[2017] KEHC 2550 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

ELECTION PETITION NO. 4 OF 2017

SAMUEL KAZUNGU KAMBI.......................................PETITIONER

VERSUS

INDEPENDENT ELECTORAL & BOUNDARIES

COMMISSION...................................................1ST RESPONDENT

NELLY ILONGO THE COUNTY RETURNING OFFICER,

KILIFI COUNTY.................................................2ND RESPONDENT

KINGI AMASON JEFFAH.................................3RD RESPONDENT

RULING NO. 5

1. On 31st October, 2017 this court delivered four rulings in respect of assorted applications that had been separately filed against the Petitioner, Samuel Kazungu Kambi by the 1st Respondent, the Independent Electoral & Boundaries Commission (IEBC) and the 2nd Respondent, Nelly Ilongo, the Returning Officer, Kilifi County on one part and the 3rd Respondent, Kingi Amason Jeffah, the 3rd Respondent and Gideon Edmund Saburi on the other part. As a result of one of the rulings Gideon Edmund Saburi is no longer a party to these proceedings.

2. Three of the rulings resulted in the dismissal of the some of the respondents’ applications. One ruling was in favour of the respondents. Now the 3rd Respondent reads bias in respect of two of the rulings which he lost. He has thus brought the Notice of Motion dated 6th November, 2017 and filed in court the same day seeking that I disqualify myself from further hearing this Petition and transfer the file to the Chief Justice for appointment of another judge to hear the matter.

3. The application which is brought under Articles 25(c) and 50(1) of the Constitution is premised on the grounds on its face and an affidavit sworn by the 3rd Respondent on the date of the application. The 3rd Respondent hinges his application on the ground that there is reasonable apprehension of bias on the part of this court.

4. It is the 3rd Respondent’s case that I have demonstrated incapability of being a fair, impartial and independent arbiter. According to him, evidence of such biasness is found in two of the rulings delivered on 31st October, 2017 which effectively resuscitated the Petitioner’s Petition that is otherwise a nullity in law and ought to have been struck out.

5. The 3rd Respondent’s view is that I can no longer hold the scales of justice evenly and fairly between the parties in this Petition as I have tilted the scales of justice in favour of the Petitioner by allowing him to deposit security out of time without a formal or oral application for extension of time. Further, that the decision by the court to suo moto enlarge the time within which to deposit security is contrary to the express and implied provisions of Article 87(2) of the Constitution, Section 78(2) of the Elections Act, 2011 and Rule 13 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017.

6. Citing sections of Ruling No. 4, the 3rd Respondent contends that although I had found that the Petitioner had neither filed an application for extension of time for depositing security nor given reasons for failure to deposit security, I had nevertheless gone ahead and enlarged time for the Petitioner to deposit security for costs. To him, the glaring inconsistency in my decision infers bias while exercising judicial discretion thus eroding his confidence in this court. The Applicant avers that judicial discretion should be exercised judiciously and in cases of minor inadvertent and/or excusable mistakes but not to assist the Petitioner who has deliberately obstructed the course of justice by failing to deposit security within the stipulated period or make a formal application for extension of time.

7. The 3rd Respondent goes ahead to accuse the court of making light and little of his application by making ex cathedra comments to the effect that:

“44. I come with the third view. In my view both schools of thought are correct to some extent. The determinant factor is the extent of compliance with the rules as gleaned from the facts of each case. In my view the decisions of Ismail Suleiman and others (supra) and Evans Nyambaso Zedekiah and another (supra) were most probably arrived at based on the fact that the election petitions in those matters were hopelessly inadequate that a hearing could not have been sustained on such pleadings.

45. On the other hand, G.K. Kimondo, J in the cited case of William Kinyanyi Onyango had recourse to Rule 21 of the then prevailing Elections Petitions Rules which required the Independent Electoral and Boundaries Commission to file results in court once a petition was filed. I suspect that rule is no longer in existence and I do not think a petitioner who fails to disclose the results would have his petition salvaged in the prevailing legal regime.

