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JudgmentZakhem International Construction Limited VS Oil Fields Engineering And Supplies Limited11 min read

Zakhem International Construction Limited VS Oil Fields Engineering And Supplies Limited

High Court at Milimani High Court · · P. J. Otieno

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI (MILIMANI COMMERCIAL COURTS COMMERCIAL AND TAX DIVISION)

COMMERCIAL AND TAX

COMMERCIAL ARBITRATION CAUSE E042 & E036 OF 2021 (CONSOLIDATED)

BETWEEN

ZAKHEM INTERNATIONAL CONSTRUCTION LIMITED                               APPLICANT

VERSUS

OILFIELDS ENGINEERING AND SUPPLIES LIMITED                                 RESPONDENT

(As consolidated with commercial arbitration cause e036 of 2021)

BETWEEN

OILFIELDS ENGINEERING AND SUPPLIES LIMITED                                     APPLICANT

VERSUS

ZAKHEM INTERNATIONAL CONSTRUCTION LIMITED                            RESPONDENT

AND

ECOBANK KENYA LIMITED                                                            INTERESTED PARTY

ECOBANK NIGERIA LIMITED                                                          INTERESTED PARTY

AZICON LIMITED                                                                            INTERESTED PARTY

LJA ASSOCIATES ADVOCATES                                                      INTERESTED PARTY

RULING

  1. The applicant, Zakhem International Construction Limited, by the Notice of Motion dated 18th July 2024, seeks the recusal of the court on three stated grounds. The three grounds are is that senior counsel, prof Ojienda has been purposely retained to improperly influence the judge; that the judge has sluggishly handled the matter and refused to render a decision on the three applications where parties highlighted submissions on the 20.03.2024 and lastly that there judge clandestinely had the matter brought to court on the 10.07.2024 without serving all the parties in the matter. For the tree reasons, the applicant asserts that the judge has been reached by Prof Ojienda on behalf of the respondent, Oilfields Engineering and Supplies Limited to dispense the matter in the respondent’s favour.
  2. The application is supported with the affidavit of the managing director of the applicant which reiterates the grounds and reasons disclosed on the face of the motion. When served with the Replying Affidavit by the respondent, the applicant swore a Further Affidavit whose thrust was to assert that; it is the respondent that has delayed the matter by filling a plethora of applications, the respondent never sought the recusal of Mshila, Okwany and Majanja jj, as alleged by the respondent and that the listing of the matter soon after Prof Ojienda came on record remain suspect.
  3. The application was opposed by the respondent on the strength of the Replying Affidavit sworn by a director of the respondent. The gist of the opposition is that the threshold for recusal had not been met and that this application was yet another ploy to delay the matter as set attempts were initiated to have the money subject of the Mareva injunction paid out to the applicant’s counsel. There was also an explanation on how the respondent got to know that the matter had been listed on 10.07.2024.
  4. As said before, the reasons advanced to justify the prayer for recusal, are disclosed on the face of the application dated 18.07.2024 and on the affidavit of support.
  5. To capture and address the concerns of the applicant, a recap of the judges handling of this file is of benefit to all.
  6. The file was for the very first time placed before the judge on the 20.3.2023 pursuant to the directions of the Presiding Judge of the division issued on the 14.03.2024. By the said directions, the matter was listed before me for purposes of highlighting of filed written submissions.
  7. When the matter was called out during the morning session, the applicant in the application for recusal, was represented by Ms Asli advocate. The court conducted a short conference with the counsel present at which it was agreed and directed that the five pending applications be heard together, the same day at noon, but in two distinct clusters starting with the three applications seeking to set aside the Mareva injunction, so that the applicants/interested parties’ counsel, who were never parties to the arbitration agreement, be released as the main parties to the dispute argue whether or not to recognise or set aside the arbitral award. It was the understanding of all, that the court would, after hearing the parties on all the applications, do two separate decisions but rendered at the same time. That position was taken by court with full cognisance that it was sitting on what the institution calls rapid response initiative targeted at addressing the perennial question of backlog.
  8. However, when the matter was called at 12.16pm, it was the Senior Counsel, Mr Ahmed Nassir, who attended court as appearing for the applicant and apologised for having not been present earlier in the day. The senior Counsel told the court that his client had since established that the arbitrator had been bribed and he sought a limited time to file an affidavit in that regard. Despite protest by Dr Kubasu, advocate for Oilfield, the court granted to the senior counsel leave to file the affidavit, proceeded with the highlighting of submissions on the applications touching on the Mareva injunction to conclusion and the court stood over the matter to the 6.5.2024 at 2.30 pm for purposed of taking submission on the application touching on enforcement or setting aside of the award and giving of a ruling date for the two sets of applications.
