[2022] KEHC 15979 (KLR)

Kidero v Ethics and Anti-Corruption Commission & 3 others; Wachira Mburu Mwangi & Company Advocates & 15 others (Interested Parties) (Anti-Corruption and Economic Crime Petition 30 of 2019) [2022] KEHC 15979 (KLR) (Anti-Corruption and Economic Crimes) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15979 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crime Petition 30 of 2019

EN Maina, J

December 1, 2022

Between

Dr. Evans Odhiambo Kidero

Petitioner

and

Ethics and Anti-Corruption Commission

1st Respondent

Director of Criminal Prosecutions

2nd Respondent

Chief Magistrates Court Milimani Anti-Corruption Court

3rd Respondent

The Attorney General

4th Respondent

and

Wachira Mburu Mwangi & Company Advocates

Interested Party

George Wainaina Njogu

Interested Party

John Ndirangu Kariuki

Interested Party

Paul Mutunga Mutungi

Interested Party

Manasseh Karanja Kepha

Interested Party

Philomena Kavinya Nzuki

Interested Party

Ng’ang’a Mungai Ng’ang’a

Interested Party

Charity Muringo Ndiritu

Interested Party

Peterson Andrew Njiru

Interested Party

Ekaya Alumasi Ghonzour

Interested Party

James Mimi Mbugua

Interested Party

Alice Njeri Mundia alias Mundiaa

Interested Party

Elizabeth Wanjiru Nderitu

Interested Party

Hannah Muthoni Kariuki

Interested Party

John Ngari Wainaina

Interested Party

The Cups Limited

Interested Party

Ruling

1. The Petitioner/Applicant filed a Notice of Motion dated May 4, 2022 under a Certificate of Urgency seeking an order that I recuse myself from hearing this Petition for reason that I disallowed the Petitioner/Applicant’s application seeking to stay a criminal case facing him in the Magistrates court and also to stay civil recovery proceedings facing him in this court but holding that the same could proceed concurrently with the criminal case.

2. This application is opposed by the 1st and 2nd Respondents who filed Grounds of Opposition dated June 30, 2022 and October 4, 2022 respectively.

3. The parties subsequently canvassed the application through written submissions which learned counsel highlighted orally in court on October 17, 2022.

The Petitioner/Applicant’s case 4. Senior Counsel Prof Ojienda, Counsel for The Petitioner/ Applicant submitted that a previous application was made seeking that this court stays the hearing of two other matters against the Petitioner/Respondent being ACC No. 20 of 2018 and a criminal case in the Magistrate’s court; That this court dismissed the application for stay, and directed that the recovery suit ACEC No E 008 of 2021 proceed notwithstanding the pending criminal case; That this application for recusal is based on the ground that there is a possibility of bias as this court has already determined that the monies can be recovered before the criminal case is concluded.

5. The Applicant contends that should the Petitioner/Applicant be acquitted in the criminal case. This Petition would be rendered nugatory. That the Petitioner/Applicants seek that this Petition be heard by a different Judge.

6. It is further contended that the recovery proceedings in ACEC No E 008 of 2021 would collapse if this Petition succeeds. That the three cases arise from the same set of facts and may appear as the same matter. To support his arguments Counsel relied on the case of Attorney General of Kenya v Professor Anyang Nyong and 10 others EACJ Application No 5 of 2007 cited in the case of Prayosha Ventures Limited v NIC Bank Ltd & Another; Beatrice Jeruto Kipketer & Another (Interested Parties) [2021] eKLR

7. In response to the Respondent's submissions, learned Counsel for the Petitioner/Applicant contended that this court relied on Section 193A of the Criminal Procedure Code in arriving at the decision to disallow stay whereas in other jurisdictions, civil proceedings are heard after the criminal proceedings are determined; that in view of the right to a fair trial under Article 50 of the Constitution, it would be prudent that the same procedure is adopted and that it would be prudent for a different Judge to hear this petition therefore. Counsel stated that the Petitioner has appealed the ruling of this court vide Appeal No. 72 of 2022 and Appeal No 3 of 2022 and should the appeals be determined in their favor, this would only compound the issues in the matter.

