ATP 104: TRIAL ADVOCACY

CLASS C, FIRM 9 2024

JUDICIAL OFFICERS AND CONFLICT OF INTEREST
MEMBERS
NAME REGISTRATION NUMBER
Kennedy Otieno Mburo 20240463
Mercy Cheptoo Korir 20240449
Griffin Okemwa 20240461
Maundu Valentine Ndanu 20240451
Richard Muriuki 20240464
Mildred Cheptoo 20240441
Evelyn Kalunda James 20240925
Lydia Mogesi Mtatiro 20241768
Loise Gatonye 20240434
Amran Yerrow 20241966

Introduction
Definition of Terms
Article 161 of the Constitution1 as read with Section 2 of the Judicial Service Act 2 define a
Judicial Officer to include judges of the superior courts, magistrates, a registrar, deputy
registrar, Kadhi or the presiding officer of any other Court or local tribunal as may be
established by an Act of Parliament, other than Courts established to hear and determine
disputes relating to employment and Labour relations and the environment, the use and
occupation of and title to Land.

The Black’s Law Dictionary3 defines conflict of interest to mean a real or seeming
incompatibility between one’s private interest and one’s public interest or fiduciary duties.
Conflict of interest arises in a situation where a judicial officer's personal or professional
interests may interfere with their impartiality and duty to uphold the rule of law. Conflict of
interest can undermine public confidence in the judiciary and erode the integrity of the
judicial process.4
Kenyan Legal Framework

1
Constitution of Kenya (2010)
2
Cap 1 of 2011
3
Bryan A Garner 8th edition at page 319
4
Tom Ojienda and Lydia Mwalimu Adude, 'Conflict of Interest and Public Office in Kenya' (2020) Journal of
CMSD http://journalofcmsd.net/wp-content/uploads/2021/07/Conflict-of-Interest-and-Public-Office-in-
Kenya.pdf accessed February 12, 2024.
In Kenya, conflict of interest is regulated by various laws, inter alia, the Constitution of
Kenya 2010,5 the Judicial Service Act 2011,6 the Leadership and Integrity Act 2012,7 the
Public Officer Ethics Act8 and the Judicial Code of Conduct and Ethics 2018.9
These laws and codes require judicial officers to avoid any actual or perceived conflict of
interest and to disclose and recuse themselves from any matter where such a conflict may
arise.10 Conflict of interest may affect the integrity, independence, and accountability of the
judiciary, and undermine public confidence in the administration of justice. 11 Therefore,
judicial officers have a duty to act in the best interest of justice and the public and to uphold
the highest standards of ethical conduct.12
International Legal Framework
Article 10 of the Universal Declaration of Human Rights states that all people are entitled to a
fair public hearing by an independent tribunal.
Article 14.1 International Covenant on Civil and Political Rights is to the effect that everyone
shall be entitled to a fair hearing by a competent, independent and impartial tribunal
established by law.
Article 17(2) of the ICJ Statute Act dictates that members may not participate in the decision
of any case in which they have previously taken part "as agent, counsel, or advocate for one
of the parties, or as a member of a national or international court, or of a commission of
inquiry, or in any other capacity."13
The Bangalore Principles of Judicial Conduct14
1.2. A judge shall be independent in relation to society in general and in relation to the
particular parties to a dispute that the judge has to adjudicate.
1.6. A judge shall exhibit and promote high standards of judicial conduct in order to reinforce
public confidence in the judiciary, which is fundamental to the maintenance of judicial
independence.
Recusal - A judge shall disqualify himself or herself from participating in any proceedings in
which the judge is unable to decide the matter impartially or in which it may appear to a
reasonable observer that the judge is unable to decide the matter impartially. 15
5
Constitution of Kenya 2010, arts 10, 73, 75, 159, 160, 161, 172.
6
Judicial Service Act 2011 (Kenya), ss 5, 6, 7, 8, 9.
7
Leadership and Integrity Act 2012 (Kenya), ss 16, 17, 18.
8
Section 12
9
Judicial Code of Conduct and Ethics 2018 (Kenya), rules 3, 4, 5.
10
ibid rule 5.2; Judicial Service Act 2011 (Kenya), s 9(2).
11
Tom Ojienda and Lydia Mwalimu Adude, 'Conflict of Interest and Public Office in Kenya' (2020) Journal of
CMSD http://journalofcmsd.net/wp-content/uploads/2021/07/Conflict-of-Interest-and-Public-Office-in-
Kenya.pdf accessed February 12, 2024.
12
Judicial Code of Conduct and Ethics 2018 (Kenya), rule 3.1.
13
Statute of the International Court of Justice United Nations
<https://www.un.org/en/about-us/un-charter/statute-of-the-international-court-of-justice> accessed March
8th 2024
14
The Bangalore Principles of Judicial conduct
< https://www.unodc.org/documents/ji/training/bangaloreprinciples.pdf> accessed March 8th 2024
15
ibid
Recusal is defined by The Black’s Law Dictionary 16 to mean the removal of oneself as a
judge or policy maker in a particular matter, especially because of conflict of interest.

