The registered trustees of the Catholic Diocese of Nakuru, (hereinafter referred to applicant) has come to court seeking orders that Honorable Justice Antony O Ombwayo be pleased to disqualify/recuse himself hearing and determining this matter. That Honorable Justice O.Ombwayo be pleased to recuse himself from handling any further proceedings in this matter and the file be placed before the presiding Judge for reallocation. The costs of the application be provided for.
The main ground in the application dated 20th December 2024, is that they will be greatly prejudiced should this court proceed to hear and determine this dispute as they were apprehensive that the Court has lost objectivity and open mind as well as the requisite impartiality to fairly and justly hear and determine the dispute. The applicant contends that the Court is well aware of the evidence and judgment entered in the previous matter and that the applicants are apprehensive that there is a real possibility of bias on the part of His Lordship in determining this suit. The applicant thus urges His Lordship to recuse himself from the matter in the interest of justice and that justice need not only be done but be seen to be done hence Judges must recuse themselves whenever their impartiality would be called into question. Further, when parties appear before a Judge; they expect them to be fair and serve justice to them. In the instant case, that I heard and entered judgment in a similar suit with similar facts and parties. It can only be presumed that his Lordship will have a pre-determined disposition of this suit.
The applicant poses a question as to whether a fair-minded observer will conclude that the Honorable Court will have a pre- determined disposition of the dispute which is similar to the previous suit before your Lordship. In her submissions, the applicant urges that the Black's Law Dictionary 8th Ed. (2004) (P. 1303) defines the terrn "recusal" as follows;-
"the removal of oneself as judge or policy maker in a particular matter, [especially] because of a conflict of interest'.
That the Judicial Code of Conduct sets out that a litigant may request judges to recuse themselves where there is reason to believe that there will be bias concerning a party. Under Regulation 21 Part Il 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; Has knowledge of disputed evidentiary facts concerning the proceedings; Is precluded from hearing the matter on account of any other sufficient reason
Further that the test to determine when a judicial officer should recuse himself/herself is premised on the Court's decision in the case of Porter vs, Magill [2002] 1 All ER 465 cited with authority by the Court of Appeal in Philip Tunoi v Judicial service commission and another. The House of Lords in the said case was of the opinion that:-
"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 balance approach and will neither be complacent nor be unduly sensitive or suspicious in determining whether or suspicious in determining whether or not there is real possibility of bias. "
The Court of Appeal in the case of R VS David Makali And Others C.A Criminal Application No Nai 4 and 5 of 1995 (Unreported), quoted in the case of Mtaani v Judicial Service Commission & another (Petition E 160 of 2023) [2024] KEHC 3487 (KLR) (copy attached) stated as follows:-
"...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 justice The test is objective and the facts constituting bias must whether it is likely to produce in the minds of the public at large a reasonable doubt about the fairness of the administration of be specifically alleged and established..
Further, in Charity Muthoni Gitabi Versus Joseph Gichanqi Gitabi (2017)eKLR, and Kalpana Rawal Versus Judicial Service Commission and 2 others (2016)eKLR, were the Court of Appeal held;
"An application for recusal of a Judge is a necessary evil. On the one hand, it calls into a question the fairness of a judge who has sworn to do justice impartially, the accordance with the constitution without any fear, favour bias, affection, ill will', prejudice, political, religion or other influence. In such applications, the impartially 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 the 2 evils. The alternative is to risk. Violating a cardinal guarantee of the constitution, namely the right to a 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 independent and impartial court"
The applicant submits that it is imperative for the Court 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 is not possible. In the instant case, the answer to the above question is in the affirmative hence disqualification from determining this case will be in the interest of justice especially so given the averments deponed in the affidavit in support of the application herein and the relevant authorities cited herein.
The Applicants has further argues that that being aggrieved by the Lordship's judgment against them in NAKURU ELC NO. 166 OF 2013 wherein the Court heard all the evidence which is, the same evidence to be produced in this case given that the case herein and the previous matter have similar facts and parties, it is only reasonable to be apprehensive of the outcome of this case owing to the facts stated. Moreover, that a reasonable observer with the stated facts will also undoubtedly find a possibility of real or reasonably perceived bias or prejudice. That given the judgment entered against the Applicants a similar suit with similar parties it is only right for the Applicant to be apprehensive that this Court has lost objectivity in dealing with this matter.
