https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/604

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT BUNGOMA** **CRIMINAL CASE NO. E1724 OF 2024** **REPUBLIC…………………………………………………………………………………DPP** **VERSUS** **PATRICK WAFULA KABURU………...……..………………………..ACCUSED PERSON** **RULING** 1. This ruling determines the Accused Person’s Application dated 23rd June 2026 seeking the following orders: 2. *That the Honourable Court be pleased to make an order that Patrick Wafula Kaburu be released on personal free bond of recognizance* 3. *That this Honourable Court be pleased to make an order accordingly disqualifying itself from hearing this matter and the Hon. T. Omono be pleased to recuse himself and order that the Chief Magistrate Criminal Case E174/2024 be placed before Hon Presiding judge Bungoma High Court for further directions* 4. The instant Application was premised on the grounds on the face of it, which grounds were reiterated in the Accused Person’s Supporting Affidavit annexed to the said Application. 5. The crux of the Accused Person’s Application is that this court cannot hear and determine this matter within the parameters of justice pending the determination of a corruption complaint dated 03rd March 2026 which the Accused Person lodged with the Judicial Service Commission and the Honourable Chief Justice against this court. 6. The Accused Person also averred that the presumption of innocence militated against pre-trial detention and the right to liberty hence pre-trial detention should be a measure of last resort. 7. The prosecution opposed the instant Application through oral submissions by Mr. Maroro; prosecution counsel. Mr. Maroro submitted that the Accused Person’s recusal application had already been determined by this court; hence, the instant application ought to be dismissed. He urged this court to deliver the judgment in this matter as scheduled. He added that in the absence of a stay of proceedings order staying the proceedings herein, this matter ought to proceed to its logical conclusion. 8. In response, the Accused Person denied ever making a recusal application before the instant application 9. The Accused Person and the prosecution elected not to file written submissions. They opted to rely on their pleadings and oral submissions on record. **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 this court should recuse itself from hearing and determining this matter 3. Whether the Accused Person should be released on a personal bond of recognizance **Whether this court should recuse itself from hearing and determining this matter** 1. From the onset, it is imperative to note that, as correctly pointed out by the prosecution counsel, the Accused Person had previously made an Application for this court’s recusal on the ground that he had lodged a corruption complaint to the Judicial Service Commission against this court. 2. The record shows that the Accused Person made the said Application on 26th November 2025 when this court dismissed the same on the same date for want of merit. It is also noteworthy that the instant Application is grounded on the same grounds the Accused Person relied upon in support of the instant Application. 3. The foregoing shows that the instant Application seeking this court’s recusal is res judicata as was well explained in **Satya Bhama Gandhi v DPP & 3 others [2018] eKLR,** where the court rendered itselfthus:- *“It’s trite law that if any judicial tribunal in the exercise of its jurisdiction delivers a judgment or a ruling which is in its nature final and conclusive, the judgment or ruling is res judicata. If in any subsequent proceedings (unless they be of an appellate nature) in the same or any other judicial tribunal, any fact or right which was determined by the earlier judgment is called in question, the defence of res judicata can be raised. This means in effect that the judgment can be pleaded by way of estoppel in the subsequent case.* *12. It is trite law that a litigant will not be allowed to litigate a matter all over again once a final determination has been made.Generally, a party will be estopped from raising issues that have been finally determined in previous litigation, even if the cause…. Res Judicata is one of the factors limiting the jurisdiction of a court. This doctrine requires that there should be an end to litigation or conclusiveness of judgment where a court has decided and issued judgment then parties should not be allowed to litigate over the same issues again. This doctrine requires that one suit one decision is enough and there should not be many decisions in regard of the same suit. It is based on the need to give finality to judicial decisions…”* 1. If the Accused Person was dissatisfied with the ruling delivered by this court on 26th November 2025 dismissing his application for this court’s recusal, the avenue available to him was to lodge an appeal against the said ruling or file a revision application before the High Court. The Accused Person having waived that right, it follows that the instant Application is res judicata. To this end, this court draws inspiration from **Mbuvi Gedion Mike Sonko v Director of Public Prosecution & 4 others [2021] KEHC 3795 (KLR),** where Wakiaga, J rendered himself thus: *“It is clear that the issue of bias of the trial court which forms the basis of the applications and petitions consolidated was the subject matter of the application filed by the petitioner before the trial court which by a ruling delivered on 4th March, 2021 dismissed the same. I would therefore agree with the submissions by the respondents that the petitioner should have approached this court by either way of an appeal or revision. In this I find support in the case of* ***Speaker Of The National Assembly v Njenga Karume Civil Application No. 92 OF 1992,*** *where the Court of Appeal at Nairobi held that where there is a clear procedure for redress prescribed in the Constitution or an Act of Parliament, that procedure should be strictly followed.”* 1. Be that as it may, this court will comprehensively address the Accused Person’s Application for recusal for completeness of the record. 