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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal (Application) No. 43 of 2018· [2018] KECA 89 (KLR)

Accredo Ag & 3 others v Steffano Ucceli & 1 other

Court of Appeal
6 December 2018
3,095 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that losing before the same judges previously is not proof of bias, so recusal applications need strong evidence.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Malindi (Visram, Karanja & Koome, JJ.A) on an application by Accredo Ag, Salama Beach Hotel Limited, Hans Juergen Langer and Zahra Langer seeking the recusal of the entire Malindi bench from hearing their appeal against a High Court ruling (Korir, J., dated 20 March 2018) that struck out an injunction application as res judicata. The applicants' apprehension of bias stemmed from the same bench's judgment of 15 December 2017 dismissing their first appeal against a High Court review ruling that set aside a consent decree enforcing a Milan foreign judgment. The respondents opposed, contending that no reasonable grounds of bias were shown and that the application was a ploy to forum-shop for a favourable bench. The court reaffirmed that the right to an impartial tribunal is a facet of the fair hearing right, but that a presumption of impartiality attaches to judicial officers under their oath, that the threshold for establishing real likelihood of bias is high, and that allegations must be proven with cogent evidence under the fair-minded and informed observer test. It held that an adverse prior decision by the same bench, even one pending appeal to the Supreme Court, does not of itself ground recusal. The application was dismissed with costs. The underlying appeal to the Supreme Court against the first appeal judgment remained pending certification.

Key legal issues

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01

Whether a prior adverse judgment by the same bench gives rise to a reasonable apprehension of bias

Holding

No. An adverse decision in a previous appeal between the same parties, even if it rendered the suit nugatory and even if an appeal to the Supreme Court is intended, does not establish bias.

Reasoning

The court reasoned that the right to an impartial tribunal is a subset of fair hearing rights, but the presumption of impartiality arising from the judicial oath is high. The applicants set out chronology but failed to identify circumstances giving rise to apprehension of bias, and produced nothing to support the claim that the first appeal judgment was rendered outside the confines of the law.

p. 4
02

The applicable test and threshold for recusal based on perceived bias

Holding

The test is the reasonable, fair-minded and informed observer test; allegations of bias must be established through cogent evidence to a high threshold.

Reasoning

The court traced the evolution of the bias test from mere suspicion to the reasonable apprehension standard in Porter v Magill and R. v S. (R.D.), and applied Galaxy Paints and Kaplana H. Rawal, holding that recusal applications are warranted on own motion or by application only where impartiality is genuinely in question.

p. 4

Legal principles established

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  • The threshold for a finding of real likelihood of bias warranting recusal is high, and a presumption of impartiality attaches to judicial officers by virtue of their oath of office; an adverse ruling against a litigant does not establish bias.
  • Allegations of perceived judicial bias must be supported by cogent evidence measured against the fair-minded and informed observer test.
  • Judicial officers should not readily accede to recusal applications not founded on reasonable grounds, as this would encourage bench-shopping by litigants.

Court orders

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  1. 1.The application for recusal of the bench is dismissed
  2. 2.Costs of the application to the respondents
On appeal from
High Court
H.C.C.C No. 118 of 2009
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal over the pending appeal from the High Court; the application sought recusal of the bench seized of that appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Accredo Ag & 3 others v Steffano Ucceli & 1 other", Case Analysis (2018). Civil Appeal (Application) No. 43 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/89/eng@2018-12-06

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