[2008] KEHC 2837 (KLR)
The court found that, notwithstanding the passage of time since the judge and Mr. Wasuna last practiced together, the appearance of possible bias or impropriety could arise in the eyes of third parties if the judge continued to preside over the matter. To uphold the integrity of the judicial process and avoid any...
Source-derived case information.
- Citation
- [2008] KEHC 2837 (KLR)
- Parties
- Plaintiff: Sea Star Malindi Ltd; Defendant: Municipal Council of Malindi; Defendant: Town Clerk Malindi Municipal Council; Defendant: Patrick Lumumba Ouya; Defendant: Alfred Mramba Kashari
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 47 of 2006
- Procedural Posture
- Civil Case / Ruling on Judicial Recusal and Costs After Oral Application by Defendant
- Outcome
- Judge recused himself from further hearing; costs of the day awarded to plaintiff/respondent against defendants/applicants; file to be transferred to Mombasa High Court.
- Judges
- CA Ombija
- Legal Topics
- Judicial Recusal, Conflict of Interest, Costs Award, Formal Proof, Legal Ethics
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sea Star Malindi Ltd
Plaintiff
Municipal Council of Malindi
Defendant
Town Clerk Malindi Municipal Council
Defendant
Patrick Lumumba Ouya
Defendant
Alfred Mramba Kashari
Defendant
Procedural Posture
Civil Case / Ruling on Judicial Recusal and Costs After Oral Application by Defendant
Legal Issues
- 1 Whether the presiding judge should recuse himself due to a prior professional relationship with counsel appearing in the matter.
- 2 Whether the oral application for recusal by the defendants/applicants was justified and its effect on the proceedings.
- 3 Who should bear the costs occasioned by the aborted formal proof hearing.
Ratio Decidendi
The court found that, notwithstanding the passage of time since the judge and Mr. Wasuna last practiced together, the appearance of possible bias or impropriety could arise in the eyes of third parties if the judge continued to preside over the matter. To uphold the integrity of the judicial process and avoid any suspicion of partiality, the judge determined that recusal was necessary. The court further held that the oral application for recusal by the defendants/applicants, made on the day set for formal proof, disrupted the proceedings and resulted in wasted costs for the plaintiff. Accordingly, the judge ordered that the defendants/applicants bear the costs occasioned by the aborted...
Court Disposition
Judge recused himself from further hearing; costs of the day awarded to plaintiff/respondent against defendants/applicants; file to be transferred to Mombasa High Court.
Orders
- The presiding judge disqualifies himself from hearing any further applications or the suit itself.
- The defendants/applicants are ordered to pay the costs of the day, including any expenses incurred by the plaintiff in anticipation of the formal proof.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MALINDI
Civil Case 47 of 2006
SEA STAR MALINDI LTD……………….…..........................……….PLAINTIFF
VERSUS
MUNICIPAL COUNCIL OF MALINDI .........................….…1ST DEFENDANT
TOWN CLERK MALINDIMUNCIPAL COUNCIL….…….2ND DEFENDANT
PATRICK LUMUMBA OUYA …………….....................….3RD DEFENDANT
ALFRED MRAMBA KASHARI ….....................…….…….4TH DEFENDANT
R U L I N G
At all material times the firm of Khaminwa and Khaminwa was seised of this matter on behalf of the defendants.
Application for striking out the defence was handled by Mr. Mwadilo of Khaminwa & Khaminwa. A ruling in respect thereof was delivered on 17th July 2008.
When the matter came up for formal proof on 21st February 2008, Mr. John Khaminwa raised the issue of Mr. Wasuna’s appearance along side Mr. Ritho. He complained thus:
“Mr. Wasuna appearing with Mr. Ritho was the Judge’s partner for a long time. I feel that a wrong signal would be perceived by some third parties if the judge handles this matter.”
Mr. Wasuna response was as follows:
“…..the position is that I practiced law with his Lordship from 1983 – 1993 when the firm of Ombija, Wasuna & Co. Advocates was dissolved by mutual consent. From September 1993 we practiced separately. Your Lordship as Ombija & Co. Advocates and myself as Wasuna & Co. Advocates for 8 good years. What may be insinuated in me joining Mr. Ritho is that I was co-opted after the case had been filed so as to influence your Lordship’s decision. Nothing would be further from the truth. Between me and Mr. Ritho we have jointly appeared in seventy (70) other cases. Some of those cases are between Khaminwa & Khaminwa advocates and Mr. Ritho. For example in Nairobi HCCC No. 3106/1997 we appeared jointly with Mr. Ritho before Hon. Lady Justice Angawa. In that case Mr. Khaminwa is one of the advocates for one of the parties. It is significant that the decision in the aforesaid case will affect 69 other cases whose subject matter are land issues along the coast. It is therefore not by coincidence that I am leading Mr. Ritho in this matter. I plead innocent”
I have considered the issue raised herein. I wish to note in passing that the so called radical surgery in 2003 has given rise to instances where advocates attack, judges and other judicial officers on spurious grounds. I have not been spared in that wave of madness. Be that as it may, I take cognizance of the fact that the purpose of disqualification is to preserve the administration of justice from any suspicion of impartiality.
By reason of the foregoing, I hereby disqualify myself from hearing any application in this matter and the suit itself.
In passing, I wish to observe that by this oral application the defendants/applicants counsel scuttled the formal proof. In the circumstances I am constrained to order that the applicant/defendants do meet the costs of today, which for avoidance of doubt, shall include any expenses that may have been incurred by the plaintiff in anticipation of the formal proof. The said costs may be agreed upon, if not to be taxed before the Deputy Registrar Malindi before the file is transferred to Mombasa High Court for hearing and disposal.
DATED and delivered at Malindi this 25th day of February 2008.
N. R. O. Ombija
JUDGE
Mr. Ritho for plaintiff/respondent
Mr. Thiongo for Khaminwa for defendant/applicant