  9. Come the set date, the matter could not proceed because it was reported by Mr Amaya, who held brief for the senior counsel Ahmed, that the senior counsel had had to rush a sic child to the hospital. Despite very strenuous opposition by Dr Kubasu alleging among other concerted efforts at delay, the court adjourned the matter for the last time and stood it over to the 29th May 2024.
  10. Unfortunately, the court did not sit on the set date and the matter could not proceed. It then became necessary that the matter be progressed and the Deputy Registrar was directed to set down the matter for mention. The Deputy Registrar communicated to the court that the matter had been set for the 10th July and forwarded the file to Lodwar Registry where the judge had been transferred. I have since consulted with the Deputy Registrar, Kakamega, who has indicated to me and shown me a letter dated 8.7.2024 by which he requested the Deputy Registrar, Commercial Division, to notify parties that the matter would be in court on the 10.7.2024. the matter was in deed called out as scheduled, among other matters from the same registry, but due to the absence of counsel for Zakhem and it having not appeared on the cause list, the same was given a different date when all the counsel attended and aspersions cast on the court. To be precise, on the 10.7.2024, it was not only this matter that was listed but also HCCOMMAEO161 OF 2023 was. It would appear that the Deputy Registrar, Commercial Division, did not list the matter in the system nor was service effected on all the parties because the two matters were not in the list and there was no appearance for counsel save for the counsel of the respondent. Even those matters listed for the subsequent dates suffered the same fate.
  11. With that sequence of events, it should be clear whether the court has failed on its duty to expeditiously conclude the matter and oh how the date for 10.07.2024 came to be.
  12. In this court’s learning, an applicant seeking the recusal of a judge has the onus to demonstrate that, there is material that when presented to a reasonable Kenyan, that reasonable Kenyan would reasonably conclude that there is a likelihood of real bias or impartiality on the part of the judge because it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done[1].
  13. Every judge has the unwavering obligation and duty to handle the docket assigned to him/her and it takes grave and sound reasons to resile from the assignment to handle a file to its closure. It has been well settled that the nature of bias or impartiality must be viewed from the lenses of a reasonable, fair minded and informed member of the public[2].  The test must thus remain the objective one. Never subjective or the kind that gives the impression that the sole intension is to procure a different judge who may be inclined to find in favour the applicant.
  14. On the constitutional principle of accountability and transparency, it is no longer a valid reason for a judge to recuse self from a file for undisclosed personal reasons. On basis of the oath of office of a judge, it is not acceptable or adequate to recuse oneself on the basis of fear that a complaint may be lodged against one on the manner one has handled a file[3]. The threshold is whether a reasonable, fair minded and informed Kenyan, when given all the facts of the case, will form the opinion that there exists a real possibility that the court would be biased.[4]
  15. The short history of this file before this court demonstrate that the court directed that both clusters of applications were to be heard by way of highlighting submissions and two separate decisions rendered simultaneously. It is clear from the same record that the courts directions were hampered by the request by the senior counsel for leave to file an additional affidavit. Had there been not made that request, all the five applications were ripe and could have been dealt with on the 20.03.2024 in the spirit of rapid response initiative. Had that been done, it would be justifiable today to fault the court if the decision had not been reached.
  16. Additionally, when the court indulged the senior counsel with the leave and an adjournment to the 6.5.2024, it was the same counsel who forestalled the progress of the matter for reasons the court considered very genuine. It thus cannot be honestly be asserted that the court has delayed the matter. If there has been any delay the record shows that it was caused by parties and not the court.
  17. On whether the ruling on the three applications ought to be delivered earlier and before the other two applications regarding the award, the court shall be the first to respect its own directions. As of today, the directions of 20.03.2024 remains and can assure the parties that   as soon as the they accord the court the opportunity to conclude the matter by surmounting the need for highlighting the written submissions, the decision on all the applications will be ready not later than 45 days thereafter.
