[2020] KEHC 1287 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT SIAYA

CIVIL APPEAL NO. 51 OF 2019

MICHAEL OBARE TAGO........................................................................................................APPELLANT

VERSUS

FREDRICK AMBROSE ODUOR OTIENO........................................................................RESPONDENT

(Being an appeal from the Judgment/Decree from Siaya Principal Magistrate’sCourt Case No. 24 of 2019,

dated 30. 10. 2019 before Hon. C.N. Sindani Senior Resident Magistrate)

RULING ON RECUSAL

1. This Ruling determines the Respondent/Applicant’s Notice of Motion dated 16th October 2020 filed under Certificate of Urgency and which was certified as Urgent, seeking Orders that proceedings herein be stayed; that this court do recuse itself from hearing the suit (appeal) and that there be such other Orders as the court didn’t spare (sic) as expected to grant in the area herein of the case (sic)

2. The application is predicated on the grounds that in the Ruling for stay of Execution of decree pending hearing of the appeal, the judge went far beyond and purported to make a decision on fundamental aspects of the appeal; that the judge on a mention date which was not served went ahead to issue a seven day Order for the Respondent to file written submission; that the Judge deliberately failed to ascertain whether the date was convenient.

3. That the cosy relationship between the Judge and the applicant’s advocate has unnerved the applicant; and that the applicant has lost confidence in the Judge to be impartial in this case and prompt for another non-biased Objector-sic.

4. The application is further supported by an “affidavit” of Fredrick Ambrose Oduor Otieno which is dated on 19. 10. 2020 but not sworn before any Commissioner for Oaths or Magistrate hence it is no affidavit or at all for consideration by any Court of Law.

5. Opposing the application by the Respondent, the appellant Michael Obare Tago filed a Replying affidavit sworn on 30th October 2020 deposing that the Respondent application is vexatious, and frivolous. That the application is baseless and incessant and based on pure lies perpetuated by the Respondent who realized that this Court is not amenable to his devious scheme to pervert the due process of Law through a decree appealed from.

6. It was deposed further that this court has handled the matter herein professionally with dignity and that suggesting otherwise is perjurious, scandalous and malicious.

7. The appellant also deposes denying even seeking any favour from this court or any court in the cause of seeking Justice except through due process and where it deserved.

8. That all court processes have been served upon the Respondent’s Counsel in Nairobi and his Advocate Mr. Agina had participated in the proceedings virtually.

9. That if the Respondent was aggrieved by the stay orders he should have preferred an appeal.

10. That when directions were given for disposal of the main appeal Mr. Agina Advocate was notified through email (annexed).

11. The Appellant denied that his advocate is in any way related to the judge handling the case save that both are Kenyans and lawyers. Further, that there is no way Mr. Okutta could have encashed a cheque for KShs.10,000/= and KShs.20,000/- as alleged by the Respondent in his unsworn ‘affidavit’, as the Respondent is the one who admitted in the trial court to have received the two cheques through his advocate and that he was still retaining them.

12. That the last time the Respondent visited Mr. Okutta’s office was in 2018 when he witnessed a Land-Sale Agreement long before this appeal was filed.

13. That the mounted portrait hanging on the wall at the Appellant’s Advocate’s Office is that of the Advocate’s Spouse Maureen Mwenesa who is an Advocate based in Nairobi and not that of the Judge handling this Matter as alleged by the Respondent.

14. That the Appellant has never been responsible for the delay or vanishing of the Lower Court file and that this application is intended to distort and misrepresent facts to malign the court and the Appellant’s Advocate.

15. The Appellant urged the Court to dismiss the application with costs and Order the Appellant to be penalized for perjury.

16. The Application was argued orally in Court with Mr. Agina Advocate representing the Applicant/Respondent while Mr. Okutta Advocate Represented the Respondent/Appellant.

17. Mr. Agina reiterated the prayer in the application dated 16. 10. 2020 and relied on what he claims to be a “supporting Affidavit” which as earlier indicated, is not sworn. Counsel emphasized that the practice of the Courts is that once a party is not comfortable with the Court, the court should recuse itself. He submitted that the Replying affidavit does not address the issues raised in the application.

