[2006] KEHC 1312 (KLR)
The court held that none of the issues raised by Mr. King’ara were sufficient in law to compel the judge's disqualification. The judge's observations were justified and based on the record, not on personal bias. The applicant's discomfort with judicial questioning does not amount to a reasonable apprehension of...
Source-derived case information.
- Citation
- [2006] KEHC 1312 (KLR)
- Parties
- Applicant: Mr. King’ara (for interested party); Respondent: Estate of Mbiyu Koinange (deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 527 of 1981
- Procedural Posture
- Succession Cause / Ruling on Application for Judicial Disqualification
- Outcome
- Application for recusal dismissed; matter to be heard by another judge on court's own motion.
- Judges
- KH Rawal
- Legal Topics
- Judicial Bias, Recusal of Judge, Court Conduct
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mr. King’ara (for interested party)
Applicant
Estate of Mbiyu Koinange (deceased)
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Judicial Disqualification
Legal Issues
- 1 Whether the judge should disqualify herself from hearing the matter on grounds of alleged bias.
- 2 Whether the judge's prior observations and conduct amount to demonstrable bias warranting recusal.
Ratio Decidendi
The court held that none of the issues raised by Mr. King’ara were sufficient in law to compel the judge's disqualification. The judge's observations were justified and based on the record, not on personal bias. The applicant's discomfort with judicial questioning does not amount to a reasonable apprehension of bias. However, to avoid unhealthy and disrespectful proceedings, the judge, on her own accord, directed that the applications be heard by another judge.
Court Disposition
Application for recusal dismissed; matter to be heard by another judge on court's own motion.
Orders
- The two applications dated 19th May, 2006 and 23rd May, 2006 to be heard by any other Judge of this Division.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
SUCCESSION CAUSE 527 OF 1981
IN THE MATTER OF THE ESTATE OF MBIYU KOINANGE – DECEASED
RULING
After I read my ruling on preliminary points raised, Mr. King’ara, Counsel for the interested party first made an application for leave to file an appeal against the ruling. After considering submissions from all concerned, I directed that a formal application be filed.
Thereafter, Mr. King’ara made an oral application asking me to disqualify myself on the ground of bias.
He elaborated his submissions by saying that as I have observed in my ruling that the transfer was registered in haste, I have formed a bias against his client. With all due respect to Mr. King’ara, that fact has emerged from the record of the case and not from my opinion.
He further added that I have made observation on the manner in which he has made his representation before the court and thus he does not feel comfortable that the court shall be able to surmount the issue.
Yes, I have made that observation in my ruling with full justification. Whenever, I had raised any question on the issues raised by Mr. King’ara to enable me understand the submissions made, Mr. King’ara had not been co-operative and had most of the time stated that “court can rule against me and I shall appeal.”
This attitude from the counsel, who is a senior member of the Bar, has to be checked and properly dealt with, which I did. If it was for any bias, I would have been careful not to observe the same and to keep it hidden. It is evident that Mr. King’ara did not like any questions to be raised from the court and expected the court to record his submissions silently without any effort to understand the issues raised.
I shall hope that this attitude from the Bar should vanish from the court and the Judges should not be subjected to hearing the matter with meekness and submissiveness.
Mr. King’ara’s half-hearted apology tendered during hearing of this application on his behaviour cannot wish away his manner of representation.
In my view, and in short, none of the issues raised is sufficient to force me in law to disqualify.
However, I am on my own accord, shall not like to be subjected to an unhealthy and disrespectful proceedings. I therefore direct that the two applications dated 19th May, 2006 and 23rd May, 2006 be heard by any other Judge of this Division.
Dated and signed at Nairobi this 20th day of September, 2006.
K.H. RAWAL
JUDGE
20. 9.06