John Muigai Gatimu the Plaintiff and respondent herein on the other hand states that the application in itself as framed is fatally defective bad in law, abuse of the due process of the law and should be dismissed with costs. The application is not brought in good faith, serve no useful purpose and should be dismissed. The application is a well calculated move to delay the expedition’s finalization and the disposal of this matter.
The respondent submits that all along the parties have been waiting for the finalization of the previous matter thus ELC 166 of 2013 (formerly HCC NO 264 of 2007) so as it's finding does affect present case which has been the case. According to the respondent, the applicant has clearly admitted in the grounds in support of the application that he is aggrieved and unsatisfied by the judge of the similar matter ELC NO 166 of 2013 (formally 'ICC NO 264 of2007 Jacinta Wairimu Kinaani (suing as the Administrator of the estate of Michael Kimani Kariuki (deceased) VS Registered Trustees of the Catholic Diocese of Nakuru and 11 others involving similar set of facts and the same parties. The applicant alleges to have been greatly aggrieved and dissatisfied by the detrimental judgment of the learned judge in a similar matter ELC 166 of 2023 involving similar set of facts and same parties. The Application in essence has not met the minimum required thresholds for bringing such application.
The applicants cannot in any way point out to any conduct of the honorable judge that is injurious to the applicants and that it is true that the present case has similar fact, similar Defendants and separate Plaintiffs.
That there was a clear confession by the applicant of the similar facts date and parties, it's clear that these matters were to be handled by one court so as to avert this conflicting finding on the same matter in a court of similar jurisdiction. It is strange for the applicant to state that the court directed them to file a formal application. The application herein as filed is a delaying tactic that this honorable court should not entertain.
The respondent believes that the said application does not in any way meet the threshold for recusal under the Judicial service (code of conduct and Ethics) Regulation 2020. That indeed this application amounts to seeking the court to sit as an appellate court on its own directions that were given by consent of both parties. Indeed the application and the grounds on the face of it do not in any way point out to the conflict of interest for the learned judge to recuse himself. That the applicant cannot continue taking the entire judicial process in a circus by virtue of such an application. That from the affidavit in support of the application it is evidently clear that the same is an afterthought and that litigation must come to an end.
The respondent submits that the question of when a judicial Officer should recuse themselves was articulated by the Honorable Judges in Gachagua & 11 others v Speaker, National Assembly of Kenya & 7 others; Ruto and 4 others where they stated as follows,
"It has also been established through judicial pronouncements that the circumstances under which a judge or judicial officer should recuse themselves require a high threshold. These instances must be approached objectively, with careful consideration, rather than in a simplistic or routine manner. Recusal directly impacts the administration of justice and a judge should not withdraw from a case simply for the convenience sake. The high threshold serves to protect the judiciary from being manipulated by parties who may otherwise seek to undermine the judicial process by frivolously raising recusal applications in an attempt to secure a more favourable forum. "
This point was ably articulated in Dobbs v Tridios Bank NV (2005) EWCA 468, where the Court stated as follows:
. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judges were to recuse themselves whenever a litigant-whether it be a represented litigant or a litigant in person- criticized them (which sometimes happens not infrequently) we would soon reach the position in which litigants are able to select judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticized —whether that criticism was justified or not. That would apply, not only to the individual judge, but to all judges in this court; if the criticism is indeed that there is no judge of this court who can give Mr. Dobbs ' appeal could never be heard. "
The defendants'/applicants have emphasized that the Honorable Judge had previously determined a matter with similar facts to the detriment of the applicant. On this the respondent submits that the fact that the judge has previously determined a matter with similar facts to the detriment of the applicant is not sufficient ground for recusal.
