This ruling is in respect of the Notice of Motion dated 14th July, 2025 brought by the Petitioner pursuant to the provisions of article 10 (1) (a) (b), 2 (b) (c), 25(c), 27 (1) (2), 35 (1)(a) (b), 48, 50(1), 159, 160, 163(7) and 232(1)(a)(c) of the Constitution, Section 1A, 1B, and 3A of the Civil Procedure Act Cap 21 Laws of Kenya and Order 51 Rule 1 Civil Procedure Rules 4, 5, 9, 15, 16 (a) (b), 21(1) (d) (g), 23(e), (f), 36 (1) (2), 41, 42 (a) (b) and 47 (1) (d) (g) of the Judicial Service (Code of Conduct & Ethics Regulations 2020).
The application seeks for an order that Lady Justice Esther Asati recuses herself from further hearing and determining the petition and that the petition be placed before another Judge.
The grounds upon which the application was brought as indicated on the face of the application are that: -
- The manner in which the Learned Judge has/ is conducting the trial of this Petition infringes and/or denies the Petitioner the right to fair hearing as guaranteed under the Constitution.
- That the Learned Judge has demonstrated bias, unfairness, favouritism, partiality and discrimination towards the Petitioner in the course of the proceedings in this Petition, contrary to Articles 10 (1) (a) (b) (2) (b) (c), 25(c), 27(1) (2), 35 (1) (a) (b), 48, 50(1), 159 (1) (2) (a) (d) (e) and 232 (1) (a) (c) of the Constitution as follows: -
- Whereas on 28th October 2024 the Learned Judge directed the Petitioner to file a formal application for leave of court to have this Petition heard by viva voce evidence, on the other hand, the Hon. Judge allowed the 1st and 2nd Respondents’ Counsel to introduce new evidence vide the Affidavit of David Otieno, Advocate deponed on 30th April 2025, without leave of court or consent of all parties;
- The Learned Judge allowed and admitted evidence from the 1st and 2nd Respondents’ Counsel after close of pleadings;
- The Learned Judge by design barred the Petitioner from orally highlighting submissions on 19th March 2025 under the guise of failure by the 1st and 2nd Respondents to have filed their written submissions, despite orders of 22nd April 2024, and further on 4th February 2025.
- Moreover, without legal foundation, the Hon. Judge on 5th June 2025 dismissed the Petitioner’s application seeking to strike out the 1st and 2nd Respondents’ Advocates, David Otieno’s Affidavit deponed on 30th April 2025.There is no legal justification to dismiss the Application.
- The Learned Judge’s ruling on 5th June 2025 defeats a perception that the Learned Judge is fair, impartial and unbiased.
- A formal request for a certified copy of the Ruling of 5th June 2025 has been denied/declined.
- In equal measure a complaint lodged by the Petitioner to the Judicial Service Commission pursuant to Article 168 against the Learned Judge, leaves reasonable apprehension to the Petitioner that there is likelihood of the judge being vindictive against the Petitioner.
- In equal measure, the Learned Judge has demonstrated and shown a judicially unacceptable proclivity to the 1st and 2nd Respondents in the following way: -
- Upon being notified on 11th November 2024 that the Petitioner had abandoned its desire to have this Petition heard by viva voce evidence, hence prudent for the 1st and 2nd Respondents to file their submission, the Learned Judge on two occasions (4th February 2025 and 13th March 2025) granted the 1st and 2nd Respondents 14 days window to file and serve submissions, within which period the same was never filed.
- The Learned Judge knows that pleadings in this Petition closed after the Petitioner filed his Supplementary Affidavit and submissions on or about 11th November, 2024.
- That the country has 52 other ELC Judges spread across 17 stations who can hear this Petition fairly, without bias, impartiality and in accordance with the facts, evidence and the law.
- That based on the above facts on the conduct of the Learned Judge, the Petitioner is apprehensive and reasonably believes he will not get a fair outcome and determination on this Petition based on the pleadings, the evidence and the law.
The application was supported by the contents of the Supporting Affidavit sworn by Moses Otieno Audi on 14th July, 2025 and the annextures thereto.
In addition to the Supporting Affidavit, the Applicant also filed Supplementary Affidavits sworn by Moses Otieno Audi on 23rd September, 2025 and 26th September, 2025.
The application was opposed by the 1st and 2nd Respondents vide the averments in the Replying Affidavit sworn on 25th September, 2025 by David Otieno, Advocate.
