[2017] KEHC 1695 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

HIGH COURT CRIMINAL CASE NO. 89 OF 2016

REPUBLIC…………………………………………… PROSECUTOR

VERSUS

JANE MUTHONI MUCHERU……....…………………1STACCUSED

ISAACK NG’ANG’A WAMBUI ALIAS GIKUYU…......2NDACCUSED

RULING

1. The two Accused Persons, Jane Muthoni Mucheru (1st Accused Person”) and Isaack Ng’ang’a Wambui Alias Gikuyu (2nd Accused Person”), are jointly charged with murder contrary to section 203 as read together with section 204 of the Penal Code. They are accused, together with at least one other of unlawfully killing Solomon Mbuthi Mwangi (Deceased). The 1st Accused Person was first arraigned at the Murang’a High Court on 22/11/2016 but did not take plea until 29/11/2016 as a mental assessment was yet to be done. She pleaded not guilty to the charges.

2. The 1st Accused was initially presented to the High Court in Murang’a. Immediately after plea was taken on 29/11/2016, the State applied for the case to be transferred to this Court and the case ended up before me where I held a fully-fledged bail hearing on 06/12/2016 and 13/12/2016.

3. I gave a bail ruling on 20/12/2016 in which I denied bail on account of the need to protect the integrity of the trial process by protecting vulnerable witnesses from the possible influence of the 1st Accused Person. I directed that the bail application be renewed once the vulnerable witnesses had testified.

4. Meanwhile, the 2nd Accused Person was added to the Information on 28/12/2016. The Court directed that the bail ruling delivered on 20/12/2016 would control and that bail would be considered for the 2nd Accused Person at the same time the Court was to re-consider bail for the 1st Accused Person after the vulnerable witnesses had testified.

5. Consequently, I considered a new bail application for the 1st Accused Person as I considered bail application for the 2nd Accused for the first time. I held another bail hearing on 26/07/2017. I delivered a ruling on 06/09/2017 denying bail (“Bail Ruling”). I have excerpted the operative ratio of the Bail Ruling later on in this ruling.

6. The two Accused Persons responded to that Bail Ruling with the instant Application. The Application is dated 09/10/2017 and was filed in Court on 13/10/2017. The Counsel for the Accused Persons, Mr. Njanja admits that the Bail Ruling was the trigger for the Application. I should note that Mr. Kihanga was the Court-appointed lawyer assigned to the 2nd Accused Person since the 2nd Accused Person took plea. However, the 2nd Accused Person informed the Court when this Application was filed that he had withdrawn instructions from Mr. Kihanga and that he wished Mr. Njanja to represent him henceforth as a privately-procured attorney. Mr. Njanja also filed a formal Notice of Change of advocates. Consequently, the Court discharged Mr. Kihanga from the case.

7. The Application has two prayers thus:

a.THATthis Honourable Court do recuse itself/disqualify itself from hearing this matter for reasons that the Honourable Court has heard and determined a prior case namely Criminal Case No. 95 of 2016 (High Court Kiambu R Vs Joseph Kariuki Njuguna) based on the same facts and mentioning the Accused Persons in this case, and the Honourable Court made findings in that prior case that the accused in that case was guilty of manslaughter and that he executed a crime of murder in cohort with Accused 1 and Accused 2 in this case. Accordingly, this Honourable Court cannot afford an impartial and a fair hearing to the Accused in this case as envisaged under the rules of natural justice an as per the Constitution.

b.THATconsequently, the Honourable Court refers this case for trial at Nairobi High Court.

8. The Application is supported by the Affidavits of each of the Accused Persons. On its face, it lists eleven (11) grounds upon which the Application is predicated. It is worthwhile to reproduce them here because they give the gravamen of the Accused Persons’ arguments. They are as under:

1. THATthis Honourable Court was the trial Court for Criminal Case No. 95 of 2016 in which the Honourable Court convicted the accused therein Joseph Kariuki Njuguna Alias Karis for a charge of murder reduced to manslaughter (hereinafter referred to as “the prior case”) and which charge was based on a set of facts largely dwelling on the Accused 1 and Accused 2 in the case herein.

