Rawal v Judicial Service Commission & another; Okoiti (Interested Party); International Commission of Jurists & another (Amicus Curiae) (Civil Appeal (Application) 1 of 2016) [2016] KECA 717 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that judges will only step aside from a case if real, evidence-backed grounds for bias are shown, not bare accusations.
What this practically means
#Executive summary
#Key legal issues
#The applicable test for recusal on the ground of apparent bias
The Court adopted the objective reasonable apprehension of bias test, as expounded in Commonwealth and East African authority, over the real danger test
The Court reviewed the divergence in Commonwealth jurisdictions between the real danger test in R. v. Gough and the modified fair minded and informed observer test in Magill v. Porter. It embraced the reasonable apprehension test adopted by the East Africa Court of Justice and the Supreme Court of Canada, requiring both a reasonable observer and a reasonable apprehension, with knowledge of all relevant circumstances, and a high threshold and onus on the applicant.
Whether mere allegation compels automatic recusal
No; judges should not recuse themselves on flimsy and baseless allegations, and there is no authority for an automatic recusal upon a bare assertion of apprehension
The Court rejected the submission of the 2nd amicus curiae that a party need only express apprehension for the judge to step down. It noted that no authority supports that proposition, and that decisions abound requiring judges to resist tenuous objections, citing Locabail and Kaplan & Stratton. Where actual bias is established, recusal is automatic; the difficulty lies in allegations of appearance of bias, which must be grounded in reasonable facts.
Effect of partiality of one judge among seven
The partiality of one judge on a seven-judge bench violates the constitutional guarantee, since the court is constituted by all the judges sitting
The Court rejected the interested party's argument that bias in one of seven judges is of no consequence. It held the Constitution guarantees trial before an independent and impartial court composed of all seven judges; the reference to Re Pinochet, vitiated by the perception of bias of a single judge, supports this. The application therefore could not be defeated merely because six other judges were unaffected.
Whether the applicant's allegations established a reasonable apprehension of bias
They did not; the allegations were unverified hearsay from a confidential source, and the alleged meeting occurred before the judge was empanelled to the appeal
The applicant did not claim to have attended the alleged meeting at Karen Country Club, nor that her undisclosed source was present, making it impossible to assess the credibility of the information. The Court record showed the bench was empanelled on 8th February 2016, so the judge could not have been discussing or guaranteeing the outcome of the appeal on 5th and 6th February 2016. Her handling of the allegations also undermined their credibility.
Legal principles established
#- The test for recusal on grounds of apparent bias is the reasonable apprehension of bias test, assessed objectively from the perspective of a reasonable, fair minded and informed observer, and the threshold is high
- A judge is not obliged to recuse himself on a bare allegation; the party seeking recusal bears the duty of establishing reasonable grounds from which an inference of bias may be drawn
- A party relying on statements of information and belief must disclose the source so its credibility can be assessed; uncontroverted hearsay in an affidavit does not automatically stand
- Bias of one judge sitting on a multi-judge bench violates the constitutional guarantee of a fair hearing by an independent and impartial court, even where the other judges are impartial
Court orders
#- 1.The application for recusal of Hon. Mr. Justice Milton Asike Makhandia, JA is dismissed
- 2.Costs of the application awarded to the respondents and the interested party
- On appeal from
- High Court of Kenya
- Petition (five-judge bench) on judges' retirement age
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the applicant's appeal in Civil Appeal No. 1 of 2016; this is an interlocutory recusal application within that appeal
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.
- Gachagua & 5 others v Maingi & 80 others (Civil Appeal E829 of 2024 & E022 of 2025 (Consolidated)) [2025] KECA 790 (KLR)[2025] KECA 790 (KLR)9 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Rawal v Judicial Service Commission & another; Okoiti (Interested Party); International Commission of Jurists & another (Amicus Curiae) (Civil Appeal (Application) 1 of 2016) [2016] KECA 717 (KLR)", Case Analysis (2016). Civil Appeal No. 1 of 2016 (Recusal Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/717/eng@2016-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.