[2000] KECA 414 (KLR)

IN THE COURT OF APPEAL AT NAIROBI

CORAM: SHAH, J.A. (IN CHAMBERS)

CIVIL APPLICATION NO. NAI. 292 OF 1998

BETWEEN

KENYA SHELL LIMITED..................................APPLICANT

AND

JAMES G.K. NJOROGE..................................RESPONDENT

(Application for extension of time to lodge a record of appeal out of time after the time to lodge a notice of appeal was extended by the superior Court of Kenya at Nairobi (Hon. Mr. Justice Hayanga), the intended appeal being against the ruling of that court dated 7th October, 1997

in

H.C.C.C. NO. 3452 OF 1995) ******************

R U L I N G

Mr. Wamalwa who appears for the respondent with Mr. Kilonzo has raised an objection to my hearing this application on the ground that I was one of the Judges in the appeal lodged by him on behalf of the respondent against the applicant and the Court ruled against him by dismissing the appeal. That was the case of James G.K. Njoroge vs. Kenya Shell Limited, (Civil Appeal No. 223 of 1998), (unreported). Mr. Wamalwa is apprehensive that having decided that appeal contrary to his urgings he would not get a fair hearing either from Kwach and Tunoi, JJ.A or from me.

I overruled Mr. Wamalwa's objection and stated that I would incorporate my reasons for overruling him in this ruling. I do so now. The function of a court or any quasi-judicial tribunal is to decide the matter before it in accordance with the applicable law and procedure and on the issues raised. Just because a court's decision is against a particular litigant he cannot ordinarily even in a related matter ask the judicial officer to disqualify himself. What I have just said is the starting point.

Mr. Wamalwa is imputing some sort of bias on the part of the bench of this Court which heard Civil Appeal NO. 223 of 1998 (supra). It will be necessary therefore for me to revisit the decision in that appeal which I will do later on during the course of this ruling. Let me first set out the principles upon which a judicial officer ought or ought not to disqualify himself from hearing a particular matter. If he is interested in the outcome of the dispute he must disqualify himself from hearing it. If he has a demonstrated bias against one of the parties he ought to disqualify himself.I am not defining the factors calling for dis-qualification; I am setting out the more important ones.

If judges decide a particular point in issue in a particular manner even if they be wrong a litigant cannot be heard to say that the judges ought not to hear his matter on a similar issue as they have already decided the point. If such were the case applications for disqualification would be a standard fare and no judicial system can allow such a course to be taken.

The facts leading to Civil Appeal No. 223 of 1998 are simple. A notice of appeal lodged on behalf of the applicant in the superior court on 10th July, 1997 was struck out by this Court on 7th July, 1998. It was struck out as it puported to be a notice of appeal against a purported ruling by Hayanga, J allegedly delivered on 8th July, 1997 when no such ruling was delivered. A ruling was in fact and as shown by the record, delivered on 7th July, 1997. (Emphasis supplied).

After that purported notice of appeal was struck out the applicant filed, without leave, a fresh notice of appeal in the superior court on 8th July, 1998 and on 9th July, 1998 applied for extension of time to lodge the fresh notice of appeal. The applicant did not specifically seek validation of the notice of appeal lodged on 8th July, 1998, but the purport of the application for extension of time was directed towards validation of the notice of appeal lodged on 8th July, 1998. That application for extension of time was lodged in the superior court and that court (Hayanga, J) extended the time for lodging of notice of appeal against the order of 7th July, 1997. But the ruling extending such time was not delivered until 14th day of October, 1998 so that if the notice of appeal lodged on 8th July, 1998 was considered by the parties as validated ex post facto, the time for lodgment of the record of appeal already stood expired. As Hayanga J did not specify whether he was validating the already lodged notice of appeal or whether he was extending time to file a fresh notice of appeal, the only reasonable assumption one can make is that he was validating the notice of appeal lodged on 8th July, 1998.

I revert to Civil Appeal No. 223 of 1998. The crux of Mr. Wamalwa's argument in that appeal was that as the previous notice of appeal was struck out by this Court the High Court had no jurisdiction to extend the time for filing of a fresh notice of appeal. This Court dismissed Mr. Wamalwa's client's appeal and said:

"When a notice of appeal is struck out by this Court, it is no more. It is as if there was no notice of appeal lodged at all. In the case of the struck out notice of appeal lodged by Kenya Shell there was in fact no notice at all (emphasis supplied) as there was no such ruling as stated therein, that is, a purported ruling, delivered, allegedly, on 8th October, 1997. We hold that the superior court had the jurisdiction to extend time for lodging a fresh notice of appeal. The position would be different when an application is in respect of extension of time to lodge a record of appeal, as opposed to a notice of appeal, as section 7 of the Act (the Appellate Jurisdiction Act) does not specifically cater for filing, out of time, a record of appeal. But it follows that once a notice of appeal is filed, rules of this Court come into play."

