Tunoi & another v Judicial Service Commision & another (Civil Application 6 of 2016) [2016] KECA 715 (KLR)
The bottom line
#Kenya's Court of Appeal refused to remove a judge from a case, ruling that old grievances without hard evidence of bias don't justify a judge stepping aside.
What this practically means
#Executive summary
#Key legal issues
#Whether the Presiding Judge's conviction and fine for contempt 22 years earlier, in a bench that included the 1st applicant, establishes a real possibility of bias
It does not. No evidence was adduced of any likelihood of retaliation, vindictiveness or want of impartiality, and the application failed the fair-minded and informed observer test.
The court traced the jurisprudence from Tumaini v Republic through R v Gough to Porter v Magill and Taylor v Lawrence, adopting the fair-minded and informed observer test. The only grounds advanced were the 22-year-old contempt conviction and the judge's recall of it. The court found that memory of past events is not evidence of bitterness, that no reasonable grounds for apprehension were stated, and that a reasonable observer knowing the facts would not conclude a real possibility of bias, particularly as the appeal turned on interpretation of the retirement age, an issue not personal to the applicant.
The constitutional right to a fair hearing before an independent and impartial tribunal
The right to a fair hearing under Articles 50(1) and 25(c) is absolute and cannot be limited, but its invocation does not dispense with the requirement to establish bias on objective evidence.
The court acknowledged that justice must not only be done but be seen to be done, and that the right to a fair hearing before an impartial tribunal is non-derogable. However, it emphasised that the test for apparent bias is objective, that facts constituting bias must be specifically alleged and established, and that mere apprehension or perception without evidentiary foundation does not satisfy the constitutional standard. Recusal remains a matter to be assessed on the material placed before the court.
The duty of judicial officers to disqualify themselves where impartiality might reasonably be questioned under the Judicial Service Code of Conduct and Ethics
Rule 5 of the Code requires disqualification where impartiality might reasonably be questioned, including personal bias or prejudice, but the circumstances here did not trigger that duty.
The court noted that the Judicial Service Code of Conduct and Ethics, made pursuant to Section 5(1) of the Public Officer Ethics Act, 2003, obliges judicial officers to disqualify themselves where their impartiality might reasonably be questioned or where they hold personal bias or prejudice concerning a party. The court nonetheless found that had evidence of a real possibility of bias been shown the judge would have stepped aside; absent such evidence, the Code's disqualification threshold was not met.
Legal principles established
#- The governing test for apparent bias/recusal is whether a fair-minded and informed observer, having considered the facts, would conclude that there is a real possibility that the tribunal was biased.
- Facts constituting bias must be specifically alleged and established; a mere apprehension or assertion of bias without evidence is insufficient to compel recusal.
- A judge's prior adjudication of a matter in which a litigant was a party, without more, does not ground a real possibility of bias against that litigant years later.
Court orders
#- 1.Dismissal of the notice of motion dated 12th February 2016 seeking recusal of the Presiding Judge, Hon. Justice G.B.M. Kariuki
- 2.Costs of the application to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- Petition No. 244 of 2015
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under Article 164 of the Constitution over the appeal from the High Court judgment; the present ruling is interlocutory on the recusal application within that appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mathenge & 4 others v Rohim City of the Lord Churcн through tts Registered Trustees & 4 others (Environment and Land Petition E001 of 2025) [2026] KEELC 5205 (KLR)[2026] KEELC 5205 (KLR)22 Jul 2026applied
- East Africa Tour Guides Drivers Association v Lazizi Mara Ltd & 12 others (Environment and Planning Petition E001 of 2026) [2026] KEELC 4071 (KLR)[2026] KEELC 4071 (KLR)2 Jul 2026
- Kinyitta v CKK Estates [1973] Limited & 4 others (Environment and Land Case Civil Suit E112 of 2024) [2026] KEELC 1335 (KLR)[2026] KEELC 1335 (KLR)5 Mar 2026
Cite this brief
#Cite this brief
Caselaw, "Tunoi & another v Judicial Service Commision & another (Civil Application 6 of 2016) [2016] KECA 715 (KLR)", Case Analysis (2016). Civil Application No. NAI 6 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/715/eng@2016-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.