8.I have considered the Respondent/Applicant’s application, the grounds and affidavit in support, the Ex Parte Applicant/Respondent’s opposition, and the oral submissions by both parties. The singular issue for determination is whether the application meets the threshold for recusal.
9.An application for recusal is premised on Article 50 (1) of the Constitution of Kenya, 2010, which entitles every person the right to have any dispute that can be resolved by the application of the law, decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Such an application calls into question the fairness of a Judge who has sworn to do justice impartially and in accordance with the Constitution and the law.
10.This Court rendered a judgment on March 16, 2023, in respect of the Ex Parte Applicant’s notice of motion dated October 27, 2022. In that judgment the Court issued final orders as follows: -
11.The Court on April 27, 2023, issued orders staying disciplinary proceedings initiated by the Respondent/Applicant herein and set the motion for interparties hearing on June 20, 2023. On the hearing date, Counsel for the Applicant herein sought an adjournment and leave to file a further affidavit arguing that he needed to avail a gazette notice appointing the Respondent/Applicant’s Board members.
12.The Court granted the Applicant leave to file a further affidavit and further directed that the hearing of the application will proceed after that filing on the same day.
13.The Respondent/Applicant filed their further affidavit as directed, but when the matter was called for hearing as scheduled, counsel told court that he had instructions to file an application for recusal of the judge. The Court then adjourned the matter to allow the Applicant time to lodge its application, and the instant application was then filed.
14.The question is whether the chronology of events outlined above point to the partiality of this Court in this matter.
15.It has been largely held that the test on whether a Judge should or should not recuse themselves in a matter, 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. The East Africa Court of Justice adopted this test in Attorney General of Kenya v Prof Anyang’ Nyong’o & 10 Others EACJ Application No 5 of 2007 in the following words:
16.The Supreme Court of Canada expounded the test in the following terms in R v S(RD)  3 SCR 484:
17.The general rule in an application such as this, is that a Judge must not recuse herself/himself. The application herein is premised on a mere apprehension of bias on the part of this Court, premised on an order forming part of the judgment rendered on March 16, 2023 which order states thus:
18.The order restrains the applicant from taking disciplinary proceedings against the Ex parte Applicant in the manner that it did, and which was the issue subject of the judicial review motion. The order went further to require that should it be necessary to exercise disciplinary action against the Ex parte Applicant, the Respondent should comply with the law.
19.The Respondent/Applicant quickly decided to ride on the latter part of the order without giving consideration to the preceding orders of the court emanating from the same judgment, and which then formed the basis for the application staying the proceedings, which later gave rise to the instant application for recusal.
20.In arriving at a decision on whether a Judge should or should not recuse oneself in a suit, one needs to strike a balance between maintaining the appearance of impartiality and the Judge’s duty to sit (See Justice MK Ibrahim in Gladys Boss Shollei v Judicial Service Commission & Another (2018) eKLR). Further, it has largely been observed that allowing an application for recusal would encourage forum shopping, and delay in the just and prompt resolution of disputes.
21.The Respondent/Applicant herein, has used every trick in the books to avoid compliance with the orders of this court, including the application for adjournment which the court declined, and which led to the application for recusal.
22.In my view, the circumstances of this case do not give rise to a reasonable apprehension of bias in the mind of a reasonable, fair minded and informed member of the public that the judge did not or will not apply her mind to the case impartially.
23.I hold that the instant application does not meet the objective test as to warrant my recusal from hearing and determining this matter, and is dismissed with costs.
24.It is so ordered.