2. THATin the said prior suit the Honourable Court made what it referred to as considered findings that he Accused 1 and 2 herein participated in the alleged murder of the deceased in the prior case who is the same deceased person in the case herein.

3. THATby making such findings this Hon. Court took a position in law as to the culpability of 1 and 2 in this case.

4. THATthe Accused 1 and 2 herein believed that despite the blatant allegations made against them in the said prior case, they will be able to prove their innocence in their own trial and demonstrate that the accused in the prior case was a witness of hire, hired by the state to fabricate a case against them for his own personal gains.

5. THAThowever, with the ruling of a bail application made by the Honourable Court on the 6thSeptember 2016, against the Accused herein, the tone and the wording of the said ruling clearly and unequivocally shows prejudice, impartially and on the part of the trial Court as against the Accused herein.

6. THATclearly having heard the prior case, the Honourable Court is unable to independently, impartially render a fair hearing to the accused herein without constantly putting itself to its findings in the prior case.

7. THATno matter how strong and good a defence that the accused may have, the same would be met by a partial and a made-up mind on the part of the trial Court thus making this trial a sham in the eyes of the law.

8. THATit would be imperative for this case to be heard by an impartial mind that has not dealt with the same facts who can give the Accused person a fair hearing as envisaged under Article 50 (1) of the Constitution.

9. THATjustice must not only be done but must be seen to done.

10. THATproceeding with the trial herein against the accused will be a breach of all the rules of natural justice as the accused would have long been convicted by the trial Court even before the trial itself commenced, and before they are asked to give any defence.

11. THATthe circumstances in this case calls for recusal of the trial Judge and transfer of the case for trialat the Nairobi High Court where any other judge can hear and determine the matter.

9. The Application is opposed. The State filed a Replying Affidavit by Detective Oliver Nabonwe in opposition. The Victim’s Counsel, Mr. Mathenge, filed Grounds of Opposition to the Application. All the three parties filed lists of authorities.

10. All parties appeared before me on 22/11/2017 for oral arguments on the Application.

11. Mr. Njanja submitted that the Application is based under Article 22, 23, 50 and 159 of the Constitution. He argued that the Court had already heard and finalizedKiambu Criminal Case No. 95: Republic v Joseph Kariuki Njugunaand made far reaching findings of facts among other things that the Accused in that case was guilty of “murder” and described the actions of the Accused as “murder most foul.” However, Mr. Njanja argued that on a plea bargain the Court agreed to commute the murder to manslaughter.

12. Mr. Njanja was of the opinion that the Court found that the person who committed that murder was done with the active assistance of the 1st and 2nd Accused Persons and that with those findings of fact and the wording used, the Court had no doubt in coming to that conclusion. With those kinds of findings, it is the view of the Accused Persons that the Court will not be able to accord a fair and impartial trial to them since, in their view, the Court has already found them guilty. According to Mr. Njanja, this Court has had an opportunity to make a determination in the prior case and it made findings to the effect that the Deceased was murdered and that he was murdered by the Accused Persons.

13. In that regard, the Accused Persons are of the opinion that if this Court proceeds to hear and determine this case to completion, it will be in violation of Article 50 of the Constitution which guarantees all Accused Persons that trial should be before an impartial Court that is capable of hearing the case in a fair manner and free from any interference including from anything it has heard elsewhere.

14. Mr. Njanja argued that it would not be humanly possible for the Court to divorce itself from the findings it made in the prior case and render a fair hearing hence grossly violating the Accused Persons’ right to be presumed innocent.

15. In particular, Mr. Njanja referred to paragraph 11 of the Sentence Ruling in the Joseph Kariuki Njuguna Case. He argued that the fact that the Court called it “murder most foul” on record is a clear indication that the prejudice is real. Mr. Njanja also argued that in the Bail Ruling, the Court found that the Prosecution had made a strong case and that one of the factors which was operating on the mind of the Court in order for it to rule so was the conviction in the Joseph Kariuki Njuguna Case. Mr. Njanja argued that the Sentence Ruling in the Joseph Kariuki Njuguna Case and the Bail Ruling dated 06/09/2017 in this case are the two pieces of evidence that show that this Court has real prejudice against the Accused Persons.

