Introduction and Background
1. The Respondent has filed the Notice of Motion dated 13.12.2022 seeking orders, inter alia, that Hon. Justice D.S. Majanja do recuse himself from further handling, hearing and/or determining this matter and that the same be remitted to the Principal Judge of the High Court of Kenya or the Presiding Judge of the High Court Commercial & Admiralty Division for assignment to another Judge other than Hon. Justice D.S. Majanja. The application is supported by the grounds on its face and supporting affidavit of Bulent Gulbahar, a director/shareholder of the Respondent, sworn on 13.12.2022. It is opposed by the Applicant through the Grounds of Opposition dated 23.05.2023.
The Application
2. The Respondent avers that circumstances have arisen in this matter that shows that I am biased against the Respondent or otherwise that I have a predisposition against the Respondent. It accuses me of also repeatedly abusing my office, violating the provisions of Judicial Service Act, Leadership and Integrity Act, and the Public Officer Ethics Act, and violating the Respondent’s rights as guaranteed under the Constitution in this matter.
3. That my bias and negative predisposition, abuse of office and violation of fundamental rights has manifested itself in various instances as follows. That the case was initiated by way of Chamber Summons dated 27.10.2021 seeking the recognition and enforcement of an international Award of Cost (“the Award”) in ICC Case 23513/FS under section 36(2) of the Arbitration Act. The Respondent then filed an application through a Notice of Motion dated 06.01.2022 seeking stay of the proceedings herein pending hearing and determination of the application to set aside the Award filed on 11.09.2020 (13 months prior to the Chamber Summons) at the District Court of Helsinki, Finland, the seat of the arbitration and thus with jurisdiction. That the application on the face of it raised the issue that the Applicant had invoked the power of the Court under Rule 6 of the Arbitration Rules, 1997, by misrepresentation of material facts and fraud.
4. On 13.01.2022, I certified the Notice of Motion dated 06.01.2022 as urgent and fixed the application for directions on 25.01.2022. On 01.03.2022, the Respondent filed its submissions but that I subsequently refused to issue a ruling despite the application being a quasi-preliminary objection on jurisdiction. The Respondent states that it also filed a Notice of Motion dated 31.05.2022 seeking orders to compel the Applicant to produce the original or duly certified copies of the Agreement(s) and Award as required under Article IV of the New York Convention. Furthermore, the Respondent sought orders to compel the Applicant to produce proof of the cost claimed in the arbitration proceedings and awarded in the Award.
5. On 02.06.2022, I certified this application urgent and fixed it for mention for directions on 06.06.2022 where I directed the Applicant to respond to the application within 14 days and gave the Respondent leave to file a rebuttal within 7 days and fixed the application for hearing on 08.07.2022. The Respondent filed its submissions on 05.07.2022 on the application but that on 15.07.2022, in a twist and turn of events, I gave a (oral) ruling on the application and stated that I will not issue a separate ruling on the application. That I also repeatedly stated during the session that the Respondent was taking the Court in circles. The Respondent depones that my refusal to issue a ruling was a clear act of bias and was a violation of Article 47, 48, 50(1) and 159 of the Constitution.
6. On 21.07.2022, the Respondent filed its Ground of Opposition and on 22.07.2022 and its replying affidavit in opposition to application for recognition and enforcement of the Award. That on 22.07.2022, I gave directions to the parties to file submissions within 21 days, which was contrary to the Applicant’s earlier assertion that they had already filed their submissions and did not wish to file anything further and my directions of 15.07.2022. That on or about 19.08.2018, the Applicant, without the leave of the Court, filed a purported supplementary affidavit raising new issues and the submissions were filed on 21.09.2022, 60 days later. That in a clear act of bias and discrimination, I did not strike out the supplementary affidavit filed by the Respondent without leave of the Court, or the blatantly late filing of the submissions, leave alone taking any offence.
7. On 04.10.2022, the matter came up before the Deputy Registrar since I was unavailable due to other commitments. The Deputy Registrar fixed the matter for mention for directions on 06.12.2022 and the Respondent avers that it must be noted that the matter was postponed for over two months on account of my unavailability. That at the same time, I denied the Respondent the right to be heard, due process and access to justice in violation of Articles 47, 48, 50 and 159 of the Constitution.