8. On the issue of Counsel contended that a delay of 7 months is not inordinate; that they had to wait for the matter to be mentioned before the court and they had no knowledge that the same Judge was the one to hear this Petition.

9. Mr Mackenzie and Mr Mwangi learned Counsel for the 2nd, 3rd, 7th, and 16th Interested Parties associated themselves wholly with the submissions of the Petitioner/Applicant.

The Respondents’ case 10. The 1st Respondent opposed the Application on 7 grounds listed in the Grounds of Opposition as follows: That the ruling made by the Honourable Judge in ACEC E008 of 2021 EACC V Evans Kidero & Others was based on applicable laws pursuant to the facts and evidence presented before court; that each case is decided on its own facts and evidence and an application for a judge to recuse themselves on the basis of previous decisions in the absence of any evidence giving rise to the perception of bias is an unacceptable affront to judicial independence; that judicial findings cannot form the basis on a recusal application or allegations of bias , and if the Applicant is unhappy with the decision of the court, then the Applicant has a right to either appeal or file an application for review or setting aside; that the Application has not demonstrated actual and/or perceived bias personal bias or any extra-judicial influence in the pronouncement of the ruling; that a mere apprehension of bias cannot be a ground for recusal and that the allegations of bias must be factual and proved; the Application is an abuse of court process and it should be dismissed with costs.

11. On its part the 2nd Respondent opposed the Application on 5 grounds enumerated as follows: the Application is misconceived, mischievous, actuated by malice and without merit and ought to be dismissed sua ponte; the application is a legal misadventure for it is calculated at circumventing and subverting the interests of justice; the Applicant has not demonstrated any valid grounds to support the prayers sought; the Applicant has failed to present material particulars to demonstrate any real prejudice that would be occasioned to him if the orders sought are not granted, and the Applicant is guilty of laches and has brought the Application too late in the day with the intent to delay the conclusion of the Petition herein.

12. Learned Counsel M/s Ngethe for the 1st Respondent contended that the law envisaged a situation under Section 193A of the Criminal Procedure Code envisaged a situation where criminal and civil proceedings can be heard concurrently. That there was no foreseeable problem with both cases being heard at the same time.

13. Mr Kihara, Counsel for the 2nd Respondent, adopted the same position butd submitted on three additional issues: that the recovery proceedings are a civil process and the matter before the lower court is a criminal process. That if the parties are dissatisfied with the court’s ruling delivered earlier the appropriate forum is to file an appeal against the decision. He cited the case of Joseph Maina Theuri v Gitonga Kabugi & 3 others[2013] Eklr. Further that the success or failure of a litigant cannot be a ground for recusal; and lastly, that the Applicant is guilty of laches, having filed this application, five months after the impugned ruling was delivered, which delay is inexcusable. He urged that the application be dismissed for the foregoing reasons.

Analysis and determination 14. The term ‘recusal’ is defined in the Black’s Law Dictionary Tenth Edition as meaning “Removal of oneself as judge or policy-maker in a particular matter because of a conflict of interest.” The principles for the recusal of a Judge of Judicial Officer were considered by the Supreme Court of Kenya in the case of Jasbir Singh Rai and 3 Others v Tarlochan Singh Rai and 4 Others (2013) eKLR where the court pronounced itself as follows:“Recusal, as a general principle, has been much practised in the history of the East African judiciaries, even though its ethical dimensions have not always been taken into account. The term is thus defined in Black’s Law Dictionary, 8th ed. (2004) [p.1303]: “Removal of oneself as judge or policy maker in a particular matter, [especially] because of a conflict of interest.” From this definition, it is evident that the circumstances calling for recusal, for a Judge, are by no means cast in stone. Perception of fairness, of conviction, of moral authority to hear the matter, is the proper test of whether or not the non-participation of the judicial officer is called for. The object in view, in the recusal of a judicial officer, is that justice as between the parties be uncompromised; that the due process of law be realized, and be seen to have had its role; that the profile of the rule of law in the matter in question, be seen to have remained uncompromised.”