16. Mr. Njanja quoted at length the Supreme Court decision in Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others [2013] eKLRwhere the test is laid out for recusal by judges. He also quoted at length the separate concurring opinion by Ibrahim Mohammed, SCJ in that case. Mr. Njanja’s main point was that the test to be used was an objective test – the reasonable man’s test – and, he insisted that the test is satisfied here. Mr. Njanja also cited other cases which utilized this test – including persuasive authorities from other jurisdictions. They include: BarnabaKipsongok Tenai v Republic [2014] eKLR; R v Bow Street Metropolitan Stipendiary Magistrte Ex Parte Pinochet Ugarte (No. 1)(2000) 1 AC 6; Perry v Swarzenegger 671 F. 3d 1052; South African Defence Forces & Others v Monnig & Others (1992) (3) SA 482; R v Gough (1993) 2 All ER 724; Metropolitan Properties Co. (FGC) Ltd v Lannon (1969) 1. I have read all these cases even though I do not cite all of them specifically in this ruling.

17. Ms. Mwaniki, for the State, in opposition to the Application submitted that for a judicial officer to recuse herself, an Accused Person must give specific and credible grounds; the Court cannot recuse itself based on unsubstantiated suspicions. Ms. Mwaniki argued that it is for the Accused Person to demonstrate reasonable grounds for apprehension of bias which, in her view, the Accused Person have not done in this case.

18. Ms. Mwaniki argued that the Replying Affidavit by Detective Nambone demonstrates why the Application lacks merit. At all material times, she argued, the 2 Accused Persons were represented by more than one legal counsel. In the Joseph Kariuki Njuguna Case, Ms. Mwaniki argued, the Accused Person there entered into a plea bargaining Agreement between the State and the Accused. It was entered into on 31/01/2017 where the state agreed to reduce the murder charges to manslaughter and therefore substituted the charge to manslaughter. The Accused was pleading guilty to manslaughter. Therefore, Ms. Mwaniki argued, there was no finding by the Court about murder as the Counsel for the Accused Persons suggested.

19. Ms. Mwaniki pointed out that the date of the plea agreement – 31/01/17 - is important because the Accused Persons had already been charged with the present case and were aware of the plea agreement. The 1st Accused was arraigned on 01/12/2016; a consolidated plea with the 2nd Accused was filed on 28/12/2016; and both Accused were ably represented. Ms. Mwaniki pointed out that an amended Information was filed on 02/03/17. By that time, she submitted, the Accused Persons were aware of the Plea Agreement when they submitted themselves to this court and pleaded not guilty. On that day, the prosecution called 3 witnesses and the Accused Persons were ably represented by counsel but they did not object to this court hearing the matter.

20. The case came up again on 04/05/17 when the 4th witness testified. This was Joseph Kariuki Njuguna – the person with respect to whom the Sentence Ruling in the Joseph Kariuki Njuguna Caseis. Again, Ms. Mwaniki pointed out that the two Accused Persons were ably represented by Counsel and were aware of the plea agreement and the Sentence Ruling but they said nothing about their objections to the Court hearing the matter.

21. Ms. Mwaniki argued that the Prosecution has already called 16 witnesses and the Accused Persons never raised the issue of bias. They only raised the issue for the first time, she said, when their application for bail was denied. In other words, this is their way of appealing the bail decision instead of going to the Court of Appeal. The refusal to grant bail, Ms. Mwaniki argued, does not show bias on the part of the judge at all.

22. Ms. Mwaniki further submitted that the Prosecution is aware that it cannot secure a conviction based on the evidence of Joseph Kariuki Njuguna alone.