The respondent refer to the case of Republic v Independent Electoral & Boundaries Commission & Another exparte Coalition For Reforms and Democracy (CORD) HC NRB Misc. Appl. No. 648 of 2016 [20171 eKLR para 74) where Justice Odunga J stated as follows}
“What I understand by that position that if a Court of law has pronounced itself on a matter and the parties view that as the correct legal position, there ought to be no valid objection to the same Court entertaining a subsequent matter in which similar issues are involved if the parties insist that the Court must do so. Where the parties are of the view that the matter in controversy has been decided, save for the option of an appeal where one is provided, parties are expected to order their lives in accordance with the said decision since courts of law are meant to set the law straight so that litigants may predict the outcome of their actions and either avoid taking a particular course or order their lives in accordance therewith. Therefore where the Court has pronounced itself on a matter, parties to the subsequent proceedings where the legal issues are similar ought not to seek that the same be heard by different judges in the hope of obtaining a different outcome"
In conclusion the respondent prays that the application dated 20th December 2024 should be dismissed as the defendant's/applicant's application lacks merit as it is an abuse of the court process as they have failed to show sufficient grounds for recusal of Honorable Justice Antony O. Ombwayo he applicant is based on facts that this court has handled a similar matter with similar parties in ELC 166 OF 2013 and delivered judgment in favour of the plaintiff I the suit against the defendant and therefore this court should rescues itself. The defendant stated that they will be greatly prejudiced should this court proceed to hear and determine this dispute as they were apprehensive that the court has lost objectivity and open mind as well as the requisite impartiality to fairly and fully hear and determine the dispute
I have considered the application for recusal and do find that the grounds for recusal have no basis as the applicant has not demonstrated that the facts herein are similar to the facts in ELC NO 166 OF 2013. Moreover, the similarity of facts and issues cannot be a ground of recusal of a judge.
At Regulation 21 Part II of the Judiciary 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.
This court is bound by principle 52 of the Bangalore Principles to which Kenya is a signatory underpins the importance of impartiality of a Judge in the course of conducting proceedings. 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.”
The court is also bound by the doctrine of the duty to sit which flows from the Constitution and Common law. It has been held that all judicial officers take an oath to serve and administer justice, it is implied that there is a duty to sit imposed upon them by the value and the principle of the rule of law. Judicial officers should thus resist the temptation to recuse themselves simply because it would be more convenient to do so.
The doctrine requires judicial officers not to recuse themselves unless there are compelling reasons not to sit. The doctrine was discussed by the Supreme Court (Ibrahim, SCJ) in his Lordship’s concurring opinion in Gladys Boss Shollei v Judicial Service Commission (2018) eKLR stating that the doctrine safeguards a party’s right to be heard and determined before a Court of law:
“Tied to the Constitutional argument above, is the doctrine of the duty of a Judge to sit. Though not profound in our jurisdiction, every Judge has a duty to sit, in a matter which he dushould sit. So that recusal should not be used to cripple a Judge from sitting to hear a matter. This duty to sit is buttressed by the fact that every Judge takes an oath of office “to serve impartially; and to protect, administer and defend the Constitution.” It is a doctrine that recognizes that having taken the oath of office, a Judge is capable of rising above any prejudices, save for those rare cases when has to recuse himself. The doctrine also safeguards the parties’ right to have their cases heard and determined before a Court of law.”
Recusal is a matter of judicial discretion and judicial officers should recuse themselves whenever they feel they may not appear to be fair or where they feel their impartiality would be called into question. Regulation 21 of the Judicial Service Regulations, behoves a judicial officer to disqualify oneself in proceedings where his or her impartiality might reasonably be called into question.
Judicial officers must therefore take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. They should therefore not readily succumb to bullying or intimidation by a party to recuse themselves.
In the case of Prayosha Ventures Limited vs NIC Bank Ltd & Others (2020) eKLR the Court (Omondi, J – as she then was) dismissed a recusal application and found thus:-
“It is not lost to me that the issue of recusal was spontaneously announced once I declined to extend the orders, and there should be no pretence by Mr. Lagat that the Interested Party instructed him to apply for my recusal… I have no lien over the matter, and would be more than willing to have this matter taken over by another judicial officer, except that the manner in which the recusal is sought reeks of mala fides clothed with sharp practice, outright bullying and intimidation. That where a litigant does not call the tune and pay the piper, then the bias flag is waved all over. Indeed, for good measure, Dr Kiprono reminded this Court that his client would be considering presenting a complaint to the Judicial Service Commission over my conduct in this matter. If that was not intended to scare the daylights out of me, then I do not know why the name of my employer was being invoked at that point.”
