Introduction
1. This is an interlocutory appeal filed against the ruling of Honourable C. Oluoch S.P.M delivered on 7th August, 2019 in Mavoko Civil Suit No. 156 of 2015. In the impugned ruling, the learned trial magistrate declined an application made by the appellant herein to recuse herself from hearing the suit.
Background
2. In the application dated 23rd April, 2019 the defendants in Mavoko ELC Case No. 156 of 2015 (appellants herein) sought for orders that the Honourable Principal Magistrate Honourable C. Oluoch recuses herself from hearing and determining the case. The reasons given for that prayer are that the Honourable learned Magistrate had by her conduct failed to serve the interests of justice in the matter; that she had shown open bias against the defendants; that she had acted in a manner that prejudiced the defence case by continuously allowing adjournment applications made by the plaintiff and denying the only application for adjournment made by the defendants and that she disallowed the application by the defendants’ advocates to cease acting for the defendants when the defendants were in court and when there was no requirement to file a formal application.
3. They further stated that the learned Magistrate granted an adjournment to the plaintiff on 12th May, 2015 and ordered the plaintiff to pay costs of Kshs. 2,100/=. Further that on 28th November, 2018 the learned trial magistrate also granted an adjournment sought by the plaintiff and that the defendants had never sought for an adjournment except once when the same was declined by the learned magistrate.
4. They stated that the matter proceeded exparte on 28th November, 2018 and that the defence was denied a chance to address court or cross-examine the plaintiff’s witness which was unfair and inconsiderate. That the plaintiff closed its case and the trial magistrate fixed the matter for defence hearing on 15th May, 2019, without seeking from the defendants whether the date was convenient for him and his advocate to enable him salvage his case. He stated that his Constitutional right to a fair hearing had been breached as the learned trial magistrate failed to allow him participate in the proceedings of court.
5. The application was opposed. Phanuel Omondi, advocate from the firm of Nzavi & Company Advocates, filed a replying affidavit opposing the application. He deposed that the application was incompetent, vexatious, frivolous and made in bad faith. That the same was an unconcealed, barefaced, blatant disregard for law, equity and procedure by the applicant. Regarding the proceedings of 12th May, 2015, he deposed that Honourable C. Oluoch was not the one presiding over the matter. He argued that the trial magistrate’s decision 26th March, 2019 denying the defendants’ application for adjournment was justified because the basis for adjournment by the defence counsel was for filing further documents, despite the fact that the suit was filed in 2011 and pre-trial concluded in 2012. That the inordinate delay was not addressed by the applicants.
6. He further stated that it was after the defendants’ attempt to obtain adjournment was unsuccessful that the defendants counsel now sought to cease acting for the defendant’s orally in court which application was disallowed. He stated that the applicants’ allegation that he was denied opportunity to address court was fabricated as the court directed counsel who was still on record to proceed with cross-examination of the plaintiff but he declined to proceed as is shown in the proceedings of 26th March, 2019. He maintained that there was no descernible bias on the part of the court before a right thinking or reasonable person and that the applicant was relying on her feelings and not facts to seek recusal. That the trial magistrate was magnanimous in granting the defendants an opportunity to present defence case on another date but the defendants’ counsel declined the opportunity. He accused the applicants of being crafty with intention to delay the matter.
7. Parties filed submissions in urging their respective cases. Upon consideration of the application, response and submissions, the learned trial magistrate made a decision declining to recuse herself from the matter. In her decision, she gave the history of the matter and found as supported by the record that it was not factual that the court has always granted adjournments in favour of the plaintiff and denied the defendant.
8. On the allegations by the defence that the were denied a chance to file further witness statements, the trial court observed that on 5th September, 2018, it was the defence counsel who took a hearing date upon confirming that the matter was ready for hearing and that therefore the impression the court got was that the defendant was engaging in delaying tactics as the matter was an old matter. The court also found that the defence counsel declined to cross-examine the plaintiff but the court having noted that there was a counterclaim, gave the defendants another date for hearing of the defence cases and that nothing stopped or prevented the defendants from moving the court in the meantime either to file further documents or do anything in furtherance of their case, but they did not.
9. Regarding the argument by the defendant that their counsel was denied oral application to cease acting, the court referred to Order 9 Rule 3(1) of the Civil Procedure Rules and stated that where an advocate intends to cease acting for a party may apply by summons in Chamber unless the court directs otherwise and that there is no provision for oral application for an advocate to cease acting. The court referred to the decision in the case of Estate of Komu Muthigani (Deceased)(2018)eKLR . On the basis of those findings, the learned Magistrate concluded that it is not desirable to make an application to cease acting orally as that may circumvent the court’s decision to disallow an adjournment. The court found no merit in the application and dismissed it but granted the defendant 14 days to have the plaintiff recalled for cross-examination at the defendants’ costs and opportunity for counsel to file application to cease acting in fourteen days of the ruling.
10. Being dissatisfied with the court’s findings and ruling, the appellants herein challenged the same vide a Memorandum of Appeal dated 21st August 2019 citing three grounds of appeal as follows;
a) That the learned Magistrate erred in law and in fact by failing to consider the appellant’s grounds and submissions on recusal.
b) That the learned Magistrate erred in law and in fact by holding that the appellant’s application dated 23/4/2019 did not proffer sufficient grounds to warrant the trial magistrates to recuse herself.
c) That the learned magistrate erred in law and in fact by dismissing the appellant’s application dated 23/4/2019 and proceeding to find that she must hear the suit before her despite the misgivings in her integrity and bias on her part.
11. Consequently, the appellant sought the following orders.
a) The ruling delivered on 7th August, 2019 be set aside and or quashed.
b) The Lower Court’s ruling be substituted with a judgment of this court upholding the appellant’s application dated 23/4/2019 and directing that the suit in the lower court be heard by another court of competent jurisdiction.
c) Costs of the appeal.
12. The appeal was canvassed by way of written submissions. On record are the appellants submissions dated 18th June, 2024 and the respondent’s submissions dated 25th June, 2024.
Appellants’ Submissions
13. Counsel for the appellant relied on the case of Morris Njagi & Another v Beatrice Wanjiku Kiura (2019) e KLR and submitted that this court being a first appellate court is obligated to consider and evaluate the evidence afresh and make its own conclusions.
14. It was contended for the appellants that from the background of the matter it was evident that the trial magistrate had shown open bias against the appellants as she had allowed several adjournments sought by the respondent and refused to allow one adjournment application by the appellants. Counsel submitted that the appellants having confirmed in court that they rushed to appoint another advocate, and had no objection for their current advocate to be discharged from the proceedings, the trial court nevertheless refused to allow the application. Counsel referred to the definition of bias as stated in the Blacks Law Dictionary and the decision in the case of R. v Liverpool City (1983) WLR 119 on the test to be applied for recusal; being whether a reasonable person sitting in court having all the relevant facts would be suspicious of the trial not being fair. The court was further referred to the case of Attorney General v Prof Anyang Nyongo & 10 Others EACJ App No. 5 of 2007. Counsel argued that the law provided for recusal of judicial officers where they feel that they may not be impartial or where they have shown bias.
Respondents’ submissions
15. Counsel for the respondent submitted that the learned magistrate demonstrated from the record that she was just one of the Judicial Officers who handled the matter in dispute and that she was an impartial umpire. That the background given by the trial magistrate is backed by the court record.
16. It was further submitted for the respondent that the threshold for recusal is the presence of real danger of bias, which the appellant did not meet.Counsel submitted that failure to be granted an adjournment cannot be ground for recusal and that the reason for the appellants’ counsel seeking to cease acting for the appellants was precisely because the adjournment had been declined.
17. Counsel argued that the appellants had sought adjournment to file witness statements on 26th March, 2019, which was eight years after the suit had been filed in 2011 and after pre-trial directions had been given. Counsel maintained that the hearing date having been fixed by the defence counsel in the absence of the plaintiff the court took note of the age of the matter and the reason for adjournment and that that was the reason for the appellants to label the court as biased which was not the case.
18. It was contented for the respondent that a Judicial Officer need not recuse themselves from a matter just because one party states that they feel that there is bias. Counsel argued that there was no proof of conflict of interest on the part of the learned trial magistrate. On the appellants’ participation in the trial, counsel submitted that the trial magistrate granted the appellants opportunity to participate and that the appellants were using flimsy excuses to delay the trial of the matter. To buttress their position, counsel referred the court to the case of Mtaani –vs- Judicial Service Commission & Another (Petition no. E160 of 2023)(2024) KEHC 3487 KLR (Constitutional and Human Rights)(12 April, 2024) (Ruling).
Analysis and determination
19. The court has carefully considered the appeal, the entire trial court record and the parties’ rival submissions. The role of this court as a first appellant court is to rehear the dispute. It therefore must re-assess, re-evaluate and re-analyze the facts and the law and make its own independent conclusions. This position was stated in the case of Selle & Another –vs- Associated Motion Boat Co. Ltd & Others (1968) EA 123.
20. The appeal before me is a challenge on the trial court’s decision in which the learned trial Magistrate declined the appellants’ prayer to recuse herself from the case.
21. Article 50 of the Constitution of Kenya provides for the non-derogable right to a fair hearing as follows;
Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or if appropriate, another independent and impartial tribunal or body.
22. Therefore, the Constitution guarantees procedural fairness in determination of disputes. The foundation of a fair trial lies in the trial court being impartial throughout the trial. Hence just as much as every litigant is entitled to substantive justice espoused in Article 159 (2) (d) of the Constitution, every step of the journey towards substantive justice ought to be while taking into account procedural fairness, which must be manifest in the court’s impartiality and fairness. Therefore, it is the duty of the court to facilitate access to procedural fairness and justice.
23. Principles governing recusal are well settled. The applicable test is whether a reasonable man sitting in court and aware of the relevant facts would have reasonable suspicion that a fair trial for the applicant is impossible. In the case of Jasbir Rai and 3 Others v Tarlochan Singh Rai & 4 Others SCK Petition No. 4 of 2012 [2013] e KLR, the Supreme Court held as follows;
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.
24. Similarly, in the case of Philip K. Tunoi & Another v Judicial Service Commission & Another [2016] e KLR, the Court of appeal observed as follows;
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.
25. The import of the above principles on recusal has now been expounded and anacted in the Judicial Service (Code of Conduct and Ethics) Regulations (Legal Notice No. 120 of 2020) which provide in Regulation 47 as follows;
Recusal
(1) A judicial officer may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned where the judicial officer—
(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;
(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) a member of the judicial officer’s family has economic or other interest in the outcome of the matter in question.
(2) Recusal by a judicial officer shall be based on specific grounds to be recorded in writing as part of the proceedings.
(3) A judicial officer may not recuse himself or herself if—
(a) no other judicial officer can deal with the case; or
(b) because of urgent circumstances, failure to act could lead to a serious miscarriage of justice.
27. Regulation 36 requires a judicial officer to be impartial and provides as follows;
Impartiality
(1) A judicial officer shall, at all times, carry out the duties of the office with impartiality and objectivity, in accordance with Articles 10, 27, 73(2)(b) and 232 of the Constitution and shall not practice favouritism, nepotism, tribalism, cronyism, religious bias, or engage in corrupt or unethical practices;
(2) In the discharge of duty, a judicial officer shall—
(a) Uphold and apply the law;
(b) Observe fairness and impartiality; and
(c) Perform the duties of judicial office, including administrative duties impartially, competently, and diligently, without bias.
28. Therefore, where there is actual bias or a judicial officer has an interest in a matter, the judicial officer ought to recuse themselves from hearing the matter.
29. In the instant case, the appellants argued that the learned trial magistrate was biased against them because on several occasions, she granted the respondent adjournments but when the appellant sought for adjournment only once, the same was declined. They cited adjournments granted to the respondent on 12th May 2015 and on 28th November 2018. The appellants also argued that the biass of the trial magistrate was demonstrated in the fact that the magistrate declined to allow an oral application for counsel for the appellant to cease acting, when the law did not require a formal application for the same.
30. The trial court record is before this court and it is clear that on the cited date of 12th May 2015, Honourable C. Oluoch was not the one presiding over the matter as the matter came up before Hon. T. A Odera, Principal Magistrate. The record shows that the matter came up again for hearing on 11th August 2015 when the then trial magistrate was on transfer and therefore gave another date. Thereafter, the matter then came up severally for mention until 5th September 2018 when it came up for mention before Honourable C. Oluoch. The appellants’ counsel who was in court in the absence of the respondent and his counsel, informed court that parties had complied with order 11 and sought a hearing date, which date was given for 28th November 2018. On 28th November 2018, for reasons that the respondent’s son was indisposed the matter was adjourned. When the matter came up for hearing on 26th March 2019, Ms Mbilo counsel holding brief for Mr. Mulu counsel for the appellants sought leave for the appellant to file further witness statements. No reasons were given for the application. The application was opposed by the respondent’s counsel on the basis that it was a delay tactic. Ms Mbilo for the appellant then sought for the matter to be placed aside and the trial court confirmed the matter for hearing at 10 am in view of the age of the matter. Thereafter, the matter proceeded and when it was the opportunity for the appellant’s counsel to ask cross examine the plaintiff’s witness, she told court that she had no questions for the witness. The plaintiff’s case was closed and the court fixed the matter for defence case on 15th May 2019. On that date, again another counsel Mr. Mulondu was holding brief for Mr. Mulu for the appellants. He informed court that the appellants had filed application dated 23rd April 2019. This is the application which is the subject of this appeal.
31. I have considered the appellants’ argument that the respondent got many adjournments from the trial court and that their only adjournment application made was rejected. I take the view that an order for adjournment is not an entitlement of a party, but it is the exercise of judicial discretionary power of the court and the applicant must show reasons for such application to the court’s satisfaction. Depending on the reasons for adjournment, a court may accept or reject the application whether or not it is the only application made by that party. The mere fact that one party got more adjournments than the opposing party does not in itself impute bias against the party that got less adjournments. If on a party’s first application for adjournment the court is not satisfied with the reasons given, the application may be rejected notwithstanding the fact that it was the first time the adjournment was sought by that party. In the premises, I am not satisfied that there is evidence of bias on the trial court due to its denial of adjournment, when the reason for adjournment application was to seek time and leave to comply with Order 11 of the Civil Procedure Rules. The record is clear that as at 2019, when leave to comply with order 11 was sought, the matter had been in court for about eight years, and no explanation for the delay was given. Even if the appellant were to demonstrate that the trial court was wrong in exercising her discretion, that then would be a matter for appeal and not for recusal as there is no apparent bias.
32. The argument that counsel’s oral application to cease acting for the appellant was rejected as a basis of bias is untenable in the circumstances of this case as the record shows that the application to cease acting was made after the application for adjournment was rejected and hence it is discernible that there was no other reason for the application to cease acting, apart from the need by the appellants and their counsel to circumvent the decision rejecting adjournment. Such tactics by counsel are not novel, they have been resorted to in many cases when counsel want to get an adjournment by all means, and courts have an inherent power to ensure that the court process is not abused, and court orders are not issued in vain.
33. In the premises, the record does not demonstrate any bias on the part of the trial magistrate to warrant her recusal. I have no doubt in my mind therefore that a reasonable man sitting in court in regard to the disputed proceedings, would not harbour any suspicion that the appellants would not be accorded a fair trial.
34. In the result, this appeal is devoid of merit and the same is hereby dismissed with costs to the respondent.
35. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA VIRTUALLY THIS 12TH DAY OF MARCH, 2025 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM
In the presence of;
Mr. Njuguna holding brief for Mr. Mulu for the appellant
Mr. Muli holding brief for Mr. Nzavi for the respondent
Court Assistant: Godwin