'The applicants have come to this court seeking orders that the Honorable Ombwayo J do recuse himself from hearing any further proceedings in this matter and in particular the reference dated 1st April 2025 and that necessary directions do issue. The application is based on grounds that the Honorable Judge displayed bias against the plaintiffs and in favor of the defendants in the judgment dated 31st January 2024 by reason whereof the plaintiffs have complained about the same in the pending ELD COACA NO. E102 of 2024. The applicants allege that their right to a fair hearing is not guaranteed as long as their grievance to the Court of Appeal about the bias displayed by this Honorable Court is validly pending for determination.
The application is supported by the affidavit of Erick Tipis who states that the subject taxed costs relate to this Honorable Courts judgement dated 31st January 2024. The plaintiffs did appeal the said judgement in terms of the memorandum of Appeal dated 4th July 2024 filed in COACA NO. E102 of 2024..
The appellants have complained about the biased misevaluation of the evidence and honestly believe that this Honorable Court will still display bias in favor of the defendants/respondents while considering the chamber summons dated 1ST April 2025 Accordingly, they honestly believe that it is in the interest of justice that this application be allowed,
In response Looyieyio Ole Ntutu states that he is advised by his advocates that recusal of a judicial officer is a serious issue that must be supported by cogent facts and evidence and that just because a judge delivered judgment in a case does not mean that he cannot re-calculate costs resulting from the. said judgment as a Taxing officer.
The Applicants'' allegations of bias are unsubstantiated and unsupported speculations. There is no- reasonable apprehension of bias on the part of the Honorable Judge.
He believes that since the judge handled the matter to conclusion, he is better placed to know about the nature and importance of the matter and work involved in finalizing the matter, hence
The instant application is a desperate attempt by the Applicants to defeat the ends of justice. He prays that the same be dismissed with costs.
On this issue of recusal, the court is guided by the case of Charity Muthoni Gitabi Versus Joseph Gichangi Gitabi (2017)eKLR, and Kalpana H. Rawal Versus Judicial Service Commission and 2 others (2016)eKLR, where 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 court is further guided by the case of Philip K. Tunoi & Another Versus Judicial Service Commission & Another (2016), where the CA held;
“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 finds that in the instant case, there are absolutely no facts of circumstances bespeaking of any bias or partiality of the court herein. I have considered the application and do find that the applicants have not demonstrated any lota of bias on the part of the court. Recusal of a judge is a very serious matter and therefore the applicant must prove bias or conflict of interest. This application has no basis and is dismissed with costs
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The application is supported by the affidavit of Erick Tipis who states that the subject taxed costs relate to this Honorable Courts judgement dated 31st January 2024. The plaintiffs did appeal the said judgement in terms of the memorandum of Appeal dated 4th July 2024 filed in COACA NO. E102 of 2024..
The appellants have complained about the biased misevaluation of the evidence and honestly believe that this Honorable Court will still display bias in favor of the defendants/respondents while considering the chamber summons dated 1ST April 2025 Accordingly, they honestly believe that it is in the interest of justice that this application be allowed,
In response Looyieyio Ole Ntutu states that he is advised by his advocates that recusal of a judicial officer is a serious issue that must be supported by cogent facts and evidence and that just because a judge delivered judgment in a case does not mean that he cannot re-calculate costs resulting from the. said judgment as a Taxing officer.
The Applicants'' allegations of bias are unsubstantiated and unsupported speculations. There is no- reasonable apprehension of bias on the part of the Honorable Judge.
He believes that since the judge handled the matter to conclusion, he is better placed to know about the nature and importance of the matter and work involved in finalizing the matter, hence
The instant application is a desperate attempt by the Applicants to defeat the ends of justice. He prays that the same be dismissed with costs.
On this issue of recusal, the court is guided by the case of Charity Muthoni Gitabi Versus Joseph Gichangi Gitabi (2017)eKLR, and Kalpana H. Rawal Versus Judicial Service Commission and 2 others (2016)eKLR, where 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 court is further guided by the case of Philip K. Tunoi & Another Versus Judicial Service Commission & Another (2016), where the CA held;
“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 finds that in the instant case, there are absolutely no facts of circumstances bespeaking of any bias or partiality of the court herein. I have considered the application and do find that the applicants have not demonstrated any lota of bias on the part of the court. Recusal of a judge is a very serious matter and therefore the applicant must prove bias or conflict of interest. This application has no basis and is dismissed with costs
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