Similarly, in Dobbs v Tridios Bank NV (2005) EWCA 468 the Court cautioned itself as follows with respect to the antics of a certain Mr. Dobbs:
“… But it is important for a Judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If Judges were to recuse themselves whenever a litigant – whether it be a represented litigant or a litigant in person – criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select Judges to hear their cases simply by criticizing all the Judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a Judge felt obliged to recuse himself simply because he had been criticized – whether that criticism was justified or not. That would apply, not only to the individual Judge, but to all Judges in this court; if the criticism is indeed that there is no Judge of this court who can give Mr. Dobbs a fair hearing because he is criticizing the system generally. Mr. Dobbs’ appeal could never be heard.”
In conclusion, judicial recusal is a fundamental principle that upholds the integrity and impartiality of the justice system. It ensures that judicial officers presiding over cases have no conflicts of interest and can deliver fair and unbiased decisions. It is essential for judicial officers to exercise their discretion judiciously when considering recusal, balancing the principles of fairness, independence, and the efficient administration of justice. Ultimately, the goal is to maintain the integrity of the judicial system and safeguard the fundamental right to a fair and impartial trial for all parties involved. The judge should not recuse himself without proper grounds for the same and not because the issue of recusal has been raised by a party because to do so will be encouraging forum shopping. The court has not discerned any evidence of actual bias or impartiality in the supporting affidavits. The applicant alleges bias and relies on the directions of the court which if read by a right thinking person does not demonstrate the alleged bias or conflict of interest. Moreover, there are no sufficient grounds to require me to recuse myself from hearing the matter. This court should guard against being boxed in a corner of fear by an applicant who has no basis in her application for recusal but merely wants another judge to hear the case based on previous determinations. The applicant has not demonstrated to this court the alleged bias arising from this court’s decision in the above mentioned decided matter or ay sufficient reason for recusal and therefore the application has no basis and is dismissed with costs.
The main ground in the application dated 20th December 2024, is that they will be greatly prejudiced should this court proceed to hear and determine this dispute as they were apprehensive that the Court has lost objectivity and open mind as well as the requisite impartiality to fairly and justly hear and determine the dispute. The applicant contends that the Court is well aware of the evidence and judgment entered in the previous matter and that the applicants are apprehensive that there is a real possibility of bias on the part of His Lordship in determining this suit. The applicant thus urges His Lordship to recuse himself from the matter in the interest of justice and that justice need not only be done but be seen to be done hence Judges must recuse themselves whenever their impartiality would be called into question. Further, when parties appear before a Judge; they expect them to be fair and serve justice to them. In the instant case, that I heard and entered judgment in a similar suit with similar facts and parties. It can only be presumed that his Lordship will have a pre-determined disposition of this suit.
The applicant poses a question as to whether a fair-minded observer will conclude that the Honorable Court will have a pre- determined disposition of the dispute which is similar to the previous suit before your Lordship. In her submissions, the applicant urges that the Black's Law Dictionary 8th Ed. (2004) (P. 1303) defines the terrn "recusal" as follows;-
"the removal of oneself as judge or policy maker in a particular matter, [especially] because of a conflict of interest'.
That the Judicial Code of Conduct sets out that a litigant may request judges to recuse themselves where there is reason to believe that there will be bias concerning a party. Under Regulation 21 Part Il 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; Has knowledge of disputed evidentiary facts concerning the proceedings; Is precluded from hearing the matter on account of any other sufficient reason
Further that the test to determine when a judicial officer should recuse himself/herself is premised on the Court's decision in the case of Porter vs, Magill [2002] 1 All ER 465 cited with authority by the Court of Appeal in Philip Tunoi v Judicial service commission and another. The House of Lords in the said case was of the opinion that:-
"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 balance approach and will neither be complacent nor be unduly sensitive or suspicious in determining whether or suspicious in determining whether or not there is real possibility of bias. "
The Court of Appeal in the case of R VS David Makali And Others C.A Criminal Application No Nai 4 and 5 of 1995 (Unreported), quoted in the case of Mtaani v Judicial Service Commission & another (Petition E 160 of 2023) [2024] KEHC 3487 (KLR) (copy attached) stated as follows:-
"...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 justice The test is objective and the facts constituting bias must whether it is likely to produce in the minds of the public at large a reasonable doubt about the fairness of the administration of be specifically alleged and established..
