By Newton Arori
“Application for recusal of a judge is the occupational hazard every judge must face in the course of her/his judicial career. Any judge will tell you that listening to an application for recusal and making a ruling on that application are some of the biggest challenges judges face in the course of their judicial duties. The judge is the subject of the recusal proceedings and yet he/she is expected to rise above the proceedings and determine the matter rationally” – Justice S.N. Mutuku in “Republic v Raphael Muoki Kalungu (2015) eKLR”
The Black’s Law Dictionary defines recusal as “the process by which a judge is disqualified on objection of either party (or disqualifies himself or herself) from hearing a lawsuit because of self-interest, bias or prejudice.”
The importance of recusal was underscored by Justice Warsame in the case of “Alliance Media Kenya Limited v Monier 2000 Limited & Njoroge Regeru HCCC No. 370 of 2007 (eKLR)”, in the following words: “In my understanding, the issue of disqualification is a very intricate and delicate one. It is intricate because the attack is made against a person who is supposed to be the pillar and fountain of justice…justice is deeply rooted in the public having confidence and trust in the determination of disputes before the court. It is of paramount importance to ensure that the confidence of the public is not eroded by the refusal of judges to disqualify themselves when an application has been made.”
There are multiple grounds on which one can apply for a judge’s disqualification/recusal, such as the judge having financial interest in the subject matter, a relationship with someone who is interested in it, the judge’s prior work as a lawyer, knowledge about the parties or the facts of the case, communications with lawyers and comments or the conduct/comments of the judge.
This article narrows down to the issue of comments/conduct of the judge as grounds for recusal, as demonstrated by two Kenyan cases.
Barnaba Kipsongok Tenai v Republic  eKLR
On the 27th May 2008, Barnaba Kipsongok was arraigned before the Magistrate’s court in Eldoret. He was subsequently released on bond. Kipsongok was to attend court on the 17th September 2012 but on that day, he happened to have another criminal trial at Kapsabet, where he opted to go but forgot to instruct his lawyer to attend the Eldoret case.
The result of his non-attendance was that his bond was cancelled. Kipsongok later attended court and issued an apology, but the court would not reinstate his bond. Dissatisfied, he successfully applied to the High Court and had his bond reinstated. The trial at Eldoret resumed but by this point, Kipsongok had lost trust in the court. He felt that by cancelling his bond, the Magistrate had exhibited bias and could not be trusted to do justice.
For that reason he applied orally through his lawyer to have the trial Magistrate, Hon. Dolphin Alego, disqualify/recuse herself from hearing the case. The magistrate directed that the lawyer make a formal application in that regard, which the lawyer did. On the day of hearing the recusal application, the magistrate turned hostile, quarrelling Kipsongok’s lawyer for an entire 20 minutes for unclear reasons.
She eventually heard the application for her recusal and, not surprisingly, dismissed it. It was then that Kipsongok moved to the High Court (under Article 50 of the Constitution which guarantees a fair trial and section 81 of the Criminal Procedure Code which allows the High Court to transfer a case to a different court when it becomes apparent that a fair trial is unlikely) seeking to have his case tried by a different magistrate.
In finding that the magistrate had indeed demonstrated bias toward Kipsongok and his lawyer the High Court held: “…The facts of this case speak for themselves. The trial Magistrate by openly quarrelling the Applicant’s Counsel on matters not related to the trial before her was a clear signal that she was angry or bitter with him. This set the stage for the perception that the ends of justice would not be met; that justice would not prevail. It is my view that the Applicant’s fear that justice would be vitiated due to the exhibited bias by the Hon. Magistrate was real. It was clear that fairness in the administration of justice would not prevail and that the trial was unlikely to proceed in an impartial manner.”
Consequently, the High Court ordered that the case before Hon. Dolphin Alego be transferred for hearing before a different magistrate.
Interestingly, even in cases where the applicant fails to show that the judge is or is likely to be biased, judges have recused themselves in instances where the applicant could reasonably be apprehensive that the judge will not be impartial. This is due to the principle that “justice must not only be done, it must be seen to be done”.
In the case of “Charles Koigi Wamwere & 2 Others v Republic (1992) eKLR”, the accused persons in the case applied to have the presiding judge, Justice Bosire, disqualify himself on grounds that he had showed bias against them and their respective advocates.
After hearing the application for his disqualification, Justice Bosire concluded that it lacked merit – the applicants had not established reasonable grounds upon which he should recuse himself. He further found that “the advocates conducted themselves in such a manner that their behaviour not only called into question their reputation as lawyers and officers of the court, but it also misrepresented the role of the advocate in conduct of proceedings in court.
In their desire to achieve their hidden agenda, they ended up subverting justice.’ It was the judge’s finding that while the court had been anxious to see the case proceed to trial without delay, the case had been ‘bedevilled with numerous applications all of which different judges have ruled to be unmeritorious.” The judge then went on to give a lengthy account on the recusal application’s lack of merit.
In concluding, however, justice Bosire stated, “justice must not only be done, but it must be seen to be done…the remarks I have made in his ruling when considered objectively may, although they need not, cause the accused persons to feel that I may not dispassionately try their case… In light of this likely and probable fear and in the interests of justice, I consider and rule that this case be continued by another judge.”
Despite the foregoing, courts must nonetheless guard against mischievous litigants who are out simply to waste the court’s time by applying for recusal on remote and flimsy grounds.
As the court stated in the case of “Re Reunad ex Parte CJL (1986) 60 AL JR 528”, “Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty and do not, by acceding too readily to suggestions and appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.” (