J & K INVESTMENTS KENYA LIMITED VS NATIONAL WATER HARVESTING AND STORAGE AUTHORITY

1.  In the Notice of Motion dated 14^th March 2024, the Applicant National Water Harvesting and Storage Authority seeks the recusal of Hon Justice P. Mulwa from further hearing and determination of this matter and that the matter be referred to the Hon. Presiding Judge of the Division for reallocation to another judge in the division. The costs of the application be provided.
2. The affidavit of Eng. John Muhia the acting Chief Executive Officer of the Applicant sworn on 14^th March 2024 supports the application. The Application is premised on the grounds of the face of it.
3. The application is opposed by the replying affidavit of Frank Ochieng Walukwe an advocate practicing in the firm of Gazemba Wekesa & Co. Advocates the Interested Party herein sworn on 4^th April 2024. He avers that this court has issued a garnishee order in favour of both the Applicant and Interest Party in two separate garnishee applications seeking attachment of similar bank accounts owned by the Respondent. The court gave a plausible explanation on 20^th March 2024 on the issues surrounding the two conflicting orders.
4. Li Shunkang the managing director of the J & K Investments Limited Kenya also opposed the application vide the replying affidavit sworn on 20^th March 2024. He avers the Applicant failed to participate in the proceedings seeking enforcement of the arbitral award that gave rise to the ruling of 22^nd February 2024. He argues that the court has not portrayed any biasness on their end. According to him, the court denied the Respondent's stay orders which led to the execution of the Respondent’s goods. He argues the Respondent has not benefited from the court’s conflicting orders on the status quo and garnishee order nisi.
5. I have considered the application before me and the supporting affidavit in support thereof and the Respondent’s replying affidavit. The Applicant seeks that I recuse myself based on my conduct in the matter and cites biasness. The Applicant is apprehensive of bias and asserts that justice will not be rendered. It avers that the court in determining the various applications filed by the parties has portrayed biasness in the manner the Respondent’s applications are expedited and orders issued as opposed to how their (Applicant’s) applications are dealt with.
6. There is always a presumption that a judge presiding over a matter exercises the judicial authority impartially and in accordance with the oath of office without influence from personal feelings, prejudice or bias. Whenever it is demonstrated that there is actual interest a judge ought to recuse himself.  It is trite law that a party requesting recusal on the grounds of apparent or perceived bias must show the court that a reasonable and fair-minded person with knowledge of the case's facts would conclude that the judge was biased.
7. Section 21 of the Judicial Service Code of Conduct and Ethics Regulations 2020, provides instances when a judge can disqualify himself from a matter, thus:

21. (1) A judge may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned where the judge—

• 1. is a party to the proceedings;
  2. was, or is a material witness in the matter in controversy;
  3. has personal knowledge of disputed evidentiary facts concerning the proceedings;
  4. has actual bias or prejudice concerning a party;
  5. has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter;
  6. had previously acted as a counsel for a party in the same matter;
  7. is precluded from hearing the matter on account of any other sufficient reason; or
  8. or a member of the judge’s family has economic or other interest in the outcome of the matter in question.

1. The test applicable in an application for recusal has been laid in several authorities.  The Court of Appeal in Kalpana H. Rawal v Judicial Service Commission and 2 others (2016) eKLR set out the test for bias as follows:

“We think the objective test of ‘reasonable apprehension’ 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.”

1. The Supreme Court in Jasbir Rai and 3 Others v Tarlochan Singh Rai and 4 Others SCK Petition No. 4 of 2012 [2013] eKLR observed 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.”

1. The burden of proving the facts from which it may be inferred that a reasonable and knowledgeable observer would find the judge biased rests with the Applicant. A party should not make mare allegation of biasness against a judge but reasonable grounds should be adduced and whether it is likely to infer doubt and fairness in the mind of a right-thinking member of the public in the administration of justice.
2. In the Kalpana Rawal case (supra) the court stated:

“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 an application, 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 too human and above all the Constitution does guarantee all litigants the right to a fair hearing by an independent and impartial tribunal.”

