[2020] KEELC 3178 (KLR)
The court found that the applicant had not demonstrated any factual basis for bias or prejudice. The applicant admitted to filing an application without leave, contrary to express court orders. The court held that it had the power to expunge documents filed in defiance of its orders, and such action could not be...
Source-derived case information.
- Citation
- [2020] KEELC 3178 (KLR)
- Parties
- Applicant: David Oscar Owako; Respondent: Chemelili Sugar Company Limited; Respondent: Kibos Sugar Company Limited; Respondent: Muhoroni Sugar Company Limited (Under Receivership); Respondent: John Keny, Daniel Lelei, Simon Seroney (sued in their capacity as elected officials Kamalambei Society); Respondent: Joseph Chepsiror, David Kimeli, Steven Yego (sued in their capacity as elected officials of Tuwapsul Society); Respondent: William Lang’at, David Boen Musa (sued in their capacity as elected officials of Barmareng Society); Respondent: Kamalambe Farmers Company; Respondent: Karatili Farmers Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 6 of 2019
- Procedural Posture
- Civil Application / Ruling on Application for Recusal of Judge
- Outcome
- application dismissed with costs
- Judges
- CM Njagi
- Legal Topics
- Judicial Bias, Recusal of Judge, Court Powers, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Oscar Owako
Applicant
Chemelili Sugar Company Limited
Respondent
Kibos Sugar Company Limited
Respondent
Muhoroni Sugar Company Limited (Under Receivership)
Respondent
John Keny, Daniel Lelei, Simon Seroney (sued in their capacity as elected officials Kamalambei Society)
Respondent
Joseph Chepsiror, David Kimeli, Steven Yego (sued in their capacity as elected officials of Tuwapsul Society)
Respondent
William Lang’at, David Boen Musa (sued in their capacity as elected officials of Barmareng Society)
Respondent
Kamalambe Farmers Company
Respondent
Karatili Farmers Company Limited
Respondent
Procedural Posture
Civil Application / Ruling on Application for Recusal of Judge
Legal Issues
- 1 Whether the court should recuse itself on grounds of alleged bias or prejudice against the applicant.
- 2 Whether the court had the power to expunge documents filed without leave contrary to its earlier orders.
- 3 Whether the applicant's remedy lay in appeal rather than recusal.
Ratio Decidendi
The court found that the applicant had not demonstrated any factual basis for bias or prejudice. The applicant admitted to filing an application without leave, contrary to express court orders. The court held that it had the power to expunge documents filed in defiance of its orders, and such action could not be construed as bias. The proper remedy for dissatisfaction with the court's orders was to appeal, not to seek recusal. Accordingly, there was no basis for recusal, and the application was dismissed as unmerited.
Court Disposition
application dismissed with costs
Orders
- The application dated 13/2/2020 is dismissed with costs to the 1st – 3rd respondents/defendants.
- 30 days right of appeal.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CIVIL CASE NO. 6 OF 2019
(FORMERLY KISUMU CIVIL CASE NO. 38 OF 2009)
DAVID OSCAR OWAKO............................................................................PLAINTIFF/APPLICANT
VERSUS
CHEMELILI SUGAR COMPANY LIMITED.......................................................1ST RESPONDENT
KIBOS SUGAR COMPANY LIMITED................................................................ 2ND RESPONDENT
MUHORONI SUGAR COMPANY LIMITED (UNDER RECEIVERSHIP) ...3RD RESPONDENT
JOHN KENY, DANIEL LELEI, SIMON SERONEY (SUED IN THEIR CAPACITY AS
ELECTED OFFICIALS KAMALAMBEI SOCIETY) ......................................4TH RESPONDENT
JOSEPH CHEPSIROR, DAVID KIMELI, STEVEN YEGO (SUED IN THEIRCAPACITY
ASELECTED OFFICIALS OF TUWAPSUL SOCIETY) .................................5TH RESPONDENT
WILLIAM LANG’AT, DAVID BOEN MUSA(SUED IN THEIR CAPACITYAS ELECTED
OFFICIALS OFBARMARENG SOCIETY............................................................6TH RESPONDENT
KAMALAMBU FARMERS COMPANY................................................................7TH RESPONDENT
KARATILI FARMERS COMPANY LIMITED ...................................................8TH RESPONDENT
RULING
1. The plaintiff/applicant has filed an application dated 13th February, 2020 seeking that this court recuses itself from this case on the grounds that:-
(1) The applicant shall not be accorded a fair hearing if the Honourable Judge presides over the case.
(2) The Honourable Judge is prejudiced against the applicant.
2. The basis of the complaint by the applicant is that this court on the 12/2/2020 made an order that an application made by the applicant dated 10/2/2020 be expunged from the record on the grounds that the same was filed without leave of the court. This was in pursuance of the court’s ruling delivered on 11th December, 2019 whereby the applicant was barred from filing any application without leave of the court. The application dated 10/2/2020 was filed without leave of the court.
3. The applicant now complains that the ruling of 11/12/2019 was biased against him and that it was meant to gag him from prosecuting his case. He contends that the court has no powers to expunge documents from the record. That it seems that the court has a pre-determined decision to stop him from succeeding in his case.
4. The application was opposed by the advocates for the 1st and 3rd defendants/respondents, Owiti, Otieno & Ragot Advocates and the advocates for the 2nd defendant/respondent, Wasuna & Company Advocates. The application was urgued in court by Mr. Kobibo on behalf of the two firm of advocates. He submitted that the application is not based on facts that show bias or prejudice. That if the applicant was aggrieved by the orders of the court made on 11/12/2019 he should have filed an appeal which he has not. That the application is otherwise an abuse of the process of the court.
5. The test on bias by a judicial officer was stated by the Court of Appeal in Philip K. Tunoi & Another –Vs- Judicial Service Commission & Another (2016) eKLR where the court cited the English case of Porter –Vs- Magill (2002) 1ALL ER 465 where the House of Lords held that:-
“The question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.
The court also cited with approval the decision in Tumaini –Vs- Republic 1972 EALR 441 where it was held that in considering the possibility of bias, it is not the mind of the judge which is considered but the impression given to reasonable people.
6. This court made categorical orders that the applicant should not file any application without leave of the court. The applicant admits that he did not seek leave of the court before filing the application dated 10/2/2020. He is now questioning the propriety of the orders of this court made on 11/12/2019. This is not the right court to determine the appropriateness of the said orders. If the applicant was aggrieved by the said orders he should have pursued an appeal against the orders. If not then he should comply with the orders. It is my considered view that I have powers to expunge from the record any document filed in defiance of the orders of the court. In so acting I do not think that that can be construed as an expression of bias or prejudice.
8. The upshot is that there is no basis for this court to recuse itself from the matter. The application dated 13/2/2020 is unmerited and is accordingly dismissed with costs to the 1st – 3rd respondents/defendants.
Delivered, dated and signed in open court at Kakamega this 12th day of March, 2020.
J. NJAGI
JUDGE
In the presence of:
No appearance for 1st & 3rd Respondents
No appearance for 2nd Respondent
Applicant - present
1st – 3rd Respondents - absent
Court Assistant - Polycap
30 days right of appeal.