Further, in Charity Muthoni Gitabi Versus Joseph Gichanqi Gitabi (2017)eKLR, and Kalpana Rawal Versus Judicial Service Commission and 2 others (2016)eKLR, were the Court of Appeal held;
"An application for recusal of a Judge is a necessary evil. On the one hand, it calls into a question the fairness of a judge who has sworn to do justice impartially, the accordance with the constitution without any fear, favour bias, affection, ill will', prejudice, political, religion or other influence. In such applications, the impartially 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 the 2 evils. The alternative is to risk. Violating a cardinal guarantee of the constitution, namely the right to a 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 independent and impartial court"
The applicant submits that it is imperative for the Court 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 is not possible. In the instant case, the answer to the above question is in the affirmative hence disqualification from determining this case will be in the interest of justice especially so given the averments deponed in the affidavit in support of the application herein and the relevant authorities cited herein.
The Applicants has further argues that that being aggrieved by the Lordship's judgment against them in NAKURU ELC NO. 166 OF 2013 wherein the Court heard all the evidence which is, the same evidence to be produced in this case given that the case herein and the previous matter have similar facts and parties, it is only reasonable to be apprehensive of the outcome of this case owing to the facts stated. Moreover, that a reasonable observer with the stated facts will also undoubtedly find a possibility of real or reasonably perceived bias or prejudice. That given the judgment entered against the Applicants a similar suit with similar parties it is only right for the Applicant to be apprehensive that this Court has lost objectivity in dealing with this matter.
John Muigai Gatimu the Plaintiff and respondent herein on the other hand states that the application in itself as framed is fatally defective bad in law, abuse of the due process of the law and should be dismissed with costs. The application is not brought in good faith, serve no useful purpose and should be dismissed. The application is a well calculated move to delay the expedition’s finalization and the disposal of this matter.
The respondent submits that all along the parties have been waiting for the finalization of the previous matter thus ELC 166 of 2013 (formerly HCC NO 264 of 2007) so as it's finding does affect present case which has been the case. According to the respondent, the applicant has clearly admitted in the grounds in support of the application that he is aggrieved and unsatisfied by the judge of the similar matter ELC NO 166 of 2013 (formally 'ICC NO 264 of2007 Jacinta Wairimu Kinaani (suing as the Administrator of the estate of Michael Kimani Kariuki (deceased) VS Registered Trustees of the Catholic Diocese of Nakuru and 11 others involving similar set of facts and the same parties. The applicant alleges to have been greatly aggrieved and dissatisfied by the detrimental judgment of the learned judge in a similar matter ELC 166 of 2023 involving similar set of facts and same parties. The Application in essence has not met the minimum required thresholds for bringing such application.
The applicants cannot in any way point out to any conduct of the honorable judge that is injurious to the applicants and that it is true that the present case has similar fact, similar Defendants and separate Plaintiffs.
That there was a clear confession by the applicant of the similar facts date and parties, it's clear that these matters were to be handled by one court so as to avert this conflicting finding on the same matter in a court of similar jurisdiction. It is strange for the applicant to state that the court directed them to file a formal application. The application herein as filed is a delaying tactic that this honorable court should not entertain.
The respondent believes that the said application does not in any way meet the threshold for recusal under the Judicial service (code of conduct and Ethics) Regulation 2020. That indeed this application amounts to seeking the court to sit as an appellate court on its own directions that were given by consent of both parties. Indeed the application and the grounds on the face of it do not in any way point out to the conflict of interest for the learned judge to recuse himself. That the applicant cannot continue taking the entire judicial process in a circus by virtue of such an application. That from the affidavit in support of the application it is evidently clear that the same is an afterthought and that litigation must come to an end.
