Kipkoech Kangongo & 62 Others v Board of Governors Sacho High School & 5 Others
The bottom line
#Kenya's Court of Appeal threw out a High Court judgment because the judge had earlier decided the same issue without telling the parties.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial judge's prior determination of the same issue in the Namba case and her non-disclosure of it created an appearance of bias infringing the right to a fair trial
Yes. The main issue in the High Court was the status of Sacho High School, which Wendoh J had extensively analysed in the Namba case barely a year earlier, and she never disclosed that prior substantive determination; a reasonable person would apprehend that she may have prejudged the matter.
The court adopted the objective test of reasonable apprehension of bias from the South African, English, Australian and East African authorities. A right-minded person aware that the judge had determined the very issue shortly before would think she may have prejudged the petition. Non-disclosure compounded the appearance of bias. Justice must be seen to be done; the judgment was therefore a nullity and had to be set aside.
What remedy follows where a judgment is vitiated by apparent bias
The judgment cannot stand; the appeal was allowed to the extent of setting aside the High Court judgment and remitting the case for retrial before judges other than Wendoh J and Dulu J.
Borrowing from R v Gough, where a judge fails to disclose a disqualifying circumstance and sits in judgment, the decision cannot stand. Rule 31 of the Court of Appeal Rules empowered the court to remit the proceedings with appropriate directions. Given the parties' position, no order as to costs was made.
Legal principles established
#- The test for disqualification of a judge is objective: whether a reasonable, fair-minded and informed person would apprehend that the judge will not bring an impartial mind to bear; actual bias need not be shown.
- A judge who has previously made a substantive determination directly connected to a matter before her, and who fails to disclose that fact, gives rise to an appearance of bias that vitiates the resulting judgment.
- A judgment rendered in circumstances where justice was not seen to be done is a nullity and cannot stand.
Court orders
#- 1.Appeal allowed to the extent that the judgment of the High Court made on 18th February 2011 is set aside
- 2.Case remitted back to the High Court for retrial before any other judge other than Wendoh J and Dulu J
- 3.No order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- Constitutional Petition No 306 of 2008
- Jurisdiction invoked
- Section 31 of the Court of Appeal Rules (power to confirm, reverse, vary or remit the decision of the superior court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kipkoech Kangongo & 62 Others v Board of Governors Sacho High School & 5 Others", Case Analysis (2015). Civil Appeal No 75 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/970/eng@2015-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.