8. On 25.11.2022, the Respondent further filed two separate Notices of Motion seeking leave to produce new material, documents, and evidence and admit the new material, documents and evidence as properly on record and seeking orders to strike out all purported affidavits of Mr. Aapo Saarikivi and exhibits on record and the Chamber Summons dated 27.10.2021. On 29.11.2022, I certified the Notice of Motion urgent and directed the two Notices of Motion to be mentioned for directions on 06.12.2022. That on 06.12.2022, in a turn of events, I summarily dismissed the application seeking leave to produce new material, documents, and evidence and admit the new material, documents, and evidence as properly on record, without a hearing and notwithstanding the fact that there was no objection to the application by the Applicant. That I stated that the Respondent had all the opportunity to file the documents and material earlier and that the Court will not be taken in circles and that I certified the application urgent. The Respondent wonders why the application was certified urgent if the application was meritless, abuse of process and frivolous.
9. The Respondent states that my reasoning was meritless in fact and law, as the evidence was obtained only three weeks prior to the filing of the application on 25.11.2022, contrary to my allegation that the Respondent could have filed it earlier. That my summary dismissal of the application was a clear act of bias, discrimination, abuse of office, violation of duty and thus contrary to my oath, the Constitution and all other written and unwritten laws of Kenya.
10. Based on the incidents outlined, the Respondent contends that I have been conducting myself in an arbitrary, bias, prejudicial, irregular manner incompatible with the Constitution and the laws of Kenya. That in the circumstances, justice cannot be fairly administered, as required under Article 47 of the Constitution, in 30 second intervals between 8am and 9am, if and when at all I am sitting and that a democratic society cannot exist where there rule of law and fundamental rights have been arbitrarily and discriminatorily applied.
11. The Respondent adds that if I am to abide by my oath of office, I would concede and recuse myself as the Constitution grants the Respondent an inalienable right to fair hearing before an impartial court and in law it is sufficient that where there is an impression or reality of bias, a Judge ought to recuse himself or herself and the law requires that justice must not just to be done but should at all times seen to be done.
12. The Respondent contends that this application has been brought in good faith to accord and ensure the parties herein get a just and a fair determination of the suit before this Court and that my recusal will not prejudice the parties in any manner or shape, if as requested, it is heard and determined expeditiously by another Judge.
The Applicant’s Reply
13. The Applicant resists the application for recusal on the ground that the Respondent has not set out any objective reason for my recusal. It contends that it is not a valid reason to demand recusal of the judge on the ground that the court issued directions that all pending applications filed in these proceedings be heard together particularly since the Respondent has filed 4 different applications to forestall the application seeking recognition and enforcement of the Award. Further that the application for recusal is another attempt by the Respondent to impede the hearing of the said application.
14. The Applicant avers that the Respondent has not shown anything likely to produce in the minds of the public at large a reasonable doubt about the fairness of the administration of justice, favoritism, or bias by the Court and that the mere dissatisfaction with the court's directions on the order of determination of the pending applications does not justify recusal. It urges that a judge has an obligation to sit and hear cases and cannot recuse himself without valid reasons and based on the test of a ‘fair minded and informed observer’ and the provisions of the Judiciary Code of Conduct, it cannot be said that, considering all circumstances of this case, I am likely to be biased against the Respondent and deny it a right to a fair trial.
Analysis and Determination
15. The main issue for determination is whether I ought to recuse myself from further proceeding with this matter.
16. The Court of Appeal in Philip K. Tunoi & another v Judicial Service Commission & another NRB Civil Application No. 6 of 2016 [2016] eKLR dealt in great detail with the issue of recusal and considered the test to be applied in determining whether a judge ought to recuse themselves as follows:
[39] The House of Lords held in R v. Gough [1993] AC 646 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.
[40] The test in R v. Gough was subsequently adjusted by the House of Lords in Porter v. Magill [2002] 1 All ER 465 when the House of Lords opined that the words “a real danger” in the test served no useful purpose and accordingly held that –
“[T]he question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
[41] In determining the existence or otherwise of bias, the test to be applied is that of a fair-minded and informed observer who will adopt a balanced approach and will neither be complacent nor be unduly sensitive or suspicious in determining whether or not there is a real possibility of bias.