1. Judges should not recuse themselves on flimsy and baseless allegations. In the instant case, I note that the Applicant’s apprehension of bias draws from my conduct in determining the various applications filed before this court by the parties. The first allegation is based on the Ruling dated 22^nd February 2024 in which I allowed the applicant/respondent application dated 2^nd May 2023 seeking adoption and enforcement of the arbitral award dated 25^th August 2022. The Applicant avers that this portrays biasness as it has filed an application seeking to set aside the arbitral award first in time before the application for enforcement of the award and which application is yet to be determined.
2. It is important I mention that prior to the determination of the application for enforcement of the arbitral award I did not have the benefit of allocating myself the file for hearing of the Application for setting aside the arbitral award and this court only dealt with the application brought to my attention. In the said application, the applicant failed to participate despite being served with the pleadings and I proceeded to determine the application on merit. 
3. Had the Applicant participated in the application it could have had an opportunity to bring to the attention of the court of its pending application seeking to set aside the arbitral award, which the court could have issued appropriate directions on is disposal. The failure of the applicant to act accordingly, in my view cannot find fault with the court for carrying out its mandate and ensuring that the overriding objectives of expeditious and just determination of matters is achieved.
4. I have also been accused of biasness for the failure to grant orders in the Applicant’s application dated 27^th February 2024 seeking a stay of execution of the orders of 22^nd February 2024 in which I directed that the matter be mentioned on 20^th March 2024.
5. The Applicant further faults this court for issuing a garnishee order nisi in the execution of the decree issued on 22^nd February 2024 where I bound the garnishee and ordered all monies in account numbers 1124316329, 1114280488 and 1114279889 KCB Branch to be attached to satisfy the decree.
6. I note that after issuing the garnishee order nisi I failed to issue the stay of execution sought by the Applicant and thereafter issued status quo orders on 8^th March 2024 in High Court Miscellaneous No. E366 of 2023 J & K Investment Kenya Limited vs National Water Harvesting Storage Authority Limited on the Applicant's application dated 5^th March 2024 seeking a stay of proclamation notice dated 1^st March 2024.
7. When the issue of the conflicting orders was raised by the parties I explained to them the challenges faced when dealing with certificate of urgency where judges have no access to the court file but decide the certificate based on the pleadings filed at the instant of the application. I had directed that all the applications ought to be canvassed together. This position is consistent with good practice and also avoids issuing conflicting decisions but I have had to deal first with the application for recusal.
8. This Court has been faulted for expediting the application by J & K Investment Kenya Limited and failing to give the same consideration to the applications filed by the National Water Harvesting and Storage Authority. This is a mere assertion since the Court has always given due consideration in the spirit of dispensing justice and guided by the overriding objectives in dealing with matters brought to its attention. 
9. The mere fact that parties criticise judges does not bind a judge to recuse themselves. In Kaplan & Stratton vs Z Engineering Construction Limited & 2 Others (2002) eKLR it was held that:

"Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

1. An application for recusal of a judge on account of apprehensive or real biasness has a high threshold to prove and must be supported by cogent evidence. I find that the instant application fails to meet the reasonable test and the facts do not establish alleged bias nor establish the same.
2. The supreme Court of Kenya in Gladys Boss Shollei v Judicial Service Commission and Another (2018) eKLR cited with authority the case of Simonson v General Motor Corporation USDCP 425 RSupp574,578(1978) in which the court stated:

“Recusal and reassignment is not a matter to be lightly undertaken by a Distinct Judge. While in proper cases, we have a duty to recuse ourselves, in cases such as the one before us, we have concomitant obligation not to recuse ourselves; absent valid reasons for recusal there remains what has been termed as a “duty to sit”…the requirements of independence and impartiality of judge must be counterbalanced by the judge’s duty to sit where no grounds of disqualification exist in fact or in law as the duty in itself helps to protect the independence of our courts against maneuvering by parties hoping to improve their chances of having a matter determined by a particular Judge as to gain forensic and strategic advantage through delay and interpretation of proceedings…”

1. Having carefully considered the application and the grounds raised, the conclusion is that no fair-minded person aware of the facts of the case herein would infer biasness on my part.  The result is that the Applicant has not established a case for my recusal. I dismiss the Notice of Motion dated 14^th March 2024 with costs to the Respondent.

RULING delivered virtually, dated and signed at NAIROBI

This 7^th day of November 2024.

P. MULWA

JUDGE

In the presence of:

Ms. Olendo for decree holder

Ms. Kyumu for judgment debtor

Mr. Gitau for garnishee

Mr. Mbugua h/b for Mr. Walukwe for interested party

Court Assistant: Carlos