Rationale and Test for Recusal

The rationale for the recusal of a Judicial Officer is enshrined under the Latin maxim
“nemo judex in re causa sua” meaning ‘no man shall be a judge in his own cause.’17
The test for recusal was set in the case of Porter vs. Magill18 where the House of Lords was
of the opinion that:
“The question is whether the fair minded and informed observer, having concluded the facts,
would conclude that there was a real possibility that the tribunal was biased.”

In South African Defence Force and Others v. Monnig and Others 19 it was held that the
recusal right is derived from one of a number of rules of natural justice designed to ensure
that a person accused before a court of law should have a fair trial.”

In the case of Joyce N. Simitu v Stephen O. Mallowah and 2 Others 20, Justice Monicah
Mbaru, while distinguishing the two concepts of recusal stated that:

“This was a case for recusal as unlike the case for disqualification. One is voluntary
the other moved by the party seeking disqualification. But the principles applicable in
both scenarios apply and I note the Supreme Court Justices went on to hold;”

Test of bias
In Republic v Kenya Anti-Corruption Commission ex parte Francis Kariuki Muruatetu &
another21, where it was held that bias must be established on a balance of probabilities and
not on mere suspicion or speculation.

In East African Court of Justice v Attorney General of Kenya Reference 22, it was held that
recusal should be based on real danger or reasonable apprehension of bias and not on fanciful
or trivial grounds.

Lord Justice Edmund Davis in Metropolitan Properties Co. (FGC) Ltd. Vs Lannon23 stated
that disqualification was imperative even in the absence of a real likelihood of bias if a
reasonable man would reasonably suspect bias.

In an article by Holly Stout (11 KBW) on the subject of “Bias’, the author states:

16
Bryan A Garner 8th edition at page 1303
17
See Lord Hewart CJ in R vs Sussex, ex parte McCarthy
18
(2002) All ER
19
(1992) (3) SA 482 (A), p.491
20
(2013)
21
[2011] eKLR
22
No. 1 of 2006 [2007] eKLR
23
[1969] 1 QB 577
“… The test to be applied by a judge who recognizes a possible apparent bias is thus a
“double real possibility” test; the question he/she must ask him/herself is whether or not
there is a real possibility that fair-minded and informed observer might think that there was a
real possibility of bias.”24.