[42] In Taylor v. Lawrence [2003] QB 528 at page 548, in which an application was made to reopen an appeal on the ground that the Judge was biased, the Judge having instructed the plaintiffs’ solicitors many years previously the House of Lords in the judgment of Lord Woolf CJ reiterated:
“... we believe the modest adjustment in R V. Gough is called for which makes it plain that it is, in effect, no different from the test applied in most of the commonwealth and in Scotland.”
“The Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”
17. In Kaplana H. Rawal v Judicial Service Commission & 2 others NRB CA Civil Appeal Application No. 1 of 2016 [2016] eKLR the appellate court also held as follows:
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. We would, with respect, agree with the Constitutional Court of South Africa when it stated as follows in The President of the Republic of South Africa v. The South African Rugby Football Union & Others, Case CCT16/98:
“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 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.” [Emphasis added].”
An application for recusal of a judge in which actual bias is established on the part of the judge hardly poses any difficulties: the judge must, without more, recuse himself. Such is the situation where a judge is a party to the suit or has a direct financial or proprietary interest in the outcome of the case. In that scenario bias is presumed to exist and the judge is automatically disqualified. The challenge however arises where, like in the present case, the application is founded on appearance of bias attributable to behaviour or conduct of a judge.
18. The Respondent has invoked the provisions of the Judicial Service (Code of Conduct and Ethics) Regulations 2020. At Regulation 21 Part II of the said Code of Conduct, a Judge can recuse himself or herself in any of the proceedings in which his or her impartiality might reasonably be questioned where the Judge;
(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) Or a member of the Judge’s family has economic or other interest in the outcome of the matter in question.
19. Regulation 9 of the Judiciary Code of Conduct aforesaid also emphasizes the importance of impartiality of a Judge. Regulation 9(1) provides:-
A Judge shall, at all times, carry out the duties of the office with impartiality and objectively in accordance with Articles 10, 27, 73(2) (b) and 232 of the Constitution and shall not practice favoritism, nepotism, tribalism, cronyism, religious and cultural bias, or engage in corrupt or unethical practices.
20. The Respondent calls for my recusal by impugning my conduct and alleging bias in the manner of my handling of this matter. The thrust of the allegations I have summarised above is that I have been dismissing its applications unfairly and summarily despite the fact that I had been certifying them as urgent, that I refused to strike out a further deposition filed by the Applicant that was contrary to my earlier directions and that I denied the Respondent its right to be heard.
21. Applying the test of a ‘fair minded and informed observer’ and the provisions of the Code of Conduct above, can it be said that taking into account all circumstances of this case and others, I have been biased and unfair to the Respondent to the point that I have denied him a right to a fair trial? I think not. The Respondent has filed a number of applications since the Applicant filed its application for recognition and enforcement of the Award. It is also true that in all of the Respondent’s applications, I have always certified the same as urgent and given directions as to their determination. As the Court of Appeal held in Jared Okello v Charles Otieno Opiyo & 3 Others, CA No. 151 of 2017,“Certifying a matter urgent means that the same is to be set down for hearing and determination immediately. It gets priority over other matters, even though they were filed earlier in time and the parties have been waiting patiently for their turn. Before a matter can be allowed to jump the queue, it must be shown to deserve priority hearing. That approach is deliberate and dictated by the principles and values of fairness to all litigants and case management considerations, to the end that deserving applications filed first in time, are not relegated to the periphery while later applications of equal or less urgency get fast-tracked and given preferential treatment.”
22. Certifying a matter urgent does not mean that the court has considered the merits of the case and that the application must be allowed. Certification only gives an application priority in respect of its hearing but does not dispose of its merits. Since the certification is a matter of practice done ex-parte, the court may well take a different position once the matter comes up for directions or further consideration inter parties. I therefore reject that Respondent’s contention that since all its applications were certified as urgent, then they must be allowed as a matter of right.
