[2022] KEHC 2959 (KLR)

Villa Care Limited v Waiyaki Way Developers Limited (Miscellaneous Application E180 of 2021) [2022] KEHC 2959 (KLR) (Commercial and Tax) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 2959 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Miscellaneous Application E180 of 2021

WA Okwany, J

June 9, 2022

Between

Villa Care Limited

Applicant

and

Waiyaki Way Developers Limited

Respondent

Ruling

1. This ruling is in respect to the Respondent/Applicant’s application dated 14th October 2021. The applicant seeks orders as follows: -a.Spent.b.Thatthe Hon, Lady Justice W.A. Okwany pleased to recuse and/or disqualify herself from any further conduct of this matter.c.Thatthere be an order of stay of proceedings including writing and/or delivery of any rulings in relation to the subject petition pending the hearing and determination of the application.d.Thatthis matter be placed before any other court of competent jurisdiction, for its just and conclusive determination.e.Thatthis Honorable Court be pleased to grant any other orders and/or directions as it may deem fit and just to grant.f.Thatcosts of this Application be provided for;

2. The application is supported by the supporting affidavit of Mr. Daniel Ojijo and is premised on the grounds that: -i.The instant suit was brought vide a Notice of Motion Application dated 12th March 2021 seeks to set aside Arbitral Award of Mr. Kenneth Wyne Mutuma (Arbitrator) dated 14th December 2020. ii.This matter has been mentioned before the Deputy Registrar on a number of occasioned until September 2021 when the same was placed before Hon. Lady Justice W. A Okwany for directions.iii.After taking of the directions before the Honourable Judge, it dawned on the Applicant that this Honourable Court has recently heard and determined a case involving the Applicant and another party on issues which are similar to the issued in the instant suit and which decision the Applicant has been aggrieved with and Appealed against.iv.In a Notice of Motion Application dated 14th August: 2019 in Milimani Misc. Application No, 260 of 2019 - Villa Care Management Limited vs Kengen Retirement Benefits Scheme, the Applicant sought to set aside the arbitral award of the sole arbitrator, Dr. Kariuki Muigua, CIArb published on 20th May, 2019 in the matter of an arbitration between Kengen Staff Retirement Benefits Scheme vs. Villa Care Management Limited.v.The Application was heard and a ruling was delivered by Hon. Lady Justice W.A. Okwany on 29th July 2021 whereof, the Learned Judge dismissed the Applicant's suit for setting aside the arbitral award.vi.The Applicant is apprehensive that the Honourable Judge has a predetermined position on the issues herein and this presents real and/or perceived bias and prejudice against the Applicant and issues herein.vii.If the orders sought herein are not granted, the Applicant's rights to a fair trial and the integrity and impartiality of the trial will be prejudiced and likelihood of injustice on the part of the Applicant.

3. The respondent opposed the application through the replying affidavit of its Managing Director Mr. Virji Meghji Patel, who avers that the Application is misconceived, bad in law and a waste of precious judicial time. He further states that the Application is devoid of facts and does not proffer any evidence to show and/ or prove any allegations made therein.

4. It is the respondent’s case that the grounds for setting aside arbitral awards are provided under the law and that any court setting aside an arbitral award will do so based on the specific grounds and circumstances of each case. The respondent contends that the law provides adequate mechanisms for redress to any party aggrieved by the court’s decision and that the applicant should appeal against the impugned Ruling instead of tarnishing the reputation of the Court.

5. Parties canvassed the application by way of written submissions which I have considered. The main issue for determination is whether the applicant has made out a case for the court’s recusal.

6. The applicant’s case is apprehensive that this court has a predetermined position on the issues raised herein because the court dismissed a similar application by the applicant against another party. According to the applicant, the said decision, which is the subject of an appeal, presents real and/or perceived bias against it thereby justifying the filing of this application for recusal.

7. On its part, the respondent argued that the two Applications, by the applicant, to set aside the arbitral awards are premised on different agreements between the Applicant and different Respondents (in each Application). The respondent further states that the set of facts forming the grounds in support of the two applications are completely different. The respondent contends that the mere fact that the earlier application to set aside an arbitral award was dismissed does not automatically mean that the instant application will also be dismissed.

