https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9421

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAIROBI** **COMMERCIAL & TAX DIVISION** **CIVIL CASE NO. 8 OF 2016 (OS)** **BETWEEN** **PARAGON ELECTRONICS LIMITED.........................PLAINTIFF/APPLICANT** **VERSUS** **I & M BANK LIMITED......................................DEFENDANT/RESPONDENT** **RULING** **Background** 1. This ruling concerns the Decree Holder/Applicant's **Notice of Motion dated 5th February 2026** seeking, among other orders; the recusal of Hon. Justice Moses Ado from further hearing or management of the Decree Holder's **Notice of Motion dated 20th January 2026**, the suspension of directions issued on 3rd February 2026, and the placement of the Motion dated 20th January 2026 before the Presiding Judge of the Commercial & Tax Division for administrative determination in the first instance. 2. The present application arises from proceedings commenced by the Decree Holder concerning a purported ruling dated 25th November 2021 attributed to the late Hon. Justice D.S. Majanja. The Decree Holder contends that the ruling was never delivered and that there exist inconsistencies between the physical court file, typed proceedings, and entries appearing on the Court Tracking System (CTS). It maintains that the questions thereby arising concern the institutional integrity of judicial records and not merely the private interests of the parties. 3. On 20th January 2026, the Decree Holder filed a Notice of Motion seeking, among other orders, placement of the matter before the Presiding Judge of the Commercial & Tax Division in the first instance, stay of reliance upon the purported ruling dated 25th November 2021, certification under Article 165(4) of the Constitution on the basis that the matter raises substantial questions of law, and referral of the matter to the Chief Justice for empanelment of a bench of judges. 4. The Motion dated 20th January 2026 came before this Court on 3rd February 2026, whereupon directions were issued requiring the filing of responses and written submissions and fixing the matter for mention. According to the Applicant, those directions ought not to have been issued before the determination of what it describes as the ***threshold prayer*** seeking placement of the application before the Presiding Judge. 5. The present application was thereafter filed on 5th February 2026. It is supported by the affidavit **of Bulent Gulbahar** sworn on the same date in Istanbul, Turkey. 6. The application is predicated upon two main grounds, first that by issuing directions on 3rd February 2026 before determining the prayer seeking placement before the Presiding Judge, the Court effectively assumed administrative seisin of the matter and thereby created an appearance that the threshold prayer had already been resolved. 7. Secondly, that this Court, in another matter involving the Applicant herein (HCCC No. 431 of 2014), had previously expressed observations regarding affidavits sworn outside Kenya before a Commissioner for Oaths – and that the same legal issue arises in the present matter because the supporting affidavit herein was sworn in Turkey before a solicitor of England and Wales acting as a Commissioner for Oaths. 8. The Applicant, however, expressly states that the application is not founded on allegations of actual bias, misconduct, bad faith or personal impropriety on the part of the Court, but is founded upon procedural considerations and the appearance of fairness. 9. The Respondent opposed the application through **Grounds of Opposition dated 8th June 2026,** and contends that the application is misconceived, incompetent, frivolous and an abuse of the process of the Court; that no reasonable apprehension of bias has been shown; and that the threshold laid down by the **Supreme Court in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others** has not been met. 10. The application was canvassed by way of written submissions. The Applicant filed submissions dated 8th June 2026. No submissions were on record on behalf of the Respondent as at the time of writing this ruling. **Analysis and Determination** 1. Having carefully considered the application, the response thereto, the submissions on record, and the applicable law, I find that the sole issue for determination is whether the Applicant has established a legally sufficient basis for recusal of this Court. 2. The law relating to judicial recusal is well settled. A judge is under a duty to hear and determine matters allocated to him unless a proper basis for disqualification is established. Recusal is therefore an exception, not the norm. 3. In **Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others**, the Supreme Court held that the object of recusal is to ensure that justice remains uncompromised and that due process is not only observed but is seen to have been observed. The Court emphasized that perception of fairness is the proper test. [[DH-Applica...ssions.pdf | PDF]](https://judiciarycourtke-my.sharepoint.com/personal/moses_ado_court_go_ke/Documents/Microsoft%20Copilot%20Chat%20Files/DH-Applicant%27s%20submissions.pdf) 4. The law does not act on the subjective fears or whims of a litigant. The test for apparent bias is objective. As the Court of Appeal stated in **Hon. Kalpana H. Rawal v Judicial Service Commission & 2 Others [2016] eKLR**, the question is what an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude. A mere suspicion of bias is not enough. The apprehension must be reasonable and grounded on solid facts. 5. Equally, in **Kipkoech Kangongo & 62 Others v Board of Governors Sacho High School & 5 Others**, it was held that the applicable test is objective and centres on whether a reasonable and informed person, fully apprised of the circumstances, would conclude that there exists an appearance of bias. The Court, citing the South African Constitutional Court in **President Of The Republic Of South Africa V South African Rugby Football Union [1999] (4) SA 147**, stated as follows: “It follows from the foregoing that the correct approach to this application for recusal of members of this Court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or propositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial office should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer for whatever reasons was not or will not be impartial.” 1. Bearing the above in mind, I now turn to the specific grievances by the Applicant in the present case **(i) The question of administrative Seisin and the Directions Issued on 3 February 2026** 1. The Applicant's principal complaint is that the Notice of Motion dated 20th January 2026 contained a prayer seeking placement of the matter before the Presiding Judge of the Commercial & Tax Division in the first instance and that, before that prayer was determined, this Court proceeded to issue directions requiring affidavits and written submissions. The Applicant contends that those directions created the appearance that the question of administrative seisin had already been resolved 2. With respect, I am unable to accept that proposition. 