David Kiptum Yator & 2 others v Attorney General & 5 others [2018] KEELC 872 (KLR)
The bottom line
#A Kenyan court ruled that disagreeing with a judge's earlier order is not grounds to accuse the judge of bias.
What this practically means
#Executive summary
#Key legal issues
#Test for recusal on grounds of apparent bias
The single ground relied on - the court's definition of status quo on 18.2.2015 - does not meet the objective test of apparent bias; no fair-minded and informed observer would conclude a real possibility of bias.
The court traced the shift from the 'real danger' test to the fair-minded and informed observer test in Porter v Magill and Taylor v Lawrence, and the Court of Appeal's guidance in R v David Makali. The order complained of was made after hearing all parties and read out in court, so the complaint is one of dissatisfaction with a ruling, not bias.
Timing and bona fides of the recusal application
The application, made more than 18 months after the status quo order and at the submissions/judgment stage, was an afterthought and an abuse intended to delay the petition.
The petitioners had participated in many applications and directions since the order without raising bias, had never appealed the ruling of 18.2.2015, and the 2nd respondent showed a similar earlier recusal attempt against Sila Munyao J. Delay and the stage of proceedings undermined the bona fides of the application.
Alleged breach of the right to a fair hearing in the status quo order
The petitioners' right to be heard was not breached; they were heard before the order was made and the order was read to them in court.
The court found as a fact that the status quo order of 18.2.2015 followed interrogation of all counsel on record after delivery of the ruling, and that the petitioners' grievance with the finding that they had left the forest was a matter for appeal or review, not recusal.
Legal principles established
#- The test for apparent bias is objective: whether a fair-minded and informed observer, considering the facts, would conclude there is a real possibility that the tribunal is biased
- A party aggrieved by an interlocutory ruling should appeal or seek review rather than ask the judge who made it to recuse himself
Court orders
#- 1.The notice of motion dated 15.2.2016 is dismissed with costs to the respondents
- Jurisdiction invoked
- Original constitutional petition jurisdiction; Article 63 of the Constitution of Kenya raised in the petition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kiptum Yator & 2 others v Attorney General & 5 others [2018] KEELC 872 (KLR)", Case Analysis (2018). Petition (filed 2013, Eldoret) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/872/eng@2018-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.