The case of the 1st and 2nd Respondents is that the motivation behind the filing of the application is to deflect the upcoming judgement and hopefully get a new trial elsewhere. That the application is malicious, disrespectful and an uncalled-for attack on the integrity of the court and designed to delay the determination of the matter.
It was submitted on behalf of the Applicant that the court is partial, discriminatory against and has exhibited bias the Petitioner. That in the eyes of a reasonable man, it was discriminatory for the court to direct one party to file a formal application to seek leave for the petition to be heard by way of viva voce evidence but on the other hand the court did not direct the other party to file formal application to introduce new evidence.
That the court is bound by article 10(1) of the Constitution to determine an application filed by the Petitioner even in the absence of the Petitioner. That failure by the court to interrogate the application was wrongful.
Counsel submitted that the foundation of the Petitioner’s dissatisfaction with the court was that if leave was required of the petitioner to vary earlier orders, leave should also have been required of Otieno David Advocate to file his Affidavit and that the court should have of its own motion, considered the petitioner’s application dated 5th June 2025.
On behalf of the 1st and 2nd Respondents, Counsel referred the court to the Replying Affidavit and submitted that the application has been brought to delay the upcoming judgement. That a mere complaint to the Judicial Service Commission is not a ground for recusal. That there is no ground for recusal demonstrated. That Counsel for the Petitioner had resorted to social media to malign the court.
Determination
I have considered the application and the Affidavits filed in support thereof and the annextures thereto and the Replying Affidavit. The application seeks one prayer namely; that the Judge recuses herself from the matter and the matter be reassigned to a different Judge.
The duty of a court before whom a matter is brought is to sit, hear and determine the matter. The Petitioner brought the matter before the court and submitted himself to the court. Jurisdiction of the court has not been challenged.
The Supreme Court in the case of Gladys Boss Shollei Vs Judicial Service Commission & 2 Others [2018] eKLR, on the doctrine of the duty to sit, stated:
“25: 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 has a duty to 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 he has to recuse himself. The doctrine also safeguards the parties’ right to have their cases heard and determined before a court of law.”
The Court further stated in the same case citing Simonson -vs- USDC P 425 R SUPP 574, 578 (1978) that;
“Recusal and reassignment is not a matter to be lightly undertaken by a district Judge. While in a proper case 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 reason for recusal, there remains what has been termed a “duty to sit”……..”
And further that;
“the requirement of independence and impartiality of a Judge is counter balanced by the Judge’s duty to sit, at least where ground for disqualification do not exist in fact or in law, the duty in itself helps protect judicial independence against maneuvering by parties hoping to improve their chances of having a given matter determined by a particular Judge or to gain forensic or strategic advantages through delay or interruption to the proceedings………”
The court further describes the nature of an application for recusal as
“a shield to protect the Applicants’ interest so that his/her matter is heard by an impartial court. It is not a sworn to be wielded by an Applicant to steal a match and deny a chance to the other party.
The burden of proving bias, impartiality and all the allegations that form the grounds of the present application rests with the Applicant.
Courts have developed an objective test in determining whether a judicial officer exhibited a real possibility of bias.
The court of Appeal in Kalpana H. Rawal -vs- Judicial Service Commission & 2 Others (2016)eKLR citing Attorney General of Kenya -vs- Anyang Nyongo stated;
We think that the objective test of “a reason apprehension of bias” is a 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, a litigant who seeks disqualification of a judge comes to court because of his own perception that there is appearance of bias on the part of the Judge. The court however has to envisage what would be the perception of a member of the public who is not only reasonable but also fair-minded and informed about all the circumstances of the case …………”
The Petitioner/Applicant herein has listed a total of about 10 grounds upon which he has brought the application. In ground (b)(i), the Petitioner complains that whereas on 28th October, 2024, the court directed the Petitioner to file a formal application for leave of the court to have the petition heard by way of viva voce evidence, on the other hand, the court allowed the 1st and 2nd Respondents’ Counsel to introduce new evidence vide the Affidavit of David Otieno Advocate sworn on 30th April, 2024 without leave of the court or consent of the parties.