23. Finally, Ms. Mwaniki urged the Court to consider that beyond the Accused Persons, there is the victim’s family who also have rights. She is persuaded that the application by the Accused Persons is a delaying tactic and that allowing it will only prejudice the rights of the victim’s family which is entitled to an expeditious trial. The fact that the Accused Persons did not bring the present Application until after 16 witnesses had testified and with only four witnesses left to testify, she argued, showed that it was brought in bad faith and with the sole intention of delaying the hearing.

24. In addition to the Jasbir Rai Case, Ms. Mwaniki relied on:Justice Philliph K. Tunoi & another vs – The Judicial Service Commission & Another CA Civil Application No. 6 of 2016 (Nairobi); Kevin Shitambasi Amayi vs – Republic HC. Criminal Application No. 55 of 2016 (Kakamega); and Ken Muriuki vs – Republic HC. Criminal Application No. 7 of 2015 (Meru).

25. In particular, Ms. Mwaniki sought to distinguish the Tenai Case: In that case, she said, there were personal differences between the judicial officer and the Defence Counsel. That is not the case here, she added.

26. Mr. Mathenge, counsel for the Victim’s family, similarly opposed the Application. He pointed out that the Application is primarily based on the Sentence Ruling in the Joseph Kariuki Njuguna Case. However, Mr. Mathenge argued that the premise of the Application is faulty because it fails to recognize that the Court did not make any findings on the fact of the case in that Sentence Ruling. The Court merely summarized the facts found in the Plea Agreement. Mr. Mathenge pointed out the Court to paragraph 3 of the Sentence Ruling which signals that the Court was going to summarize the lengthy facts as agreed by the Prosecution and the Defence

27. Mr. Mathenge asserted that in Section 137 of CPC, the law presumes and stops reliance of facts or statements made by an Accused person in a Plea Agreement. Mr. Mathenge argued that it has not been demonstrated by the Accused persons that there has been any reliance on the statements made by the Accused in Criminal Case No. 95 of 2016 in this trial.

28. Like Ms. Mwaniki, Mr. Mathenge took note of the timing of the Application and argued that the fact that the Application was being filed after 16 witnesses had testified and only after the ruling denying bail, it is an indication that the Application is not brought in good faith. Additionally, Mr. Mathenge argued that the Accused Persons had lost their right to make the Application by sleeping on their rights and waiting too long to make it since an allegation of bias ought to be made at the earliest instance. In this regard, Mr. Mathenge relied on Attorney General v Anyang’ Nyong’o &10 others (2007) IEA 12where the Court at stated that applications seeking the disqualification of adjudicators should be brought at the earliest instance.

29. Mr. Mathenge relied on, and cited the following cases at length: Galaxy Paint Company Ltd Vs Falcon GuardsLimited (1999) eKLR; R Vs Raphael Muoki Kalungu (2015) eKLR; Kinyatti v (1984) Court of Appeal at Nairobi; Shilenje v R (1980) KLR 132; Charles Koigi Wamwere & 2 others v R (1992) eKLR; R v David Makali & 2 others (1994) eKLR; R v Independent Electoral and Boundaries Commission & 3 others Exparte WavinyaNdeti (2017) eKLR; Miller v Miller (1988) eKLR; Attorney General v Anyang’ Nyong’o & 10 others (2007) IEA 12; Moijo Matavia OleKeiwua v Chief Justice of Kenya & 6 others (2006) eKLR and Locabail (UK) Ltd v Bayfield Properties Ltd and Another (2000) Q B 451. I have also read all these cases even though I do not cite all of them in this ruling.

30. In rebuttal, Mr. Njanja argued that their Application was raised at the earliest instance because it is only now that the Accused Persons have become convinced that the Court is biased; that the refusal of bail on 06/09/2017 was one of the last pieces of evidence that persuaded them that the Court was biased. In any event, he resisted the idea that an Application for recusal for bias must be brought at the beginning of trial.

31. On the fact that 16 witnesses have testified and only four technical witnesses remain, Mr. Njanja argued that administrative convenience cannot be a basis for refusing to allow an application for recusal where bias has been shown.