  18. On the accusations that the matter was secretly listed for hearing, the record and practice of the court on issuance of dates otherwise than in open court stands out and not in doubt. It is not for the judge to give dates at the registry. In this matter an official communication exists between the two Deputy Registrars; Kakamega and Commercial Court division, by which Kakamega registry requested the Nairoby registry to notify counsel. It is to be noted that the said communication concerned not just this file but seven others from the same division. More importantly, because the senior counsel was not in court and the matter was not listed, the matter was adjourned to date he was duly served. Again, no prejudice results from that event.
  19. Then there is the allegation that the appointment of Senior Counsel, prof Ojienda, was targeted to acquire for the judge an interest in the dispute. In the words of Senior Counsel Ahmed, different counsel in this matter represents different interests and that prof Ojienda represents judge P J O Otieno. The foundation of that allegation is an alleged intimation by one Francis Amina Juma to the deponent of the applicant’s affidavit.
  20. When the parties appeared before the court on 23.07.2024, it was directed that the said Mr Amina files an affidavit within 2 hours. However, when the court resumed the same day in the afternoon, no such affidavit had been filed and the senior counsel then told the court that the said Amina is the actual owner of Oilfield and that he had not filed the affidavit. The Senior counsel then proposed that the deponent of the applicant’s affidavit and the said Mr Amina to attend court for purposes of cross examination.
  21. The failure to have a verification by Mr Amina of what he allegedly told Mr Zakhem leaves the court with no more than allegations as spurious as they may stand. It would be self defeating to purport to call him for cross examination when he has no affidavit on record. It is enough to say that the allegation remains unsubstantiated and fall far below the standard of proof required.
  22. It is however important that the court makes a disclosure and determination of what relationship exists between the judge and professor Ojienda, Senior Counsel. It is verifiable that the judge and Prof Ojienda, met, for the very first time, as first year law students, at the university of Nairobi way back in September 1988. That is about the same time the judge met Senior Counsel, Ahmed, who was in second year at the same campus. Since then, the relationship has been that of colleagues with no special relationship. That applies to both Senior Counsel in this matter.
  23. It is however not a light matter that it has been alleged that the said Mr Amina has alleged being part of a conspiracy to circumvent the course of justice. Both counsel on either side should have answered to their statutory duty to assist the court find out the veracity of the allegations by having the person file an affidavit to confirm or deny the allegations. Both failed. The court is not content on leaving that allegation to just pass. The court directs that the Deputy Registrar of the court causes this judgment to be served upon the Director Criminal Investigations who is hereby directed to take statements from both Mr Ibrahim Zakheem and Francis Amina Juma on the allegations that the court has been approached by Prof Ojienda with a view to impartially determining the dispute in the favour of the respondent. The Deputy Registrar, shall follow up with the office of the DCI to have the report ready within 45 days from today.
  24. The court thus finds that there is no demonstration of undue familiarity or indeed acquisition of an interest by the court in the dispute to justify the deployment of Regulation 21, Part II, of The Judicial service (Code of Conduct and Ethics) Regulations, 2020. There is no demonstration of the judge’s personal knowledge of the disputed evidentiary facts concerning the proceedings, personal interest or undue relationship with a person with personal interest in the outcome of the dispute. Equally there is no demonstrated delay on the part of the court or impropriety in listing the mater for the 10.07.2024 as to demonstrate real likelihood of bias or impartiality.
  25. To the court, this dispute has been delayed by parties to an extent that all the attributes of arbitration as an efficient, timely and cost-effective dispute resolution mechanism have been lost. The court must now do its duty, not to the parties in the dispute alone, but also to the general public and the constitutional command that justice shall not be delayed and done to all irrespective of status. The court the view that it must remain uninterested and unaffected by which counsel represents which party.
  26. It would be an act of perpetuating the past delay to recuse myself at this juncture when the court has spent valuable judicial resources to take quite substantive proceedings then abandon same for yet another judicial officer to start afresh. The court finds no merit in the application for recusal and orders same dismissed with costs. Let parties take a date to highlight the submissions or just allow the court to read the submissions filed then render is decision in the matter.

Dated, signed and delivered, Virtually, this 8th day of August, 2024

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R vs Sussex, ex parte McCarthy (1924) ↑

  • Kalpana H Rawal vs Judicial service Commission (2016) eKLR ↑

  • Kikambala Housing Estate limited vs Akash Davani &12 Others (2020) eKLR ↑

  • Phillip K Tonui vs Judicial Servive Commission (2016) eKLR ↑

      • Zakhem International Construction Limited VS Oil Fields Engineering And Supplies Limited Zakhem International Construction Limited VS Oil Fields Engineering And Supplies Limited