Republic v Clerk, Kisii County Assembly & 3 others; Atika (Interested Party); Nyamwange & 4 others (Exparte Applicants) (Judicial Review E013 of 2023) [2023] KEELRC 2059 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the judge's conduct (directions, refusal of stay, failure to sit due to illness) evidenced bias
No; the record showed ordinary case management consistent with practice, and no evidence grounded the allegations
The court examined the record and found the applicants had filed serial judicial review applications without disclosure, which prompted the directions they complained of. Declining ex-parte stay orders and directing parties to address the legal effect of transferred proceedings was proper case management. The failure to sit on 24 May 2023 was due to illness, and no evidence linked it to the Governor's alleged threats.
Whether the Governor's alleged public utterances warranted recusal
No; no factual nexus was drawn between the utterances and the judge's impartiality
While politicians are notorious for commenting on court proceedings, the applicants neither served the video/audio clip despite request nor established its veracity or any nexus to the judge's independence. The court noted the proper course would have been to move the court so the veracity of the utterances could be interrogated, not through a recusal motion.
Whether the recusal application was brought in good faith
It was brought for collateral purposes, prompted by the applicants' displeasure at the court exposing their non-disclosure of multiple proceedings
The record showed the applicants had filed parallel judicial review applications in Nairobi and Kisumu without disclosing the others, amounting to forum shopping. The court's direction to address the effect of the transferred proceedings upset the applicants' game plan, prompting the recusal motion, which was therefore an abuse aimed at securing indirectly what had been declined.
Legal principles established
#- The test for disqualification of a judge is objective: whether there is reasonable ground for assuming the possibility of bias likely to produce in the minds of the public a reasonable doubt about the fairness of the administration of justice, with facts constituting bias specifically alleged and established
- The reasonable suspicion test of the fair and fair-minded observer governs recusal applications
- Facts and evidence forming the basis of a recusal application must be pleaded and established by the party asserting bias
Court orders
#- 1.The application for recusal is dismissed with costs to the Respondents and Interested Party
- Jurisdiction invoked
- Inherent jurisdiction to determine recusal of the judge seised of the substantive judicial review Motion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Clerk, Kisii County Assembly & 3 others; Atika (Interested Party); Nyamwange & 4 others (Exparte Applicants) (Judicial Review E013 of 2023) [2023] KEELRC 2059 (KLR)", Case Analysis (2023). Kisumu Judicial Review No. E013 of 2023 (referred to as the instant proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2059/eng@2023-08-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.