https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/692

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE'S COURT AT BUNGOMA** **CRIMINAL CASE NO. E312 OF 2025** **REPUBLIC…………………………………………………………………………………DPP** **VERSUS** **JUMA BAKARI………...……..………………………………………….ACCUSED PERSON** **RULING** 1. This ruling determines the Accused Person’s Notice of Motion dated 20th June 2026, expressed to be brought under section 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law, seeking the following orders: 2. *That the Honourable T.O. Omono recuses himself from hearing and determining this case* 3. *That the file be placed before the Chief Magistrate for re-allocation and directions on the conduct and disposal of the case* 4. *That this Honourable Court be pleased to issue any other orders to serve the ends of justice* 5. *That the costs of the suit be in the cause* 6. The instant Application was premised on the grounds on the face of it, which grounds were reiterated in the Supporting Affidavit sworn on 20th June 2026 by Charles Anyanga Malalah, the Accused Person’s counsel. 7. The gist of the instant Application is that this court has exhibited favoritism and bias leaning towards the complainant in this case by bestowing the complainant with the veto powers to decide whether to accept or not to accept the Plea Bargain Agreement, contrary to the law which does not envisage the complainant’s participation in the Plea Bargain Agreement. 8. The Accused Person’s counsel further averred that in view of the court’s knowledge of the Plea Bargain Agreement between the Accused Person and the Director of Public Prosecutions (DPP), which is an admission of guilt by the Accused Person, it would be nearly impossible for this court to proceed with hearing this case to judgment without bias or predisposition. 9. The prosecution opposed the instant Application through a Replying Affidavit sworn by Edith Achieng (Prosecution Counsel) on 08th July 2026, characterizing the instant Application as misconceived, lacking merit, and an abuse of the court process. She further averred that there was no credible evidence demonstrating actual bias, prejudice, or any reasonable apprehension of bias on the part of the trial court. 10. The prosecution further averred that the defence’s mere dissatisfaction with the court’s procedural directions regarding the prepared plea agreement does not meet the legal threshold for recusal since this court properly exercised its mandate by ensuring compliance with the Constitution, the law, and the rights of all parties relating to the role of the complainant in the plea agreement. The prosecution added that the defence’s fear of bias was based on subjective fears and speculation, which is an insufficient ground for recusal. 11. The Defence filed written submissions which were largely a rendition of the contents of the instant Application. The defence also cited authorities on recusal and bias. It will not serve any useful purpose to reproduce those written submissions in this ruling. **ANALYSIS AND DETERMINATION** 1. This court has given due regard to the pleadings on record as well as the oral submissions made by the Accused Person and the prosecution before this court. It is this court’s considered view that the issues for determination are: 2. *Whether the instant Application is properly before this court* 3. *Whether this court should recuse itself from hearing and determining this matter for bias* 4. *Whether this court should recuse itself from hearing and determining this matter upon rejection of the Plea Agreement* ***Whether the instant Application is properly before this court*** 1. The instant Application is expressed to be brought under section 1A, 1B and 3A of the Civil Procedure Act. Clearly, the Civil Procedure Act does not govern any proceedings in criminal litigation. 2. It was incumbent on the defence counsel to cite the correct provisions of the law under which he was moving this court. The consequence of citing the wrong sections of the law when filing an application was well explained in **Meshki & another v Inspector General of Police & 5 others; Fahari Cars Limited (Interested Party) (Criminal Revision E060 of 2020) [2023] KEHC 626 (KLR)** where the court held that the citing of wrong sections of the law does not render an application fatally defective. 