18. Opposing the application, Mr. Okutta Counsel for the Respondent/Appellant submitted relying on the Replying Affidavit sworn on 30. 10. 2020 by the Appellant and reiterated the contents thereof that the application was frivolous. Further, that litigants should never be allowed to forum shop and that it is dangerous for parties to create innuendos against the Court which is discharging its duties professionally. Counsel denied that the Judge’s Photograph appears anywhere in his chambers and stated that the only photograph in his chambers as annexed to the appellant’s Replying Affidavit is that of his wife who is an Advocate in Nairobi. In Counsel’s view, this Court’s refusal to allow deposit Security for stay is no ground for this Court to recuse itself form hearing this appeal as the Court gave reasons for its decision hence it should not be cowed by frivolous applications of this type. He urged the Court to perjure the Respondent/Applicant and dismiss the application with costs.

19. In a rejoinder, Mr. Agina submitted that for an Applicant to be punished for perjury there must be an application and that issues of stay shall come in the appeal and not in this application.

DETRMINATION

20. I have considered the application dated 16. 10. 2020 by the Applicant/Respondent, the grounds in support and the Replying Affidavit and submissions for and against the Notice of Motion. None of the Parties’ Advocates cited any statutory or Case Law /Authority to support their rival positions.

21. In my humble view, the main issue for determination in this application in the pending appeal is whether this Court should recuse itself from hearing and determination of the appeal.

22. Before determining that sole and substantive issue, I must give some background to this appeal which is now a backlog like many other cases in the High Court, courtesy of delays in submitting lower court files to the High Court.

23. The appeal was filed in this Court on 29. 11. 2019 following the judgment and decree passed in Ukwala Senior Resident Magistrate’s Civil Case No. 24 of 2009, between the parties herein where the Respondent was the plaintiff whereas the Appellant was the Defendant.

24. As is the practice of this Court, it moves matters hence a request for the Lower Court was send immediately upon lodgment of the appeal and the matter was mentioned before the Deputy Registrar to confirm availability of the trial Court file so that the appeal file could be placed before the Hon Judge for admission of the appeal. This was done suo moto by the Registry and the Deputy Registrar on 29. 11. 2019 and 6. 7.2020 respectively.

25. When it appeared that the trial Court file was not being availed despite reminders, on 10. 7.2020, the Appellant filed an application for stay of execution of decree pending appeal and vide a Ruling of 22. 7.2020, this Court delivered a ruling on the Application for stay wherein it granted stay orders and further directed the appellant to prepare, file and serve a complete record of appeal within 21 days of that day. I also set a date for directions on 17. 9.2020 which was after the August recess period, in anticipation that by that date, the trial court file would have been availed.

26. It should be noted that in the application for stay of Execution of decree, land parcel No. North Ugenya/Doho/778 measuring 0. 26 hectares,

the property that was due for sale to recover decretal sum of KShs.30,000/= as the principal sum and interest of 30% p.a. from 27. 8.2018 till payment in full. This is what appears in the application for execution of decree, to recover Kshs KShs.1,659,100/=

27. On 24. 8.2020, the Appellant’s Counsel filed a record of appeal and on 28. 8.2020 he also filed a supplementary record of appeal incorporating a decree dated 24. 6.2019 and letter requesting for certificate of delay.

28. As at 31. 8.2020 the trial Court record had not been availed to the High Court and so, a reminder was send to the Senior Resident Magistrate’s Court at Ukwala.

29. In the letter by the appellant’s Counsel dated 17. 7.2020 seeking for certificate of delay from the lower court, it was clear that the advocate had also not been supplied with proceedings and decree to enable him file a complete record of appeal as directed by this Court in the Ruling for stay of execution of decree pending appeal. It was not until 5. 10. 2020 that the Lower Court trial record was being availed to this Court which was nearly one year after the appeal herein was filed and without any reasons being advanced yet the said trial court record clearly shows that the proceedings were certified on 14th November, 2019. The letter submitting the trial Court record refers to this Court’s request letter dated 4. 3.2019 which was merely reminder, without indicating the reasons for the delay.

30. The said trial court record was availed after this Court mentioned the matter on 5. 10. 2020 as earlier directed on 16. 9.2020 and on 12. 10. 2020, both Advocates for the Parties were present when the Court gave directions for filing of written submissions and the timelines – thereof. I reiterate that these directions were given in the presence of both Parties’ Advocates on record and the matter was then slated for mention on 26. 11. 2020 to confirm compliance and to fix a judgment date.