2. The Accused Person seeks this court’s recusal from hearing and determining this case on the ground that he has lodged a corruption complaint against this court to the Judicial Service Commission and the Honourable Chief Justice. 3. The principles governing recusal are set out in various case laws 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 the **Judicial Service (Code of Conduct and Ethics) Regulations.**Under **Regulation 21 Part II** of the said **Code of Conduct*,*** a judge/magistrate can recuse himself or herself in any of the proceedings in which his or her impartiality might reasonably be questioned where the Judge; *(a) Is a party to the proceedings;* *(b) Was, or is a material witness in the matter in controversy;* *(c) Has personal knowledge of disputed evidentiary facts concerning the proceedings;* *(d) Has actual bias or prejudice concerning a party; (emphasis added)* *(e) Has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter;* *(f) Had previously acted as a counsel for a party in the same matter;* *(g) Is precluded from hearing the matter on account of any other sufficient reason; or* *(h) Or a member of the Judge’s family has economic or other interest in the outcome of the matter in question.* 1. **Regulation 9** of the Judiciary **Code of Conduct** emphasizes the importance of impartiality of a judge/magistrate. **Regulation 9(1)** provides: *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. See **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 the Accused Person’s recusal application. This begs the question of whether this court’s handling of this case and the Accused Person’s act of lodging a corruption complaint against this court before the Judicial Service Commission and the Honourable Chief Justice meet the objective test of reasonable apprehension of bias on this court’s part. 2. The Accused Person alleged and submitted that the fact that he had lodged a corruption complaint against this court is evidence enough that it is not in the interest of justice for me to hear and determine this matter since whichever way I determine this matter justice may not be seen to have been done. 3. The Accused Person added that his corruption complaint against this court infuriated this court to the extent that more than ten (10) police officers from Kimilili Police Station arrested him at his Matili home and arraigned him on 07th May 2026, only for this court to remand him at Bungoma Prison and proceed on leave. 4. The record will bear witness that the Accused Person's initial recusal application was made on 10th November 2025 after this court suspended the Accused Person’s bond terms after he failed to attend court without any lawful or justifiable cause. 5. Regarding the Accused Person’s arrest on 06th May 2026, that arrest was conducted pursuant to a Warrant of Arrest issued by this court against the Accused Person on application by the Accused Person’s son, Rajab Nalianya Kaburu, who had stood surety for the Accused Person only for the Accused Person to once again abscond court without lawful cause or justification. 6. When the Accused Person was arraigned, his son made an application to be discharged from standing surety for the Accused Person, given the Accused Person’s willful refusal to attend court. This prompted this court to cancel the Accused Person’s bond terms given his willful refusal to attend court while on bond. Thereafter, this court proceeded on annual leave as it had been earlier scheduled. The court proceeding on leave was not meant to punish the Accused Person or subject him to pre-trial detention. 7. The chain of events above demonstrates that the Accused Person’s recusal application is largely motivated by this court’s suspension and subsequent cancellation of his bond terms, which suspension and cancellation were within the dictates of the law. It is evident that the Accused Person was irked by this court’s lawful withdrawal of his bond terms. 8. It is interesting that the Accused Person filed the recusal application describing this court as biased only after this court had made an order against him. A court cannot be termed as biased simply because it has made an order that offends a party before it. If that were the case, this would open a floodgate of recusal applications by litigants who are not happy with any court order. Courts do not make orders to make litigants happy. Courts make orders in furtherance of justice. A party who is aggrieved by an order made by a court is at liberty to appeal, seek a review of that order where applicable, or seek any other remedy available to them. 9. An application for recusal should be reserved for clear-cut cases. If this court were to oblige the Accused Person’s recusal application, then this court would no doubt recuse itself from all proceedings where this court has granted lawful orders to the displeasure of any party before it. 10. Further, it should be noted that at the time this court suspended and later cancelled the Accused Person’s bond terms, the Judicial Service Commission had not notified this court about the Accused Person’s alleged corruption complaint. This demonstrates that the suspension and the subsequent cancellation of the Accused Person’s bond terms were not influenced by the Accused Person’s alleged corruption complaint against this court. 11. The Accused Person seems to be apprehensive that this court may not render a fair hearing simply because he has made a corruption complaint against this court before the Judicial Service Commission. 12. This court has had the benefit of looking at the said complaint. Let it be known that this court is not shaken by that complaint. Let it also be known that complaints are occupational hazards of this job, which this court took up; therefore, a complaint of whatever nature does not move this court, even an inch. The complaint by the Accused Person against this court reeks of tantrums thrown by a bitter litigant just because a court has made an adverse order against them. This court is ready to defend itself before the Judicial Service Commission or any other forum in respect of the corruption complaint herein. 