[2022] KEHC 9809 (KLR)

In re Estate of Samson Nyambati Nyamweya (Deceased) (Succession Cause 31 of 2016) [2022] KEHC 9809 (KLR) (3 June 2022) (Ruling)

Neutral citation: [2022] KEHC 9809 (KLR)

Republic of Kenya

In the High Court at Kisii

Succession Cause 31 of 2016

REA Ougo, J

June 3, 2022

IN THE MATTER OF THE ESTATE OF SAMSON NYAMBATI NYAMWEYA - DECEASED

Ruling

1. The Objector/Applicant in this Succession Cause has filed a summons vide Rules 49 and 73 of the Probate and Administration Rules. The Applicant seeks that I, Lady Justice Ougo be pleased to disqualify myself from trying the suit and that if the prayer is allowed the court be pleased to transfer the suit to another court of concurrent jurisdiction for trial and determination.

2. The Applicant avers in his grounds and supporting affidavit dated 22nd October 2021, in summary, that; Alice Kerubo Nyambati has failed to comply with the court’s directions despite the fact that the court has granted her two chances to comply with the court orders of 29/7/2021. That on the 22/9/2021 this court allowed the application of Judson Nyambati Alice’s son to be appointed an additional executor. That the effect of allowing Judson’s application is that he will always be out voted in matters concerning the estate and the second house remains in control of the estate. That in his capacity as a representative of the first house of the deceased he fears that their house will not get a fair trial. He avers further that there are, within the meaning of the rule in Shilenje –v- Republic [1980]KLR 132 at page 134, and Attorney General of the Republic of Kenya –vs- Anyang’ Nyong’o and Others, East African Court of Justice Application No. 5 of 2006, incidents which have happened, which though they may be susceptible of explanation and have happened without there being any real bias in the mind of her Ladyship are nevertheless such as are calculated to create in mind of the Applicant a reasonable apprehension that he may not have a fair and impartial trial of this suit. That a party to a suit has a right to seek disqualification of a judicial officer in the course of proceedings where such events have occurred as will make a reasonable person conclude that a fair hearing will not take place.

3. It is further averred that the exercise of the court’s discretion in favour of the Respondents on all occasions since 2016 has had the effect of the court failing to protect the assets, favoring the second house and in effect discriminating against the first house.

4. The Applicant filed written submissions on the said application on the 18/1/2022 which I have read and considered. The Respondent chose not to respond to the said application.

5. I have considered the grounds on the face of the application and the details in the applicant’s supporting affidavit. A large portion of the applicant’s affidavits has facts narrating what has been happening in the matter since its inception with authorities to support his case. I must remind the parties that I have not handled this matter since its inception. It has passed through the hands of various Judges who have managed Kisii High Court. It is now alleged that there is bias on the part of the current Judge.

6. As a court handling the matter I have given various directions in the matter and the last Ruling that instigated this application before me is the Ruling dated 22/9/2021 appointing the son of the Petitioner/Executrix as an executor in his father’s estate. This was in line with the deceased’s written Will which has not been challenged by any of the parties. Is this bias on the part of the Judge handling this case? Bias is defined as follows;“inclination or prejudice for or against one thing or person, a systematic distortion of a statistical result due to a factor not allowed for in its derivation( see Concise Oxford English Dictionary 11th Edition, Revised).”

7. In the case of Jan Bonde Nielson v Herman Philipus Steyn & 2 others HC COMM No. 332 of 2010 [2014] eKLR the court observed that: “The appropriate test to be applied in determining an application for disqualification of a Judge from presiding over a suit was laid down by the Court of Appeal in R V David Makali And Others C.a Criminal Application No Nai 4 And 5 Of 1995 (unreported), and reinforced in subsequent cases. See R V Jackson Mwalulu & Others C.a. Civil Application No Nai 310 OF 2004 (Unreported) where the Court of Appeal stated that:“…When courts are faced with such proceedings for disqualification of a judge, it is necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the public at large a reasonable doubt about the fairness of the administration of justice. The test is objective and the facts constituting bias must be specifically alleged and established…’’

8. The applicant has failed in my view to demonstrate that there is reasonable ground for me to rescue myself. The specific bias has not be specified and established. If a party is dissatisfied with a decision the next step available to the party is to move to the Court of Appeal challenging the Ruling. I note that there is a Notice of Appeal but no stay order staying the proceedings in this matter. This court merely made a Ruling in line with the deceased’s wishes.

9. I must restate again that this case has been in court since 2016 and this court has given directions that the case proceeds to full hearing. It is during the full hearing that each party will state its case, adduce evidence on all allegations made and this court being a court of justice will give a decision based on the evidence and law relating to Law of Succession.

10. I therefore find that the Applicant has failed to show any bias, prejudice on the part of this court, or inappropriate conduct during the proceedings. To merely say that a Ruling was made against a party which does not favour him is no ground to ask a Judge or Judicial Officer recuse him or herself in a matter.

11. I find no merit in the application dated 23/10/2021. It is dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED AT KISII THIS 3RD DAY OF JUNE 2022. R.E. OUGOJUDGEIn the presence of:Dr. Kamau Kuria For the ApplicantMs. Efami h/b for Mr. Nyamu For the RespondentAphline Court Assistant