46. My take is that whereas there is need for strict compliance with the laws and rules governing the resolution of election disputes, the courts should always be mindful of the fact that the current constitutional dispensation requires substantive justice to be done. Unless an election petition is so hopelessly defective and cannot communicate at all the complaints and prayers of the petitioner, the court should ensure that the petition is heard and determined on merit.

47. I do not buy into submission by Mr. Khagram that compliance with the Elections Petitions Rules, 2017 should be 100% and nothing less. In my view, substantial compliance is good enough. Failure to disclose the results would indeed render an election petition untriable as the respondents will not be able to discern the petitioner’s complaint so as to respond appropriately. However, where the respondents are in a position to understand the petitioner’s case, such a petition should not be dismissed even if there are slight omissions and deviations from the rules.”

8. To him, the statements in the cited portion of the ruling can only mean that I am biased.

9. As for Ruling No. 1, it is the 3rd Respondent’s averment that the same is founded on fundamental and deliberate legal missteps as it fails to adhere to judicial precedent which establishes that failure by a petitioner to particularise the election results in the petition is fatal. He accuses the court of deliberately disregarding well-established judicial precedent that the need by a petitioner to particularise results is a mandatory requirement in an election petition and not a procedural technicality but a substantive one going to the root of an election petition.

10. The 3rd Respondent proceeds to cite the decisions in Mombasa Election Petition No. 9 of 2017, Jimmy Mkala Kazungu v Bady Twalib & others and Malindi Election Petition No. 10 of 2017, Mbaraka Issa Kombo v Teddy Mwambire & others as correctly capturing the law in that those petitions were dismissed for failure by the petitioners to particularise the results.

11. Turning to the amount of costs awarded by this court in Petition No. 5 of 2017 which was struck out through Ruling No. 3, he contends the award of Kshs.750,000 to him was low and at great variance with was awarded in other petitions that had been dismissed. He discloses that the cost awarded in the other cases was Kshs. 2. 5 million.

12. The 3rd Respondent cites the decision of Teresia Matheka, J in Nyeri Election Petition No. 1 of 2017 Robert Gichuhi Mwangi v James Gichuhi Mwangi & othersto show that even where there is an application for extension of time for depositing security, a petition would still be struck out for failure by a petitioner to deposit security in time.

13. It is the 3rd Respondent’s position that in deliberately failing to follow established precedent and principles, this court has manifested bias and should not continue hearing this Petition.

14. The 3rd Respondent further states that inference of bias is further buttressed by the fact that the court disregarded the well-established principle of stare decisis by failing to look at past decisions on similar issues as a guide.

15. It is the 3rd Respondent’s averment that through the two rulings, this court has circumvented the mandatory requirements of Article 50(1) of the Constitution guaranteeing him trial by an independent and an impartial court. According to him, the impartiality and independence of this court has been compromised; the outcome of this Petition is foretold; and the likelihood of bias is palpable as the court has taken sides with the Petitioner. He therefore urges that I disqualify myself.

16. The 3rd Respondent’s supporting affidavit reiterates the grounds in support of the application.

17. Counsel for the 3rd Respondent filed submissions in support of the application. Through the submissions it is stated that the application is based on reasonable apprehension of bias by the court. The apprehension is founded on the two rulings rendered by this court on 31st October, 2017. It is the 3rd Respondent’s submission that he is not casting aspersions on the integrity of this court as his objective is to secure a credible environment for the hearing of the election petition and to safeguard his right to a fair hearing by an impartial tribunal as guaranteed by Article 50(1) of the Constitution.

18. The 3rd Respondent highlights various constitutional and statutory provisions which enjoins a judicial officer to promote and uphold honesty and integrity and give fulfillment to all values essential for the discharge of judicial functions.

19. The 3rd Respondent referred the court to paragraph 2. 5 of Value 2 of the Bangalore Principles on Judicial Conduct which provides that “a judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially.”