8. Case law is replete with decisions on the conditions to be satisfied in an application for recusal and/or disqualification of a Judge. In Jan Bonde Nielson vs Herman Philipus Steyn & 2 Others[2014] eKLR Gikonyo J. held as follows;“...the appropriate test to be applied in determining an application for disqualification was laid down by the Court of Appeal in R V David Makali And Others C.a Criminal Application No NaI 4 and5 of1995 (Unreported), and reinforced in subsequent cases. See R vJackson 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"

9. In Pale Kenya Limited vs Pauline Ngomi Mwangangi [2021] eKLR the Court discussed "bias" as a ground for recusal as follows: -“...8. The jurisprudential criteria to be applied when considering a plea for recusal of a judge on the ground of likely bias was, not too long ago, outlined by Kenya's Court of Appeal in the Case of Kalpana H Rawal v Judicial Service Commission & 2 Others [2016] eKLR [Civil Appeal Application No 1 of 2016]. The Court of Appeal adopted the test of "whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Judge would be biased". This is the test that the House of Lords had propounded in Magill v Porter [2002] 2 Ac 357. This is also the test which the East African Court of Justice similarly adopted in the case of Attorney General of Kenya v Prof Anyang Nyong'o & 10 Others, EACJ Application No 5 of 2007 where the Court rendered itself thus:"We think 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) 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 the public who is not only reasonable but also fair minded and informed about all the circumstances of the case."

10. In Philip K. Tunoi & Another vs Judicial Service Commission & Another [2016] eKLR, the Court of Appeal, discussed the principles governing recusal and applied the test in the House of Lords decision in R v. Gough 119931 AC 646 and held that: -“That the test to be applied in all cases of apparent bias was the same, whether being applied by the Judge during the trial or by the Court of Appeal when considering the matter on appeal, namely whether in all the circumstances of the case, there appeared to be a real danger of bias, concerning the member of the tribunal in question so that justice required that the decision should not stand.”

11. In Jasbir Rai and 3 Others vs Tarlochan Singh Rai and 4 OthersSCK Petition No. 4 of 2012 [20131 eKLR the Supreme Court held 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.”

12. I will now turn to apply the principles espoused in the above-cited cases to this case and ask myself whether a reasonable and fair-minded person sitting in Court and having all the relevant facts of this case would conclude that a fair hearing for the applicant would not be possible. What then are the facts of this case? As I have already stated in this ruling, the applicant is apprehensive that this court has a predetermined position on the issues herein because it dismissed a similar application to the applicant’s chagrin. According to the applicant, the dismissal presents real and/or perceived bias and prejudice against it.

13. My finding is that the applicant’s fears are far-fetched and unfounded. I say so because it is trite that each case is determined purely on its own merits based on the facts and the applicable law. This is to say that the mere fact that this court dismissed a similar application to set aside an arbitral award does not automatically imply that the present application pitting the applicant and a different respondent will also be dismissed. I note that besides the bare allegation that a similar application was dismissed and is the subject of an appeal, the applicant did not present any tangible evidence or facts upon which an inference can be that the court is biased. I am therefore not persuaded that the application meets the threshold set for recusal of a judge from hearing a case.

14. My above findings notwithstanding I find that the applicant’s apprehension on the impartiality of this court is a matter that the court cannot wish away especially in view of the fact that this court’s ruling in the previous similar application is the subject of a pending appeal. I also take cognizance of the adage that justice must not only be done but must also be seen to have been done. For the above reasons, I find that even though the application does not meet the test set for a recusal, it will be in the interest of justice to refer it to a different judge for hearing and determination.

15. Consequently, I direct that this case be placed before the presiding judge of this division for reallocation to a different judge. I make no orders as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9THDAY OF JUNE 2022. W. A. OKWANYJUDGEIn the presence of: -Mr. Munyoki for Applicant.Mr. Ondieki for RespondentCourt Assistant- Sylvia