23. I gave directions that all of the Respondent’s applications would be considered together with the Applicant’s application for recognition and enforcement of the Award. In my ruling of 15th July 2022, I stated that this was borne by the fact that expediency is one of the hallmarks of the arbitration process and dealing with matters piecemeal undermines the overall objective of the Arbitration Act. This position is consistent with the principle asserted by the Supreme Court in Nyutu Agrovet Limited v Airtel Networks Kenya Limited;Chartered Institute of Arbitrators-Kenya Branch (Interested Party) SCK Petition No. 12 of 2016 [2019] eKLR where it held that “….arbitration was intended as an alternative way of solving disputes in a manner that is expeditious, efficient and devoid of procedural technicalities.” It does no credit to our system of justice that an application for recognition and enforcement of an award is mired in ancillary applications, two years after it was filed.
24. In matters of case management, the court has broad discretion in how a case should be conducted bearing in mind the duty of the court to optimize the use of court resources. In Mombasa Bricks & Tiles Ltd & 5 others v Shah & 7 others (Application 3 (E008) of 2022) [2022] KESC 72 (KLR) (4 November 2022) (Ruling) the Supreme Court held that the court is in charge of how it conducts its proceedings and that upon the direction to comply, it was incumbent upon the parties to do so within the specified timelines. That at no time should parties imagine that they could direct the court on its preferred course of action over a matter before it, considering the scarce judicial time and resources.
25. Turning to the deposition that was filed by the Applicant apparently without the leave of court, I note that the same was filed further to its Chamber Summons application and in response to the Respondent’s replying affidavit sworn on 20th June 2022. Whereas I agree that the filing of a supplementary/further affidavit as provided for under Order 51 Rule 14(3) of the Civil Procedure Rules provides for the filing of the same with the leave of the court and that the same should not introduce new evidence, this determination on the admissibility of the Applicant’s further affidavit is within the court’s discretion. Ultimately the court leans towards permitting parties to present all their evidence in manner the permits the court determine the issue in dispute fairly and ensuring the neither party is unduly prejudiced.
26. The Respondent has not established any grounds that would lead a reasonable person to conclude that I am biased. I reject the application to recuse myself in this matter.
Disposition
27. The Respondent’s application dated 13.12.2022 is dismissed with costs to the Applicant.
28. However, in light of my impending transfer from the Division, the matter will be heard by the incoming judge as directed by the Presiding Judge of the Division.
DATED and DELIVERED at NAIROBI this 17th day of AUGUST 2023.
D. S. MAJANJA
JUDGE
1. The Respondent has filed the Notice of Motion dated 13.12.2022 seeking orders, inter alia, that Hon. Justice D.S. Majanja do recuse himself from further handling, hearing and/or determining this matter and that the same be remitted to the Principal Judge of the High Court of Kenya or the Presiding Judge of the High Court Commercial & Admiralty Division for assignment to another Judge other than Hon. Justice D.S. Majanja. The application is supported by the grounds on its face and supporting affidavit of Bulent Gulbahar, a director/shareholder of the Respondent, sworn on 13.12.2022. It is opposed by the Applicant through the Grounds of Opposition dated 23.05.2023.
The Application
2. The Respondent avers that circumstances have arisen in this matter that shows that I am biased against the Respondent or otherwise that I have a predisposition against the Respondent. It accuses me of also repeatedly abusing my office, violating the provisions of Judicial Service Act, Leadership and Integrity Act, and the Public Officer Ethics Act, and violating the Respondent’s rights as guaranteed under the Constitution in this matter.
3. That my bias and negative predisposition, abuse of office and violation of fundamental rights has manifested itself in various instances as follows. That the case was initiated by way of Chamber Summons dated 27.10.2021 seeking the recognition and enforcement of an international Award of Cost (“the Award”) in ICC Case 23513/FS under section 36(2) of the Arbitration Act. The Respondent then filed an application through a Notice of Motion dated 06.01.2022 seeking stay of the proceedings herein pending hearing and determination of the application to set aside the Award filed on 11.09.2020 (13 months prior to the Chamber Summons) at the District Court of Helsinki, Finland, the seat of the arbitration and thus with jurisdiction. That the application on the face of it raised the issue that the Applicant had invoked the power of the Court under Rule 6 of the Arbitration Rules, 1997, by misrepresentation of material facts and fraud.
