1. By a notice of motion application dated 14th May 2024 the plaintiff/applicant seeks the following orders:-
1. Spent
2. Spent
3. The case be re-opened for purposes of conducting a fresh site visit;
4. The site visit report dated 19th February 2024 be expunged from the court record;
5. The site visit be conducted by the judge in conduct of this matter or a different Deputy Registrar to be appointed for the purpose of conducting a fresh site visit.
6. The cost of the application be provided for.
2. The application is premised on the grounds on its face and supported by the affidavit of the plaintiff/applicant’s advocate sworn in support thereof.
3. Despite having been given opportunity to file a response to the application, the respondents did not file a response to the application in the time given by the court and at all. That being the case, the application is unopposed.
4. I have read and considered the application and the grounds on which it is premised, particularly the alleged perceived bias on the part of the Deputy Registrar who prepared the impugned site visit report arising out of the plaintiff/applicant’s refusal to pay the amount said to have been sought by the Deputy Registrar as reimbursement for costs incurred arising out of the site visit.
5. I have also perused the order pursuant to which the order for site visit was given, which is in the following terms:-
“The photos produced in court are not able to guide the court on the status quo on the ground as to the fences that are in contention. I order that the DR visits the site within 30 days and file a report on the status of the suit land and the fences.”
6. It was pursuant to that order, that the Deputy Registrar visited the site and filed the site visit report dated 19th February 2024. Unfortunately, that report has been challenged by the plaintiff/applicant on alleged bias on the part of the Deputy Registrar. As pointed out herein above, the alleged bias a rises out of a demand by the Deputy Registrar for costs incurred by the Deputy Registrar concerning the site visit. It is alleged that the defendant’s counsel paid the costs demanded by the Deputy Registrar and that the plaintiff/applicant refused to pay citing lack of a formal order for payment of the costs and whom the the costs, if payable, were payable to.
7. I have perused the court file and established that no formal order was made concerning who would meet the costs of the site visit and how much.
8. As was observed in the case of Republic v. Speaker of the Senate & Another ex parte Afrison Export Import Ltd & another (2018)e KLR the rule against bias, (Nemo in propria causa judex, esse debet), that is, no one should be made a judge in his own cause, is the minimal requirement of natural justice that the authority giving decision must be composed of impartial persons acting fairly, without prejudice and bias. Bias means an operative prejudice, whether conscious or unconscious, as a result of some preconceived opinion or predisposition in relation to a party or an issue. The rule against bias strikes against those factors which may improperly influence a judge or a decision maker against arriving at a decision in a particular case. The basic objective of this rule is to ensure public confidence in the impartiality of the administrative adjudicatory process, as stated in the case of R. V. Sussex Justices Exparte McCarthy (1924) 1KB ALL ER that;
“Justice should not only be done, but also manifestly and undoubtedly seen to be done”.....
9. Having read and considered the affidavit evidence adduced in support of the plaintiff/applicant’s application, I am satisfied that there exist a ground for perceived bias against the Deputy Registrar arising out of the dispute concerning payment of costs of the site visit. Consequently, I find and hold that the plaintiff/applicant has made up a case for being granted the orders sought in the application dated 14th May 2024, which orders I grant her in terms of prayers 3, 4 and 5. The costs of the application shall abide the outcome of suit.
10. Regarding prayer 5, I direct that the site visit shall be conducted by the trial court.
11. The costs of the site visit, on the part of the court and its staff, shall be born by the court/judiciary.
12. The parties shall bear their own costs of the site visit.
13. Orders accordingly.
Dated, signed and delivered at Iten this 8th day of July, 2024.
Ruling delivered virtually in the presence of;-
Ms. Salim holding brief for Mr. Mwetich for the Plaintiff/Applicant
Ms. Olili for the Defendant/Respondents
Court Assistant: Alex