32. The singular question before me is whether I should recuse myself from hearing this case at this point on account of what the Accused Persons are persuaded to be reasonable suspicion of bias on my part. As evidence of the reasonableness of the perceived bias, the Accused Persons pointed to the Sentence Ruling delivered in the Joseph Kariuki Njuguna Caseand the Bail Ruling delivered in this case on 06/09/2017.

33. The parties do not disagree on the proper test that should be applied in such a case. They only disagreed on what the outcome should be if that test is applied to this case.

34. In Jasbir Singh Rai Case, the Supreme Court of Kenya gave the policy rationale and objective of the rule of recusal in these words:

7…….Perception of fairness, of conviction, of moralauthority to hear the matter, is the proper test of whether or not the non-participation of the judicial officer is called for. The object in view, in the recusal of a judicial officer, is that justice as between the parties be uncompromised; that the due process of law be realized, and be seen to have had its role; that the profile of the rule of law in the matter in question, be seen to have remained uncompromised.

35. The Supreme Court, then, after a comparative detour in which it cites with approval, primarily, In R. v. Bow StreetMetropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No.1) [2000] 1 A.C. 6; Perry v. Schwarzenegger, 671 F. 3d 1052; and South African Defence Force and Others v. Monnig and Others (1992) (3) SA 482 (A)stated the test to be applied when a party requests a Judicial Officer to recuse themselves in the following terms:

[T]he test for establishing a Judge’s impartiality is the perception of a reasonable person, this being a“well-informed, thoughtful observer who understands all the facts”, and who has “examined the record and the law”; and thus, “unsubstantiated suspicion of personal bias or prejudice” will not suffice.

36. However, it was truly left to the perceptive separate concurring opinion by Ibrahim Mohammed, SCJ to succinctly state the applicable rule when a party pleads apprehension of bias on the part of the Judicial Officer. The Justice states the rule thus:

Lord Justice Edmund Davis in MetropolitanProperties Co. (FGC) Ltd. Vs Lannon [1969] 1 QB577stated that disqualification was imperative even in the absence of a real likelihood of bias if a reasonable man would reasonably suspect bias. Acker LJ in R vs Liverpool City Justices, ex parte Topping [1983] 1 WLR 119elaborated on the test applicable. 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.

In an article by a writer, Holly Stout (11 KBW) on the subject of “Bias’, the author states:

“… The test to be applied by a judge who recognizes a possible apparent bias is thus a “double real possibility” test; the question he/she must ask him/herself is whether or not there is a real possibility that fair-minded and informed observer might think that there was a real possibility of bias.” (referred to Porter –V- Magill (2002) 2 AC 357).

37. This progressive re-statement of the test for recusal for bias by Mohammed Ibrahim, SCJ is, in my view, the same one comprehended in the Commentaries on the Bangalore Principles of Judicial Conduct, which, at paragraph 81 postulates that:

The generally accepted criterion fordisqualification is the reasonable apprehension of bias. Different formulas have been applied to determine whether there is an apprehension of bias or prejudgment. These have ranged from “a high probability” of bias to “a real likelihood”, “a substantial possibility”, and “a reasonable suspicion” of bias. The apprehension of bias must be a reasonable one, held by reasonable, fair minded and informed persons, who apply themselves to the question and obtain the required information. The test is “what would such a person, viewing the matter realistically and practically – and having thought thematter through – conclude? Would such person think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly.”

38. In the review of all the case law cited to me, the seemingly uncontroversial test stated by Mohammed Ibrahim, SCJ in the Rai Jasbir Singh Case is the same one that I find laid down in practical terms in the South African Case in President of the Republic of South Africa andOthers v South African Rugby Football Union and Others (SARFU)in the following terms:

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 predispositions. 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 afundamental prerequisite for a fair trial and a judicial officer 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.” (footnotes omitted)

39. In the same pragmatic vein, In this case the South African Constitutional Court usefully held that there was a presumption in the law against partiality of judicial officers assigned to cases. The Court reasoned thus:

This is based on the recognition that legal training and experience prepare Judges for the often difficult task of fairly determining where the truth may lie in a welter of contradictory evidence.