4. On 13.01.2022, I certified the Notice of Motion dated 06.01.2022 as urgent and fixed the application for directions on 25.01.2022. On 01.03.2022, the Respondent filed its submissions but that I subsequently refused to issue a ruling despite the application being a quasi-preliminary objection on jurisdiction. The Respondent states that it also filed a Notice of Motion dated 31.05.2022 seeking orders to compel the Applicant to produce the original or duly certified copies of the Agreement(s) and Award as required under Article IV of the New York Convention. Furthermore, the Respondent sought orders to compel the Applicant to produce proof of the cost claimed in the arbitration proceedings and awarded in the Award.
5. On 02.06.2022, I certified this application urgent and fixed it for mention for directions on 06.06.2022 where I directed the Applicant to respond to the application within 14 days and gave the Respondent leave to file a rebuttal within 7 days and fixed the application for hearing on 08.07.2022. The Respondent filed its submissions on 05.07.2022 on the application but that on 15.07.2022, in a twist and turn of events, I gave a (oral) ruling on the application and stated that I will not issue a separate ruling on the application. That I also repeatedly stated during the session that the Respondent was taking the Court in circles. The Respondent depones that my refusal to issue a ruling was a clear act of bias and was a violation of Article 47, 48, 50(1) and 159 of the Constitution.
6. On 21.07.2022, the Respondent filed its Ground of Opposition and on 22.07.2022 and its replying affidavit in opposition to application for recognition and enforcement of the Award. That on 22.07.2022, I gave directions to the parties to file submissions within 21 days, which was contrary to the Applicant’s earlier assertion that they had already filed their submissions and did not wish to file anything further and my directions of 15.07.2022. That on or about 19.08.2018, the Applicant, without the leave of the Court, filed a purported supplementary affidavit raising new issues and the submissions were filed on 21.09.2022, 60 days later. That in a clear act of bias and discrimination, I did not strike out the supplementary affidavit filed by the Respondent without leave of the Court, or the blatantly late filing of the submissions, leave alone taking any offence.
7. On 04.10.2022, the matter came up before the Deputy Registrar since I was unavailable due to other commitments. The Deputy Registrar fixed the matter for mention for directions on 06.12.2022 and the Respondent avers that it must be noted that the matter was postponed for over two months on account of my unavailability. That at the same time, I denied the Respondent the right to be heard, due process and access to justice in violation of Articles 47, 48, 50 and 159 of the Constitution.
8. On 25.11.2022, the Respondent further filed two separate Notices of Motion seeking leave to produce new material, documents, and evidence and admit the new material, documents and evidence as properly on record and seeking orders to strike out all purported affidavits of Mr. Aapo Saarikivi and exhibits on record and the Chamber Summons dated 27.10.2021. On 29.11.2022, I certified the Notice of Motion urgent and directed the two Notices of Motion to be mentioned for directions on 06.12.2022. That on 06.12.2022, in a turn of events, I summarily dismissed the application seeking leave to produce new material, documents, and evidence and admit the new material, documents, and evidence as properly on record, without a hearing and notwithstanding the fact that there was no objection to the application by the Applicant. That I stated that the Respondent had all the opportunity to file the documents and material earlier and that the Court will not be taken in circles and that I certified the application urgent. The Respondent wonders why the application was certified urgent if the application was meritless, abuse of process and frivolous.
9. The Respondent states that my reasoning was meritless in fact and law, as the evidence was obtained only three weeks prior to the filing of the application on 25.11.2022, contrary to my allegation that the Respondent could have filed it earlier. That my summary dismissal of the application was a clear act of bias, discrimination, abuse of office, violation of duty and thus contrary to my oath, the Constitution and all other written and unwritten laws of Kenya.
10. Based on the incidents outlined, the Respondent contends that I have been conducting myself in an arbitrary, bias, prejudicial, irregular manner incompatible with the Constitution and the laws of Kenya. That in the circumstances, justice cannot be fairly administered, as required under Article 47 of the Constitution, in 30 second intervals between 8am and 9am, if and when at all I am sitting and that a democratic society cannot exist where there rule of law and fundamental rights have been arbitrarily and discriminatorily applied.
11. The Respondent adds that if I am to abide by my oath of office, I would concede and recuse myself as the Constitution grants the Respondent an inalienable right to fair hearing before an impartial court and in law it is sufficient that where there is an impression or reality of bias, a Judge ought to recuse himself or herself and the law requires that justice must not just to be done but should at all times seen to be done.
