[2022] KEHC 13572 (KLR)

Omar v Mag (Civil Appeal 707 of 2021) [2022] KEHC 13572 (KLR) (Civ) (20 September 2022) (Ruling)

Neutral citation: [2022] KEHC 13572 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 707 of 2021

JN Mulwa, J

September 20, 2022

Between

Salim Omar

Appellant

and

Brigitte Phillip Mag

Respondent

Ruling

RULING ON APPLICATION DATED 14/07/2022 1. By an application dated July 14, 2022 the respondent Brigitte Philip Mag sought orders that this court be pleased to recuse and/or disqualify itself from any further conduct of the matter, and an order of stay of proceedings including writing and delivery of any rulings pending the hearing and determination of the application.

2. The application is granted on section 1A, 1B and 3A of the Civil Procedure Act and Article 50 of the Constitution of Kenya 2010, and grounds stated at the face of the application and a supporting affidavit sworn on the July 14, 2022 by Dolphine Damaris Awuor, advocate for the respondent.

3. At the time of filing of this application by the respondent, two applications filed by both parties are pending for determination being, notice of motion dated March 28, 2022 and April 14, 2022 by the appellant and respondent respectively.

4. On the July 7, 2022 in the presence of the parties advocates, the court directed both parties to file and exchange submissions on both applications, and return for ruling on the October 13, 2022, being the earliest date, as guided by the court’s diary. At the same time, the court urged the parties to explore an amicable settlement if possible before the stated ruling date. On record also are interim orders of stay of execution of the trial court’s judgment pending hearing and determination of the two applications.

5. The instant application as may be discerned from the grounds and affidavit in support thereof is about what the respondent terms as unfair and inconsideration of the applicant’s plight by indulging the appellant for four months to file their responses to its application dated April 15, 2022, and extending interim orders that it states had been earlier vacated; that from the above, the applicant imputes impartiality and bias, to the fair and just hearing and determination of the dispute at hand by the court. It is further deposed that the applicant has lost all confidence in this court’s ability to fairly adjudicate on the dispute between the parties.

6. I have considered the chronology of events on court attendances as well as orders issued by the court during the period April – July 2022 as shown in the court proceedings. I agree that the cornerstone of any fair and just legal system is the impartial adjudication of dispute which are brought before the court and other tribunals.

7. The applicant’s allegations that this court has acted in irregular, biased and unconventional manner by indulging the appellant by granting it time to file its responses and submissions to the applications are but allegations that cannot stand the test of time. As much as the applicant has a right to be heard expeditiously, the appellant has a similar right, and both are equally protected under the law, see Article 50 of the Constitution.

8. On the July 17, 2022, both parties were directed by this court to file written submissions to the two applications within 14 days and exchange. At the time of writing this ruling on August 18, 2022 (during court vacation) none of the parties had filed their submissions. If the court may pause here, would it be fair and just, in the circumstances if a ruling would be written without the submissions, more so, from the complaining party, the respondent upon taking into account provisions of Article 159 (2)(d) of the Kenya Constitution?

9. Section 3A of the Civil Procedure Act donates inherent powers to the court to make such orders as it may deem necessary for ends of justice to be met, and to prevent abuse of court process. Nothing limits or otherwise affects the courts inherent powers in its endeavor to dispense justice Stephen Boro Gitiga v Family Finance Building Society & 3 othes[2009] e KLR. In Safaricom Ltd v Ocean[2009] e KLR, the court expressed itself in regard to provisions of section 1A, 1B and 3A of the Civil Procedure Act that the overriding objective of the Act is so called because depending on the facts of each case, and the circumstances, it overrides provisions and rules which might hinder and prevent the court from acting justly.

10. Therefore, in my very considered view, while indulging the respondent and granting it time to file its responses and submissions, I was cognizance of the importance of the cardinal principle that the court shall dispense justice to all parties fairly and impartially. Denying a party to be heard unfairly is contrary to Article 50(1) ofthe Constitution which is what the applicant herein wishes the court to have done.

11. This court is being accused of being impartial and biased against the applicant. Under Article 25(c) of the Constitution, the right to a fair trial is non delogable. The scope of fair hearing was ably discussed in the case Evans Kidero & 4 others Sup Ct Petition No 18 & 20 of 2014 [2015] e KLR. It rendered that “it is trite law that all persons who come to court are entitled to a fair hearing whether the matter instituted is criminal or civil in nature

12. The Supreme court of Kenya in the matter of Gladys Boss Shollei vs Juicial Service Commission & another [2018] e KLR while dealing with a matter of recusal of a Judge rendered, at paragraph 26 thus:-“A judge who has to decide an issue of self-recusal has to do a balancing exercise. On the other 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 recuse to hear a case for an extremely good reason” (emphasis mine)

13. It is therefore clear on what grounds a judge ought to recuse itself from hearing a case. Where there are no valid or good reasons for such action by a judge, the judge ought not recuse himself or herself.