24
Referred to PORTER –V- MAGILL (2002) 2 AC 357
Circumstances under which a Judicial Officer can voluntarily recuse self
Grounds for voluntary recusal of a judicial officer are pronounced in Rule 5 of the Judicial
Service Code of Conduct and Ethics and such are where:
1. He has personal bias or prejudice concerning a party or his lawyer or personal
knowledge of facts in the proceedings.
2. He has served as a lawyer in the matter of controversy.
3. He or his family has a financial or any other interest that could substantially
affect the outcome of the proceedings. (Pecuniary Interest)
4. He or his spouse or a person related to either of them or spouse of such person
or a friend is part of the proceedings.
Circumstances under which a party can apply to a Judicial Officer to recuse self
1. If the Judicial Officer has a personal bias or prejudice concerning a party or his
lawyer, or personal knowledge of facts in the proceedings before him.
In Kamlesh Masukhal Damji Pattni and Goldernberg International Limited v R Civil
Appeal 25(UR) Kamlesh instructed his advocate to request Judge Moijo Ole Keiwua, a judge
of the High Court of Kenya, to disqualify himself from presiding over this matter. This was
on the ground of personal bias as deducted from the statements of the judge: when he said, ‘A
man who had “stuffed himself full of public resources”, and a “pilferer and looter”’ in
reference to the Appellant.
In ruling that the judge ought to have disqualified himself, the Court of Appeal stated:
“ For a judge or a judicial officer to say publicly of someone in such derogatory terms
shows…an appearance of bias- such a description is not merely injudicious and insensitive
but bound to be interpreted as a gratuitous insult…the applicants do not allege that the
learned judge was in fact biased…it is alleged that there’s an appearance of bias, not actual
bias…Public confidence in the administration of justice requires that the judge must
withdraw from the case if there is a real danger of bias. It is no answer for the judge to say
that he is in fact impartial and that he will abide by the judicial oath.”
Similarly, in Sahkar Limited & another v African Hotels & Adventures (East Africa)
Limited26, a civil suit was filed by the Plaintiffs against the Defendant for breach of contract
and specific performance. The Plaintiffs claimed that they had entered into a sale agreement
with the Defendant for the purchase of shares in a company that owned a hotel in Mombasa.
The Plaintiffs alleged that the Defendant had failed to comply with the terms of the
agreement and had refused to transfer the shares to them. The Plaintiffs sought an order for
the Defendant to complete the sale and pay damages for breach of contract.
The Defendant opposed the suit and raised several preliminary objections, including one that
sought the recusal of Hon. Justice Majanja from hearing the matter. The Defendant argued
that the judge had previously handled a related matter involving the same parties and had
made adverse findings against the Defendant. The Defendant contended that the judge was
biased and had prejudged the issues in dispute.
Hon. Justice Majanja dismissed the application for recusal and held that there was no
evidence of bias or prejudice on his part. He stated that the previous matter he had handled
was different from the current one and that he had not made any conclusive findings on the
merits of the case. He further noted that the Defendant had not raised any objection when he
was assigned the case and had only done so after he had issued directions on how the matter
would proceed. He observed that the application for recusal was an attempt to delay the
hearing of the suit and to forum shop for a favourable judge.
The judge relied on various authorities and principles to support his decision, such as Article
50 of the Constitution, which guarantees every person a fair hearing before an impartial
court; Article 159 (2) (b) of the Constitution, which requires justice to be administered
without undue regard to procedural technicalities; Section 5A of the Civil Procedure Act,
25
Number 301 of 1999 (115/99)
26
[2020] eKLR
which empowers courts to prevent abuse of their process; and Rule 5 (3) of the High Court
(Organization and Administration) Rules, 2016, which provides that no party shall be entitled
to object to a judge assigned to hear a matter unless there are compelling reasons.