It is this ruling by this Court that Mr. Wamalwa takes umbrage with and takes objection my hearing this application. But the objection is misconceived. The hearing of this application was allocated to me, that is to say, it was listed for hearing before me. Prior thereto, it came up for hearing before Owuor, JA., on 26th October, 1999 when she disqualified herself from hearing it stating that she had heard a related matter in the superior court when she was a Judge of that court.

The application was then listed for hearing before Kwach, JA on 6th June, 2000 when Mr. Wamalwa objected to Kwach, JA. hearing the application. He did not disqualify himself but ordered that Mr. Wamalwa ought to file an affidavit containing grounds of challenge so that the issue of disqualification could be properly argued.

An authority referred to in the case of Locabail Ltd vs. Bayfield Properties [2000] 1 All E.R. 65, a decision of the Court of Appeal in England, is of some importance to the issue raised by Mr. Wamalwa. At page 77 of that report their Lordships referred to a passage in the judgment of Callaway JA in the case of Clenae Pty Ltd. Vs. Australia & Newzealand Banking Group Ltd [1999] VSCA 35, Vic SC wherein Callaway JA observed at para 89(e):

"As a general rule, it is the duty of a Judicial officer to hear and determine the cases allocated to him or her by her or his head of jurisdiction. Subject to certain limited exceptions, a judge or magistrate should not accede to an unfounded disqualification application." Their Lordships, after referring to the Clenae case proceed to say as follows in the Locabail case: "It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided.

We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the Judge. Nor, at rate ordinarily, could an objection be soundly based on the Judge's social or educational or service or employment background or history, nor that of any members of the Judge's family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions (emphasis supplied); or extracurricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same inn, circuit, local Law Society or chambers [KF TCIC V Icori Estero Sp A(Court of Appeal of Paris, 28 June 1991, International Arbitration Report. Vol 6 # 8 8/91)]

By a contrast, a real danger of bias might well be though to arise if there were personal friendship or animosity between the Judge and any member of the public involved in the case; or if the Judge were close acquainted with any member of public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion;...."

It is a matter to be noted that Judges have to rule on the matters raised before them. If the reasons for such a ruling are against a party, that party, on that ground alone, cannot ask a judge to disqualify himself. That party can try to convince the judge that he could have been wrong in the first instance. Judges do change their minds at times. Judges are not automatons. They are human beings. B.N. Cardozo an Associate Judge of the Supreme Court of the United States of America in The Nature of the Judicial Process said this: Judges are shaped by:-

"the predilections and the prejudices, the complex of instincts and emotions which make the man...... The great tides and currents which engulf the rest of men do not turn side in their course, and pass the judges by."

The passage I have just quoted is borrowed by me from P.L.O. Lumumba's An Outline of Judicial Review in Kenya, Page 49, which book is a 1999 publication. These are my reasons for not disqualifying myself from hearing this application. The hearing of the application having been listed before me it is my duty to hear the same and rule thereon.

I have already set out the background upon which the application is based. By 8th September, 1998 the time for lodging the record of appeal had run out as pointed out earlier. The present application was lodged on 18th November, 1998. The applicant's counsel had to decide what course to adopt after 8th September, 1998. In October, 1998 the record of Civil Appeal No. 223 of 1998 was served on the applicant's counsel. It is obvious to me that the counsel was facing a dilemma on account of the delay in the delivery of ruling by Hayanga J, which ruling, as pointed out, was delivered on 14th October, 1998. I find no inordinate delay on the part of the applicant in lodging this application. Nor is there any other ground upon which I can refuse to exercise my undoubted discretion in favour of the applicant. There is enough material to enable me to do so although Mr. Wamalwa complains that the applicant has not brought out enough material to enable me to decide the application. Cluttering up the application with unwanted material does not help.

I am unable to agree with Mr. Wamalwa when he says that the Court erred in ruling the way it did in Civil Appeal No. 223 of 1998. I have no hesitation in saying that the decision is correct and quite clearly distinguishable from those in the cases of Muriithi vs. Muriithi & Another, (Civil Application No. Nai. 300 of 1996) (unreported) and Gabriel Kigi & others vs. Mwaura & another (Civil Application No. 197 of 1997) (unreported).

In the exercise of my discretion I allow this application and order that the record of appeal sought to be filed by the applicant be lodged within the next 30 days which record ought to include the notice of appeal lodged on 8th July, 1998. In view of the fact that this application was necessitated by the delay in the delivery of the ruling of Hayanga J, I make no order as to costs of this application.

Dated and delivered at Nairobi this 12th day of October, 2000.

A. B. SHAH

JUDGE OF APPEAL

I certify that this is

a true copy of the original.

DEPUTY REGISTRAR.