3. First, it is necessary to appreciate the nature of the relief sought in the Motion dated 20th January 2026. Although framed as a request that the matter be placed before the Presiding Judge, the application also sought numerous substantive and consequential orders, including, among others, a stay of reliance on the purported ruling of 25th November 2021, certification under Article 165(4) of the Constitution, and referral of the matter to the Chief Justice for empanelment of a bench. 4. Those prayers were directed against the Respondent and were capable of affecting its legal interests. The Respondent was therefore entitled, as a matter of procedural fairness and natural justice, to notice of the application and an opportunity to be heard before any orders capable of affecting its position could be considered or granted. The Court could not properly proceed on the basis that the Respondent had no right to participate in the process merely because the Applicant viewed the prayer for placement before the Presiding Judge as a threshold matter. 5. Secondly, the directions issued on 3rd February 2026 did no more than require the filing of responses and submissions. They did not determine the Applicant's prayer for placement of the matter before the Presiding Judge. Nor did they express any concluded view regarding the merits of that prayer. 6. In those circumstances, a reasonable and informed observer, apprised of the ordinary workings of judicial process, would recognize that case-management directions are frequently issued without prejudging outstanding procedural issues. 7. Consequently, I find and hold that the first ground does not satisfy the threshold for recusal. **(ii) Whether the Court's observations in HCCC No. 431 of 2014 justify recusal** 1. The Applicant's second ground is founded upon observations made by this Court in HCCC No. 431 of 2014 concerning affidavits sworn outside Kenya before a Commissioner for Oaths. The Applicant contends that because the supporting affidavit in the present application was sworn in Turkey before a solicitor of England and Wales acting as a Commissioner for Oaths, a fair-minded observer may reasonably apprehend that the issue has already been prejudged. 2. The Court has carefully considered the ruling relied upon by the Applicant. Contrary to the submissions advanced before this Court, the issue was not determined adversely to the party relying upon the affidavit. 3. In that ruling, the Court expressly stated: “The Respondents raised a preliminary objection that the Applicant’s supporting affidavits were sworn before a Commissioner for Oaths instead of a Notary Public, despite the Applicant being in Turkey. While this may be a procedural irregularity, the Court is of the view that the determination of this question, one way or the other, is not in any way likely to change the overall outcome of the two applications. The Court notes that even if the objection were to succeed, it would not cure the substantive deficiencies in the applications before Court. Conversely, even assuming the affidavits were valid, the applications would still fail on merit.” 1. It is immediately apparent from the foregoing passage that the Court deliberately refrained from finally determining the objection. The Court neither struck out the affidavit nor held that affidavits sworn outside Kenya before a Commissioner for Oaths are invalid. Equally, it did not pronounce itself with finality on the legal correctness of the objection advanced before it. 2. However, even assuming the Court had made a determinative finding on the question, it is equally established that prior judicial decisions, adverse rulings, remarks made in the course of judicial duty, or previously expressed legal opinions do not ordinarily furnish a basis for recusal. 3. Judges are expected to decide recurring legal questions and are presumed capable of approaching each case with an open mind. 4. The Court recalls its decision in [Gathaiya t/a Gathaiya & Associates v Bank of Baroda (Kenya) Limited [2026] KEHC 7402 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7402/eng%402026-05-28), where it was stated as follows: - “…. It is the nature of litigation that courts must make decisions, and those decisions will inevitably favor one side over the other. The mere fact that a judicial officer has decided a series of cases in a particular way does not demonstrate bias, nor does it disqualify the judge from hearing a remaining, distinct matter involving the same parties. Each case is driven by its own record, its own evidence, and the law. If a judge errs in law or fact…….[*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) provides an elegant and structured remedy: the right of appeal……The appellate process is the proper forum to correct judicial errors, not a recusal application at the trial level. To allow a party to disqualify a judge simply because they are unhappy with past rulings would paralyze the administration of justice and encourage the vice of forum shopping. It would allow litigants to veto the assignment of judges whenever a ruling goes against them. That is an invitation this Court must decline.” 1. In the circumstances, a fair-minded and informed observer, having read the ruling in its entirety, would not conclude that the Court has predetermined the validity or otherwise of the Applicant's affidavit in these proceedings. 2. Accordingly, this ground equally fails. 3. The upshot of the foregoing is that the Notice of Motion dated 5 February 2026 is dismissed. The Court therefore makes the following orders: 4. The prayer seeking the recusal of Hon. Justice Moses Ado from further hearing or managing these proceedings is **declined**. 5. The prayer seeking to place the Notice of Motion dated 20 January 2026 before the Presiding Judge in the first instance is declined. 6. The directions issued on 3 February 2026 shall remain in force. 7. The Defendant shall be afforded an opportunity to be heard on the Notice of Motion dated 20 January 2026, including the prayers seeking certification under Article 165(4) of the Constitution and referral of the matter for empanelment of a bench. 8. The costs of the Notice of Motion dated 5 February 2026, assessed at Kshs. 50,000/- is hereby awarded to the Respondent. 9. It is so ordered. **DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026** **** **HON. MR. JUSTICE MOSES ADO *Judge of the High Court*** **In the Presence of:** *Moses C/A* *.………………for the Applicant* *……………for the Respondent*