13. It is this court’s considered view that the Judicial Service Commission or any other body properly directing itself on law and facts will dismiss the Accused Person’s corruption complaint in the first instance. That being a live complaint before the Judicial Service Commission, this court declines to say more about it, save to say that this court is confident that when that time comes, the Judicial Service Commission will grant this court an opportunity to find out from the Judicial Service Commission whether a litigant’s right to lodge a complaint against a judicial officer includes a litigant’s right to defame a judicial officer with reckless abandon. 14. May it be known to the Accused Person that this court is faithful to its oath of office and there is nothing unique about this case to attract this court’s attention or for this court to exhibit any bias thereby failing to render a fair hearing. May it also be known to the Accused Person that this court has absolutely nothing against him for lodging a corruption complaint against me before the Judicial Service Commission. It is his right which he must enjoy to the fullest extent permissible under the law. Let him be informed that this court shall guarantee her right to a fair hearing, regardless. 15. The Accused Person 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 surmises and imaginations merely intended and meant to intimidate this court. 16. This court will not be cowed by anyone. The recusal application herein 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. 17. 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. 18. In any event, a complaint against a judicial officer before the Judicial Service Commission is not a ground for the judicial officer’s recusal, as was aptly stated in **Wambua Maithya v Pharmacy and Poison Board & 3 Others [2019] eKLR** as follows:- *“.................. In this case, the first ground is that there is a complaint lodged by the 3rd interested party against the trial judge before the Judicial Service Commission. Suffice it to say that I have not been notified of any such complaint. Even if such acomplaint was to exist, the mere fact that a complaint has been made does not necessarily amount to a ground for recusal. If that were the position, parties would simply lodge complaints against judges and judicial officers and based on their own machinations contend that there is likelihood that they may not get justice from the court. 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.* *46. A judge cannot just recuse himself because he had handled an earlier dispute involving the parties. A litigant cannot through contrivance of oblique traducent allegations, postilutating unsubstantiated generalities thrown around with unabashed alacrity and abandon attain the threshold needed for a Judge to recuse himself.* *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. Lastly, this court reminds the Accused Person, as was well stated by the court in **Attorney General vs. Anyang’ Nyong’o and Others [2007] 1 EA 12,** where the court held as follows: *“The court must guard against litigants who all too often blame their losses in court cases to bias on the part of the Judge. Success or failure of the government or any other litigant is neither ground for praise or for condemnation of a court. What is important is whether the decisions are good in law, and whether they are justifiable in relation to the reasons given for them. There is a fundamental tendency for the decisions of the Courts with which there is disagreement to be attacked by impugning the integrity of the Judges, rather than by examining the reasons for the judgement…It is indisputable that different minds are capable of perceiving different images from the same facts. This results from diverse facts. A “suspicious mind” in the literal sense will suspect even where no cause for suspicion exists and unfortunately this is a common phenomenon among unsuccessful litigants and that is why the mind envisaged in the test to determine perception of possible or likely bias on the part of the Judge is a reasonable, fair and informed mind...While litigants have the right to apply for the recusal of judicial officers where there is a reasonable apprehension that they will not decide a case impartially, this does not give them the right to object to their cases being heard by particular judicial officers merely because they believe that such persons will be less likely to decide the case in their favour.”* 1. Given the foregoing, this court finds that the Accused Person has not shown any scintilla of evidence of perceived bias or reasonable apprehension of bias on the part of this court in this matter. The Accused Person has failed to meet the objective test of reasonable bias he was legally obligated to meet before this court could accede to his prayer for this court’s recusal. 2. Acceding to the instant baseless recusal application will certainly be encouraging forum shopping by a litigant who is unhappy with an 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. 3. The long and short of it is that the Accused Person’s recusal application is bereft of merit; it’s frivolous and vexatious. **Whether the Accused Person should be released on a personal bond of recognizance** 1. This court has already made a finding that the Accused Person’s recusal application is bereft of merit. The said finding has set the stage for the delivery of the judgment in this matter. 2. That being the case, the question of whether the Accused Person can be released on a personal bond of recognizance will depend on the terms of the judgment scheduled for delivery today. 3. In the event the Accused Person is acquitted, this prayer will be rendered moot. In the alternative, if this court convicts the Accused, the Accused Person will be obligated to move this court or the High Court for bail/bond pending appeal, if he desires to appeal against this court’s judgment. 4. It is against this backdrop that this court declines the Accused Person’s prayer for personal bond of recognizance at this stage. **DETERMINATION** 1. The upshot of the above is that the Accused Person’s Application dated 23rd June 2026 is bereft of merit; the same suffers the fate of dismissal. **Ruling read, signed, and delivered in open Court at Bungoma, this 29th day of June 2026** **T. O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Achieng and Ms. Mulwa for the Accused Person Accused Person C/A: Mr. Rioba