Justice should not only be done but seen to be done. Whenever parties appear before a judge, they expect them to be fair and serve justice to them. However, the law is not blind to the possibility of bias and therefore provides for the mechanism through which litigants use to cure this bias. The law provides for application on recusal. 

Recusal is the process by which a judge or a policymaker removes themselves in a particular matter because of conflict of interest. Recusal is a matter of judicial discretion and Judges must recuse themselves whenever they feel they may not appear to be fair or where they feel their impartiality would be called into question. 

The test for recusal was set in the case of Porter vs. Magill [2002] 1 All ER 465 where the House of Lords was of the opinion that:

The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. 

This case was cited with authority by the Court of Appeal in Philip Tunoi v Judicial service commission and another.

Rule 5 of The Judicial Code of Conduct sets out ground upon which a person may request a judge to recuse themselves. This includes:

  1. personal bias concerning a party or advocate, 
  2. had the judicial officer acted as an advocate for a party in the suit, 
  3. close relation with a party to the suit; and 
  4. if the judge or spouse may have a financial interest on the case. 

Personal bias may arise when a judge comments on a matter before it is heard. In Kenya Hotel Proprietors Limited v, The Attorney general and 4 othersMr. Allen Waiyaki Gichuhi the petitioner’s advocate, made an informal application for recusal based on the judge’s earlier expression on doubt as to the court’s remits to entertain the application. In allowing the application, the Judge was of the opinion that even if he did not recall making a statement to that effect, he would recuse himself as Mr. Gichuhi version if true would lead a reasonable fair-minded man to conclude bias on the Judge’s side. 

In Kamlesh Pattni and another v Republic, the court of appeal was of the opinion that the Judge of the high court should have recused themselves based on the statement they had made concerning Mr. Pattni. This is after the judge said that Mr. Pattni is a man who had stuffed himself full of public resources and a pilferer and looter. The court, therefore, concluded that for the public to have confidence in the judiciary a judge should withdraw from a case if there are real dangers of bias. 

A judge may also be required to recuse themselves from a case if they had acted as counsel to one of the parties in the suit. Search an application for recusal was brought in the case of Trust Bank Ltd v Midco International (K)Ltd. & 4 others The High Court in Kisumu sitting as a review court allowed an application to review a ruling as the Judge who had issued it had acted as counsel for the applicant. The court was of the opinion that the Judge and the Respondent to the application should have disclosed that they had an advocate client relationship when the judge was in private practice and it was there duty to do so without delay.

 A judge must also recuse themselves in cases where a close relation is party t a suit. In Stephen Njoroge Gichuha v Fred Nyagaka Ongarora & another [2014] eKLR, an application for disqualification was made by an applicant who sort disqualification of the Judge on the ground that a witness in the defendant’s case was the husband to the Judge and a brother-in-law to the second defendant. In allowing the application the court was of the opinion that an independent and honourable judiciary must maintain and enforce a high standard of conduct so that integrity and independence of the judiciary is preserved.

However, a balance must be found between an applicant’s right to fair hearing which is the ground upon which the court may be asked to recuse themselves and the constitutional requirement of quorum more so at the Supreme Court for ends of justice to be met. Wherever an application for recusal is done, courts must not allow it in cases where allowing it may make the court paralysed due to constitutional requirement of the bench composition under article 163(2) of the constitution.

Kenyans should bear in mind that an application for the recusal of a Supreme Court Judge cannot be determined similarly as that of a Judge of the other superior Courts due to the special consideration that must be given to its quorum. This was the view of Justice Njoki Ndungu as the concurred with the majority opinion in the Case of Gladys Boss Shollei vs Judicial Service Commission and Another. Whenever our supreme court has been faced with such an application for recusal which may paralyse the court’s function, the court has invoked the doctrine of necessity and duty to sit as a bases for dismissing this application.

The doctrine of necessity has been used for a long time in the common law jurisdiction to allow judges to sit in matters that they may be based on. This doctrine has been used to describe a basis on which administrative action which is designed to restore order is found to be constitutional. This doctrine is mostly used in cases where the court does not have a competent person to adjudicate a matter before it, quorum can’t be formed without him and no other competent court can be constituted. The Supreme court has used this doctrine severally to cure the question of quorum. 

In Gladys Boss Shollei v Judicial Service Commission and another, the court dismissed an application for recusal as it would paralyse the court constitutional mandate. This was the same fate that befell the application for recusal in the case of   Jasbir Singh Rai and Another v. Tarlochan Singh and 4 Others, [2013] eKLR]

Another doctrine closely related to the doctrine of necessity is the doctrine of the duty to sit. This doctrine requires a judge not to recuse themselves unless there are compelling reasons not to sit. Though not greatly used in our jurisdiction, every judge has a duty to sit in a matter they should sit. The doctrine flows from the constitution and common law. Judges take an oath to serve impartially and protect the constitution. It is therefore assumed that they will rise above their personal opinion and uphold the rule of law. The doctrine was discussed by Justice Ibrahim in his concurring opinion in the Gladys Boss Shollei case. The Justices was of the opinion that the doctrine safeguards a party’s right to be heard and determined before a court of law.

In conclusion, we opine that justice must be done to all. Whenever a judge is asked to recuse themselves, they should do it to protect the face of the court. However, this mechanism should not be used to forum shop for a bench or as a delay tactic. Courts should, therefore, invoke the doctrines of necessity and duty to sit whenever they feel that justice should be done by them handling the matter. This calls for a balance between the doctrine of recusal and these two doctrines. 

This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set out in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact the following: Caxstone Kigata or Joseph Muhuni vide caxstone@wamaeallen.com  or joseph@wamaeallen.com respectively.

About the author

Partner at Wamae & Allen

Caxstone specializes in civil, employment and labour disputes, constitutional law, family law and succession, and environment and land matters. He has amassed a wealth of knowledge and experience in litigation which is evident in the successes obtained for clients. He is an active member of the Employment and Labour Relations Court Bar-Bench committee.

Advocate Trainee, 2020
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