12. The Respondent contends that this application has been brought in good faith to accord and ensure the parties herein get a just and a fair determination of the suit before this Court and that my recusal will not prejudice the parties in any manner or shape, if as requested, it is heard and determined expeditiously by another Judge.
The Applicant’s Reply
13. The Applicant resists the application for recusal on the ground that the Respondent has not set out any objective reason for my recusal. It contends that it is not a valid reason to demand recusal of the judge on the ground that the court issued directions that all pending applications filed in these proceedings be heard together particularly since the Respondent has filed 4 different applications to forestall the application seeking recognition and enforcement of the Award. Further that the application for recusal is another attempt by the Respondent to impede the hearing of the said application.
14. The Applicant avers that the Respondent has not shown anything likely to produce in the minds of the public at large a reasonable doubt about the fairness of the administration of justice, favoritism, or bias by the Court and that the mere dissatisfaction with the court's directions on the order of determination of the pending applications does not justify recusal. It urges that a judge has an obligation to sit and hear cases and cannot recuse himself without valid reasons and based on the test of a ‘fair minded and informed observer’ and the provisions of the Judiciary Code of Conduct, it cannot be said that, considering all circumstances of this case, I am likely to be biased against the Respondent and deny it a right to a fair trial.
Analysis and Determination
15. The main issue for determination is whether I ought to recuse myself from further proceeding with this matter.
16. The Court of Appeal in Philip K. Tunoi & another v Judicial Service Commission & another NRB Civil Application No. 6 of 2016 [2016] eKLR dealt in great detail with the issue of recusal and considered the test to be applied in determining whether a judge ought to recuse themselves as follows:
[39] The House of Lords held in R v. Gough [1993] AC 646 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.
[40] The test in R v. Gough was subsequently adjusted by the House of Lords in Porter v. Magill [2002] 1 All ER 465 when the House of Lords opined that the words “a real danger” in the test served no useful purpose and accordingly held that –
“[T]he question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
[41] In determining the existence or otherwise of bias, the test to be applied is that of a fair-minded and informed observer who will adopt a balanced approach and will neither be complacent nor be unduly sensitive or suspicious in determining whether or not there is a real possibility of bias.
[42] In Taylor v. Lawrence [2003] QB 528 at page 548, in which an application was made to reopen an appeal on the ground that the Judge was biased, the Judge having instructed the plaintiffs’ solicitors many years previously the House of Lords in the judgment of Lord Woolf CJ reiterated:
“... we believe the modest adjustment in R V. Gough is called for which makes it plain that it is, in effect, no different from the test applied in most of the commonwealth and in Scotland.”
“The Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”
17. In Kaplana H. Rawal v Judicial Service Commission & 2 others NRB CA Civil Appeal Application No. 1 of 2016 [2016] eKLR the appellate court also held as follows:
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. We would, with respect, agree with the Constitutional Court of South Africa when it stated as follows in The President of the Republic of South Africa v. The South African Rugby Football Union & Others, Case CCT16/98:
“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 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.” [Emphasis added].”
An application for recusal of a judge in which actual bias is established on the part of the judge hardly poses any difficulties: the judge must, without more, recuse himself. Such is the situation where a judge is a party to the suit or has a direct financial or proprietary interest in the outcome of the case. In that scenario bias is presumed to exist and the judge is automatically disqualified. The challenge however arises where, like in the present case, the application is founded on appearance of bias attributable to behaviour or conduct of a judge.
18. The Respondent has invoked the provisions of the Judicial Service (Code of Conduct and Ethics) Regulations 2020. At Regulation 21 Part II of the said Code of Conduct, a Judge can recuse himself or herself in any of the proceedings in which his or her impartiality might reasonably be questioned where the Judge;
(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) Or a member of the Judge’s family has economic or other interest in the outcome of the matter in question.
19. Regulation 9 of the Judiciary Code of Conduct aforesaid also emphasizes the importance of impartiality of a Judge. Regulation 9(1) provides:-
A Judge shall, at all times, carry out the duties of the office with impartiality and objectively in accordance with Articles 10, 27, 73(2) (b) and 232 of the Constitution and shall not practice favoritism, nepotism, tribalism, cronyism, religious and cultural bias, or engage in corrupt or unethical practices.