However, perusal of the court record will show that directions had been taken at the instance of the Petitioner that the petition be disposed of by way of Affidavit evidence and written submissions and when later the Petitioner sought to vary those directions the court directed him to file a formal application as the request was opposed. The record shows that the Petitioner abandoned the request and filed the written submissions and Affidavits thereby complying with the earlier directions. On the other hand, the allegation that the court allowed the 1st and 2nd Respondents to file Affidavit introducing new evidence is not supported by the court record. There is no order or direction issued by the court allowing the 1st and 2nd Respondents to file any Further Affidavit or new evidence. It has not been demonstrated that the court accepted or admitted any new evidence or irregularly filed Affidavits. All pleadings, Affidavits and documents filed in support or in opposition of the petition are material to be interrogated in the pending judgment and whatever of the documents that will be found inadmissible will be treated so.
The Petitioner further complains that the Judge, without legal foundation dismissed the Petitioner’s application dated 5th June, 2025 seeking to strike out the 1st and 2nd Respondents’ Affidavit. This complaint is not supported by the record. The record shows that once the Petitioner’s application dated 5th June, 2025 was placed before the court, it was given a hearing date and the Petitioner was directed to serve the Respondents.
The record further shows that on the hearing date there was no attendance by or on behalf of the petitioner. Counsel for the 1st and 2nd Respondents was present. The record further shows that the court placed the file aside awaiting the Petitioner to prosecute his application till 10:25 a.m. when there was no attendance and the application was dismissed for non-attendance/want of prosecution. The Petitioner faults the court for failing to proceed to hear and interrogate the application in his absence as the applicant.
On the complaint in respect of the timelines given to parties to file submissions and Affidavits, the record shows that each party was given almost equal time to file their affidavits and submissions.
In complaining that the court gave the 1st and 2nd Respondents time on two occasions namely; on 4th February, 2025 and 13th March, 2025 to file submissions, the Petitioner has not considered the period he took to file his submissions and Affidavits. The Petitioner was, in addition, granted leave to file Supplementary submissions in response to the Respondents’ written submissions within 7 days of service of the 1st and 2nd Respondents’ submissions.
Having carefully read through the court record, this court finds no material/circumstances that can give rise to a reasonable apprehension in the mind of a reasonable, fair-minded and informed member of the public that the court did not apply or will not apply its mind to the case impartially.
The right to a fair trial as provided for in article 50(1) of the Constitution guaranties that Kenyans are accorded a fair and public hearing before an independent and impartial tribunal or body. There is nothing on record to show that the Petitioner’s right to fair hearing has been hampered or breached by the court in any way.
The court has also perused the Judicial Service Code of Conduct and Ethics which outlines the circumstances upon which a judicial officer may recuse himself or herself from a matter namely: that the Judicial Officer has personal bias or prejudice concerning a party or his lawyer or personal knowledge of facts in the proceedings before him, that the Judicial Officer has served as a lawyer in the matter in controversy, that judicial officer by himself, his family or close relation has a financial or any other interest that could substantially affect the outcome of the proceedings or that either the judicial officer or his spouse or a person related to either of them or the spouse of such person or a friend is a part of the proceedings.
None of these grounds for recusal have been demonstrated in this matter so as to relief the court of the duty to sit.
And as held in the case of Gladys Boss Shollei (supra) that a Judge in deciding an application for recusal must do a ‘balancing act’ between the ‘duty to sit’ and ‘the aims of maintaining the appearance of impartiality and instilling public confidence in the administration of justice’. The Court stated that;
“In respect of this doctrine of a judge’s duty to sit, Justice Rolston F. Nelson; of the Caribbean Court of Justice in his treatise – “Judicial Continuing Education Workshop: Recusal, Contempt of Court and Judicial Ethics; May 4, 2012; observed:
“A judge who has to decide an issue of self-recusal has to do a balancing exercise. On the one hand, the judge must consider that self-recusal aims at maintaining the appearance of impartiality and instilling public confidence in the administration of justice. On the other hand, a judge has a duty to sit in the cases assigned to him or her and may only refuse to hear a case for an extremely good reason”.
It is a delicate balance where the judge has to interrogate self against the allegations being wielded by the applicant. Having considered the entire record of the court so far, the law and decided cases against the grounds of the application, this court finds that the balance does not tilt in favour of the application.
The court finds that the application has no merit and hereby dismisses it. Costs to the 1st and 2nd Respondents.
Orders accordingly.
Ruling dated and signed at Kisumu, read virtually this 23rd day of October, 2025 through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Maureen: Court Assistant.
Audi for the Petitioner/Applicant.
Otieno David for the 1st and 2nd Respondents.
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