2. If the judge was previously a lawyer on the same or related case or was related case or
was associated with the lawyer on the case or related case.
In Trust Bank Ltd v Misco 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 has 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 judge was in private practice and it was their duty to do without delay.
3. If he or his family or a close relation has a financial or any other interest that could
substantially affect the outcome of the proceeding, a Judicial Officer is required to
recuse himself.
In Rachuonyo and Rachuonyo Advocates v National Bank of Kenya Limited 27, the
advocates sought for the recusal of Hon. (Mr.) Justice D. S. Majanja from any further conduct
of the hearing and the matter was referred to the Hon. Presiding Judge of the Division for
reallocation and directions on the conduct. This case is a series of applications filed by the
Advocates seeking to recover fees from the Bank for various legal services rendered. The
plaintiff also filed applications for the recusal of Hon. Justice Majanja from hearing the
references on the grounds of bias, prejudice, and conflict of interest. The Advocates alleged
that the judge had previously acted for the Bank in other matters and had a close relationship
with one of the Bank's advocates. The judge dismissed the applications for recusal, finding
that there was no evidence of bias or conflict of interest and that the allegations were based
on speculation and conjecture. The judge also found that the applications were an abuse of
the court process and an attempt to delay the determination of the references.
In London and North Western Railway Company v Lindsay (1858) 3 Macq 99, Lord
Wensleydale refused to participate in hearing the appeal on the ground that he was a
shareholder in the appellant railway company.
The House of Lords in Dimes v Proprietors of Grand Junction Canal, set aside Lord
Chancellor Cottenham’s decision in the case on the ground that he had a pecuniary interest in
the matter by virtue of the fact that he had a substantial shareholding in Grand Junction
Canal. The Court set aside that decision and held that Cottenham LC was disqualified.

4. If the Judicial Officers spouse, or a person related to either of them within the third
degree is a party to the proceeding.
In Stephen Njoroge Gichuha v Fred Nyagaka Ongarora & Another 28, An application for
disqualification was made by applicants who sort disqualification of the judge on the
ground that a witness in the defendants’ case was the husband to the judge and a brother-
27
[2021] eKLR
28
(2014) eKLR
 in-law to the second defendant. In allowing the application the court was the opinion that
an independent and honorable judiciary must maintain and enforce a high standard of
conduct so that integrity and independence of the judiciary is preserved.
5. If the judge has more than a minimal/nominal financial interest in the outcome of the
case.
6. If the judge has a close social relationship with a litigant, lawyer, or witness with the
case.
7. If the judge has been a material/potential witness on the case or related.
8. If the judge is directly or indirectly party to the suit e.g. where the party is an
organization to which the judicial officer is a party.
9. If the judge has dealt with the matter previously e.g. at trail and then at appeal level.
10. If the judge was previously a partner to one of the advocates’ firms, there is a need to
consider whether a conflict of interest may arise.

Exceptions
There may be instances when a Judicial officer may not be able to recuse himself from the
matter before him. These include:
The Supreme Court Concept
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.
This was seen in the case of Jasbir Singh Rai & 3 Others V Tarlochan Singh Rai & 4
Others29, where it was held by Justice Ibrahim that in the circumstances, Justice Tunoi is not
disqualified since the doctrine of necessity must operate in order for the Supreme Court to
perform its Constitutional functions
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 she concurred with the
majority opinion in the Case of Gladys Boss Shollei vs Judicial Service Commission and
Another30. 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.
In Gladys Boss Shollei v Judicial Service Commission and another 31, 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.32

29
[2013] eKLR
30
Civil Appeal 50 of 2014
31
Ibid
32
[2013] eKLR
Necessity and Statutory Authority
In circumstances in which all the members of the only tribunal competent to determine a
matter are subject to disqualification, they may be allowed to sit and determine the matter
under the doctrine of necessity to avoid a miscarriage of justice.
This common law principle will however, only apply in very exceptional circumstances
which are required to be very clear.
In Laird vs Tatum 40933 Justice Rehnquist declined to recuse himself in a case that came
before him as judge in which he had testified as an expert witness at Senate hearing before
joining the bench. The case was decided 5-4 in the U. S. Supreme Court, and a motion for
recusal and rehearing was filed. Justice Rehnquist found that he had a duty to sit, particularly
because there was no replacement for a recused Justice, which could lead to an equally
divided Court. This could be said to have been out of necessity to ensure that the quorum of
the court was maintained

