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Court of AppealOtherCivil Appeal 32 of 2018· [2021] KECA 53 (KLR)

Pacific Frontier Seas Limited v Kyengo & another (Civil Appeal 32 of 2018) [2021] KECA 53 (KLR)

Court of Appeal
8 October 2021
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
387 words in judgment
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The bottom line

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Kenya's Court of Appeal stepped aside from a decided appeal after a newspaper alleged judicial interference, choosing a fresh hearing to protect public confidence.

What this practically means

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Executive summary

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This is a short order of the Court of Appeal at Malindi (sitting in Mombasa, delivered at Nairobi) by Musinga, Gatembu Kairu and Murgor, JJA, in an appeal against the judgment of Chitembwe, J. in Malindi Succession Cause No. 97 of 2015 delivered on 18 May 2018. The appeal was fully heard on 30 October 2019 with judgment scheduled for 27 February 2020, but delivery was delayed because all three judges were transferred to Nairobi and the presiding judge inadvertently misplaced the file. Judgment was rescheduled for 24 September 2021, but on 12 September 2021 a Sunday Nation article claimed there were video and audio recordings of a High Court judge discussing how to compromise members of the bench and how to influence the outcome of the appeal. The court held that, whatever its decision, it would be misconstrued as having been influenced by the unnamed High Court judge on behalf of one of the parties. It therefore unanimously recused itself and directed that the appeal be heard afresh before another bench on a priority basis. The decision below was neither affirmed nor reversed; no costs order was made and no authorities or statutory provisions were cited.

Key legal issues

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Whether the bench should deliver judgment after a newspaper article alleged audio and video recordings of a High Court judge discussing how to compromise members of the bench

Holding

The court held that whichever way it decided, its decision would be misconstrued as influenced, and the only proper course was recusal and a fresh hearing before another bench.

Reasoning

The appeal was fully heard in October 2019, but delivery of the prepared judgment was delayed by an inadvertent misplacement of the file and then by a September 2021 newspaper article claiming recordings of a High Court judge discussing compromising or influencing the outcome of the appeal. The court concluded that public confidence in its decision could not be maintained under that cloud, so it unanimously recused itself and directed a de novo hearing before a differently constituted bench on a priority basis.

p. 2

Legal principles established

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  • Where circumstances arise that could cause a court's decision to be misconstrued as influenced by an external party, the bench must recuse itself and the appeal proceeds before a differently constituted bench.

Court orders

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  1. 1.The bench recuses itself from the appeal
  2. 2.The appeal shall be heard afresh on the basis of priority before another bench
On appeal from
High Court of Kenya at Malindi
Succession Cause No. 97 of 2015
Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal to recuse itself from a partially heard appeal; no constitutional or statutory provision is expressly invoked.

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, "Pacific Frontier Seas Limited v Kyengo & another (Civil Appeal 32 of 2018) [2021] KECA 53 (KLR)", Case Analysis (2021). Civil Appeal 32 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/53/eng@2021-10-08

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