31. It was during this period of compliance that the Respondent filed an application dated 16. 10. 2020 seeking that this court recuses itself from hearing this appeal, instead of filing submissions to oppose the appeal which appeal by now would have been pending judgment.

32. Having given the background information to this appeal, my duty now is to determine the main issue which is whether or not to recuse myself from hearing and determining this appeal where I had already given directions for disposal and it was pending compliance with the timelines for filing of written submissions to enable the court fix a judgment date.

33. According to the Applicant/Respondent, the court in granting stay Orders went overboard and that the Judge’s photograph was seen in the Appellant’s Advocates’ Chambers. In his view, the Judge is related to or is cosy with Counsel for the Appellant herein.

34. The Appellant has sworn an affidavit distancing himself and his Advocate from those allegations and describing them as malicious.

35. As was stated in Kaplana Rawal Vs. Judicial Service Commission and 2 Others [2016] eKLR:

“An Application for recusal of a Judge is a necessary evil.” On the one hand, It calls into question the fairness of a Judge who has sworn to do justice impartially, in accordance with the Constitution without any fear, favour, bias, affection, ill-will, prejudice, political, religious, or other influence, In such application, the impartiality of the Judge is called into question and his independence is impugned. On the other hand, the oath of office notwithstanding, the Judge is too human and above all the Constitution does guarantee all litigants the right to a fair hearing by an independent and impartial Judge.”

When reasonable basis for requesting a Judge to recuse himself or herself exists, the application has to be made, unpleasant as it may be. That is the lesser of two evils. The alternative is to risk violating the cordial guarantee of the Constitution, namely, the right to fair trial, upon which the entire Judicial edifice is built. Allowing a Judge who is reasonably suspected of bias to sit in a matter would be in violation of the Constitutional guarantee of a trial by an independent and impartial Court.

We would, with respect, agree with the Constitutional Court of South Africa Vs. The South African Rugby Football Union and Others case CCT 16/98:

“At the very outset we wish to acknowledge that a litigant and her or his Counsel who find it necessary to apply for the recusal of a Judicial Officer has an unenviable task and the propriety of their motives should not lightly be questioned. Where the grounds are reasonable it is Counsel’s duty to advance the grounds without fear. On the part of the Judge whose recusal is sought there should be a full appreciation of the admonition that she or he should not be unduly sensitive and ought not to regard an application for his [or her] recusal as a Personal affront. “[Emphasis added]”

36. In the same Court of Appeal decision of Kalpana Rawal vs JSC (supra) the Court of Appeal observed quite correctly that:

“An application for recusal of a Judge in which actual bias is established on the part of the Judge hardly poses any difficulties the Judge must, without more, recuse himself. Such is the situation where a Judge is a party to the suit or has a direct financial or proprietary Interest in the Outcome of the case. In that scenario bias is presumed to exist and the Judge is automatically disqualified. The challenge however arises where like in the present case, the application is founded on appearance of bias attributable to behavior or conduct of a Judge?”

37. The Court of Appeal in the Kalpana Rawal Case further acknowledged that for quite some time, there was contestation in several Commonwealth Jurisdictions regarding the proper test to be applied in such case: was it real likelihood of bias or reasonable apprehension of bias by a reasonable person?

38. The “real danger test” was adopted by the House of Lords in R. Vs. Gough (1993) AC 646 meaning that the question to ask is whether there was a real danger that a fair trial was likely to be denied.The aforesaid Court of Appeal decision observed that the test did not win universal acceptance within the Commonwealth and that in Magill Vs. Porter (2002)2 AC 357, the House of Lords subsequently modified the test to whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that a Judge was biased.

39. In Attorney General of Kenya Vs. Professor Anyang’ Nyong’o & to 10 Others EACJ Application No. 5 of 2007 the Court Stated:

“We think that the Objective test of “reasonable apprehension of bias” is good Law. The test is stated variously, but amounts to this -do the circumstances give rise to a reasonable apprehension, in the mind of the reasonable, fair minded and informed member of the public that the Judge did not (will not) apply his mind to the case impartially? Needless to say-

(a) A litigant who seeks disqualification of a Judge comes to court because of his own perception that there is appearance of bias on the part of the Judge. The Court however, has to envisage what would be the perception of a member of the public who is not only reasonable, but also fair minded and informed about all the circumstances of the case.”

