not. On the other hand, the Judge Advocate only advices the court martial on any question of law or procedure relating to the charge or the trial and ensure that the trial was fair. It is therefore the members who make the final determination through voting. They are therefore clothed with a judicial function. The nature of the judicial function involves the performance of difficult and at times unpleasant tasks. Judicial officers are nonetheless required to administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law. To this end they must resist all manner of pressure, regardless of where it emanates from. This is the constitutional duty common to all judicial officers.In the case of Philip K. Tunoi & Another vs Judicial Service Commission & Another  eKLR, in considering an application for recusal it was stated that:
15.It would therefore mean that the Court in considering whether or not to recuse itself, the Judicial Officer would then be answering the question first whether on its own evaluation of itself, it would likely to be biased and second whether on the opinion of an informed mind, the Court would appear to be biased.
16.The Black's Law Dictionary, 10th (2014). Defines Bias as;
17.Finally, the Bangalore Principles of Judicial Conduct defines bias or prejudice as follows: -
18.Section 160 of the Kenya Defence Forces Act provides for the composition of the courts martial. It consists of a Judge Advocate, appointed under section 165, who is the presiding officer, at least five other members, appointed by the Defence Court-martial, an administrator if an officer is being tried; and not less than three other members in any other case. In addition to other principles and values provided for in the Constitution, the court-martial in the exercise of its powers and discharge of its functions, is guided by the principles provided for under Article 159(2) of the Constitution. It is therefore subject to the Laws of Kenya.
19.In this instant application, the applicant is seeking the recusal of a member of the court martial from hearing his case. The applicant argued that the Snr most member of the bench had been appointed as a provost marshal. As such, his position involved conducting investigations and preferring charges. It was argued that he became the head of Military police operations as per the police standing orders and cannot be a judge in his own case. That his continued presence in the case was likely to interfere with his right to fair hearing as he would have served as an investigator and a judge in the same case. The respondent denied the claims by the applicant. It was argued that the applicant was given an opportunity to object to the participation of the Snr most member but he opted not to.
20.The KDF Act defines a provost officer as a provost marshal or other officer appointed by the Commander, for a service of the armed forces, to be a provost officer for the purposes of this Act. Section 70 of the Act provides that a provost officer may arrest any officer or serviceman. From the record, the respondent did not dispute the claim that Brigadier Wesonga had been appointed as the Provost Marshal. What they are disputing is his role within the military. From a reading of the Act, he is clearly involved in maintaining law and order in the military and can be referred to as military police.
21.The next issue is whether his presence as a member of the bench may lead to an apprehension of bias. The two categories of bias are actual and apparent. The test for recusal differs between the two types of bias. In the case of actual bias, disqualification and recusal is automatic, without there being any "question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any reasonable suspicion of bias, on the facts of the particular case” as stated by Lord Goff in the English case of R. v. Gough (1993) 2 All E.R. 724. In the case of apparent bias, the perception of impartiality is measured by the standard of a reasonable observer, and the English House of Lords in Magill v. Porter (2002) 2 AC 357, stated that the test for recusal is whether “a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased”.
22.I note that public confidence in the judicial system does not result from the judiciary's perception of impartiality; it results from the public's perception of impartiality. Thus, a judge's belief that she is not biased is of little consequence to a recusal determination. The recusal standard is based on promoting public confidence in the judiciary and, by its terms, extends to an "appearance" of impropriety, even in circumstances where there is no actual impropriety.
23.The oath taken by members of the Kenya Defence Forces (KDF) at a court-martial is a solemn commitment to uphold the principles and responsibilities of their military service. This oath reflects the core values of loyalty, obedience, and service to the nation and its Constitution. The junior members take orders to obey orders and commands issued by superiors in accordance with the law, military regulations, and the Constitution of Kenya. As such, a Snr. Member plays a very crucial role in the final outcome of cases at the Court Martial. It is my view therefore, that, there is a real apprehension of bias.
24.It is for this reason that I would disagree with the finding of the Judge Advocate that since the applicant was given an opportunity to raise an objection to any member of the bench, and to which he did not, he is estopped from raising any subsequent objection. I dare say that an application for recusal can be made at any particular time of the proceedings before judgement is delivered depending on the circumstances of the case.
25.Accordingly, I find that the circumstances of this case as they stand, give rise to a reasonable apprehension of bias, in the mind of the reasonable, fair minded and informed member of the public that the court martial as currently constituted will not apply its mind impartially during the hearing of the applicant’s case. The application dated 22nd March 2023 succeeds and is allowed in the following terms:i.The Snr member Brigadier W.S Wesonga, 18765, is directed not to sit not only as a Snr member, but also as a member in the case against the applicant, Lieutenant Colonel Thomas Kiptum Poghisyo, at Kahawa Garrison Court Martial Case No. 4 of 2021.Orders accordingly.