[2024] KEBPRT 77 (KLR)

Oloo Evance t/a Woodley Vine Agencies v Olive Joycare Estate & Property Managers Limited & another (Tribunal Case E503 of 2023) [2024] KEBPRT 77 (KLR) (Civ) (2 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 77 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E503 of 2023

Gakuhi Chege, Chair & J Osodo, Member

February 2, 2024

Between

Oloo Evance t/a Woodley Vine Agencies

Applicant

and

Olive Joycare Estate & Property Managers Limited

1st Respondent

Beth W. Kabiru

2nd Respondent

Ruling

1. Before this tribunal is a motion brought under Regulation 9 of the Judicial Code of Conduct, Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 and Section 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap 21 laws of Kenya and Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law.

2. The tenant/applicant is seeking for orders that: -i.This Honourable Tribunal be pleased to Certify the Application as of extreme urgency, service thereof be dispensed with in the first instance;ii.The proceedings in this case, precisely, the delivery of the Ruling scheduled for 1st December 2023 before Hon Gakuhi Chege, Chairperson be stayed pending the hearing and determination of the Application.iii.The Honourable Gakuhi Chege, Chairperson be pleased to recuse himself from the proceedings herein.iv.In the alternative to (3) above, the Honourable Gakuhi Chege, Chairperson be pleased to disclose that his relationship with the 2nd Respondent's family on account of his acting for them, shall not affect his impartiality in concluding the proceedings herein.v.The Honourable Tribunal be pleased to issue appropriate directions for the hearing and determination of the Tenant's Application dated 24th May 2023 and the Landlord's application dated 20th June 2023. vi.The costs of the application be borne by the 2nd Respondent, due to her non- disclosure.

3. The grounds upon which the application is founded are that: -a.The matter was scheduled for the delivery of a Ruling before Hon Gakuhi Chege, Chairperson on 1st December 2023. b.Hon Gakuhi Chege, is an Advocate of the High Court of Kenya, running the Practice in Gakuhi Chege & Co Advocates.c.The Tenant/Applicant learnt that Hon Gakuhi Chege, Chairperson has previously acted as Counsel for the Late Peter Githu Kabiru.d.The Late Peter Githu Kabiru is the owner of the Business Premises and the 2nd Respondent is his daughter.e.It has become apparent to the Tenant that Hon Gakuhi Chege and the Late Peter Githu Kabiru, as well as his family including the 2nd Respondent have been close, and there is a likelihood that the decision will not likely be impartial.f.The said relationship between Hon Gakuhi Chege, Chairperson and the said Estate of the Late Peter Githu Kabiru which owns the Business Premises herein was not disclosed to the Tenant/ Applicant during the proceedings.g.The Tenant/ Applicant is apprehensive that he will most likely not receive a fair and just decision that is devoid of any conflict of interest and/or bias. The said ruling is scheduled for 1st December 2023. h.The Landlord/ Respondent will not be prejudiced if the orders sought are granted.

4. The application is supported by the affidavit of Oloo Evance sworn on 29th November 2023 which reiterates the grounds set out above wherein he deposes that Hon Gakuhi Chege, Chairperson has previously acted as Counsel for the Late Peter Githu Kabiru as per the annexures marked as Exhibits OE-04 being correspondence exchanged between Hon Gakuhi Chege and the Late Peter Githu Kabiru and that the Late Peter Githu Kabiru is the owner of the Business Premises and the 2nd Respondent is his daughter.

5. It is therefore deposed that Hon Gakuhi Chege and the late Peter Githu Kabiru, as well as his family including the 2nd Respondent have been close, and there is a likelihood that the decision will not likely be impartial.

6. The said relationship between Hon Gakuhi Chege, Chairperson and the Estate of the late Peter Githu Kabiru who owned the business premises herein was not disclosed to the tenant or his advocates during the proceedings.

7. The tenant is therefore apprehensive that he will most likely not receive a fair and just decision that is devoid of any conflict of interest and/or bias. The said ruling was scheduled for 1st December 2023.

