[2022] KEHC 12104 (KLR)

Dari Limited & another v East African Development Bank & 3 others (Civil Suit E191 of 2021) [2022] KEHC 12104 (KLR) (Civ) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12104 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit E191 of 2021

A Mshila, J

May 6, 2022

Between

Dari Limited

1st Applicant

Raphael Tuju

2nd Applicant

and

East African Development Bank

1st Respondent

Vivienne Yeda Apopo

2nd Respondent

David Ochieng Odongo

3rd Respondent

Jotham Mutoka

4th Respondent

Ruling

1. The applicants filed a notice of motion dated March 16, 2022 under article 25 and 50 of the Constitution of Kenya; order 51, rule 1 of the Civil Procedure Rules and rules 3 and 5 of the Judicial Code and Conduct of Ethics; the application was supported by the grounds on the face of it and by the sworn affidavit of Raphael Tuju, EGH seeking the following orders;a)The Hon Lady Justice Abigail Mshila do recuse herself from presiding over this matter.b)This matter be remitted to the presiding judge of the commercial and admiralty division to assign this matter to a judge other than Hon Lady Justice Abigail Mshila.

2. At the hearing hereof the parties made oral submissions. hereunder is a summary of the rival submissions made.

Applicants Case 3. The applicants submitted that theHon Attorney General filed a notice of motion application dated November 15, 2021 seeking orders, inter alia,a)That the honourable court do grant leave to the HonAttorney General to be enjoined in this suit as an interested party on his own behalf and on behalf of the ministry of east african community and regional development.b)Upon joinder of the Hon Attorney General as an interested party to this suit, this honourable court be pleased to strike out the suit for want of jurisdiction.

4. By issuing directions that the Hon Attorney General's application for joinder and striking out of the suit be heard together with the 1st defendant's application dated July 6, 2021 and the 2nd — 4th defendants' application dated July 8, 2021, it is apparent that the joinder of the intended interested party was a formality. The Hon Lady Justice Abigail Mshila had made up her mind on the joinder issue and by necessary implication, on the striking out application. It is trite law that justice must be seen to be done.

5. Despite the plaintiffs' objection, the Hon Lady Justice Abigail Mshila, for all intents and purposes, enjoined the Hon Attorney General as an interested party in these proceedings, without hearing the plaintiffs' arguments in opposition to such joinder.

6. The manner in which Hon Lady Justice Abigail Mshila conducted these proceedings grossly offends the plaintiffs' right to have a dispute that can be resolved by application of law decided in a fair hearing before a court, enshrined in article 50(1) of the Constitution as read together with article 25 of the Constitution. The plaintiffs are therefore apprehensive that they will not get a fair hearing if this matter is handled by the Hon Lady Justice Abigail Mshila.

7. Consequently, the Hon Lady Justice Abigail Mshila demonstrated bias and denied the plaintiffs' their right to a fair hearing enshrined in article 50(1) of the Constitution as read together with article 25 of the Constitution and ought to recuse herself from hearing and determining this matter.

1ST Respondent’s Case 8. The 1st respondent in response filed grounds of opposition to the application and stated that the application was incompetent, misconceived, an abuse of the court process, lacked merit and ought to be dismissed with costs as the application does not demonstrate any ground under the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 (legal notice No 102 of 2020) that would warrant the recusal of Hon Lady Abigail Justice Mshila;

9. The 1st respondent submitted that the threshold for the recusal has not been satisfied. The threshold to be satisfied for the recusal of a judge has even been codified at Regulation 21(1) - (3) of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 (legal notice No 102 of 2020).

10. The court's record for July 29, 2021 and November 16, 2021 speaks for itself to discredit the alleged recent events in the proceedings in this suit as stated in the application and supporting affidavit. The directions issued on November 16, 2021 for the hearing of the application for joinder and the defendant's applications to proceed on March 7, 2022 were made with the knowledge and consent of the plaintiff's counsel in attendance on the day.

11. Lastly, that there is no justifiable basis had been laid by in the application as to why Hon Lady Justice Abigail Mshila ought to recuse herself from these proceedings and this suit.

2nd – 3rd – 4thRespondents Case 12. The 2nd, 3rd and 4th respondents stated that the application seeking recusal is yet another attempt by the plaintiffs to delay the hearing of this matter to the defendants' detriment as no evidence whatsoever has been produced to support the allegation of actual or supposed bias.

13. Further, that in previous litigation between the parties, the applicants have raised similar applications of bias and sought recusal of 3 judicial officers hearing the matters.

14. It was the respondents’ contention that the applicants bear the legal and evidential burden of proving their allegations and it is not the duty of the court to prove its impartiality. The applicants made allegations of bias against the court with the necessary implication that either the defendants or their counsel have acted inappropriately so as to bias the judge. Such a serious allegation should be supported by evidence and the applicants should strictly prove it.

Issues For Determination 15. The court has considered the application and the responses and has framed the following issues are for determination;a.Whether this court is seized with jurisdiction?b.Whether the application for recusal should be determined at this stage?c.Costs.

Analysis Whether this court is seized with jurisdiction; whether the application for recusal should be determined at this stage? 16. The court does acknowledge that there is a preliminary objection seeking to strike out the plaint dated April 14, 2021 for reason that the court lacks jurisdiction to hear and determine the suit.

17. Jurisdiction is everything and without it, a court has no power to make any step. This was stated in the classic case of The Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd(1989) KLR 1. Where Nyarangi JA held as follows:“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

18. The applicants’ notice of motion dated March 16, 2022 seeks my recusal and as submitted by the 1st respondent, the applicants have raised similar allegations of bias and sought recusal of 3 judicial officers hearing related matters. Non-the-less, this court reiterates that any application brought at this stage is premature and not ripe for hearing and any determination on merit can only be done once the issue of jurisdiction has been dealt with.

Costs 19. It is evident that the instant application was not in good faith in that the applicants filed it on the eve of hearing of the two other applications with the intention of delaying and derailing this matter; it was calculated to vex the court as well as the respondents in endless litigation;

20. For those reasons the applicants shall bear the costs of this application.

Findings And Determination 21. In the light of the foregoing this court makes the following findings and determinations;i. The notice of motion dated March 16, 2022 for recusal is found to be premature;ii. Thus, the application is hereby struck out with costs.iii. The applicants shall bear the costs of this application.

Orders accordingly.

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 6TH DAY OF MAY, 2022. HON. A. MSHILAJUDGEIn the presence of;Mr. Paul Nyamodi and SC Paul Muite for the ApplicantsProf. Muigai and Mr. Ronald Makokha for the 1st RespondentDr. Fred Ojiambo SC and Mr. Victor Kahura for the 2nd, 3rd and 4th RespondentsLucy-----------------------------------Court Assistant*