The respondent submits that the question of when a judicial Officer should recuse themselves was articulated by the Honorable Judges in Gachagua & 11 others v Speaker, National Assembly of Kenya & 7 others; Ruto and 4 others where they stated as follows,
"It has also been established through judicial pronouncements that the circumstances under which a judge or judicial officer should recuse themselves require a high threshold. These instances must be approached objectively, with careful consideration, rather than in a simplistic or routine manner. Recusal directly impacts the administration of justice and a judge should not withdraw from a case simply for the convenience sake. The high threshold serves to protect the judiciary from being manipulated by parties who may otherwise seek to undermine the judicial process by frivolously raising recusal applications in an attempt to secure a more favourable forum. "
This point was ably articulated in Dobbs v Tridios Bank NV (2005) EWCA 468, where the Court stated as follows:
. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judges were to recuse themselves whenever a litigant-whether it be a represented litigant or a litigant in person- criticized them (which sometimes happens not infrequently) we would soon reach the position in which litigants are able to select judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticized —whether that criticism was justified or not. That would apply, not only to the individual judge, but to all judges in this court; if the criticism is indeed that there is no judge of this court who can give Mr. Dobbs ' appeal could never be heard. "
The defendants'/applicants have emphasized that the Honorable Judge had previously determined a matter with similar facts to the detriment of the applicant. On this the respondent submits that the fact that the judge has previously determined a matter with similar facts to the detriment of the applicant is not sufficient ground for recusal.
The respondent refer to the case of Republic v Independent Electoral & Boundaries Commission & Another exparte Coalition For Reforms and Democracy (CORD) HC NRB Misc. Appl. No. 648 of 2016 [20171 eKLR para 74) where Justice Odunga J stated as follows}
“What I understand by that position that if a Court of law has pronounced itself on a matter and the parties view that as the correct legal position, there ought to be no valid objection to the same Court entertaining a subsequent matter in which similar issues are involved if the parties insist that the Court must do so. Where the parties are of the view that the matter in controversy has been decided, save for the option of an appeal where one is provided, parties are expected to order their lives in accordance with the said decision since courts of law are meant to set the law straight so that litigants may predict the outcome of their actions and either avoid taking a particular course or order their lives in accordance therewith. Therefore where the Court has pronounced itself on a matter, parties to the subsequent proceedings where the legal issues are similar ought not to seek that the same be heard by different judges in the hope of obtaining a different outcome"
In conclusion the respondent prays that the application dated 20th December 2024 should be dismissed as the defendant's/applicant's application lacks merit as it is an abuse of the court process as they have failed to show sufficient grounds for recusal of Honorable Justice Antony O. Ombwayo he applicant is based on facts that this court has handled a similar matter with similar parties in ELC 166 OF 2013 and delivered judgment in favour of the plaintiff I the suit against the defendant and therefore this court should rescues itself. The defendant stated that they will be greatly prejudiced should this court proceed to hear and determine this dispute as they were apprehensive that the court has lost objectivity and open mind as well as the requisite impartiality to fairly and fully hear and determine the dispute
I have considered the application for recusal and do find that the grounds for recusal have no basis as the applicant has not demonstrated that the facts herein are similar to the facts in ELC NO 166 OF 2013. Moreover, the similarity of facts and issues cannot be a ground of recusal of a judge.
At Regulation 21 Part II of the Judiciary 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.
This court is bound by principle 52 of the Bangalore Principles to which Kenya is a signatory underpins the importance of impartiality of a Judge in the course of conducting proceedings. 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.”
The court is also bound by the doctrine of the duty to sit which flows from the Constitution and Common law. It has been held that all judicial officers take an oath to serve and administer justice, it is implied that there is a duty to sit imposed upon them by the value and the principle of the rule of law. Judicial officers should thus resist the temptation to recuse themselves simply because it would be more convenient to do so.
