Diamond Trust Bank Limitedv v Wardpa Holdings Limited & 6 others [2018] KEELC 3345 (KLR)
The bottom line
#A Kenyan judge refused a recusal bid for lack of bias but stepped aside anyway just to protect confidence in the proceedings.
What this practically means
#Executive summary
#Key legal issues
#Test for recusal of a judge on grounds of apprehended bias
The test is a likelihood or reasonable apprehension of bias arising from concrete circumstances; automatic disqualification is not presumed and the applicant bears the burden of showing the bias is not a mere figment of imagination.
The court applied the East African Court of Justice decision in Anyang' Nyongo' and Kaplan & Stratton, holding that mere past professional association through a former partnership, years before appointment, without demonstrated partiality in the conduct of the case, does not meet the threshold for disqualification.
Whether the judge's prior partnership at a firm that once acted for the plaintiff required disqualification
No, not on the merits - the firm acted for the plaintiff years before and not when the judge left over five years earlier; any past interaction could not affect the judgment.
The judge acknowledged the facts asserted by the applicant but held that the temporal remoteness of the connection and the absence of demonstrated partiality meant the application had no merit. Nonetheless, out of an abundance of caution occasioned by the applicant's lingering apprehension, the judge elected to recuse himself.
Whether the judge's interlocutory decisions in the suit disclosed partiality
They did not; all orders were well considered and the remedy for dissatisfaction was appeal, not recusal.
The court observed that a dissatisfied litigant with a remedy of appeal should not antagonize the court by seeking disqualification, consistent with the principle that judges should not readily yield to suggestions of bias as this encourages forum shopping.
Legal principles established
#- A judge is only disqualified where there is a likelihood or apprehension of bias based on identifiable circumstances; disqualification is not presumed and the applicant must show the bias is not imaginary
- Judicial officers should not accede too readily to suggestions of appearance of bias lest parties shop for favourable benches
Court orders
#- 1.The judge recuses himself from hearing the suit
- 2.The matter to be mentioned before Eboso J. on 31st May, 2018 for directions on the pending applications
- 3.Costs shall be in the cause
- Jurisdiction invoked
- not expressly stated; court seised of a pending suit and a recusal application under its inherent powers and rules of procedure
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Diamond Trust Bank Limitedv v Wardpa Holdings Limited & 6 others [2018] KEELC 3345 (KLR)", Case Analysis (2018). Notice of Motion dated 3rd March, 2017 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3345/eng@2018-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.