[2020] KEHC 3705 (KLR)
The judge determined that, having become a complainant in a criminal investigation arising from allegations made by a party to the proceedings, there existed a reasonable apprehension of bias in the mind of a fair-minded and informed member of the public. Despite his personal commitment to impartiality, the judge...
Source-derived case information.
- Citation
- [2020] KEHC 3705 (KLR)
- Parties
- Plaintiff: Farouk Ravate; Plaintiff: Justin Samourgompoulle; Defendant: Eric Agbeko; Defendant: Phillip Nyambok; Defendant: Spire Bank (formerly known as Equatorial Commercial Bank Limited); Interested Party: Ravasam Development Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 450 of 2011
- Procedural Posture
- Recusal Application / Order on Recusal
- Outcome
- Judge recused himself from the proceedings.
- Judges
- F Tuiyott
- Legal Topics
- Judicial Recusal, Reasonable Apprehension of Bias
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Farouk Ravate
Plaintiff
Justin Samourgompoulle
Plaintiff
Eric Agbeko
Defendant
Phillip Nyambok
Defendant
Spire Bank (formerly known as Equatorial Commercial Bank Limited)
Defendant
Ravasam Development Company Limited
Interested Party
Procedural Posture
Recusal Application / Order on Recusal
Legal Issues
- 1 Whether the judge should recuse himself from the proceedings due to allegations of impropriety and a pending criminal investigation.
- 2 Whether a reasonable apprehension of bias exists in the circumstances.
Ratio Decidendi
The judge determined that, having become a complainant in a criminal investigation arising from allegations made by a party to the proceedings, there existed a reasonable apprehension of bias in the mind of a fair-minded and informed member of the public. Despite his personal commitment to impartiality, the judge concluded that the perception of bias was sufficient to require his recusal. The integrity of the judicial process and public confidence in the administration of justice necessitated that he step aside from the matter.
Court Disposition
Judge recused himself from the proceedings.
Orders
- The judge recuses himself from the matter.
- The file shall be placed before the Presiding Judge of the Division for reallocation to another judge.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
HCCC NO. 450 OF 2011
(CONSOLIDATED WITH HCCC NO. 476 OF 2015 AND HCCC NO. 637 OF 2015)
FAROUK RAVATE..........................................................................1ST PLAINTIFF
JUSTIN SAMOURGOMPOULLE................................................2ND PLAINTIFF
VERSUS
ERIC AGBEKO.............................................................................1ST DEFENDANT
PHILLIP NYAMBOK...................................................................2ND DEFENDANT
SPIRE BANK (FORMERLY KNOWN AS
EQUATORIAL COMMERCIAL BANK LIMITED)................3RD DEFENDANT
RAVASAM DEVELOPMENT COMPANY LIMITED......INTERESTED PARTY
ORDER ON RECUSAL
1. On 13th July 2020, I dismissed an application dated 1st June 2020 which sought my removal from this matter. I then informed counsel that a matter had arisen after the application had been argued on 8th June 2020 which made it untenable for me to continue presiding over these proceedings. I invited counsel for their comments.
2. Today, 22nd July 2020, all counsel in this matter have graciously acceded to my request to recuse myself. The following is the reason I have taken the position.
3. In the affidavit of Mr. Eric Agbeko to the Judicial Service Commission and presented to Court on 8th June 2020, he makes serious and personalized allegations and attacks against me. One such allegation is that I sent a proxy to solicit for a 10 Million Shillings bribe from him but which he refused to pay. This is false and malicious. Not once, in more than 8 years that I have served as a Judge has a complaint been made against me on allegations of corruption.
4. I took the matter seriously and so I travelled from Eldoret as soon as I was able, to lodge a complaint with the Directorate of Criminal Investigations, Kilimani. The complaint was booked on 10th June 2020. I requested the Directorate to investigate whether anyone had used my name, falsely, to solicit for a bribe from Agbeko, and if so to take whatever action the Directorate deemed fit. I hope and trust that the police will get to the bottom of the matter and that the investigations will reveal whether there was an attempt to pervert the course of justice, and if so, those involved.
5. I do not know where those investigations will lead but, I do not intend to let the matter rest until the truth is known.
6. It being so, I have mulled over the matter and asked the question, now that I am a complainant in relation to matters that touch on these proceedings and unable to tell where the investigations will lead, can there be reasonable apprehension, in the mind of a reasonable, fair minded and informed member of the public that going forward, I as the Judge presiding over these proceedings will be totally dispassionate?
7. While I would, in fidelity to the oath of my office, remain impartial and neutral, the “reasonable apprehension of bias” test requires me to envisage what the perception of a member of public would be in the circumstances. I am afraid that a reasonable member of public may rightly feel that given where matters have reached, it would be improper for me to continue presiding over these proceedings.
8. For this reason, I now recuse myself.
9. The file shall be placed before the Presiding Judge of this Division for her to allocate this matter to another Judge.
Dated and signed at Nairobi this 22nd Day of July 2020
F. TUIYOTT
JUDGE