8. It is contended that the 2nd Respondent knew of this relationship but did not disclose, and that she ought to bear the costs of the Application.

9. The tenant further deposes that from his knowledge, experience and learning, the Chairperson of this Tribunal, as well as any member, exercises Judicial authority, and is bound by the Judicial Service Code of Conduct, as a matter of course.

10. He proceeds to cite Regulation 21 Part II of the Judicial Service (Code of Conduct and Ethics) Regulations 2020 and avers that a Judicial officer can recuse himself or herself in any of the proceedings in which his or her impartiality might reasonably be questioned.

11. The application is opposed through the replying affidavit of Beth W.-Kabiru/2nd Respondent who deposes that the issues raised by the tenant are very remote and do not raise any valid reason for the judicial officer to recuse himself.12. She further deposes that the annexures and dealings which have been attached by the Applicant point out to dealings between her late father and the firm of Gakuhi Chege & Co. Advocates which represented her father in a sale transaction in the year 2006.

12. The 2nd Respondent denies knowing or having any personal relationship with Hon. Gakuhi Chege and further states that she has never met or interacted with him on a personal level and was doubtful if the judicial officer would even remember her late father.

13. It is the 2nd Respondent’s position that the Applicant has not raised any valid reason for the honorable Deputy Chair to recuse himself save for the fact that the Applicant is out to delay the hearing or stay delivery of the ruling of the honorable Tribunal.

14. According to the 2nd Respondent, the doctrine of duty of a Judge to sit propounds that every Judge has a duty to sit which he should duly sit and such recusal should not be used to cripple a judge from sitting to hear a matter. That the duty of a judge to sit is buttressed by the fact that every Judge/judicial officer takes an oath of office to serve impartially and to protect, administer and defend the Constitution. It is a doctrine that recognizes that having taken oath of office, a judge or a judicial officer is capable of rising above any prejudice.

15. The 2nd Respondent deposes that the tenant has taken extremely long to bring his application and the timing is suspicious as the applicant was derailing the wheels of justice from rolling and that the application should be dismissed.

16. In the 2nd Respondent’s view, there are no valid reasons for recusal which have been advanced by the Applicant and that the Applicant is out to have this matter determined by a particular judicial officer or is trying to gain strategic advantage through delay or interruption of the proceedings.

17. As such, it is important that the honorable Deputy Chair discharges his duty to sit and not agree to the suggestion of appearance of bias as this would encourage parties to believe that by seeking disqualification, they will have the opportunity to determine who is to hear their matter. The Applicant has not demonstrated any conflict of interest between the judicial officer in issue and the parties herein.

18. The 2nd Respondent contends that if anything, the honorable Tribunal is presided or constituted of two members being Hon Gakuhi Chege and Hon. Joyce Osodo and therefore there is no room for impartiality or compromise.

19. Finally, the 2nd Respondent deposes that the Applicant has brought the application late in the day and has failed to demonstrate the impartiality of the said judicial officer other than speculations and if the honorable Tribunal’s Deputy Chair recuses himself, it will prejudice the matter which was due for ruling.

20. The application was directed to be canvassed by way of written submissions but only the Respondents’ counsel complied. We shall consider the submissions together with the issues for determination.

22. The following issues emerge for determination in this case:-(a)Whether the tenant’s application meets the legal threshold for recusal of a judge.(b)who is liable to pay costs?

23. The respondents in their submissions dated 13th January 2024 have cited the following cases from the commonwealth and local jurisdiction on the question of recusal of judges as follows:-In R. v. Gough (1993) AC 646, the House of Lords adopted the real danger test, meaning that the question to ask is whether there was a real danger that a fair trial was likely to be denied. The test did not win universal acceptance within the Commonwealth and in Magill v. 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 the judge was biased.”

24. The respondents also cite the case of Attorney General of Kenya v Prof Anyang' Nyong'o & 10 Others EACJ Application No. 5 of 2007 wherein the East African Court of Justice had the following to state:-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.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."