20. Also cited is Value 3 of the same Principles which states at paragraph 3. 1 that a “judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer.” Another Principle pointed out is that at paragraph 3. 2 which states that “the behavior and conduct of a judge must reaffirm the people’s faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done.”

21. Counsel for the 3rd Respondent cited the speech of Lord Hewart, CJ in R v Sussex Justices, ex-parte McCarthy 1 in support of the assertion that justice should not only be done but must be seen to be done and that a judge should disqualify himself or herself from participating in any proceedings in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially.

22. It is the 3rd Respondent’s submission that the issue for determination in this case is whether a reasonable bystander can infer bias on the part of this court. The question posed is whether this court has exhibited bias that is likely to compromise a fair and impartial trial. According to the 3rd Respondent, his application and affidavit detail several grounds of reasonable apprehension of bias by the court against him and the question whether the court has exhibited bias should thus be answered in the affirmative.

23. It is the 3rd Respondent’s case that bias could be real or reasonably apprehended. He asserts that the reasonable apprehension of bias test is designed to focus attention away from a subjective assessment of the judge’s impartiality and towards an objective assessment of the judge’s impartiality.

24. An article on the subject of bias by Holly Stout, a leading British lawyer is cited in support of the proposition that the question that a judge should ask himself in an application for recusal is 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.

25. Referring to the American case of Perry v Schwarzenegger, 671 F. 3D 1052 (9TH CIRC. FEBRUARY 7, 2012), counsel urges that the 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.

26. It is the position of the 3rd Respondent that as was stated by the Supreme Court in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2013] eKLR, Supreme Court of Kenya Petition No. 4 of 2012, “[p]erception of fairness, of conviction, of moral authority to hear the matter, is the proper test of whether or not the non-participation of the judicial officer is called for.”

27. It is the 3rd Respondent’s assertion that in an application of this nature the aim is to preserve the public confidence in the administration of justice. Among the decisions cited in support of this principle is that of R v Gough [1993] 2 All E.R. 724where it was stated that:

“The nature of the interest is such that public confidence in the administration of justice requires that the judge must withdraw from the case or, if he fails to disclose his interest and sits in judgement upon it, the decision cannot stand. It is no answer for the judge to say that he is in fact impartial and that he will abide by his judicial oath.”

28. It is the 3rd Respondent’s submission that in dealing with the issue of disqualification on the ground of alleged bias, the court hearing the matter cannot go into the question of whether the officer is or will actually be biased. He asserts that all the court can do is to carefully examine the facts, which are alleged to show bias and from those facts draw an inference, as any reasonable and fair-minded person would do, that the judge is biased or is likely to be biased.

29. The decision of Patrick Ndegwa Warungu v Republic, Milimani High Court Application No. 440 of 2003 is cited to demonstrate that once there is reasonable apprehension in the applicant’s or any other right thinking person’s mind that a fair and impartial trial might not be had before a court, that court should disqualify itself.

30. At the tail end of the submissions the 3rd Respondent points out that it cannot be said that no other judge is available to hear this Petition. He asserts that this matter is of great public interest as it affects the over one million residents of Kilifi County.

31. The 3rd Respondent sums up his case by stating that a chief component of public confidence in the judicial system is not merely the actual but also the perceived impartiality of the judges and adjudicators.

32. The 1st and 2nd respondents did not file a response to the application. During the highlighting of submissions their counsel indicated that they were taking a neutral position. He nevertheless went ahead to point out alleged irreconcilable inconsistencies in the decision of this court extending time to the Petitioner to deposit the security for costs.

33. The Petitioner opposed the application through grounds of opposition dated 6th November, 2017 as follows:

“1. THAT, the application lacks factual and material basis for the consideration of an application of this nature.

2. THAT, the 3rd Respondent is seeking to forum-shop and the application is intended to delay the determination of the matter.

3. THAT, on the whole the application does not meet the threshold for the test for disqualification and is made in bad faith.