40. The effect of this presumption is that an applicant who alleges that a judge is biased or reasonably apprehended to be biased must establish with specificity the grounds upon which they hold their belief. In a later case, the South African Constitutional Court in South African CommercialCatering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing)2000 (3)SA 705 (CC); 2000 (8) BCLR 886 (CC)while reiterating that there a presumption in favour of the impartiality of the Court, importantly added that it is a presumption which is not easily dislodged. The Court held that cogent and convincing evidence is necessary in order to do dislodge that presumption. The Court, in restating the “double real possibility test” quoted by Ibrahim SCJ in the Jasbir SinghRai Case, referred to the two contexts in which reasonableness fits into the enquiry. It emphasised that not only must the evaluation be made from the perspective of a reasonable person, but the perception of bias must itself also be reasonable.

41. I believe that this exposition clearly lays down the law and the test to be applied. In the Anyang Nyon'go Case, the East African Court of Justice stated at paragraphs 34 and 35 as follows:

There are two categories of scenarios. In the first, where it is established that the judge is a party to the cause or has relevant interest in its subject matter and outcome, the judge is automatically disqualified from hearing the cause...

In the second category, where the judge is not a party and does not have a relevant interest in the subject matter or outcome of the suit, a judge is only disqualified if there is likelihood or apprehension of bias arising from such circumstances or relationship with one party or preconceived views on the subject matter in dispute. The disqualification is not presumed like in the case of automatic disqualification. The applicant must establish that bias is not a mere figment of his imagination.

42. In the present case, the Accused Persons accept that I am not a party to the cause and that I have no relevant interest in the subject matter and outcome of the case. Their sole argument is that I have preconceived notions of the case based on the fact that I handled the Joseph Kariuki Njuguna Caseand, in the course of my Sentence Ruling made remarks which, to their mind, is a tale-tell sign that I have already made up my mind that the two Accused Persons in this case are guilty in the present case. The Accused Persons further argue that the Bail Ruling I delivered on 06/09/2017 provides further proof of this predisposition.

43. So let us examine the facts to see if there is adequate proof to dislodge the presumption against partiality and the apprehension of bias under the “double real likelihood” Test postulated by our Supreme Court and the Bangalore Principles on Judicial Conduct.

44. The guilt phase of the Joseph Kariuki Njuguna Case was disposed of through a plea agreement filed in Court on 31/01/2017. It was accepted by the Court after the Court confirmed that it was voluntarily and knowingly entered into by the Accused Person in that case. The Court, then, adopted the agreed facts (“Agreed Facts”) as stated in the Plea Agreement and considered those Agreed Facts as among the factors in determining the appropriate sentence for the Accused Person. It is in the course of apprehending those agreed facts that I uttered the paragraph which the Accused Persons find as evidence that I have already concluded that they are guilty of the offence they are charged with in the present case.

45. So what are the contents of that all-important paragraph?

46. In the Sentence Ruling, I introduced the agreed facts of the case in the following consciously prefacatory words in paragraph 3 of the Sentence Ruling: “The agreed facts as stated in the Plea agreement of the case are quite lengthy. I will summarize them for purposes of this ruling.”

47. In the next seven paragraphs (that is paragraphs 4-10) of the Sentence Ruling, I summarized the Agreed Facts. Then, in paragraph 11 of the Sentence Ruling, I paraphrased the Agreed Facts and characterized them in a fashion amenable to channel them for the sentencing function thus:

Thus did the popular Principal of Kiiru Boys High School meet his traumatic and heart-rending death. Thus did the loved father and family man breathe his last: hanging by a tree; a smelly gunny bag over his head; stripped of his shoes; hands tied behind his back; involuntarily drugged and incapable of fighting for his life. By all accounts it was a murder most foul.