25. The Supreme Court of Canada expounded the test in the following terms in R. v S (R.D) [1977]3 SCR 484: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 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 acknowledgement 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."

26. And in Kaplan & Stratton v. Z. Engineering Construction Ltd & 2 Others [2000] KLR), the Court stated thus: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 applications. 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 a complex of instincts, 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 also true."(See also Galaxy Paints Co. Ltd v. Falcon Guards Ltd, CA No. 219 of 1998).Secondly, the point urged by the interested party to the effect that bias on the part of one out of seven judges is of no consequence, is equally doubtful. The Constitution guarantees a litigant trial by an independent and impartial court. For present purpose, the Constitution guarantees the applicant the right to be heard by an independent and impartial court made up of seven judges. If one were to be partial, it matters not that the other six are not, the constitutional guarantee will have been violated. The Court is constituted by all the judges sitting, not some of them only. That is the reason why, we believe, the judgment of the House of Lords in Re Pinochet (supra) was vitiated purely by the fact that one and only one of the judges was reasonably perceived to have been biased.In The People case, the Court expressed itself as follows in relation to the application for disqualification of the members of the bench."How should Judges treat the subject of disqualification when raised before them?...when the courts in this country are faced with such proceedings as these, it is necessary to consider whether there is a reasonable ground for assuming the possibility of bias and whether it is likely to produce in the minds of the public at large a reasonable doubt about the fairness of the administration of justice. The test is objective and the facts constituting bias must be specifically alleged and established.”

27. In regard to the doctrine of a judge's duty to sit, the Respondents cite Justice Rolston F. Nelson of the Caribbean Court of Justice in his treatise- "Judicial Continuing Education Workshop: Recusal, Contempt of Court and Judicial Ethics; May 4, 2012 as follows:A judge who has to decide an issue of self-recusal has to do a balancing exercise. On the one hand, the judge must consider that self-recusal aims at maintaining the appearance of impartiality and instilling public confidence in the administration of justice. On the other hand, a judge has a duty to sit in the cases assigned to him or her and may only refuse to hear a case for an extremely good reason."

28. The test for recusal of a judge was ably discussed by Justice D.S Majanja in the case of Rachuonyo & Rachuonyo Advocates Vs National Bank of Kenya Limited [2021] eKLR at paragraphs 22-25 as follows: -22. The main issue is whether I should recuse myself from dealing with the present matter and other references involving the parties herein. The principles governing recusal in this jurisdiction are not well settled. In Jan Bonde Nielson v Herman Philipus Steyn & 2 others HC COMM No. 332 of 2010 [2014] eKLR the court observed that:The appropriate test to be applied in determining an application for disqualification of a Judge from presiding over a suit was laid down by the Court of Appeal in R v David Makali And Others C.A Criminal Application No Nai 4 and 5 Of 1995 (Unreported), and reinforced in subsequent cases. See R v Jackson Mwalulu & Others C.A. Civil Application No Nai 310 Of 2004 (Unreported) where the Court of Appeal stated that: “…When courts are faced with such proceedings for disqualification of a judge, it is necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the public at large a reasonable doubt about the fairness of the administration of justice. The test is objective and the facts constituting bias must be specifically alleged and established…’’23. In Philip K. Tunoi & another v Judicial Service Commission & Another CA Civil Application NAI No. 6 of 2016 [2016] eKLR the Court of Appeal adopted the test for recusal propounded by the House of Lords in Porter v Magill [2002] 1 All ER 465, where it stated that, “The question is whether the fair minded and informed observer, having considered the facts, would conclude that was a real possibility that the tribunal was biased.” The same position was taken by the Supreme Court (per Ibrahim J.) in Jasbir Rai and 3 Others v Tarlochan Singh Rai and 4 Others SCK Petition No. 4 of 2012 [2013] eKLR where he observed that, “The Court has to address its mind to the question as to whether a reasonable and fair-minded man sitting in Court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the applicant was not possible. If the answer is in the affirmative, disqualification will be inevitable.”24. The principles in the cases I have cited buttress the standards of conduct enacted in the Judicial Service (Code of Conduct and Ethics) Regulations 2020 dated 26th May 2020. Under Regulation 21 Part II of the said Code of Conduct, a Judge can recuse himself or herself in any of the proceedings in which his or her impartiality might reasonably be questioned where the Judge;(a)Is a party to the proceedings;(b)Was, or is a material witness in the matter in controversy;(c)Has personal knowledge of disputed evidentiary facts concerning the proceedings;(d)Has actual bias or prejudice concerning a party;(e)Has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter;(f)Had previously acted as a counsel for a party in the same matter;(g)Is precluded from hearing the matter on account of any other sufficient reason; or(h)Or a member of the Judge’s family has economic or other interest in the outcome of the matter in question.25. Regulation 9 of the Judiciary Code of Conduct emphasizes the importance of impartiality of a Judge. Regulation 9(1) provides:A Judge shall, at all times, carry out the duties of the office with impartiality and objectively in accordance with Articles 10, 27, 73(2) (b) and 232 of the Constitution and shall not practice favoritism, nepotism, tribalism, cronyism, religious and cultural bias, or engage in corrupt or unethical practices”.