The doctrine requires judicial officers not to recuse themselves unless there are compelling reasons not to sit. The doctrine was discussed by the Supreme Court (Ibrahim, SCJ) in his Lordship’s concurring opinion in Gladys Boss Shollei v Judicial Service Commission (2018) eKLR stating that the doctrine safeguards a party’s right to be heard and determined before a Court of law:
“Tied to the Constitutional argument above, is the doctrine of the duty of a Judge to sit. Though not profound in our jurisdiction, every Judge has a duty to sit, in a matter which he dushould sit. So that recusal should not be used to cripple a Judge from sitting to hear a matter. This duty to sit is buttressed by the fact that every Judge takes an oath of office “to serve impartially; and to protect, administer and defend the Constitution.” It is a doctrine that recognizes that having taken the oath of office, a Judge is capable of rising above any prejudices, save for those rare cases when has to recuse himself. The doctrine also safeguards the parties’ right to have their cases heard and determined before a Court of law.”
Recusal is a matter of judicial discretion and judicial officers should recuse themselves whenever they feel they may not appear to be fair or where they feel their impartiality would be called into question. Regulation 21 of the Judicial Service Regulations, behoves a judicial officer to disqualify oneself in proceedings where his or her impartiality might reasonably be called into question.
Judicial officers must therefore take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. They should therefore not readily succumb to bullying or intimidation by a party to recuse themselves.
In the case of Prayosha Ventures Limited vs NIC Bank Ltd & Others (2020) eKLR the Court (Omondi, J – as she then was) dismissed a recusal application and found thus:-
“It is not lost to me that the issue of recusal was spontaneously announced once I declined to extend the orders, and there should be no pretence by Mr. Lagat that the Interested Party instructed him to apply for my recusal… I have no lien over the matter, and would be more than willing to have this matter taken over by another judicial officer, except that the manner in which the recusal is sought reeks of mala fides clothed with sharp practice, outright bullying and intimidation. That where a litigant does not call the tune and pay the piper, then the bias flag is waved all over. Indeed, for good measure, Dr Kiprono reminded this Court that his client would be considering presenting a complaint to the Judicial Service Commission over my conduct in this matter. If that was not intended to scare the daylights out of me, then I do not know why the name of my employer was being invoked at that point.”
Similarly, in Dobbs v Tridios Bank NV (2005) EWCA 468 the Court cautioned itself as follows with respect to the antics of a certain Mr. Dobbs:
“… But it is important for a Judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If Judges were to recuse themselves whenever a litigant – whether it be a represented litigant or a litigant in person – criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select Judges to hear their cases simply by criticizing all the Judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a Judge felt obliged to recuse himself simply because he had been criticized – whether that criticism was justified or not. That would apply, not only to the individual Judge, but to all Judges in this court; if the criticism is indeed that there is no Judge of this court who can give Mr. Dobbs a fair hearing because he is criticizing the system generally. Mr. Dobbs’ appeal could never be heard.”
In conclusion, judicial recusal is a fundamental principle that upholds the integrity and impartiality of the justice system. It ensures that judicial officers presiding over cases have no conflicts of interest and can deliver fair and unbiased decisions. It is essential for judicial officers to exercise their discretion judiciously when considering recusal, balancing the principles of fairness, independence, and the efficient administration of justice. Ultimately, the goal is to maintain the integrity of the judicial system and safeguard the fundamental right to a fair and impartial trial for all parties involved. The judge should not recuse himself without proper grounds for the same and not because the issue of recusal has been raised by a party because to do so will be encouraging forum shopping. The court has not discerned any evidence of actual bias or impartiality in the supporting affidavits. The applicant alleges bias and relies on the directions of the court which if read by a right thinking person does not demonstrate the alleged bias or conflict of interest. Moreover, there are no sufficient grounds to require me to recuse myself from hearing the matter. This court should guard against being boxed in a corner of fear by an applicant who has no basis in her application for recusal but merely wants another judge to hear the case based on previous determinations. The applicant has not demonstrated to this court the alleged bias arising from this court’s decision in the above mentioned decided matter or ay sufficient reason for recusal and therefore the application has no basis and is dismissed with costs.