4. THAT, the onus is on the applicant to establish the basis for recusal and he had failed to do so.”

34. In the submissions filed in court by the Petitioner’s counsel, the court’s attention is drawn to Rule 5 of the Judicial Service Code of Conduct and Ethics which provides that a judicial officer should disqualify himself/herself in proceedings in which his impartiality might be reasonably questioned including but not limited to instances in which:

(a) he has a personal bias or prejudice concerning a party or his lawyer, or personal knowledge of the facts in the proceedings before him;

(b) he has served as a lawyer in the matter in controversy;

(c) he or his family or a close relation has a financial or any other interest that could substantially affect the outcome of the proceedings; or

(d) he, or his spouse, or a person related to either of them or the spouse of such a person or a friend is a party to the proceedings.

35. Counsel noted that an application for recusal is indeed a right of a party as was observed by the Court of Appeal inKaplana H. Rawal v Judicial Service Commission & 2 others [2016] eKLRwhere it cited with approval the Constitutional Court of South Africa in the case ofThe President of the Republic of South Africa and others v the South African Rugby Football Union & others, Case CCT 16/98 where it was stated that:

“At the very outset we wish to acknowledge that a litigant and her or his counsel who find it necessary to apply for the recusal of a judicial officer has an unenviable task and the propriety of their motives should not lightly be questioned. Where the grounds are reasonable it is the counsel’s duty to advance the grounds without fear. On the part of the judge whose recusal is sought there should be a full appreciation of the admonition that she or he should not be unduly sensitive and ought not to regard an application for his [or her] recusal as a personal affront.”

36. It is the Petitioner’s submission that the 3rd Respondent has failed to lay the factual bias that would entitle him to the orders sought. Counsel urges that as per the decision in Kaplana H. Rawal (supra), “judges should not recuse themselves on flimsy and baseless allegations.” The decision is also relied on in support of the proposition that it “cannot be gainsaid that the applicant bears the duty of establishing the fact upon which the inference is to be drawn that a fair minded and informed observer will conclude that the judge is biased.”

37. Reference is made to the decision of Sila Munyao, J in Florence Chelangat Langat v Timoi Farms and Estates Limited & another [2015] eKLR as to what the test of reasonable apprehension of bias should be. In that case the learned Judge held that:

“The test is not the subjective notion of the applicant but rather the objective test of the reasonable man. It follows therefore that a judge does not have to disqualify himself merely because one party has stated that he is of the opinion that he will not get a fair hearing, or that such party feels that the judge will be impartial (sic) or prejudiced….

It is clear from the foregoing that it is settled law that the test is that of the reasonable man, not the subjective view of the applicant, who invariably thinks that the judge will not give him a fair trial. The subjective view of the applicant in this case is therefore not the applicable standard, but the standard applicable, is that of the reasonable man. In other words, the fact that the applicant feels that she will not get a fair trial, is not itself sufficient for me to recuse myself, for the test applicable is not her subjective feeling. Her feelings maybe relevant, but not critical to the determination of this application.”

38. The Petitioner’s counsel concludes by citing the decision of the Court of Appeal inKamlesh Mansuklal Damji Pattni & another v R., Nairobi HCMA No. 322 of 1999wherein it was stated that:

“No recognized human right or fundamental freedom is contravened by a Judgement or order that is wrong and liable to be set aside on appeal for an error of fact or substantive law…. The remedy for errors of this kind is to appeal to higher court and where there are no higher courts to appeal to, then no one can say there was an error. The fundamental right is not a legal system that is infallible but one that is fair. It is only errors of procedure that are capable of constituting infringement to the rights protection and no mere irregularity in procedure is enough, even though it goes to jurisdiction; the error must amount to failure to observe one of the fundamental rules of natural justice.”

39. The Petitioner’s counsel urges that the application has not met the threshold for recusal and the same should be dismissed.