Apprehension of Forum Shopping

In Republic v Independent Electoral & amp; Boundaries Commission &amp; Another ex-
parte Coalition For Reforms and Democracy (CORD) HC NRB Misc. Appl. No. 648 of
2016[2017] eKLR, Odunga J., expressed made the following observation on a similar
application for recusal:
“To seek the recusal of a Judge from hearing a matter simply on the ground that he has
determined a matter with similar facts is an implication that there is a likelihood that another
Judge will arrive at a different decision. In my view, instead of subjecting another Judge of
concurrent jurisdiction to an embarrassing situation of arriving at a different decision,
parties ought to be advised by their legal counsel to appeal the decision instead and the law
provides for mechanism for protection of a party while it is pursuing an appeal. By asking
another Judge to hear the matter, based on recusal there would be an expectation that that
other Judge may arrive at a decision different from the decision arrived at by the Court
referring the matter. Whereas a Judge of the High Court is not bound by a decision of a
Court of concurrent jurisdiction, to deliberately set out to have another Judge arrive at a
different decision is in my view a manifestation of bad faith. If the matter were to be heard by
a different Judge of concurrent jurisdiction and a different decision is arrived at there would
be two conflicting decisions of the Court and the perception created would be that the
Respondent chose a Judge who was sympathetic to its cause. If that were to happen the
citizens of this Country would be led to believe that justice depends on a particular Judge
rather than the rule of law and that belief would bring the whole judicial process into
disrepute and embarrassment.”
In Republic v. Mwalulu & 8 Others34, in which it was thus held(p.2):
“The single fact that a judge has sat on many cases involving one party cannot be sufficient
reason for that judge to disqualify himself.”

33
U.S824 (1972).
34
[2005]1KLR1
In Serjent v Dale35, it was held by Lush J that “the law does not measure the amount of
interest which a judge possesses. If he has any legal interest in the decision in question…he is
a disqualified, no matter how small the interest may be…one important object at all events is
to clear away everything which might engender suspicion and distrust of the tribunal and so
promote the feeling of confidence in the administration of justice which is essential to social
order and security.”

35
(1877) 2 QBD 558
Procedure for asking a Judicial Officer to disqualify themselves
It’s important to note that the process of recusal is delicate and intricate because it involves
the person who is supposed to be the pillar and fountain of justice. The confidence of the
public in the judiciary is deeply rooted in the trust they have in the determination of disputes
before the court1. Therefore, it is paramount 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.36
The procedures to have a Judicial Officer recuse himself include:
1. Through an oral application in Court. This would occur when the Advocate is before
the Judicial Officer in Courts in the course of proceedings.
2. Through a Miscellaneous Application by Notice on Motion supported by an affidavit.
Notice should be given to the party affected thereby; in this case a copy of the said
application should be served on the said Judicial Officer.
This application shall state in general terms the grounds for the application, and where any
motion is grounded on evidence by Affidavit, a copy of any affidavit to be used shall be
served.
Note:
An Advocate making an application to have a Judicial Officer recuse himself needs to
demonstrate certain qualities.
Tact
An Advocate should be tactful as it is important to make the judge understand that you have
nothing against him or her. In fact, the application is being made so as to protect the integrity
of the Judges Court.
Firmness
An Advocate should never give the Judge an Impression that the application is being made
for the sake of it. Otherwise, the application will be dismissed with costs and this would be
deemed to be contempt of Court

Conclusion:
In a nutshell, it’s imperative to quote the holding in Attorney-General v. Anyang’ Nyong’o &
Others37, it was held that,

“While litigants have the right to apply for the recusal of judicial officers where there is a
reasonable apprehension that they will not decide a case impartially, this does not give them
the right to object to their cases being heard by particular judicial officers merely because
they believe that such persons will be less likely to decide the case in their favour. The nature
of the judicial function involves the performance of difficult and at times unpleasant tasks.
Judicial officers are nonetheless required to ‘administer justice to all persons alike without
fear, favour or prejudice in accordance with the Constitution and the law’. To this end they
must resist all manner of pressure, regardless of where it comes from. This is the
constitutional duty common to all judicial officers.”

36
“On Recusal of Judges” (Nairobi Law Monthly, March 22, 2023) https://nairobilawmonthly.com/on-recusal-of-
judges/ accessed February 13, 2024.
37
[2007]1E.A. 12