[2008] KEHC 2045 (KLR)
The judge determined that, although he was confident in his own impartiality, the combination of being approached by an acquaintance seeking a favour for one of the parties and recalling a prior incidental interaction with a party could create a perception of bias. To uphold the principle that justice must be seen...
Source-derived case information.
- Citation
- [2008] KEHC 2045 (KLR)
- Parties
- Appellant: Salim Mohammed Makasha; Defendant: James Njoroge Mbatia t/a Joyland Auctioneers; Defendant: Savings & Loan (K) Limited
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 114 of 2005
- Procedural Posture
- Civil Case / Judicial Recusal Order
- Outcome
- judge_recused_self
- Legal Topics
- Judicial Recusal, Perception of Bias, Judicial Ethics
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Salim Mohammed Makasha
Appellant
James Njoroge Mbatia t/a Joyland Auctioneers
Defendant
Savings & Loan (K) Limited
Defendant
Procedural Posture
Civil Case / Judicial Recusal Order
Legal Issues
- 1 Whether the judge should recuse himself due to perceived bias or conflict of interest.
- 2 Whether prior incidental contact or external approaches compromise judicial impartiality.
Ratio Decidendi
The judge determined that, although he was confident in his own impartiality, the combination of being approached by an acquaintance seeking a favour for one of the parties and recalling a prior incidental interaction with a party could create a perception of bias. To uphold the principle that justice must be seen to be done and to avoid any appearance of impropriety, the judge found it necessary to recuse himself from the case. This action was taken to maintain public confidence in the integrity and impartiality of the judiciary, in accordance with established legal principles and precedent.
Court Disposition
judge_recused_self
Orders
- The judge disqualifies himself from delivering the ruling and hearing any further matters in this file.
- A different judge will give directions regarding the fate of the proceedings before the recused judge.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET
Civil Case 114 of 2005
SALIM MOHAMMED MAKASHA ………...……..……….. APPELANT
VERSUS
JAMES NJOROGE MBATIA
T/A JOYLAND AUCTIONEERS ……….………… 1ST DEFENDANT
SAVINGS & LOAN (K) LIMITED …....…………… 2ND DEFENDANT
Coram:
Ibrahim – Judge
In Chambers:
O R D E R
During the pendancy of the Ruling, I was approached by an old friend who stated that he knew that I was to deliver a Ruling today. He interceded on behalf of one of the parties and requested me to assist since he is a friend of his. In other words, the said person wanted me to grant a favour in this matter on behalf of one of the parties. I have firmly told off the said acquaintance and that surely means severance of any friendship.
This puts me on the inquiry but my conscience was clear that I could not be influenced by such interferences. However, while in the course of preparing the Ruling one of the names of the parties seemed to ring a bell. On a close scrutiny, I realized that one of the parties was indeed a member of a funeral Committee at Eldoret involving a former class mate who had passed away (the late Hon. J. Choge). I was also a member of the Committee. I met the party during the said funeral arrangements though we did not interact thereafter. Again, such interaction was so brief and incidental that it should not be enough to interfere with performance of my duties as a judicial officer.
However, in view of the two incidences, my conscience is not free and I am compelled to make this disclosure. I believe in the well established principle that “justice must not only be done but be manifestly be seen to be done”.
Perceptions are important and I think that if in the circumstances the ruling happens to be in favour of the said party even on merit, then there may be a perception among some people that indeed I granted this favour and compromised my judicial honour and duty.
I wish to state that there are allegations of corruption, prejudice or bias in the Judiciary. While this could be true in some cases, but many parties/litigants really are themselves, not free of blame.
This Court aspires to be the 24 carat gold referred to in MM BUTT –V- RENT RESTRICTION TRIBUNAL CIVIL APPLICATION NO. 6 OF 1978 (NAIROBI)by J.A. Madan, Miller and Potter – one which is “free from doubt, bias and prejudice”.
As a result, I hereby disqualify myself from delivering the ruling and hearing any other matter in this file.
The Judge who will hear the matter will give directions as to the fate of the proceedings before me in respect of the application.
DATED AND DELIVERED AT ELDORET ON THIS 2ND JULY, 2008.
M. K. IBRAHIM
JUDGE
In the presence of:
Mr. Njuguna for the 1st Defendant
Mr. Cheruiyot holding brief for Mr. J. N. Njuguna for the 3rd Defendant
Mr. Chepkwony for Mr. Omboto for the Plaintiff