14. An appearance of bias without tangible grounds labelled against this court, is, in my view, made to gain some undue advantage over the other party, the appellant, and hoping to improve the complainant’s chances of having the said matter before the court determined by, another court through delaying tactics and or interruption of the court proceedings, or what is termed as forum shopping.

15. I say so because at the moment, the High Court is on its August recess up to the September 15, 2022. The ruling in respect of the two applications (subject of this complaint) is scheduled for the October 13, 2022; being the earliest date the ruling could have been delivered guided by the court’s diary.

16. If this court recuses itself, the matter will be re-allocated to another court, which without a doubt will have to reschedule the ruling to a later date as per its court diary, definitely, after the month of September, 2022. Perhaps in the applicant’s perception, the delay in delivery of the ruling may not cause any prejudice to itself. What of the prejudice that may be caused to the respondent in the application?

17. I am not persuaded by the grounds stated in the supporting affidavit of the advocate for the applicant (respondent) that this court is conflicted, biased or incapable of rendering an impartial decision. This court is not the only court that has handled the matter. Looking at the previous proceedings, three other judges have had occasion to handle the matter. Pushing any court file from one court to the other, for no good and sufficient reason is not to the benefit of either of the parties. It causes uncalled for delays, unless it is absolutely necessary.

18. The Supreme Court of Kenya in Gladys Boss Shollei(Supra) citing the case of Samson v General Motors Corporation USDC page 425, R Supp 574, 578 (1978), the United States District Court, Eastern District of Pennsylvania, had this to say“recusal and reassignment is not to be lightly undertaken by a district judge, while in proper cases, we have a duty to recuse ourselves, in cases such as the one before us, we have concomitant obligation not recuse ourselves, absent valid reasons for recusal, there remains what has been termed a “duty to sit…”

19. While not accusing the applicant/respondent for bringing the application, as it is its right, I am minded that, as cited in the case Kalpana H Rawal v Judicial Service Commission and two others2016 KLR, where the Court of Appeal held“An application for recusal of a judge is a necessary evil. On the one hand, it calls into a question the fairness of a judge who has sworn to do justice impartially, in accordance with the constitution without fear or 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…. The judge is all 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 … 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…”See also Philip K Tunoi & another v Judicial Service Commission & another [2016] e KLR, where it was rendered that:“… the test to be applied is that of a fair minded and informed observer who will adopt a balance approach and will neither be complacent nor be unduly sensitive or suspicious in determining whether or not there is real possibility of bias…”

20. These are but a few of the many judicial pronouncements on the matter of recusal of a judge and reassignment of a matter. Upon reflection and careful consideration of the aforestated issues and judicial pronouncements, I am not persuaded or convinced of any existence of perceived or real bias on the part of the court in respect to the applicant’s case. The old adage goes, “that Justice must not only be done, but must be seen to be done”.That fair minded and informed observer should be able to see and agree that justice has been done, but that observer’s knowledge, the court record bears the truth. Any interested party is at liberty to peruse the court proceedings in respect of this matter.

21. This court swore to do justice impartially in accordance with the constitution; without fear or favour, bias affection or ill-will. By this application, this court’s impartiality has been called to question and its independence impugned. I reiterate that the applicant has not proved any iota of semblance of bias or impartiality by its grounds and supporting affidavit.As stated by the court (Hatari Waweru J) in Andrew Alex Wanyandeh v AG & Kenya Railay Corporation, Nbi Milimani HCC No 844 of 2005 cited in Natahn Obwana v Robert Bisakaya Wanyera & 2 others [2013] eKLR:-“There is nothing like a litigant’s veto of the court or judge hearing his matter. Litigants cannot choose their judges. Applications for disqualification of judges should not be lightly allowed. That would tend to erode public confidence in the courts and the administration of justice”

22. The upshot is that I find no merit in the respondent’s application dated July 15, 2022. It is dismissed.

23. There are two other applications dated March 28, 2022 and April 15, 2022 whose ruling is scheduled for October 13, 2022. They are ready for delivery, thank the High Court Recess period! I shall deliver the ruling today, September 20, 2022. Notices have been transmitted to the parties.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 20TH DAY OF SEPTEMBER, 2022. J. N. MULWAJUDGE