[emphasis mine]”

40. In the Supreme Court of Canada R Vs. S.C.R.D.) [1977]. 3SCR 484 cited by the Court of Appeal in the Kalpana Rawal Vs. J.S.C. (supra) it was held:

“The apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. The test is what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude. This test contains a two-fold Objective element:- the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold.

The reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgment of the prevalence of racism or gender bias in a particular community. The Jurisprudence indicates that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence.”[emphasis added].

41. The above is the test that I adopt in this application. As correctly stated by the Court of Appeal in the Kalpana Rawal (supra) case, there is no basis for a rather elastic test propounded by Mr. Agina, as a practice of Courts, that where a Judge must automatically recuse himself/herself upon bare allegation being made by either of the Parties to the proceedings. On the contrary, there are abundant decisions that Judges should not recuse themselves on flimsy and baseless allegations. See Locabail (UK) Ltd Vs. Bayfield Properties [2002] QB 451 where it was stated:

“A Judge [would] be wrong to yield to a tenous or frivolous objection as he would to ignore an Objection of substance.”

42. In Kaplan & Stratton Vs. Z. Engineering Construction Ltd & 2 Others [2000] KLR the Court of Appeal stated:

“If disqualification issues were to be raised, say because a Judge and a member of the Bar belong to the same Rotary Club or the same Lions Club or the same Sports Club, there could be no end to such application. When a member of the Bar is elevated to the Bench his Oath of Office tells him enough to do what is right. Judges are human beings. They have their predilections and prejudices. They are complex of instructs, which make the man. For instance, therefore, it is no ground to seek disqualification by saying that the Judge does not like a particular member of the Bar.” The converse is true.”

43. Having cited so much of the binding judicial authorities or recusal, it is important to observe that the Constitution of Kenya 2020 guarantees every person (litigant) a trial by an Independent and impartial Court or tribunal. See Article 50(1). Where the Judicial Officer exhibits bias or impartiality, no doubt, the Constitutional guarantees will have been eroded.

44. The applicant’s Notice of Motion dated 16th October, 2020 is premised on grounds and an unsworn affidavit. As earlier stated, an unsworn affidavit is no affidavit at all and therefore I shall not belabor examining contents of a document that the applicant has by choice, knowingly not sworn on the truthfulness of those factual and serious allegations against a judge of the superior court of record meaning he is not ready to be perjured or to take any responsibility in case the allegations made therein are found to be false.

45. I will however, examine the grounds upon which the Notice of Motion is predicated. The Respondent claims that in the application for stay, I went far beyond and purported to make a decision on fundamental aspects of the appeal. Those fundamental aspects of the appeal are not disclosed to this Court in this application hence the allegation must remain just that bare as the appellant/ applicant, if dissatisfied with the ruling on stay of execution of decree where he was ready to sell land belonging to the Respondent in satisfaction of decree for KShs.30,000 plus interest which was punitive interest as awarded by the trial Court, should have appealed against the Ruling of this Court and not to ask this Court to recuse itself from the proceedings herein. If I were to oblige to those allegations, then I would no doubt recuse myself from all proceedings where I have granted previously stay of Execution of decrees or Orders pending appeal. Accordingly, the ground is hereby dismissed.

46. On the second ground that on a mention date which was not served I went ahead to issue a seven day Order for the Respondent to file written submission, on all occasions when the matter was due for mention and Parties were absent, whatever directions that the Court gave were served upon the Parties’ Advocates and Court emails are on record notifying them of the date and the directions given by the court to enable parties counsel comply. If by the court acting suo motu in this matter to ensure the orders and conditions for stay are fulfilled i.e readying the appeal for hearing expeditiously is what irked the Respondent, then this court cannot apologize for doing what Article 159 (2) (b) of the Constitution expects of it that justice shall be done without delay. The ground is found to be frivolous and dismissed.

47. On allegation of being given 7 days to file submissions, the Respondent does not indicate on which date that directive was given. Nonetheless, as the Court was awaiting for the trial Court record to be availed, it directed Parties on 5. 10. 2020 to file written submissions with no time limit bearing in mind the fact that no trial Court record was available but a record of appeal had been filed containing certified court proceedings hence what could have been holding the trial court file for all that time of almost a year?

