[2003] KEHC 760 (KLR)
The court held that once a judge has disqualified himself from a matter, it is not possible to order or compel that judge to resume conduct of the case. The appellants' argument that they were not heard before the disqualification was found to be unsubstantiated, as the record showed they were present in court,...
Source-derived case information.
- Citation
- [2003] KEHC 760 (KLR)
- Parties
- Appellant: Burka Ahmed Salim; Appellant: Shalha Ahmed; Respondent: Stephen C. Ngala
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 58 of 1998
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Applications for Review and Directions
- Outcome
- Application for review of disqualification order to be placed before the disqualified judge for directions; no substantive orders on review or injunction granted at this stage.
- Legal Topics
- Review of Judgment, Judicial Disqualification, Audi Alterem Partem, Injunctions, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Burka Ahmed Salim
Appellant
Shalha Ahmed
Appellant
Stephen C. Ngala
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Applications for Review and Directions
Legal Issues
- 1 Whether the judge's self-disqualification can be reviewed or set aside.
- 2 Whether the appellants were denied the right to be heard before the judge disqualified himself.
- 3 Whether the application for review of the decree and for injunction should be heard before resolving the issue of judicial disqualification.
Ratio Decidendi
The court held that once a judge has disqualified himself from a matter, it is not possible to order or compel that judge to resume conduct of the case. The appellants' argument that they were not heard before the disqualification was found to be unsubstantiated, as the record showed they were present in court, admitted authorship of the letter to the Chief Justice, and were given an opportunity to address the issue. The court directed that the application seeking review of the disqualification order be placed before the disqualified judge for directions, but made clear that the judge cannot be compelled to handle the matter if he maintains his recusal. The application for review of the...
Court Disposition
Application for review of disqualification order to be placed before the disqualified judge for directions; no substantive orders on review or injunction granted at this stage.
Orders
- Deputy Registrar to place Notice of Motion dated 29th August 2003 before Mr. Justice Sergon for directions.
- Application dated 18th August 2003 to be heard after directions on the disqualification issue.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO.58 OF 1998
1. BURKA AHMED SALIM
2. SHALHA AHMED …………....………………………. APPELLANTS
VERSUS
STEPHEN C. NGALA ………..………………………….. RESPONDENT
R U L I N G
A Notice of Motion dated the 18th August 2003 has been referred to this court for directions by Hon. Mr. Justice Sergon on two grounds – (i) He had already disqualified himself from handling this matter on 26th May 2003, and (ii) Lady Justice Khaminwa who would have heard it cannot do so because her law firm did represent the appellants.
The application is filed under Order XLIV Rule I of the Civil procedure Rules. The order sought is one of Review of a decree in appeal which Hon. Mr. Justice Sergon delivered on the 12th May 2003 when he dismissed the appeal. Essentially review is now applied for so that the entire appeal may be heard de novo on the grounds that there are apparent errors on the face of the record.
I have also noted that there is another prayer for an injunction to issue against the decree holder restraining him from further demolition of the suit property pending the determination of this application.
Even before the motion dated 18/8/03 is heard and concluded, the appellants again filed another motion dated 29/8/03 in which they seek the review of Mr. Justice Sergon’s order disqualifying himself.This new prayer is based on the ground that such disqualification (albeit continued disqualification, shall cause grave miscarriage of justice and that it was made in error without calling upon the authors of the letter to give an explanation contrary to the principle “AUDI ALTER PARTEM (the right to be heard)
I do note that a letter dated 10th April 2003 was written to His Lordship the Chief Justice by Mahmud M. Awadh and signed also by Burka Ahmed Salim (the appellants). They were in court on 26th May 2003 when the learned Judge called upon them to say something about that letter. They admitted to have written, signed and sent the same to the Chief Justice. They were in fact heard.
Thereupon Mr. Justice Sergon made the following ruling:
“Court: The letter raised doubts on the way the court has handled this matter. It would appear they are not comfortable with Justice Sergon handling this case. In the circumstances I will disqualify myself from handling this file. The same should be allocated to another court. The letter written to the Judge should be photocopied and supplied to Mr. Asige for the Respondent.
J.K. Sergon Judge”
It would appear that the appellants now have had second thoughts about this matter and want the Judge to reinstate himself to this case.
It is doubtful whether Mr. Justice Sergon will oblige. Appellants have however filed this motion and I will ask Mr. Justice Sergon to record his position in terms of prayers 2 and 3 only as it is not possible to order a Judge to deal with a particular case, which he has already, disqualified himself from.
I do direct the Deputy Registrar now to place Notice of Motion dated and filed on 29th August 2003 before Mr. Justice Sergon for directions before application dated 18/8/2003 can be heard.
It is so ordered.
Date, signed and delivered at Mombasa this 3rd September 2003.
A.G.A. ETYANG
JUDGE