29. The sole basis of the application for recusal of Hon. Gakuhi Chege is that he acted for the late father of the 2nd Respondent one Peter Githu Kabiru (Deceased) in the year 2006 in regard to subdivision of Plot No. 1201, Muruai Scheme as evidenced by a letter dated 13th March 2006 addressed to the District Surveyor, Nyandarua District and copied to the deceased as well a memorandum of acknowledgement of purchase price dated 13th March 2006 executed by the deceased and another person.

30. It is imperative to note that the said transactions took place almost 18 years ago and none of the parties herein was involved. It is not clear from the depositions made by the Applicant how the said transactions currently impact on this case. The alleged possible prejudice by the judicial officer on account of the said transactions is not disclosed.

31. The 2nd Respondent has clearly stated in her replying affidavit that she is not known to the judicial officer who is sought by the Applicant to recuse himself and the Applicant has not provided any evidence of the alleged relationship with any of the parties herein.

32. However, the foregoing notwithstanding, we are persuaded by what was stated by the Supreme Court of Kenya in the case of Jasbir Rai and 3 Others v Tarlochan Singh Rai and 4 Others (supra) that,“The Court has to address its mind to the question as to whether a reasonable and fair-minded man sitting in Court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the applicant was not possible. If the answer is in the affirmative, disqualification will be inevitable.”

33. In the premises, despite there being no evidence that the judicial officer sought to recuse himself has any likely bias against the Applicant, it is not proper to proceed with this case in the prevailing circumstances “as justice must not only be done, but must be seen to be done.”

34. Costs of every suit before this tribunal are in its discretion under Section 12(1)(k) of Cap. 301, Laws of Kenya but always follow the event unless for good reasons otherwise ordered. It is not the fault of either party that this matter found itself before this Court. Indeed, the Applicant/tenant is enjoying orders issued in his favor by the very judicial officer he has sought to recuse. We shall order that each party meets own costs of the application.

35. Consequently, the following orders commend to us in this matter: -a.That Hon. Gakuhi Chege hereby recuses himself from further conduct of the instant proceedings as sought by the tenant/applicant.b.That this matter be placed on priority basis before Hon. Cyprian Mugambi, Chairperson for reallocation to any other member(s) of the Tribunal for necessary further action.(c)Each party shall bear own costs of the application.It is so ordered.

DATED, SIGNED & VIRTUALLY DELIVERED THIS 2ND DAY OF FEBRUARY 2024HON. GAKUHI CHEGE - PANEL CHAIRPERSONHON. JOYCE OSODO - PANEL MEMBERIn the presence of: -Otieno holding brief for Onyango for the TenantMiss Wafula holding brief for Diran for Landlord/Respondents