3. In any event, the prosecution was not prejudiced in any way whatsoever by the Defence’s action of expressing the instant Application under the wrong sections of the law. 4. The foregoing inclines this court to find that the instant Application is properly before this court despite being expressed under the wrong sections of the law. ***Whether this court should recuse itself from hearing and determining this matter for being biased*** 1. The defence seeks this court’s recusal from hearing and determining this case on the ground that this court has exhibited bias and favoritism towards the complainant by giving the complainant veto powers to accept or not to accept the Plea Bargain Agreement contrary to the law. 2. The prosecution took a divergent position on this issue by averring that She further averred that there was no credible evidence demonstrating actual bias, prejudice or any reasonable apprehension of bias on the part of the trial court since this court’s procedural directions regarding the prepared plea agreement complied with the constitution, the law, and the rights of all parties relating to the role of the complainant in plea agreements. The prosecution described the defence’s fears of bias as subjective and speculative. 3. The principles governing recusal are set out in various case law and legal instruments set out below. 4. 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…’’* 1. 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.”* 1. The test above was also adopted by the Court of Appeal in **Kaplana Rawal Vs. Judicial Service Commission and 2 Others [2016] eKLR,** where the court cited with approval the holding in **Attorney General of Kenya Vs. Professor Anyang’ Nyong’o & to 10 Others EACJ Application No. 5 of 2007** thus: *“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?* 1. Further, this court, in determining the Accused Person’s recusal application, shall be guided by regulation 21 of the **Judicial Service (Code of Conduct and Ethics) Regulations** which requires a judge/magistrate to recuse himself or herself in any of the proceedings in which his or her impartiality might reasonably be questioned where the judge/magistrate has actual bias or prejudice concerning a party. 2. Regulation 9 (1) of the said Code of Conduct on its part provides that: *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.* 1. On the other hand, there are abundant decisions that reinforce the point that judges/magistrates have a duty to sit and should not recuse themselves on flimsy and baseless allegations. To this end, this court draws inspiration from **Locabail (UK) Ltd Vs. Bayfield Properties [2002] QB 451 ,** where it was stated: *“A Judge [would] be wrong to yield to a tenuous or frivolous objection as he would to ignore an Objection of substance.”* 1. Having fully appreciated the principles running through the authorities above, this court will adopt the objective test of reasonable apprehension of bias in determining whether the defence has met the threshold for this court’s recusal for being biased. 2. A perusal of the court record will reveal that the defence and Mr. Maroro, the prosecution counsel involved in the plea bargaining negotiations, proceeded on the premise that the complainant was a silent bystander in the plea-bargaining negotiations. This is evident from the proceedings of 11th February 2026 when Mr. Malalah for the Accused Person and Mr. Maroro moved this court to adopt the Plea Bargain Agreement, only for the complainant to inform the court that the defence and the prosecution had not involved him, his counsel and the investigating officer in the plea bargain negotiations. 3. In response to the complainant’s complaints, Mr. Maroro informed this court that he would explain the contents of the Plea Bargain Agreement to the complainant after its adoption, whereas Mr. Malalah submitted that the complainant’s views could only be considered during mitigation. 4. Plea Bargaining Agreements are governed by section 137A – 1370 of the Criminal Procedure Code (“the Code”), the Criminal Procedure (Plea Bargain) Rules (“the Rules”), as well as section 9 and 20 of the Victim Protection Act (“the Act”). 5. Section 137D of the Code and Rule 7 of the Rules place a mandatory obligation upon the prosecution to consult with the investigating officer before entering into a plea agreement, and to obtain the complainant’s views where possible on the contents of the plea agreement. 6. Section 9 (1)(c) of the Act gives the complainant the right to give their views during plea bargaining. Section 20 of the Act, on its part, grants the complainant the right to give information to the court during plea bargaining. These rights are constitutional rights recognized under Article 50(9) of the Constitution. 7. It is evident from the provisions of the law above that in insisting that the complainant be involved in the plea bargain negotiations, this court was, as correctly averred in the prosecution’s replying affidavit on record, discharging its mandate in ensuring compliance with the Constitution and the law on involvement of the complainant in plea bargain negotiations. 8. Despite this court granting Mr. Malalah and Mr. Maroro almost ten chances to involve the complainant in the plea bargain negotiations, the complainant's complaints that he was not being involved in the plea bargain negotiations persisted, prompting this court to reject the plea bargain agreement on 06th May 2026, thus prompting the filing of the instant Application. 