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Court of AppealPartially AllowedCivil Appeal No. 314 of 2009

Mwobi v Njoroge (Civil Appeal 314 of 2009) [2013] KECA 501 (KLR)

Court of Appeal of Kenya
26 June 2013
EGE. M. GithinjiASAsike-MakhandiaFSF. Sichale
7,231 words in judgment
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The bottom line

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Kenya's Court of Appeal voided a 14-year-old land judgment because the trial judge had earlier disqualified herself, ordering a fresh retrial before a different judge.

What this practically means

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Executive summary

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This was a first appeal against the judgment of Khaminwa J in HCCC No. 99 of 1999 (High Court, Mombasa), in which the respondent had successfully sued for a declaration of ownership of Plot No. MN/VI/2939 on the basis of a 1973 sale agreement with the appellant's deceased husband, and the appellant's counterclaim for trespass had been dismissed. The appellant advanced eleven grounds, the principal one being that the trial judge had disqualified herself in 2003 as a Commissioner of Assize on the ground that she was known to one of the parties, yet four years later she conducted the full trial and delivered judgment. The respondent argued that the parties, being represented throughout and never objecting, had waived and acquiesced in the judge's jurisdiction. The Court of Appeal accepted that the parties' silence and participation amounted to waiver and acquiescence, but held that disqualification of a judge is a matter of law and cannot be cured by those doctrines. Adopting the reasonable, informed observer test for apparent bias (following Metropolitan Properties v Lannon as embraced in Kimani v Njoroge) and anchoring the right to a fair hearing in Article 50 of the Constitution and section 77(9) of the repealed Constitution, the court held that a judge who has disqualified herself cannot later resume jurisdiction over the same matter, and that the subsequent proceedings and judgment were a nullity. Declining to address the remaining grounds to avoid pre-empting the retrial, the court allowed the appeal, set aside the judgment and decree, and remitted the matter for retrial before another judge, with each party bearing their own costs of the appeal and the court below.

Questions the Court framed

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

  1. 1.Whether the doctrine of waiver, estoppel and acquiescence applied so as to preclude the parties from objecting to the Judge who had earlier disqualified herself proceeding to hear and determine the case
  2. 2.Whether a judge who has disqualified herself from a matter can later resume jurisdiction and preside over the same case
  3. 3.Whether the proceedings and judgment conducted after the judge's disqualification were a nullity

Key legal issues

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01

Effect of a judge's prior disqualification on subsequent proceedings

Holding

Having disqualified herself, the judge could not later conduct the same trial and deliver judgment; the subsequent proceedings and judgment were a nullity irrespective of the parties' failure to object.

Reasoning

The judge had disqualified herself as a Commissioner of Assize on the ground that she was known to one of the parties. That ground did not dissipate on her appointment as Judge. Although the parties and advocates failed to raise the objection and arguably waived and acquiesced, disqualification is a matter of law. Justice must not only be done but be seen to be done, and the fair-minded observer would apprehend bias from a judge revisiting a matter she had once declined to hear.

p. 10
02

Applicability of waiver, estoppel and acquiescence to judicial disqualification

Holding

Although the parties' conduct amounted to waiver and acquiescence generally, those doctrines cannot validate proceedings before a judge who has disqualified herself, because disqualification is a matter of law.

Reasoning

The court analysed the doctrines from Halsbury's Laws and local authority, accepted that the parties by silence and participation had waived their right to object and had acquiesced. However, it held that disqualification of a judge is a matter of law and not fact, so estoppel, waiver and acquiescence do not apply to cure the defect.

p. 8
03

Test for bias and impartiality in Kenya

Holding

The court adopted Lord Denning's real likelihood test as stated in Metropolitan Properties v Lannon, looking at the impression given to right-minded persons, over Lord Goff's real danger test.

Reasoning

The court reviewed Kenyan precedent including Uhuru Highway v Exchange Bank (which had adopted R v Gough) and Kimani v Njoroge, where the majority preferred Lord Denning's formulation in Metropolitan Properties v Lannon. The court expressed agreement with the impression-on-right-minded-persons test and anchored the requirement of impartiality in Article 50 of the Constitution and section 77(9) of the repealed Constitution.

p. 9
04

Role of advocates in alerting the court to disqualification

Holding

Advocates have a duty to study the file, acquaint themselves with the record and alert the court to a prior disqualification; their failure wasted judicial time and resources and contributed to the costs order.

Reasoning

The court noted that several advocates came on record over the years, evidenced by Notices of Change of Advocates, and a diligent advocate ought to have discovered the earlier disqualification and raised it. Although the failure did not validate the proceedings, the court criticised the advocates for allowing the judge to conduct the trial and reflected this in making no order as to costs.

p. 11

Legal principles established

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  • A judge who has disqualified herself from hearing a matter cannot, all factors remaining constant, later resume jurisdiction and preside over the same matter; proceedings conducted thereafter are a nullity
  • Disqualification of a judge is a matter of law, not fact, and cannot be cured by estoppel, waiver or acquiescence of the parties
  • On the test for apparent bias, the court adopts the reasonable and informed observer standard over the real danger test

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment and decree of the High Court are set aside
  3. 3.The case is remitted to the superior court for a retrial before any other Judge of competent jurisdiction other than Khaminwa J
  4. 4.Each party shall bear her/his own costs of this appeal and the court below

The bench

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

EG
majority
AS
majority
FS
majority
On appeal from
High Court of Kenya at Mombasa
HCCC No. 99 of 1999
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate framework (Court of Appeal jurisdiction over appeals from the High Court); decided as a first appeal on fact and law

Relief refused

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Determination of the remaining ten grounds of appeal on the merits

The court declined to address the other grounds because doing so would pre-empt the outcome of the retrial

p. 11

Costs

Each party shall bear her/his own costs of this appeal and the court below.

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.

In the premises we shall allow the appeal. The judgement and decree of the High Court is set aside. We substitute therefor with an order remitting the case back to Superior Court for a retial before any other Judge of competent jurisdiction other than Khaminwa, J. who presided over the trial.
p. 11Final orders - appeal allowed, retrial ordered
In the premises each party shall bear her/his own costs of this appeal and the court below.
p. 11Costs order
We do not think that a Judge who has disqualified herself from a matter and all factors remaining constant can again in future purport jurisdiction and preside over the matter.
p. 10Binding rule on resumption of jurisdiction after disqualification
it is nonetheless our view that disqualification of a Judge is a matter of law and not fact. As such there can be no estoppel, waiver and acquiescence.
p. 8Disqualification cannot be waived
It must be remembered that justice must not only be done but must also be manifestly seen to be done.
p. 9Apparent bias and public confidence

Issues in the judgment

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minor

The quotation of Article 50 in the judgment begins with an apparent typographical error ('Very person has the right...') instead of 'Every person'

minor

The court states the matter before it as HCCC No. 99 of 1999 but the first ground of appeal refers to 'HCCC No.90 of 1990', an internal inconsistency in the case number

minor

The court records the disqualification date inconsistently, at one point as 5th March 2013 (evidently an error for 2003) and elsewhere as 8th March 2003

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (18)

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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, "Mwobi v Njoroge (Civil Appeal 314 of 2009) [2013] KECA 501 (KLR)", Case Analysis (2013). Civil Appeal No. 314 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/501/eng@2013-06-26

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