David Oscar Owako v Chemelili Sugar Company Limited & 7 Others [2020] KEELC 3178 (KLR)
The bottom line
#A Kenyan court dismissed a request for the judge to step aside, confirming that enforcing court orders is not bias.
What this practically means
#Executive summary
#Key legal issues
#Whether the judge's conduct gave rise to a real possibility of bias
No; the expungement of a document filed without leave, pursuant to a prior order restricting filings, was a lawful exercise of the court's powers and cannot be construed as bias or prejudice.
The court applied the Porter v Magill test as adopted by the Court of Appeal in the Tunoi case, and the Tumaini principle that the impression on reasonable people, not the judge's actual state of mind, is what matters. The applicant admitted filing the application dated 10/2/2020 without the leave required by the ruling of 11/12/2019. Enforcing that order by expunging the non-compliant document was not prejudicial conduct but enforcement of the court's own orders.
The proper avenue for challenging the orders of 11/12/2019
This court is not the proper forum to determine the appropriateness of its own orders; the applicant should have appealed or complied.
The applicant questioned the propriety of the ruling of 11/12/2019 rather than appealing it. The court held that a party aggrieved by such orders must pursue an appeal; failing that, the party must comply with the orders. Filing a further application without leave was in defiance of the court's direction and could not ground a recusal application.
Legal principles established
#- The test for bias is objective: whether the fair-minded and informed observer, having considered the facts, would conclude there was a real possibility that the tribunal was biased
- In assessing possible bias it is not the mind of the judge that is considered but the impression given to reasonable people
- A court has power to expunge from the record a document filed in defiance of its orders, and doing so does not constitute bias
Court orders
#- 1.The application dated 13/2/2020 seeking recusal is dismissed
- 2.Costs of the application awarded to the 1st-3rd respondents/defendants
- Jurisdiction invoked
- Inherent powers of the court over its own proceedings (no specific constitutional/statutory provision cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Oscar Owako v Chemelili Sugar Company Limited & 7 Others [2020] KEELC 3178 (KLR)", Case Analysis (2020). Not stated in judgment (application dated 13th February 2020 in the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3178/eng@2020-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.