48. It is in this paragraph that the Accused Persons find evidence that I am deterministically predisposed to finding them guilty in the present case. They draw conclusions from this paragraph that I have already concluded that not only was the Deceased murdered, but that he was murdered by the two Accused Persons charged in the present case.

49. I have attempted to exercise the most distanced and intellectually stoic form of reflection and interpretation – both textual and structural – to the impugned paragraph. I am unable to find any evidence whatsoever of the predisposition that the Accused Persons now find of the Court’s determination to find them guilty in the present case. It is important to recall, as I did above, that the Court made no factual findings in the Joseph Kariuki Njuguna Case. Instead, the parties filed Agreed Facts which the Court relied on in sentencing the Accused Person. The claim, then, that in the case the Court made judicial findings that the two Accused Persons herein murdered the Deceased is simply, with utmost respect, untrue.

50. As regards the Bail Ruling, it is worthwhile to cite in extensowhat the Court said about the alleged “strong prosecution evidence” upon which the Court allegedly relied in refusing to grant bail. In material part, this is what the Bail Ruling said:

In the present case, after hearing ten witnesses, I am prepared to say that the prosecution case is not tenuous. I do not wish to say more for the fear of embarrassing the remaining trial and pre-judging issues. This in itself would not be sufficient reason to deny bail as I stated above. However, here, it is coupled with the unresolved question of Mr. NelsonNjiru who is a fugitive of justice in this case. Both direct evidence received in Court as well as the statement by the 1stAccused Person establish a connection between Mr. Njiru and both Accused Persons. The almost literal vanishing of Mr. Njiru into thin air should give us pause about the real possibility that the two Accused Persons could follow suit hence subverting justice in this case. Despite Mr. Njanja’s valiant efforts to disassociate the 1stAccused with Mr. Njiru, I believe that her own statement speaks for itself: “I requested a friend, a Mr. Njiru who is also a teacher at Voi University if he could get me a friend who could assist me with a car….” Those are the 1stAccused Person’s own words. It blitzes Mr. Njanja’s denials from the bar.

It is a rare and exceptional case when the Court will deny bail to an Accused Person. The circumstances of this case makes this one of those rare and exceptional cases. To mitigate the effect of this decision and balance the rights of the Accused Persons, the Court shall prioritize the hearing of this case. It has already heard the case on two consecutive back-to-back days. Ten out of twenty possible witnesses have been heard. The Court will now set aside, subject to the availability of defence counsels, time to conclude the prosecution case within the next three weeks.

51. As is readily obvious in the quoted paragraphs, I did not actually make a finding that the Prosecution case was strong and use that as a ground to deny bail. Instead, I held that the Prosecution case was “not tenuous” and that that fact coupled with the unresolved question of the status of Mr. Njiru, whom I found on a balance of probabilities, as permitted at the bail stage, had association with the two Accused Persons, combined together to constitute a compelling reason to deny bail to the Accused Person. In these paragraphs, I am careful enough not to prejudge the evidence, and I explicitly state so in the Bail Ruling. Nowhere in the Bail Ruling do I state or even imply that my finding that the evidence is “not tenuous” is based on the knowledge

I had obtained from the Joseph Kariuki Njuguna Case. Indeed, I made it explicit in the Bail Ruling that I had come to that conclusion after hearing ten witnesses. The words I used were: In the present case, after hearing ten witnesses, I am prepared to say that the prosecution case is not tenuous

52. In the circumstances, I find no evidence for the Accused Persons’ apprehensions that a reasonable observer, viewing the matter realistically and practically, would (or might) apprehend a lack of impartiality on my part. I say so conscientiously conscious of the following four things.

