[2019] KEHC 167 (KLR)
The court found that although the judge personally assured impartiality and objectivity, the language previously used in court could reasonably be perceived as indicative of bias. Since the perception of justice is as important as actual justice, and to maintain public confidence in the judicial process, the judge...
Source-derived case information.
- Citation
- [2019] KEHC 167 (KLR)
- Parties
- Applicant: Nairobi City County; Respondent: Munikah & Co. Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 011 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Recusal Application
- Outcome
- application for recusal allowed
- Judges
- F Tuiyott
- Legal Topics
- Judicial Recusal, Perception of Bias
- Source Language
- en
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Summary, issues, holding and outcome
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Parties
Nairobi City County
Applicant
Munikah & Co. Advocates
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Recusal Application
Legal Issues
- 1 Whether the judge should recuse himself from further handling the matter due to perceived bias.
- 2 Whether the language previously used by the court created a perception of partiality.
Ratio Decidendi
The court found that although the judge personally assured impartiality and objectivity, the language previously used in court could reasonably be perceived as indicative of bias. Since the perception of justice is as important as actual justice, and to maintain public confidence in the judicial process, the judge determined that it was appropriate to accede to the request for recusal. The application for recusal was therefore allowed to preserve the integrity and perception of fairness in the proceedings.
Court Disposition
application for recusal allowed
Orders
- The judge disqualifies himself from further dealing with the case.
- The Notice of Motion dated 23rd October 2019 is allowed as prayed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
MISC. CIVIL APPLICATION NO. E 011 OF 2019
IN THE MATTER OF ADVOCATES ACT (CAP. 16 LAWS OF KENYA)
NAIROBI CITY COUNTY...........................................................................APPLICANT
VS
MUNIKAH & CO. ADVOCATES ........................................................RESPONDENT
RULING
1. In my directions of 19th July 2019, I disapproved of the conduct of Counsel Gatheru Gathemia. The language I used may be perceived as strong and a pointer that I will not deal with this matter objectively.
2. Although I assure parties that I would remain impartial, objective and true to my oath as a Judge in dealing with this and all matters that I am seized of, I am nevertheless keenly aware that bias and partiality are partly matters of perception.
3. If the language used by this Court sent a signal that I am no longer able to deal with the matter in a dispassionate manner, then a perception of non-objectivity may have been created. Since perception is important, then I must accede to the request made in the Notice of Motion dated 23rd October 2019. I do hereby disqualify myself from further dealing with this case.
4. I allow the Motion of 23rd October 2019 as prayed.
Dated, Signed and Delivered in Court at Nairobi this 19th Day of December 2019.
F. TUIYOTT
JUDGE
PRESENT;
Gatheru for Applicant/Advocate
Letangula for client
Court Assistant: Nixon