Chege v Mathu & another (Civil Appeal (Application) 72 of 2009) [2025] KECA 268 (KLR)
The bottom line
#Kenya's Court of Appeal refused to reopen a 2016 judgment, ruling that suspicion alone about a judge's past connection isn't enough to prove bias.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant demonstrated sufficient cause or exceptional circumstances to warrant review of the Court of Appeal judgment delivered on 26th May 2016, specifically whether an undisclosed prior professional connection by Koome JA with the respondents created a reasonable apprehension of bias
Key legal issues
#Scope of the Court of Appeal's review jurisdiction over its own judgments
Review lies only to correct clerical or arithmetical mistakes or accidental slips, or in exceptional circumstances such as fraud, bias or other injustice, exercised with circumspection and only where decisions are not appealable to the Supreme Court.
Relying on Rule 37 of the Court of Appeal Rules, 2022 and Benjoh Amalgamated Ltd v Kenya Commercial Bank, the Court framed review as residual. The finality principle (public interest in conclusive litigation) must be balanced against the justice principle (doing justice and maintaining public confidence). Because the applicant advanced only an allegation of bias, the case turned on whether that allegation met the exceptional-circumstances threshold.
Whether an undisclosed prior professional connection by a judge gives rise to a reasonable apprehension of bias
No. The applicant failed to establish that Koome JA personally represented the respondents or had knowledge of their suit; the record showed only a mention of 'M/s Joyce for Martha Koome advocate' at a time when the respondents were acting in person, and no notice of appointment was produced.
The Court applied the objective test from Anyang' Nyong'o (EACJ) and R. v. S. (R.D.) (Supreme Court of Canada): the apprehension must be reasonable, held by a reasonable, fair-minded and informed observer, with a high threshold and the onus on the allegor. A mere suspicion is insufficient; there must be an evidentiary basis from the judge's conduct, statements, personal interest or relationships. On the record, none existed.
Legal principles established
#- The Court of Appeal may correct clerical or arithmetical mistakes or accidental slips under Rule 37; otherwise its review jurisdiction is residual and exercisable only in exceptional circumstances such as fraud, bias or other injustice, invoked with circumspection.
- The test for judicial bias is the objective test of reasonable apprehension of bias, held by a reasonable, fair minded and informed member of the public; there must be an evidentiary basis, and a mere suspicion is not enough.
- An inquiry into bias is contextual and fact-specific, requiring an evidentiary basis grounded in the judge's statements, conduct, personal interest or relationships.
Court orders
#- 1.The application dated 3rd April 2019 is dismissed
- 2.No order as to costs, in light of the non-participation of the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Rule 37 of the Court of Appeal Rules, 2022 (residual review jurisdiction of the Court of Appeal over its own judgments)
Relief refused
#Review and setting aside of the judgment of 26th May 2016 and substitution with an order allowing the amended appeal dated 8th July 2015, or in the alternative a fresh hearing of the amended appeal
No evidentiary basis that Koome JA personally represented the respondents or had knowledge of their suit; no reasonable apprehension of bias established; no exceptional circumstances warranting review
Costs
Dismissed with no order as to costs, in light of the non-participation of the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We accordingly find no merit in the application dated 3rd April 2019, which is hereby dismissed with no order as to costs, in light of the non- participation of the respondents.
We therefore find that there is no basis nor extraordinary circumstances that would warrant this Court to review the judgment delivered herein on 26th May 2016.
this is jurisdiction that should be invoked with circumspection, and only in cases whose decisions are not appealable (to the Supreme Court).
The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence.
Issues in the judgment
#The judgment does not state the appeal number or neutral citation of the application; the case number field is reconstructed from the body of the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chege v Mathu & another (Civil Appeal (Application) 72 of 2009) [2025] KECA 268 (KLR)", Case Analysis (2025). Court of Appeal Application dated 3rd April 2019 in Civil Appeal (judgment of 26th May 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/268/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.