Miller v Miller [1988] KECA 129 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Disqualification of a judge on grounds of alleged bias
The appellant's evidence of friendship between the judge and the respondent was too bare to establish a real likelihood of bias; the failure to seek disqualification before the application was filed showed it was an afterthought; a judge is entitled to answer allegations made against him without descending into the arena
The affidavit asserted friendship but gave no period, duration, or particulars capable of supporting an inference of bias. Judges necessarily know litigants; if personal knowledge disqualified, no judge could sit. Allowing allegations alone to force disqualification would let mischievous parties choose their trial judge and disrupt the administration of justice. The trial judge had no interest in the case and was right to refuse disqualification.
Right to a public hearing and in camera proceedings under Section 77 of the Constitution
Subsection 11 of Section 77 is an exception to the public-hearing requirement in subsection 10; interlocutory proceedings may properly be heard in camera, and the paramount consideration is that justice be attained
Kenya's written Constitution expressly permits exclusion of the public in specified circumstances, including interlocutory proceedings. The proceedings before the trial judge were interlocutory. The exceptions secure the fundamental principle that justice must be done; where publicity would defeat justice, in camera proceedings are justified. The judge's discretionary refusal to order a public hearing could not be disturbed on appeal.
Legal principles established
#- Mere personal acquaintance or friendship between a judge and a party does not justify disqualification; there must be a real likelihood of bias or an appearance of bias established on evidence
- A judge does not descend into the arena by answering allegations made against him personally
- Interlocutory proceedings fall within the constitutional exception to the requirement that proceedings be held in public
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- Not stated in the judgment
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a ruling and order of the High Court (no specific constitutional/statutory provision stated)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Miller v Miller [1988] KECA 129 (KLR)", Case Analysis (1988). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/129/eng@1988-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.