[2021] KECA 53 (KLR)
The Court of Appeal determined that, due to the publication of allegations in a national newspaper suggesting that a High Court judge may have attempted to influence the outcome of the appeal, any decision rendered by the current bench would be susceptible to public suspicion and perceived bias. To preserve the...
Source-derived case information.
- Citation
- [2021] KECA 53 (KLR)
- Parties
- Appellant: Pacific Frontier Seas Limited; Respondent: Jane Mutulu Kyengo; Respondent: Okapi Estate Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 32 of 2018
- Procedural Posture
- Civil Appeal / Order on Recusal Prior to Judgment Delivery
- Outcome
- Bench recused; appeal to be heard afresh before a new bench.
- Judges
- DK Musinga, SG Kairu, AK Murgor
- Legal Topics
- Judicial Recusal, Appellate Procedure, Perceived Bias
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pacific Frontier Seas Limited
Appellant
Jane Mutulu Kyengo
Respondent
Okapi Estate Limited
Respondent
Procedural Posture
Civil Appeal / Order on Recusal Prior to Judgment Delivery
Legal Issues
- 1 Whether the appellate bench should proceed to deliver judgment in light of allegations of possible influence or bias.
- 2 Whether recusal is necessary to preserve the integrity and perception of impartiality of the court.
Ratio Decidendi
The Court of Appeal determined that, due to the publication of allegations in a national newspaper suggesting that a High Court judge may have attempted to influence the outcome of the appeal, any decision rendered by the current bench would be susceptible to public suspicion and perceived bias. To preserve the integrity of the judicial process and public confidence in the administration of justice, the bench found it necessary to recuse itself from the matter. The appeal is to be heard afresh before a differently constituted bench, ensuring that justice is both done and seen to be done.
Court Disposition
Bench recused; appeal to be heard afresh before a new bench.
Orders
- The judges recuse themselves from the appeal.
- The appeal shall be heard afresh on the basis of priority before another bench.
Full Case Text
Judgment text and source record
23 paragraphs
Pacific Frontier Seas Limited v Kyengo & another (Civil Appeal 32 of 2018) [2021] KECA 53 (KLR) (8 October 2021) (Order)
Neutral citation number: [2021] KECA 53 (KLR)
Republic of Kenya
In the Court of Appeal at Malindi
Civil Appeal No. 32 of 2018
DK Musinga, SG Kairu & AK Murgor, JJA
October 8, 2021
Between
Pacific Frontier Seas Limited
Appellant
and
Jane Mutulu Kyengo
1st Respondent
Okapi Estate Limited
2nd Respondent
(An appeal against the Judgment and Decree of the High Court of Kenya at Malindi, (Chitembwe, J.) delivered on 18th May, 2018 in Succession Cause No. 97 of 2015)
Order
1. This appeal was heard at Mombasa on 30th October 2019 and the judgment was scheduled to be delivered on 27th February 2020.
2. Before the delivery date, the judges who heard the appeal were all transferred to Nairobi. In the process of movement of files from Mombasa to Nairobi, Musinga, J.A. who presided over the bench and was tasked with the responsibility of drafting the judgment for consideration by justices Gatembu Kairu, J.A. and Agnes Murgor, J.A. inadvertently misplaced the file and that occasioned delay in the preparation of the judgment.
3. The judgment was eventually prepared and was scheduled for delivery on 24th September 2021. However, on 12th September 2021 an article was published in the “Sunday Nation” newspaper which discussed the High Court decision that gave rise to the appeal. It was claimed, inter alia, that there are video and audio recordings of a High Court judge discussing how to compromise members of this bench and how to terminate or influence the outcome of the appeal.
4. In the circumstances, we are of the considered view that the decision of the court, whichever way it goes, shall be misconstrued as having been influenced by the unnamed High Court judge, for and on behalf of one of the parties to the appeal.
5. Consequently, we hereby recuse ourselves from this appeal. The appeal shall be heard a fresh on the basis of priority before another bench.
DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF OCTOBER, 2021. D.K. MUSINGA....................................JUDGE OF APPEALS. GATEMBU KAIRU, FCIArb.....................................JUDGE OF APPEALA.K. MURGOR.......................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR