- On 24/10/2024 this Court's attention was brought to certain stated paragraphs contained in both the Petitioner's Written Submissions dated 01/10/2024 and the Petitioner's Written Submissions 18/10/2024. They, ostensibly, question the impartiality and integrity of either this Judge or the process unfolding in this matter.
- Due to the extreme seriousness of the nature of those concerns, which were contained in filed documents prepared by Counsel and which would have formed part of the highlighting of written submissions that was to take place on that day, the Court took out the highlighting and in its place fixed today's mention.
- The Court directed that the Director of the Petitioner be available and appear before this Judge in open/physical court to confirm if the Petitioner had indeed instructed Counsel to express those views as framed in the written submissions. Counsel for the Petitioner indicated that the Petitioner's sole director was outside of Kenya and resident in the United States of America and could only appear virtually. Consequently, the Court further directed that the Petitioner file a CR12 Company Search and to provide proof that the said Sole Director was not in the jurisdiction, and that the Director be logged in and available for today's mention.
- The Petitioner complied with the directions of the Court by filing a document titled " Statement of Protest" dated 28/10/2024 prepared and signed by Joyce Akinyi Ogutu, the Principal Officer and Director of the Petitioner.
- In that document, the Petitioner's Sole Director repeats the statements contained in the two sets of written submissions, and indeed amplifies them. At Paragraph 6 of the Statement, the Director of the Petitioner states, and I quote: " It would appear to the Petitioner that this Court is under the control and direction of Safaricom" with Safaricom being the 1st Respondent herein.
- At Paragraph 7 of the Statement, the Director of the Petitioner states, and once again I quote verbatim " Had the Petitioner and other dealers not been expressly warned by Safaricom before the inception of the suit herein that the Safaricom has ' deep pockets' and will 'fix' and challenge lodged in Court, the Petitioner would have been shocked by the occurrences in this matter, but the turn of events do not surprise the Petitioner."
- The Petitioner's Director proceeds on in the same vein throughout the five-page Statement dated 28/10/2024.
- Noting the foregoing, I am satisfied that the Petitioner has deeply held beliefs that it will not have a fair and impartial trial if this matter is presided over by this Judge. While I unequivocally and emphatically state that there is absolutely no basis to any of the assertions made by the Petitioner, I nevertheless find that it is fit, right, and proper that this matter be heard and determined by another Judge.
- The purpose of today's mention was for the Court to enquire if the Petitioner held the same views as its Counsel and whether it had instructed the same be set down in writing and introduced into the Record through the Petitioner's two sets of written submissions; and having found that this is the case, I recuse myself from any further involvement in this matter.
- This matter shall be mentioned before the Presiding Judge of the Division, in Chambers, for reallocation to any Judge in the Division other than this Judge.
Written, Dated, Signed, and Delivered on this 28th Day of October, 2024 in virtual court, in the presence of Parties and their respective Counsel as indicated in the Record of today's proceedings, and as below:
Appearances
Mr. Ahmednasir Abdullahi SC - for the 1st Respondent
Mr. Kevin McCourt SC - for the 3rd Respondent
Dr. Kenneth Kiplagat and Ms. Judie Adell - for the Petitioner
Mr. Ismail - for the 2nd Respondent
Ms. Joyce Akinyi Ogutu