40. In response to the Petitioner’s submissions, the 3rd Respondent’s counsel pointed out that as was stated in the case of Shilenje v Republic [1980] KLR 132, as cited in Patrick Ndegwa Warungu (supra), both the applicant’s and the right-thinking man’s apprehensions are taken into account in making a decision in an application for recusal. He, thus, discounts the Petitioner’s assertion that it is only the apprehension of a reasonable bystander that should count in making a decision in the application for disqualification.

41. In order to do justice to the application at hand I will confine my analysis of the law and the decision to the ground upon which the same is based; reasonable apprehension of bias. The question that needs to be answered is whether the 3rd Respondent’s application meets the threshold for the recusal of a judge on the ground of reasonable apprehension of bias.

42. The Supreme Court in Jasbir Singh Rai (supra) cited Lord Justice Edmund Davis in Metropolitan Properties Co. [FGC] Ltd v Lannon [1969] 1 QB 577 as having stated that disqualification was imperative even in the absence of a real likelihood of bias if a reasonable man would reasonably suspect bias. The Supreme Court then went ahead and opined 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.”

43. I agree with counsel for the 3rd Respondent that the test proposed by Holly Stout (1 KBW) in his paper on the subject of ‘Bias’ is appropriate so that:

“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 [a] fair-minded and informed observer might think that there was a real possibility of bias.”

44. Again I agree with counsel for the 3rd Respondent that as stated in Perry (supra) a reasonable person is a “well-informed thoughtful observer who understand the facts” of the case and has“examined the record and the law.” Therefore “unsubstantiated suspicion of personal bias or prejudice” will not suffice.

45. In the case of Philip K. Tunoi & another v Judicial Service Commission & another [2016] eKLR, the Court of Appeal considered the applicable test and citing another decision held that:

“45. In The People case, this Court expressed itself as follows in relation to the application for disqualification of the members of the bench.

“How should Judges treat the subject of disqualification when raised before them?

…when the courts in this country are faced with such proceedings as these, it is necessary to consider whether there is a reasonable ground for assuming the possibility of 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.”

46. Still on the applicable test, I find the decision in the Canadian case of R. v S. (R.D) [1977] 3 SCR 484, as cited by the Court of Appeal in Kaplana H. Rawal (supra), quite illuminating. In the case, the Supreme Court of Canada expounded the apprehension of bias test as follows:

“The apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. The test is what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. This test contains a two-fold objective element: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold. The reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community. The jurisprudence indicates that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence.”

47. Earlier on, in its judgement in the Kaplana H. Rawal case, the Court of Appeal accepted the applicable test of “reasonable apprehension of bias” as that established by the East African Court of Justice in the case of Attorney General of Kenya v Prof. Anyang’ Nyongo & 10 Others, EACJ Application No. 5 of 2007thus:

“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. Needless to say,

(a) litigant who seeks disqualification of a judge comes to court because of his own perception that there is appearance of bias on the part of the judge. The court however, has to envisage what would be the perception of a member of the public who is not only reasonable but also fair minded and informed about all the circumstances of the case.”

48. A reading of all the cited authorities will show that it is the effect of a judge’s actions or inactions on the mind of a reasonable and fair-minded member of the public that will determine whether there is reason to conclude that a judge is biased. The perceptions of a party are secondary to those of a reasonable and fair-minded observer. A party to a case comes to court strongly believing that their case will carry the day so that any decision that goes against him/her is deemed to be grounded on bias on the part of the judge.

49. Said Chitembwe, J captured this well in Nathan Obwana v Robert Bisakaya Wanyera & 2 others [2013] eKLR when he stated that:

“I do find that there has been no proof of bias. The apprehension by the applicant that he will not get justice in this court is a normal apprehension whereby each party who has a matter in court is apprehensive as to the decision the court would make. The court may find in his or her favour and that uncertainty makes parties to be apprehensive. If a party interprets his apprehension and conclude that the court would be biased then that is taking the wrong dimension unless allegations of bias are proved by facts.”