48. In addition, on 12. 10. 2020, Mr. Agina had been notified of the mention date given on 5. 10. 2020 but despite an online link being send to him, he did not join. The Court then directed Mr. Okutta to serve submissions upon Mr. Agina by end of the day and file evidence of service. The Court directed the Respondent to file and serve his submissions within 7 days of the day of service and Mr. Okutta was also directed to serve Mr. Agina with the directions of that day.

49. Surprisingly, that is when Mr. Agina and his client found the heat of expedition too much on them and on being served by the directions of that day- 12. 10. 2020, they decided to file this application urging the Judge to recuse herself from hearing the appeal.

50. The question is, have they shown any scintilla of evidence or perceived bias or reasonable apprehension of bias on the part of the judge in this matter?, I find none and neither am I cowed by such spurious allegations that are merely intended and meant to intimidate the court. Instead, I find the Respondent to be interested in delaying the hearing and determination of this appeal by coming up with sideshows which this Court must ignore and focus on its core mandate of administering Justice expeditiously and without any fear or favour or bias or ill will. The ground is therefore found frivolous and vexatious. It is hereby dismissed.

51. On the ground that the Judge deliberately failed to ascertain whether the date was convenient, again, the date is not mentioned. However, the future date given by the Court in the presence of Mr. Okutta Advocate and Mr. Agina having been served with the date on which directions were given but failed to join the online link to court, was a mention date to confirm compliance with directions of 12. 10. 2020. The date was 26. 10. 2020 on which the court was to confirm the filing of submissions by Mr. Agina. Instead, the Respondent filed this application instead of sparing that energy to prepare and file submissions to oppose the appeal. For that reason, I find the ground to be petty and frivolous and vexations. I dismiss it.

52. On the ground that there is a cosy relationship between the Judge and the appellant’s advocate which has unnerved the applicant/Respondent, from the affidavit and annextures filed by the Appellant’s Counsel, I can gather that I am meant to be a relative of Mr. Okutta advocate and that my photograph is hanging on the wall in Mr. Okutta’s Chambers. I find that ground and allegation despicable and bogus. Mr. Okutta’s client on oath, and in counsel’s oral submissions has clearly stated that the photograph allegedly mine [alleged to be the judge’s] is that of his [counsel’s] wife who is a practicing Advocate based in Nairobi and no contrary evidence is stated. It is outrageous because my first encounter with Mr. Okutta Advocate was in his pleadings in matters before this Court and not in his Chambers or at any other venue within or without The Republic of Kenya and neither am I known to his spouse whom the Respondent claims is myself. I do not have a twin sister or any other sister or female relative with similar features as myself married to Mr. Okutta Advocate. That allegation and ground must collapse as it is unwarranted, on arrival.

53. On allegation that the Respondent has lost confidence in the Judge for impartiality in this case, acts of bias have not been demonstrated and in my humble view, the Respondent is forum shopping for a Judge who would (and I doubt that there is any such Judge) be amenable to his devious scheme to pervert Justice in his favour.

54. I reiterate that I am Faithful to my Oath of Office and there is nothing unique about this case to attract attention or for me to exhibit any bias. If anything, I find the claim and appeal too simple to be handled expeditiously, compared to the many complex cases that I have and I am handling that such simple cases as this ought not to take long to be determined and this is in line with the principle that Justice shall be dispensed without undue delay.

55. The applicant bore the duty of establishing the facts upon which the inference of bias is to be drawn, that a fair minded and informed observe will conclude that the Judge is biased. It is not enough to just make allegation. The application fails any objective test.

56. The Applicant/Respondent’s allegation lacks any factual basis or credibility. I find no substance in those allegations which are spurious and malicious as no fair minded observer aware of the facts in this appeal and application can conclude that I am biased in any way. Making an adverse Order of stay is not evidence of bias and the applicant giving false allegations of my photo being on the wall/chamber of an advocate’s office cannot lend any credence to his devious scheme. A fair hearing in this appeal is assured and the results shall only be known after such hearing of both the parties on their respective positions.

57. For all the above reasons, I find this application devoid of merit, it’s frivolous and vexatious and is hereby dismissed with costs to the Appellant.

Dated Signed, and Delivered at Siaya this 2nd day of December, 2020

R.E. ABURILI

JUDGE

In the Presence of:

Mr. Odera for the Appellant

Appellant present

Mr. Agina for Respondent absent

Respondent absent