9. The foregoing shows that Mr. Malalah and Mr. Maroro, who were involved in the plea bargain negotiations, proceeded under a misapprehension of the law on the role of the complainant in plea bargaining. 10. A court cannot be termed as biased simply because it has insisted on compliance with the law. If that were the case, this would open the floodgates to recusal applications by litigants who are unhappy with a court’s fidelity to the law. Courts do not make orders to make litigants happy or at the whims of the parties before it. Courts make orders in furtherance of justice. 11. An application for recusal should be reserved for clear-cut cases. If this court were to oblige the defence’s recusal application based on this court’s alleged bias and favoritism towards the complainant, then this court would no doubt recuse itself from all proceedings where this court has made lawful orders to the displeasure of any party before it. 12. The defence bore the duty of establishing the facts upon which the inference of bias is to be drawn, that a fair-minded and informed observer will conclude that this court was biased. It was not enough for the Accused Person to make wild allegations against this court based on a misapprehension of the law, surmises and imaginations. The recusal application herein on the ground of bias or favouritism towards the complainant constitutes sideshows that this court must ignore and focus on its core mandate of administering justice expeditiously and without any fear or favour or bias or ill will. 13. A reasonable and fair-minded man walking along the streets of Bungoma and knowing all the relevant facts of this case would not have a reasonable suspicion that a fair trial for the Accused Person is not possible before this court just because this court has insisted on fidelity to the law in the plea bargain negotiations. 14. The situation we are in was caused by the defence and Mr. Maroro's insistence that the complainant cannot be involved in the plea bargain negotiations. To borrow the words in **Wambua Maithya v Pharmacy and Poison Board & 3 Others [2019] eKLR**:- *“.................. In my view a party cannot be permitted to create an awkward situation and then use the same as a ground for seeking recusal of a judicial officer. It is akin to a party applying for a transfer of a case and based on the said grounds applying that the matter be transferred from the trial court on the ground that now that he has sought the transfer of the case, he is unlikely to get a fair trial.”* 1. This court also associates itself with the holding in **John Karani Mwenda v Japhet Bundi Chabari [2017] eKLR** where the court held:- *“44. As already pointed out, our system of Justice is adversarial. Everyday litigants win and lose cases. If every loser accuses the concerned Judge of bias, and we embraced the propositions postulated by the petitioner, there would be need to have an infinite number of Judges ready to be called upon to hear matters raised by the losing parties in future disputes. This would be a veritably ridiculous scenario bordering on the phasmagoric. It would promote untrammeled Judge shopping and unbridled forum shopping.* *45. If the petitioner’s propositions are embraced by this court, every Judge in this planet who applies his mind to the facts and the law apposite to the particular case and decides it in favour of one of the parties will be in conflict in as far as the losing party is concerned…* *47. By embracing the propositions postulated by the petitioner, this court would be asserting that every loser in a dispute is a victim and every winner is a villain. The villainy of the winner would finally be foisted on the Judge who arbitrated over the dispute. This would amount to embracing veritable escapism in the delivery of justice. Such a scenario deserves deprecation.”(Emphasis added)* 1. Given the foregoing, this court finds that the defence has not shown any scintilla of evidence of perceived bias or reasonable apprehension of bias on the part of this court in this matter by this court insisting the complainant’s involvement in the plea bargain negotiations as demanded by the law. 2. The upshot of the foregoing is that the defence has failed to meet the objective test of reasonable bias they were legally obligated to meet before this court could accede to the defence’s prayer for this court’s recusal on account of alleged bias and favoritism to the complainant. 