[2021] KECA 113 (KLR)
The court determined that the late discovery of a conflict of interest, arising from a judge's prior representation by the respondent's advocates, necessitated the recusal of the judge and the setting aside of the proceedings conducted on 18th October 2021, including the reserved ruling. To maintain the integrity...
Source-derived case information.
- Citation
- [2021] KECA 113 (KLR)
- Parties
- Applicant: Kampala International University; Respondent: Housing Finance Company Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application E343 of 2021
- Procedural Posture
- Civil Application / Application for Leave to Appeal; Recusal and Setting Aside of Proceedings
- Outcome
- Application proceedings set aside and relisted before a new bench due to judicial recusal.
- Judges
- RN Nambuye, MSA Makhandia, A Mbogholi-Msagha
- Legal Topics
- Judicial Recusal, Setting Aside Orders, Leave to Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kampala International University
Applicant
Housing Finance Company Limited
Respondent
Procedural Posture
Civil Application / Application for Leave to Appeal; Recusal and Setting Aside of Proceedings
Legal Issues
- 1 Whether the proceedings and reserved ruling should be set aside due to a conflict of interest arising from a judge's prior association with counsel for the respondent.
- 2 Whether the application for leave to appeal should be relisted before a differently constituted bench.
Ratio Decidendi
The court determined that the late discovery of a conflict of interest, arising from a judge's prior representation by the respondent's advocates, necessitated the recusal of the judge and the setting aside of the proceedings conducted on 18th October 2021, including the reserved ruling. To maintain the integrity and impartiality of the judicial process, the court ordered that the application be relisted before a new bench, excluding all current members. The court further directed the registrar to expedite the relisting of the matter, taking into account the nature of the issues and concerns raised by the applicant. Costs for the day were ordered to be in the cause.
Court Disposition
Application proceedings set aside and relisted before a new bench due to judicial recusal.
Orders
- The hearing of the application conducted on 18th October 2021 and the reserved ruling date of 17th December 2021 are recalled and set aside.
- The notice of motion dated 29th September 2021 is restored and directed to be relisted before another bench excluding all current members.
Full Case Text
Judgment text and source record
20 paragraphs
Kampala International University v Housing Finance Company Limited (Civil Application E343 of 2021) [2021] KECA 113 (KLR) (Civ) (22 October 2021) (Order)
Neutral citation number: [2021] KECA 113 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Application E343 of 2021
RN Nambuye, MSA Makhandia & A Mbogholi-Msagha, JJA
October 22, 2021
Between
Kampala International University
Applicant
and
Housing Finance Company Limited
Respondent
(An application for leave to appeal against the ruling and order of the High Court of Kenya (M. W. Muigai, J.) dated 16th September, 2021 in Milimani HC Misc. Cause No. 564 of 2019)
Order
1. The matter came before us today for hearing of the notice of motion dated 29th September, 2021.
2. When called out, learned counsel, Mr. Aurelio Rebello assisted by learned counsel Mr. Wilfred Nyamu appeared for the applicant while senior counsel Mr. John Ohagah appeared for the respondent. The application was fully canvassed via Go-To-Meeting platform due to the prevailing Covid-19 pandemic challenges through rival pleadings, written submissions and legal authorities orally highlighted in the presence of learned senior and counsel for the respective parties herein.
3. At the conclusion of the lengthy oral highlighting, the matter was reserved for ruling on 17th December, 2021.
4. It was during the members of the bench routine conference over the matter that it transpired that a member of the bench, the Hon. Mr. Justice A. Mbogholi Msagha, Judge of Appeal had at one time been represented in litigation by an advocate from the firm of advocates currently on record for the respondent. The late discovery which is highly regrettable and members of the bench profusely apologize both to senior and learned counsel for the respective parties herein as same was neither careless, deliberate or meant to derail the course of justice herein. It arose from circumstances beyond the control of the member of the bench concerned. It was only after going through the record sent to the learned Judge electronically on the previous night and which the learned Judge only managed to plough through after the matter had been adjourned for conferencing by the bench before which the same had been canvassed a practice not uncommon in the court. The learned Judge therefore recused himself from proceeding further in the matter.In the result and for reasons explained above, we make orders as follows:1)The hearing of the application conducted today the 18th day of October, 2021 together with the attendant date reserved for delivery of the ruling on 17th December, 2021 be and are hereby recalled and set aside.2)The notice of motion dated 29th September, 2021 is restored “ante” and directed to be relisted afresh before another bench excluding all the members of this bench.3)We direct that in view of the nature of issues involved herein coupled with the concerns raised by learned counsel for the applicant, the registrar of the court is directed to cause the matter to be relisted for hearing and disposal preferably before end of October, 2021. 4)The costs for today in the cause.
MADE AT NAIROBI THIS 22ND DAY OF OCTOBER, 2021. R. N. NAMBUYE.....................JUDGE OF APPEALASIKE-MAKHANDIA....................JUDGE OF APPEALA. M. MBOGHOLI....................JUDGE OF APPEALI certify that this is aTrue copy of the originalSignedDEPUTY REGISTRAR