15. In the case of Republic v Independent Electoral and Boundaries Commission & 3 others ex parte Wavinya Ndeti [2017] eKLR Odunga J, as he then was, in determining an application for recusal on the basis that the court had already pronounced itself on a similar matter, observed as follows:“34…According to The Bangalore Principles of Judicial Conduct:“Bias or prejudice has been defined as a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to judicial proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind, an attitude or point of view, which sways or colours judgement and renders a judge unable to exercise his or her functions impartially in a particular case. However, this cannot be stated without taking into account the exact nature of the bias. If, for example, a judge is inclined towards upholding fundamental human rights, unless the law clearly and validly requires a different course, that will not give rise to a reasonable perception of partiality forbidden by law.”35. What I understand by that position (is) that if a Court of law has pronounced itself on a matter and the parties view that as the correct legal position, there ought to be no valid objection to the same Court entertaining a subsequent matter even if similar issues are involved. Where the parties are of the view that the matter in controversy has been decided, save for the option of an appeal where one is provided, parties are expected to order their lives in accordance with the said decision since courts of law are meant to set the law straight so that litigants may predict the outcome of their actions and either avoid taking a particular course or order their lives in accordance therewith. Therefore, where the Court has pronounced itself on a matter, parties to the subsequent proceedings where the legal issues are similar ought not to seek that the same be heard by different judges in the hope of obtaining a different outcome.”In dismissing the application the Judge held further that:“38. To seek the recusal of a Judge from hearing a matter simply on the ground that he has determined a matter with similar facts is an implication that there is a likelihood that another Judge will arrive at a different decision. In my view, instead of subjecting another Judge of concurrent jurisdiction to an embarrassing situation of arriving at a different decision, parties ought to be advised by their legal counsel to appeal the decision instead and the law provides for mechanism for protection of a party while it is pursuing an appeal.”

16. I agree with the learned Judge’s finding reproduced above. It is also my finding that although it is important that justice must be seen to be done, it is equally important that Judges ought to discharge their duty to hear cases and acceding too readily to suggestions of appearance of bias, the court would encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. That in my view would be tantamount to abdication of duty and moreover a threat to judicial independence.

17. It is my finding that there is no basis whatsoever in this case for this court to recuse itself. The Petitioner/Appliccant has not provided any evidence for “suspected bias” whether real or apparent. He has have only alluded to a previous ruling of this court, which cannot with due respect be the basis for my recusal. It is envisioned in the Bangalore Principles of Judicial Conduct that a Judge would conduct the matter taking into account all the six core values of judicial conduct, that is independence, impartiality, integrity, propriety, equality, competence and diligence. All this must come into play in the work of a judge.

18. In the Ruling in ACEC Suit No E008 of 2021 this court was faced with an application and a preliminary Objection in which it was required to determine whether the civil recovery proceedings in ACEC Suit No E 008 of 2021 could proceed concurrently with the criminal proceedings that are going on against the Petitioner/Applicant in the magistrate’s court. This court relied on Section 193A of the Criminal Produce Code and several decided cases to find that there was nothing to prevent the two cases proceeding concurrently. This court was very careful not to delve into the merits of either the criminal case or the civil recovery proceedings. There is therefore nothing in that ruling to give rise to an apprehension of bias.

19. In the premises, and for the reasons set out above, there being no merit in the application for recusal, it is hereby dismissed. Costs shall be in the cause.

Signed, dated and delivered electronically this 1stday of December 2022. E N MAINAJUDGE