[2021] KEHC 13598 (KLR)
The Court found that there was no sufficient basis for recusal, emphasizing that judges are bound by their oath to hear cases to conclusion unless there is a clear and substantiated reason to withdraw. The Court rejected the argument that the recent gazettement or physical location of the High Court in Vihiga...
Source-derived case information.
- Citation
- [2021] KEHC 13598 (KLR)
- Parties
- Applicant: Dr Amos Kutwa Koluwa; Applicant: Pamela Mbagaya Kimwele; Applicant: Eng. Kenneth Elvuna Keseko; Applicant: Paul Jiseve Mbuni; Applicant: Stephen Lumwaji Chahasi; Applicant: Julius Obuga Masiva; Respondent: The County Government of Vihiga through its Speaker; Respondent: H.E. the Governor of the County of Vihiga
- Court
- High Court
- Court Station
- High Court at Vihiga
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 006, E005 & E007 of 2021
- Procedural Posture
- Constitutional Petition / Ruling on Show Cause Hearing Regarding Contempt and Recusal Applications
- Outcome
- All oral applications for recusal, arrest of ruling, and stay of proceedings are dismissed. Contempt proceedings to continue. Costs awarded as assessed for half a day.
- Judges
- BA Mitullah
- Legal Topics
- Judicial Recusal, Contempt of Court, Court Jurisdiction, Access to Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr Amos Kutwa Koluwa
Applicant
Pamela Mbagaya Kimwele
Applicant
Eng. Kenneth Elvuna Keseko
Applicant
Paul Jiseve Mbuni
Applicant
Stephen Lumwaji Chahasi
Applicant
Julius Obuga Masiva
Applicant
The County Government of Vihiga through its Speaker
Respondent
H.E. the Governor of the County of Vihiga
Respondent
Procedural Posture
Constitutional Petition / Ruling on Show Cause Hearing Regarding Contempt and Recusal Applications
Legal Issues
- 1 Whether the Court should recuse itself from hearing the contempt proceedings as requested by the Respondent and Interested Party.
- 2 Whether the contempt proceedings should continue despite the recusal application and other interlocutory applications.
- 3 Whether the geographical location of the High Court affects its jurisdiction or the fairness of proceedings.
Ratio Decidendi
The Court found that there was no sufficient basis for recusal, emphasizing that judges are bound by their oath to hear cases to conclusion unless there is a clear and substantiated reason to withdraw. The Court rejected the argument that the recent gazettement or physical location of the High Court in Vihiga undermined its jurisdiction or the fairness of proceedings. The Court also dismissed the applications to arrest the ruling and for stay of proceedings, holding that such applications were not properly before the Court and did not affect the ongoing contempt proceedings. The Court reiterated that civil proceedings require proof by evidence, not mere allegations, and that access to...
Court Disposition
All oral applications for recusal, arrest of ruling, and stay of proceedings are dismissed. Contempt proceedings to continue. Costs awarded as assessed for half a day.
Orders
- All oral applications for recusal, arrest of ruling, and stay of proceedings are dismissed with costs.
- Contempt proceedings to continue.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT VIHIGA
CONSTITUTIONAL PETION NO 006 OF 2021 AS CONSOLIDATED WITH
PETITION NO E005 OF 2021 AND E007 OF 2021
B E T W E E N:
1. DR AMOS KUTWA KOLUWA
2. PAMELA MBAGAYA KIMWELE
3. ENG. KENNETH ELVUNA KESEKO
4. PAUL JISEVE MBUNI
5. STEPHEN LUMWAJI CHAHASI
6. JULIUS OBUGA MASIVA.............................PETITIONER/APPLICANTS
AND
THE COUNTY GOVERNMENTOF VIHIGA
THRO’ ITS SPEAKER................RESPONDENT/ALLEGED CONTEMNOR
AND
H.E. THE GOVERNOR OFTHE
COUNTY OF VIHIGA...INTERESTED PARTY/ALLEGED CONTEMNOR
RULING ON SHOW CAUSE HEARING
1. Counsel before the Court representing the Respondent and the Interested Party are urging the Court to recuse itself summarily on the basis of an application that cannot be repeated in the light of day if Mr Rakewa’s hesitation is anything to go by.
2. Directions were given for the service of the application – still it was not served. In the meantime the contempt proceedings rumbled on. Mr Musiega and Mr Rakewa were happy to proceed on the basis of hearsay affidavit evidence but not with a show cause conducted as a fair trial. It should be made clear that these are civil proceedings and the Applicants must prove their case. Allegations are not evidence.
3. On the question of recusal, Judge’s of the High Court swear an oath of office. The Oath requires a Judge to hear to the end, no matter how difficult, no matter how daunting, no matter how distressing the evidence we hear. That is what we must do. There is no option to recuse oneself summarily. That would be a dereliction of duty and in fact a breach of the very code of conduct that Mr Musiega urges the Judge to bear in mind. It should be reiterated that directions were given immediately on the recusal application and the Parties have neglected to prosecute their case before today.
4. Mr Musiega has also brought other applications, one to arrest a ruling which was not scheduled for delivery and another for stay of proceedings. In light of the Order of 19th July 2021, that stay does not apply to the contempt proceedings.
5. Therefore, should this Court recuse itself? A Court must work through insults threats and harassment etc without fear or favour. It does not have the luxury that Counsel has of picking and choosing which cases it will handle. Therefore the Court will proceed until the Recusal application is heard fully.
6. As to geographical location of the Court. It is well known and well documented that the gazettment of the High Court in Vihiga is a recent phenomenon. It is so new that at this point in time files are still being transferred to develop a case load. A High Court is an indication that a County is successful. It is a fundamental aspect of a functioning High Court in Vihiga that the Judges posed to Kakamega also hand Vihiga matters as a circuit court. What matters is not physical location but access to justice. Given that a human being cannot split themselves into two, the Court must follow the Judge.
7. It is clear that the Advocates making the application of irregularity of sittings are perfectly happy for disposal of Vihiga matters when they appear before judicial officers who have been here longer.
In the circumstances, this Court is bound by its Oath of Office and therefore the proceedings for contempt will continue. All other applications make on the floor of the Court (in open Court) are dismissed with costs. Costs to be asses as ½ day it now being after mid-day.
Order accordingly,
FARAH AMIN
JUDGE
DELIVERED, DATED AND SIGNED THIS THE16THDAY OF DECEMBER,2021
ATKAKAMEGAHIGH COURT (2)
In the Presence of:
Court Assistant: Clement Okoit
For Petitioners: Mr Malenya, Mr Sore
Julius O. Masiva (in person in Court 2)
For Respondents: Mr Rakewa and Ms Andisi
For Interested Party/Applicant: Mr Musiega and Ms Andisi assisted by Kennedy Esuchi