20. The Respondent calls for my recusal by impugning my conduct and alleging bias in the manner of my handling of this matter. The thrust of the allegations I have summarised above is that I have been dismissing its applications unfairly and summarily despite the fact that I had been certifying them as urgent, that I refused to strike out a further deposition filed by the Applicant that was contrary to my earlier directions and that I denied the Respondent its right to be heard.
21. Applying the test of a ‘fair minded and informed observer’ and the provisions of the Code of Conduct above, can it be said that taking into account all circumstances of this case and others, I have been biased and unfair to the Respondent to the point that I have denied him a right to a fair trial? I think not. The Respondent has filed a number of applications since the Applicant filed its application for recognition and enforcement of the Award. It is also true that in all of the Respondent’s applications, I have always certified the same as urgent and given directions as to their determination. As the Court of Appeal held in Jared Okello v Charles Otieno Opiyo & 3 Others, CA No. 151 of 2017,“Certifying a matter urgent means that the same is to be set down for hearing and determination immediately. It gets priority over other matters, even though they were filed earlier in time and the parties have been waiting patiently for their turn. Before a matter can be allowed to jump the queue, it must be shown to deserve priority hearing. That approach is deliberate and dictated by the principles and values of fairness to all litigants and case management considerations, to the end that deserving applications filed first in time, are not relegated to the periphery while later applications of equal or less urgency get fast-tracked and given preferential treatment.”
22. Certifying a matter urgent does not mean that the court has considered the merits of the case and that the application must be allowed. Certification only gives an application priority in respect of its hearing but does not dispose of its merits. Since the certification is a matter of practice done ex-parte, the court may well take a different position once the matter comes up for directions or further consideration inter parties. I therefore reject that Respondent’s contention that since all its applications were certified as urgent, then they must be allowed as a matter of right.
23. I gave directions that all of the Respondent’s applications would be considered together with the Applicant’s application for recognition and enforcement of the Award. In my ruling of 15th July 2022, I stated that this was borne by the fact that expediency is one of the hallmarks of the arbitration process and dealing with matters piecemeal undermines the overall objective of the Arbitration Act. This position is consistent with the principle asserted by the Supreme Court in Nyutu Agrovet Limited v Airtel Networks Kenya Limited;Chartered Institute of Arbitrators-Kenya Branch (Interested Party) SCK Petition No. 12 of 2016 [2019] eKLR where it held that “….arbitration was intended as an alternative way of solving disputes in a manner that is expeditious, efficient and devoid of procedural technicalities.” It does no credit to our system of justice that an application for recognition and enforcement of an award is mired in ancillary applications, two years after it was filed.
24. In matters of case management, the court has broad discretion in how a case should be conducted bearing in mind the duty of the court to optimize the use of court resources. In Mombasa Bricks & Tiles Ltd & 5 others v Shah & 7 others (Application 3 (E008) of 2022) [2022] KESC 72 (KLR) (4 November 2022) (Ruling) the Supreme Court held that the court is in charge of how it conducts its proceedings and that upon the direction to comply, it was incumbent upon the parties to do so within the specified timelines. That at no time should parties imagine that they could direct the court on its preferred course of action over a matter before it, considering the scarce judicial time and resources.
25. Turning to the deposition that was filed by the Applicant apparently without the leave of court, I note that the same was filed further to its Chamber Summons application and in response to the Respondent’s replying affidavit sworn on 20th June 2022. Whereas I agree that the filing of a supplementary/further affidavit as provided for under Order 51 Rule 14(3) of the Civil Procedure Rules provides for the filing of the same with the leave of the court and that the same should not introduce new evidence, this determination on the admissibility of the Applicant’s further affidavit is within the court’s discretion. Ultimately the court leans towards permitting parties to present all their evidence in manner the permits the court determine the issue in dispute fairly and ensuring the neither party is unduly prejudiced.
26. The Respondent has not established any grounds that would lead a reasonable person to conclude that I am biased. I reject the application to recuse myself in this matter.
Disposition
27. The Respondent’s application dated 13.12.2022 is dismissed with costs to the Applicant.
28. However, in light of my impending transfer from the Division, the matter will be heard by the incoming judge as directed by the Presiding Judge of the Division.
DATED and DELIVERED at NAIROBI this 17th day of AUGUST 2023.
D. S. MAJANJA
JUDGE