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Court of AppealDismissedCivil Appeal Number 219 of 1998

Galaxy Paints Company Limited v Falcon Guards Limited (Civil Appeal 219 of 1998) [1999] KECA 136 (KLR)

Court of Appeal of Kenya
4 June 1999
2,696 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that judges who previously ruled against you aren't biased—you need real evidence of unfairness, not just unfavourable past decisions, to force a judge to step aside.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kwach, Tunoi and Lakha, JJ.A.) on an application dated 26th May 1999 by Galaxy Paints Company Limited, through its advocate Mrs P. L. Dias, seeking the disqualification of Kwach and Lakha, JJ.A. from hearing Civil Appeal No. 219 of 1998. The application rested on the fact that benches including those judges had previously struck out two earlier appeals by the appellant (Civil Appeal No. 140 of 1992 and Civil Appeal No. 263 of 1996) for breach of the mandatory provisions of rule 85 of the Court's Rules - omission of a certified decree and exclusion of exhibits without the required order. The court applied the principle from ex parte Pinochet (No.2) that a man may not be a judge in his own cause, distinguishing automatic disqualification for financial or proprietary interest from allegations of apparent or actual bias. It held the case fell in the second category and that the appellant had established no facts constituting bias: the prior appeals were incompetent because the advocate blatantly and knowingly breached the mandatory record rules, which she admitted. The court deprecated unfounded disqualification applications as judge-shopping, affirmed the duty of judicial officers to sit, and stressed that the Court will uphold its Rules. The application was dismissed with costs, and the Deputy Registrar was directed to fix the appeal for hearing on a priority basis. The underlying appeal against the dismissal of the appellant's suit by Akiwumi, J on 6th June 1989 remains pending before the same bench.

Questions the Court framed

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

  1. 1.Whether Kwach and Lakha, JJ.A. should disqualify themselves from hearing the appeal on the ground of actual bias or likelihood of bias arising from their having sat on benches that struck out two earlier appeals by the appellant
  2. 2.Whether the striking out of two prior appeals on grounds of defective records establishes actuality of bias sufficient to disqualify the judges

Key legal issues

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01

Whether prior judicial decisions against a party in the same litigation establish actual bias disqualifying the judges

Holding

No. The two earlier appeals were struck out because the records omitted mandatory primary documents in breach of rule 85; the advocate admitted the mistakes. No facts constituting bias or likelihood of bias were established, and the allegations were unjustified and made without reasonable cause.

Reasoning

The court applied the Pinochet framework distinguishing automatic disqualification (financial/proprietary interest) from apparent bias. The complaint fell in the second category, requiring proof of facts from which a fair-minded observer would conclude the judges were actually biased. The prior striking-out orders were lawful enforcement of mandatory Rules, not evidence of hostility. The court deprecated the growing practice of unfounded disqualification applications as judge-shopping.

p. 5
02

The duty of judicial officers to sit notwithstanding allegations of appearance of bias

Holding

While justice must be seen to be done, judges must discharge their duty to sit and should not accede too readily to disqualification applications, which would encourage parties to seek judges favourable to their cause.

Reasoning

Relying on Raybos Australia, the court held that upholding the Rules cannot be oppressive, and that readily granting recusal would reward abusive applications. Applications to disqualify judges, formerly rare, had become common and were strongly deprecated as attempts to shop around for favourable judges.

p. 5

Legal principles established

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  • A judge is disqualified automatically where he is a party to the litigation or has a financial or proprietary interest in its outcome; otherwise disqualification requires established facts giving rise to actual bias or a real likelihood of bias, which must be proved by the party alleging it.
  • Judicial officers should not accede too readily to applications for disqualification based on mere allegations of appearance of bias, lest parties engage in judge-shopping.
  • The Court of Appeal will enforce compliance with its Rules on the contents of the record of appeal, and striking out an appeal for breach of those Rules does not constitute bias against the litigant.

Court orders

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  1. 1.The application for disqualification of Kwach and Lakha, JJ.A. is rejected and dismissed with costs
  2. 2.The Deputy Registrar shall proceed to fix the hearing of the appeal before the court on a priority basis

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 4477 of 1986
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the High Court (the ruling itself is an interlocutory application within Civil Appeal No. 219 of 1998)

Relief refused

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Disqualification of Kwach and Lakha, JJ.A. from hearing the appeal

The appellant and her advocate failed to establish any facts constituting actual bias or likelihood of bias; the prior striking-out orders were justified by the advocates' breach of the mandatory record rules

p. 6

Costs

The application is dismissed with costs (costs to the respondent).

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.

It is a cardinal principle of law that holders of judicial offices are subject to the common law rule of natural justice whereby any pecuniary interest or a real likelihood or actual bias disqualifies a judge from sitting.
p. 4Test for disqualification of a judge
She has not established any facts constituting bias or likelihood of bias on the part of the learned Judges. Her allegations together with those of the appellant are unjustified and are made without a reasonable cause.
p. 5Failure to prove actual bias
it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of 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
p. 5Duty to sit; judge-shopping deprecated
For these reasons, this application is rejected and is hereby dismissed with costs. The Deputy Registrar shall proceed to fix the hearing of the appeal before us on a priority basis.
p. 6Final orders - dismissal of the recusal application

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Galaxy Paints Company Limited v Falcon Guards Limited (Civil Appeal 219 of 1998) [1999] KECA 136 (KLR)", Case Analysis (1999). Civil Appeal Number 219 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/136/eng@1999-04-06

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