[2021] KEHC 13106 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO. 365 OF 2017

IN THE MATTER OF: EMPLOYMENT AND LABOUR RELATIONS

COURT (ELRC) AT NAIROBI CAUSE NO.160 OF 2011

IN THE MATTER OF: ARTICLE 22, 23 AND 165 OF THE

CONSTITUTION OF KENYA 2010

IN THE MATTER OF: ORIGINAL JURISDICTION OF THE HIGH

COURT OF KENYA UNDER ARTICLE 23 AND 165

IN THE MATTER OF: ARTICLE 165(3)(B) AND (D)(II)

IN THE MATTER OF: ALLEGED CONTRAVENTION OF RIGHTS AND

FUNDAMENTAL FREEDOMS UNDER ARTICLE 25, 27, 28, 29, 35, 41, 47, 48 AND 50

-BETWEEN-

REGINALD NJAGI NYAGA..................................APPLICANT/PETITIONER

AND

THE FRESH EMBASY – NAIROBI.....................................1ST RESPONDENT

THE HON. ATTORNEY GENERAL...................................2ND RESPONDENT

AND

THE TRANSPARENCY INTERNATIONAL...............INTERESTED PARTY

RULING

THE PETITION

1. Before me is an application by the Applicant/Petitioner dated 15th April 2019 seeking the following reliefs :-

a) That the trial Judge Hon. James A. Makau do disqualify himself from hearing the Ex-parte Application dated 11th March 2019 including nay other matter regarding this Petition.

b) That the said Ex-parte Application be referred to His Lordship the Hon. Chief Justice for Constitution of an uneven member bench of judges not less than three and for direction as requested thereof pursuant to Article 22(3) and 165(4) of the Constitution of Kenya

c) That the costs of this application be on cause.

2. The application is premised on several grounds on the face of the application.

3. The application is further supported by affidavit sworn by the Applicant Reginald Njagi Nyaga sworn on 15th April 2019.

4. The Respondent and Interested Party did not file response to the application.

GROUNDS IN SUPPORT OF THE APPLICATION

5. That the Court violated the Petitioner’s rights to fair hearing.

6. That the Court is biased and supports Respondents and there Counsel.

7. That the Court gave its personal view in the matter and the Petitioner is prejudiced; as the Court is not impartial.

8. The Petitioner is aggrieved by failure to have orders issued to Chief Justice to constitute a Bench of three Judges to hear this Petition.

9. That the Petitioner contends there seem to be a well orchestrated collusion between the Respondents advocates Mr. D. Michuki for 1st Respondent and M. M. Mutindi for 2nd Respondent, to obstruct and defeat the cause of justice and have created personal Court arguments in person against the Petitioner, through Court insubordination, impersonation, false pretense and contempt of Court with impunity on the basis, that their clients are immune and above the law and Constitution of Kenya, to respond to Court summons thereof in person for cross-examination in Court of law without demonstrating any constitutional provisions to support them.

ANALYSIS AND DETERMINATION

10. I have perused the applicant’s application and affidavit in support and the issue for consideration can be summed up as follows:-

a) Whether the Petitioner has met the threshold for this Court to recuse itself.

11. In determining this issue I endevour to consider the Petitioners’ affidavit in support and Court proceedings in this Petition.

12. The Court record reveal, that this matter commenced on 24th July 2017 before Hon. Justice E. C. Mwita. That on 7th August 2018 directions were issued, that the Petitioner do file and serve written submission in support of the Petition within 14 days and Respondents to file their responses and submissions within 14 days from the date of service with Petitioners’ submissions. Hearing was set for 21st May 2018.

13. On 21st May 2018 the Petitioner raised several issues against the Trial Court, to which the Court stated it was not aware of the serious allegation labelled against it by the Petitioner, leading to the Court recusal from proceeding on with the matter.

14. The matter was taken over by Hon. Lady Justice Okwany, on 11th July 2018, who upon hearing counsel and the Petitioner, directed the parties to file and exchange responses and set the matter for hearing on 24th October 2018. The court delivered a ruling on 9th January, 2019 directing parties to file and exchange written submissions to the Petition and set highlighting on submissions on 15th May 2019.

15. I took over this matter on 1st, April, 2019 upon being transferred to this Division and on 5th April 2019 I gave directions on how to proceed with the matter in presence of Petitioner and M/s Mutindi, State Counsel.

16. The Court record reveal that on 9th October, 2019 in presence of parties I directed that the application dated 15th April 2019 be heard first. The parties were to file responses and submission to the application within 14 days from the date of service of the responses. Highlighting was set for 11th December, 2019. On 11th December, 2019 parties had not complied with the Court’s directions and the matter was once again set down for confirmation of compliance on 30th March 2020 but due to Covid-19, there was no open Court hearing and no appearance of the parties.

17. The matter was subsequently virtually mentioned on 8th June 2020; 7th October, 2020; 1st December 2020; 2nd March 2021; in absence of the Petitioner and lastly on 31st May 2021, when Petitioner and M/s Mutindi, State Counsel, appeared and matter set down for ruling on the Petitioner’s application of 15th April 2019.

18. Looking at the Petitioners affidavit sworn on 15th April 2019 in support of the application for this Court’s recused, there is no single date disclosed when the Petitioner’s right to fair hearing was denied nor particulars of the alleged use of abusive language and threats as, averred in the application, nor are there particulars of biasness or partiality, neither are there particulars of the Court advising M/s Mutindi, state Counsel, on how to write submission nor on how she was being assisted. The Petitioner’s allegations all lack particulars and are generalized as none of the alleged incidents ever occurred. The Petitioner alleges the incident happened in open Court, yet he has not disclosed the date, nor attached the Court proceedings of the day or causelist nor caused anyone to file affidavit in support of the allegations. The issues raised are serious and the standard of proof required is high and that has not been meet. It is noted other than putting on the ground, no affidavit evidence in support was filed.

19. I am surprised of the Petitioners allegations against the Court and the Respondents counsel, simply because no such incident occurred nor would I have acted as alleged since I am aware of my duties and obligation as a Judge and I strongly apply and comply with bungalow principles which binds me as a Judicial Officer. I find it had to understand the Petitioner’s complaint without particulars pointed out hereinabove.

20. I have considered what Justice E. W. Mwita, who was handling this case before me stated in response when the Petitioner raised demanding remarks against him and to which he stated, he did not know, what the Petitioner was talking about. On my part I am a total stranger to the allegations attributed to me by the Petitioner. In handling this matter I was out to do Justice unfortunately the Petitioner without any justification has accused me on unfounded allegations and which I state have no basis.

21. In view of the aforesaid, I find no basis in Petitioner’s application for my recusal from hearing this matter. However to demonstrate, I have no personal interest in this matter and, that I wish Justice not only to be done but be seen to be done, and as in this Division, we have three Judges, I would refer this matter to the Presiding Judge of the Division to allocate the Petition to any other Judge other than myself to hear and determine prayer (b) in the application and the Petition. No orders as to costs.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 1ST DAY OF JULY, 2021.

..........................

J. A. MAKAU

JUDGE