[2009] KEHC 1895 (KLR)
The judge held that his prior remark regarding the security arrangement and its relation to ownership did not amount to evidence of bias. However, he recognized the overarching principle that justice must not only be done but must be manifestly seen to be done. To uphold public confidence in the administration of...
Source-derived case information.
- Citation
- [2009] KEHC 1895 (KLR)
- Parties
- Applicant: Jacinta Wangari Macharia; Respondent: The Hon. Attorney General; Respondent: The Commissioner of Police; Respondent: Peter Macharia Kariuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 272 of 2009
- Procedural Posture
- Constitutional Petition / Application for Judicial Disqualification
- Outcome
- Judge disqualified himself from hearing the matter.
- Legal Topics
- Judicial Bias, Right to Fair Trial, Judicial Recusal
- Source Language
- en
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Summary, issues, holding and outcome
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Parties
Jacinta Wangari Macharia
Applicant
The Hon. Attorney General
Respondent
The Commissioner of Police
Respondent
Peter Macharia Kariuki
Respondent
Procedural Posture
Constitutional Petition / Application for Judicial Disqualification
Legal Issues
- 1 Whether the judge's prior remark regarding security arrangements constituted evidence of bias warranting recusal.
- 2 Whether the circumstances required the judge to disqualify himself to ensure justice is seen to be done.
Ratio Decidendi
The judge held that his prior remark regarding the security arrangement and its relation to ownership did not amount to evidence of bias. However, he recognized the overarching principle that justice must not only be done but must be manifestly seen to be done. To uphold public confidence in the administration of justice and avoid any appearance of bias, he decided to disqualify himself from hearing the matter, notwithstanding his view that no actual bias existed.
Court Disposition
Judge disqualified himself from hearing the matter.
Orders
- The judge hereby disqualifies himself from hearing this matter.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
PETITION 272 OF 2009
IN THE MATTER OF SECTION 84(1) OF THE CONSTITUTION OF THE REPUBLIC OF KENYA
AND
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTIONS 70, 72(1) and 74 OF THE CONSTITUTION OF KENYA
B E T W E E N
JACINTA WANGARI MACHARIA…………………....……………… PETITIONER
AND
THE HON. ATTORNEY GENERAL……………..…….…..… 1ST RESPONDENT
THE COMMISSIONER OF POLICE…………..…………….. 2ND RESPONDENT
PETER MACHARIA KARIUKI……………………………..... 3RD RESPONDENT
R U L I N G
On 15th June, 2009, Ms. Thongori for the petitioner requested that I disqualify myself from hearing the matter because during her informal request on 3/6/2009 that security be withdrawn, I remarked that security has to do with ownership.
In my view, that remark, even if made, cannot be evidence of bias. Even today, I will not be able to make an order for removing security that already is in place, without knowing exactly the owner of the asset that is being provided security, who has hired that security arrangement, and what the security arrangement is protecting or securing. If that is bias, so be it.
However, since justice should not only be done, but be manifestly seen to be done, I do hereby disqualify myself from hearing this matter.
Dated and delivered at Nairobi this 20th July, 2009.
George Dulu
Judge.