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Court of AppealDismissedCivil Application Number NAI. 207 of 1998 (83/98 UR)

CENTRAL BANK OF KENYA vs UHURU HIGHWAY DEVELOPMENT LIMITED & 3 OTHERS [1998] KECA 109 (KLR)

Court of Appeal
30 September 1998
RKR. O. KwachPhilip Kiptoo TunoiP. K. TunoiASA. B. Shah
826 words in judgment
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The bottom line

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The Court of Appeal refused to stop a High Court judge from hearing the CBK–Uhuru Highway case, holding that serious allegations alone do not disqualify a judge.

What this practically means

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Executive summary

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The Central Bank of Kenya applied to the Court of Appeal, under rules 1(2), 39, 42 and 43 of the Court's Rules, for leave to appeal against a ruling of Kuloba, J dated 7th August 1998 in H.C.C.S. No. 29 of 1995, by which the learned judge declined to disqualify himself from hearing the suit. The disqualification request rested on two grounds: that the judge had permitted the third respondent to file two suits in the Commercial Division on matters that were not commercial in nature, and that he had improperly intervened in the correction of a draft formal order in another suit, creating a reasonable apprehension of bias. The Court recounted the procedural history: in Civil Appeal No. 75 of 1998 it had ordered that the case be heard by a judge who had not previously dealt with the matter; the Chief Justice then transferred the suit to the Commercial Division and assigned it to Kuloba, J on a day-to-day priority basis. When counsel sought review of the Chief Justice's orders and asked the judge to disqualify himself, the judge held that he was obliged to hear the case unless orders were received taking it away from him. The Court of Appeal held that the judge was bound to carry out the Chief Justice's directive, that the appointment complied with the Court's direction of 10th July 1998, and that although the allegations were serious, they were not per se sufficient to require disqualification. Leave to appeal would therefore be futile. The application was dismissed with costs on 30th September 1998 before Kwach, Tunoi and Shah JJA.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether leave to appeal should be granted against the High Court ruling declining to disqualify Kuloba, J from hearing the suit
  2. 2.Whether the appointment of Kuloba, J by the Chief Justice to try the action complied with the direction of the Court of Appeal
  3. 3.Whether the allegations and insinuations made against the learned judge were sufficient to call for his disqualification

Key legal issues

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01

Whether the allegations against the judge justified disqualification and leave to appeal

Holding

The Court held that the allegations and insinuations of a serious nature were not, per se, sufficient to call for the judge's disqualification, and that the Chief Justice's appointment of the judge complied with the Court's earlier direction.

Reasoning

The Court traced the history: the Court of Appeal had directed that the case be heard by a judge who had not previously dealt with it; the Chief Justice designated Kuloba, J. When asked to disqualify himself, the judge was bound to carry out the Chief Justice's directive unless otherwise ordered. The Court confined itself to whether the appointment complied with its direction, found that it did, and concluded that granting leave would be futile.

p. 2

Legal principles established

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  • A judge to whom a case is assigned by the Chief Justice in compliance with a direction of the Court of Appeal is bound to hear the case unless otherwise directed, and allegations of a general nature insufficient to establish a reasonable apprehension of bias do not warrant disqualification.

Court orders

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  1. 1.The application for leave to appeal is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RK
majority
Philip Kiptoo Tunoi
majority
AS
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.S. No. 29 of 1995
Jurisdiction invoked
Rules 1(2), 39, 42 and 43 of the Court of Appeal Rules (application for leave to appeal)

Relief refused

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Leave to appeal against the ruling and orders of Kuloba, J declining to disqualify himself

The appointment of the judge complied with the Court's direction and the allegations did not warrant disqualification, making leave futile

p. 2

Costs

This application is accordingly dismissed with costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We are satisfied it did. We are accordingly not satisfied that the judge exercised his discretion in a manner that would call for his disqualification by this Court, and, that being the case we think it would be futile to grant the leave to appeal as sought. This application is accordingly dismissed with costs.
p. 2Disposition - dismissal of application for leave to appeal
The allegations and insinuations made against the learned judge are of a serious nature and we are not able to say that the allegations and insinuations per se are sufficient in this particular instance to call for disqualification of the judge.
p. 2Judicial disqualification - insufficiency of allegations
It was not necessary for the learned judge to deliver such a lengthy ruling as he was indeed bound to carry out the directive of the Honourable the Chief Justice as regards hearing of the case unless otherwise directed.
p. 2Duty of a judge to comply with assignment by the Chief Justice

Issues in the judgment

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minor

The judgment contains typographical errors in the quoted passages, e.g. 'Civil Applicatoin No. NAI. 83 of 1998' and 'A.sA . my brothers Tunoi & Bosire JJA also agree'.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "CENTRAL BANK OF KENYA vs UHURU HIGHWAY DEVELOPMENT LIMITED & 3 OTHERS [1998] KECA 109 (KLR)", Case Analysis (1998). Civil Application Number NAI. 207 of 1998 (83/98 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/109/eng@1998-09-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.