50. A party’s right to a hearing before an independent and impartial tribunal as guaranteed by the Constitution is not a matter to be taken lightly and when a party brings an application for recusal such an application should be taken seriously. It cannot be said that it is a forum-shopping tool as claimed by the Petitioner. As correctly pointed out by one of the advocates for the 3rd Respondent, if this court is to disqualify itself from further hearing this matter the onus of appointing another judge to hear the Petition falls upon the Chief Justice and the 3rd Respondent cannot foretell who will be appointed to hear the case. The 3rd Respondent cannot therefore be accused of forum-shopping.

51. In making my decision in this matter, I align myself with the wise counsel of the Court of Appeal in Kaplana H. Rawal (supra) that:

“An application for recusal of a judge is a necessary evil. On the one hand it calls into question the fairness of a judge who has sworn to do justice impartially, in accordance with the Constitution without any fear, favour, bias, affection, ill-will, prejudice, political, religious, or other influence. In such applications, the impartiality of the judge is called into question and his independence is impugned. On the other hand, the oath of office notwithstanding, the judge is all too human and above all the Constitution does guarantee all litigants the right to a fair hearing by an independent and impartial judge. When reasonable basis for requesting a judge to recuse himself or herself exists, the application has to be made, unpleasant as it may be. That is the lesser of two evils. The alternative is to risk violating a cardinal guarantee of the Constitution, namely the right to fair trial, upon which the entire judicial edifice is built. Allowing a judge who is reasonably suspected of bias to sit in a matter would be in violation of the constitutional guarantee of a trial by an independent and impartial court.”

52. I have carefully considered the application before me and find that the 3rd Respondent has done a critique of the two rulings that went against him. His arguments may have been appropriate in support of an application for review. They may form very good grounds of appeal. However, I do not find them to be evidence of bias on my part. Of the four rulings I delivered on 31st October, 2017, the 3rd Respondent succeeded in one of them though he is dissatisfied with the costs awarded to him.

53. It is difficult for me as a judge to look at my decisions and agree with the 3rd Respondent that they are biased. Whereas the 3rd Respondent berates those decisions, the Petitioner holds the view that the same are good decisions. The proper forum for reconciling those divergent views is the appellate arena. The three respondents indicated that they have already filed appeals against those decisions. That is the right way to go.

54. The 3rd Respondent clearly indicated that he does not accuse this court of actual bias. It is therefore reasonable to conclude that it is only his reading of the decisions delivered so far by the court that makes him perceive that this court is biased. If parties were to move courts for recusal upon delivery of unfavourable decisions on interlocutory applications then the business of the courts would simply be reduced to hearing applications for recusal. Courts have a duty to make decisions and parties who do not agree with such decisions have recourse to appeal where that is available. The 3rd Respondent’s perception of bias is therefore without basis.

55. Considering the material placed before me, I reach the decision that the 3rd Respondent has not established any reasons for my recusal on the ground of reasonable apprehended bias. He seems unhappy with my decisions but that is not a reason to make me disqualify myself from this case.

56. In saying so, I am persuaded by the holding in the United States case of Liteky v United States 510 U.S. 540 [1994] that:

“The facts of the present case do not require us to describe the consequences of that factor in complete detail. It is enough for present purposes to say the following: First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. SeeUnited Statesv.Grinnell Corp.,384 U. S., at 583. In and of themselves (i. e.,apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. Theymaydo so if they reveal an opinion that derives from an extrajudicial source; and theywilldo so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.”

57. In conclusion, I find that the 3rd Respondent has not established that a fair-minded observer, aware of the facts and the law attendant to the impugned rulings of 31st October, 2017, will reach a conclusion that I am biased against the 3rd Respondent and in favour of the Petitioner. The 3rd Respondent’s application for recusal dated 6th October, 2017 is therefore dismissed. Costs shall abide the outcome of the Petition.

Dated, signed and delivered at Malindi this 7th day of November, 2017.

W. KORIR,

JUDGE OF THE HIGH COURT