53. First, I realize that the need for an objective test which I have applied here is because of the difficulty in practicing complete self-awareness in matters where one’s impartiality is questioned even when actuated by best of intentions. Hence, the US Supreme Court recently, in Williams v.Pennsylvania, 579 U.S. ___ (2016),explained why the proper test is objective in the following words:

Bias is easy to attribute to others and difficult to discern in oneself. To establish an enforceable and work-able framework, the Court’s precedents apply an objective standard that, in the usual case, avoids having to determine whether actual bias is present. The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, “the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’

54. Second, although it seems that the easier option is for a Judicial Officer whose impartiality is challenged to easily acquiesce to disqualification in the name of ensuring that the litigant challenging his impartiality “sees” that justice is done or so that there is an “appearance of justice”, in fact, needlessly acquiescing to applications for disqualification has serious costs and consequences for the entire system of administration of justice.

55. In the S.A Rugby Football Union Case the South African Constitutional Court stated these costs in the following words:

While litigants have the right to apply for the recusal of judicial officers where there is a reasonable apprehension that they will not decidea case impartially, this does not give them the right to object to their cases being heard by particular judicial officers simply because they believe that such persons will be less likely to decide the case in their favour, than would other judicial officers drawn from a different segment of society. The nature of the judicial function involves the performance of difficult and at times unpleasant tasks. Judicial officers are nonetheless required to administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law. To this end they must resist all manner of pressure, regardless of where it comes from. This is the constitutional duty common to all judicial officers. If they deviate, the independence of the judiciary would be undermined, and in turn, the Constitution itself.

56. And our own Court of Appeal in Galaxy Paints Company Limited v. Falcon Guards Limited [1999] eKLR, expressed the same thought in the following words:

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

57. But it is probably the American Bar Association Model Judicial Codein the Comment to Rule 2. 7 (which has been borrowed in exact words in at least 15 US States and in similar language in at least 14 other US States) which most pithily captures this aspect of the Recusal Doctrine in the following words:

Unwarranted disqualification or recusal may bring public disfavor to the court and to the judge personally. The dignity of the court, the judge's respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge's colleagues require that a judge not use disqualification or recusal to avoid cases that present difficult, controversial, or unpopular issues.

58. Third, it is important to make it clear that administrative convenience is not one of the factors that the judge takes into consideration in deciding whether to recuse himself or not. Mr. Njanja is right that inconvenience of the judge or the Prosecution in a criminal case is small price to pay for fair trial. However, that is not the issue here at all. Indeed, a sense of self-preservation and bounded rationality would suggest that, given the very heavy workload this Court has, prudent docket management exercise would counsel that I recuse myself from a seemingly “controversial” case such as this one. However, as I have pointed out above, doing so when there are no grounds to recuse myself will have overall adverse effects to administration of justice in ways that may be difficult to compensate.

59. Lastly, both the Prosecution and the Victim’s Counsel made strong arguments that the Accused Persons are disentitled from making the Application for recusal so late in the day – after they actively participated in the hearing of sixteen witnesses in the case. I do not agree, despite the remarks made in the Anyang’ Nyong’o Case, that a party which does not bring a recusal application at the earliest possible instance loses that right. It is certainly good practice to bring such an application at the earliest possible instance; but the right to fair trial cannot dissipate merely because a party was tardy in bringing an application to enforce it.

60. Having said that, however, it is important to also state that while a right to have a judge recuse himself is not defeated merely because it was not brought at the earliest possible instance, the fact that it is brought very late in the day may be interpreted by a reasonable tribunal assessing the facts as proxy to conclude that the person making the application did not, in fact, hold the sincere belief in the partiality of the judge in question.

61. In the end, in this particular case, as analysed above, after due consideration, applying the test whether or not there is a real possibility that a fair-minded and informed observer might think that there was a real possibility of bias, I have reached the conclusion that the answer is in the negative. Similarly, I have reached the considered conclusion that there is no legitimate reason to fear that in this particular criminal case I lack impartiality and that I have a predisposition not permitted by facts and law to decide the case in a certain way which does not leave the judicial mind perfectly open to being persuaded otherwise by the law and the evidence. Consequently, the Application dated 09/10/2017 and filed in Court on 13/10/2017 is hereby dismissed.

62. Orders accordingly.

Dated and delivered at Kiambu this 7thday of December, 2017.

……………………………………

JOEL NGUGI

JUDGE