3. Acceding to the instant baseless recusal application will certainly be encouraging forum shopping by a litigant who is unhappy with a lawful order issued by a court, and will be tantamount to encouraging intimidation of judicial officers in instances where they exercise their discretion judiciously. This court cannot countenance such conduct. ***Whether this court should recuse itself from hearing and determining this matter upon rejection of the Plea Agreement*** 1. The defence also grounded their recusal application on the ground that in view of the court’s knowledge of the Plea Bargain Agreement between the Accused Person and the DPP, which is an admission of guilt by the Accused Person, it would be nearly impossible for this court to proceed with hearing this case to judgment without bias or predisposition. 2. Section 137J (1)(c) of the Code provides as follows: *(1) Where the court rejects a plea agreement—* *(a) it shall record the reasons for such rejection and inform the parties accordingly;* *(b) the plea agreement shall become null and void and no party shall be bound by its terms;* *(c) the proceedings giving rise to the plea agreement shall be inadmissible in a subsequent trial* *or any future trial relating to the same facts;* 1. Section 137M of the Code provides as follows on the material or information gathered during the plea bargain negotiations: *Notwithstanding anything contained in any written law for the time being in force, the statements or facts* *stated by an accused person in a plea agreement shall not be used for any other purpose except for the* *purpose of this Part.* 1. Rule 3 of the Rules, on the other hand, provides thus: *The information obtained from an accused person during the course of plea negotiations shall not be used* *against him or her during the prosecution of the case if the plea negotiations are ultimately unsuccessful:* *Provided that where the failure of plea negotiations is on account of an act or omission by the accused* *person, the information obtained during plea negotiations may be used during the prosecution of the* *accused person.* 1. It is explicit from the provisions of the law reproduced above that the contents in a plea agreement and the information obtained from the Accused Person during plea negotiations are meant for the plea agreement process only nothing more, and that where a plea agreement is rejected like in the instant case, the rejected plea agreement does not become part of the record that the court has to consider during the hearing and determination of the matter. 2. Given the express provisions of the law above, there is no way that this court can use information in its knowledge arising from the plea negotiations to hear and determine this matter. The defence needs to be reminded that this court decides cases based on the evidence on record, not extraneous factors including a rejected plea agreement. This court remains faithful to its oath of office to determine matters without bias or ill-will and within the parameters of the law. Therefore, the defence’s position that this court is likely not to guarantee the Accused Person a fair trial given its knowledge of the plea bargain negotiations is based on speculations and an unfounded apprehension of bias. Such unfounded apprehension of bias cannot be a ground for recusal. 3. Be that as it may, section 137J(2) of the Code provides as follows: *Where a plea agreement has been rejected by the court and a plea of not guilty consequently* *entered, the prosecution may, upon being informed of the fact under subsection (1)(a), proceed to* *try the matter afresh before another court.* *Provided that the accused person may waive his right to have the trial proceed before another court.* 1. This court’s reading of section 137J(2) of the Criminal Procedure Code is that upon rejection of a plea agreement, either the prosecution or the Accused Person may seek to have the case tried afresh before another court for purposes of hearing and determination only, since the rejection of a plea agreement by the initial trial court bars further plea negotiations based on the same facts. 2. The prosecution in this case is desirous of proceeding with the hearing and determination of this case before this court. However, it is evident from the instant Application that the Accused Person has not waived his right to have his trial proceed before another court upon the rejection of the plea bargain agreement. 3. Given the foregoing, this court recuses itself from hearing and determining this matter per section 137J(2) of the Code. **DETERMINATION** 1. The upshot of the foregoing is that the Notice of Motion dated 20th June 2026 partially succeeds in the following terms: 2. *This Court recuses itself from hearing and determining this matter per section 137J(2) of the Criminal Procedure Code* 3. *This file be placed before the Chief Magistrate for re-allocation and further directions forthwith* 4. *Each party to bear their own costs for the Application* **Ruling read, signed, and delivered in open Court at Bungoma, this 12th day of August 2026** **T. O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Mulwa for ODPP Accused Person C/A: Mr. Rioba