[2006] KECA 355 (KLR)
The court held that the application for recusal of the presiding judge was not raised at the earliest opportunity, as the composition of the bench was known in advance and no objection was made until the matter was called for hearing. Furthermore, there was no evidence that the presiding judge had been summoned or...
Source-derived case information.
- Citation
- [2006] KECA 355 (KLR)
- Parties
- Applicant: Hon. Mr. Justice Moijo Matavia Ole Keiwua; Respondent: The Hon. The Chief Justice of Kenya; Respondent: Mr. Justice (Rtd) Akilano Molade Akiwumi; Respondent: Mr. Justice Benjamin Patrick Kubo; Respondent: Joe Okwach; Respondent: Philip Nzamba Kitonga; Respondent: William Shirley Deverell; Respondent: Mbuthi Gathenji
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 202 of 2005
- Procedural Posture
- Civil Application / Interlocutory Application for Disqualification and Interim Stay Orders
- Outcome
- Application for recusal declined; interim stay orders granted pending hearing and determination of the motion.
- Legal Topics
- Judicial Recusal, Tribunal Investigations, Interim Stay Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon. Mr. Justice Moijo Matavia Ole Keiwua
Applicant
The Hon. The Chief Justice of Kenya
Respondent
Mr. Justice (Rtd) Akilano Molade Akiwumi
Respondent
Mr. Justice Benjamin Patrick Kubo
Respondent
Joe Okwach
Respondent
Philip Nzamba Kitonga
Respondent
William Shirley Deverell
Respondent
Mbuthi Gathenji
Respondent
Procedural Posture
Civil Application / Interlocutory Application for Disqualification and Interim Stay Orders
Legal Issues
- 1 Whether the presiding judge should disqualify himself on grounds of being a potential witness before a tribunal investigating the applicant.
- 2 Whether the objection to the presiding judge's participation was raised at the earliest opportunity.
- 3 Whether interim stay orders should be granted pending the hearing and determination of the application.
Ratio Decidendi
The court held that the application for recusal of the presiding judge was not raised at the earliest opportunity, as the composition of the bench was known in advance and no objection was made until the matter was called for hearing. Furthermore, there was no evidence that the presiding judge had been summoned or indicated as a witness before the tribunal, and any potential evidence from him was considered peripheral rather than central. The court found no sufficient basis for recusal. On the issue of interim stay, the court considered the timing of the pending proceedings and found it fair to grant interim stay orders in terms of the specified prayers of the notice of motion, pending...
Court Disposition
Application for recusal declined; interim stay orders granted pending hearing and determination of the motion.
Orders
- The application for recusal of the presiding judge is declined.
- The present motion is taken out of the hearing list for today and stood over to a date to be refixed at the Registry on a priority basis.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAIROBI Civil Application 202 of 2005
HON. MR. JUSTICE MOIJO MATAVIA OLE KEIWUA …...........................................APPLICANT
AND
THE HON. THE CHIEF JUSTICE OF KENYA……................................................ 1ST RESPONDENT
MR. JUSTICE (RTD) AKILANO MOLADE AKIWUMI .........................................2ND RESPONDENT
MR. JUSTICE BENJAMIN PATRICK KUBO …….........................................… ....3RD RESPONDENT
JOE OKWACH …………………………………....................................……………4TH RESPONDENT
PHILIP NZAMBA KITONGA ……………….......................................……………..5TH RESPONDENT
WILLIAM SHIRLEY DEVERELL ………….......................................……………... 6TH RESPONDENT
(The 2nd to 6th Respondents being thepersons appointed as Chairman andMembers
respectively of the tribunalto investigate the conduct of Judgesof Appeal)
Mbuthi Gathenji (As counsel assistingthe tribunal to investigate the conduct
of Judges of Appeal) …………………………..............................………………... 7TH RESPONDENT
(Intended appeal from the orders and directions and the ruling of the High Court of Kenya at Nairobi (Lady Justice J. Lesiit, Lady Justice R. Wendo, Mr. Justice Anyara Emukule) dated and delivered on the 14th June, 2005
in
H.C.MISC. C. NO.1298 OF 2004)
********************
O R D E R O F T H E C O U R T
Mr. Gathenji, who is the 7th respondent, has applied that the Presiding Judge of this bench the Hon. Mr. Justice Mr. Justice Tunoi, disqualify himself from hearing this matter, on the ground that he is a potential witness in proceedings before a Tribunal appointed under section 62(5) of the Constitution to investigate the conduct of the applicant as a Judge of this Court. This application, with due respect to him has taken us by surprise because the matter could have but was not raised earlier so that another bench could be empanelled. This application was set down for hearing some time early last week. A cause list was released for general information which showed the composition of the bench to hear it. No objection was raised to any of the members of the bench until this matter was called for hearing.
We appreciate the fact that a party to any judicial proceedings has a right to object to any Judge or judicial officer sitting if he or she has good reason for raising such objection. However, whoever intends to raise such objection is obligated to raise his objection at the earliest opportunity. We have been informed that the parties respective counsel appeared before the Deputy Registrar of this Court for taking dates, and the names of the Judges presently constituting this bench were mentioned. Mr. Gathenji says he was not present but the indication we have is that his representative was present. In the circumstances and with due respect to him, it should not lie in his mouth now to raise objection to any of us sitting.
Besides, no Witness Summons has been served on or indication given to the Hon. Mr. Justice Tunoi, JA that he would be called as a witness in proceedings before the Tribunal hearing the matter concerning the Hon. Mr. Justice Keiwua.
There is also the more fundamental reason that the evidence which Mr. Gathenji says might be expected to be given by Tunoi JA, is merely peripheral. The learned Judge has not been asked to record any statement so far, and we think, it is because those collecting evidence for use in the aforesaid Tribunal do not consider his evidence central.
In the foregoing circumstances we are disinclined to allow Mr. Gathenji’s informal application and order that this application proceed to hearing when it is convenient to the court to do so.
We have considered the time at our disposal today to hear this matter. It is quite clear that it is long past 1 p.m. and we think it is not possible to start hearing this matter today. We have been informed that the application before the superior court whose proceedings the applicant wants stayed is due for further hearing on 29th May, 2006. It is quite clear that this application may not be heard before then, and we think it fair that some interim orders for stay be made pending the hearing and final determination of this application. Accordingly, we hereby order that the present motion be taken out of the hearing list for today and be stood over to a date to be refixed at the Registry on a priority basis. In the meantime interim orders of stay to issue in terms of prayers (2), (3), (4)and (5) of the Notice of motion dated 14th July, 2005 pending the hearing and final disposal of the motion.
Made at Nairobi this 25th day of May, 2006.
P.K. TUNOI
………………….
JUDGE OF APPEAL
S.E.O. BOSIRE
…………………….
JUDGE OF APPEAL
E.O O’KUBASU
…………………….
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR