Paul Kipkoech Kisoren v Republic

good reason.” The foundation for the principle underlying recusal of Judicial Officers was restated by the Supreme Court in Jasbir Singh & 3 Others vs Tarlochan Singh Rai and 4 Others Petition No. 04/2012 (2013) eKLR as follows; “Recusal, as a general principle, has been much practiced in the history of the East African judiciaries, even though its ethical dimensions have not always been taken into account. The term is thus defined in Black’s Law Dictionary, 8 th ed. (2004) [p.1303]: “Removal of oneself as judge or policy maker in a particular matter, [especially] because of a conflict of interest.” From the definition, it is evident that the circumstances calling for recusal, for a Judge, are by no means cast in stone. Perception of fairness, of conviction, of moral authority to hear the matter, is the proper test of whether or not the nonparticipation of the judicial officer is called for. The object in view, in the recusal of a judicial officer, is that justice as between the parties be uncompromised; that the due process of law be realized, and be seen to have had its role; that the profile of the rule of law in the matter in question, be seen to have remained uncompromised.” see also Misc Cr. App. 82/2013 Barnaba Kipsongok Tenai vs Republic. The test to be applied in cases of apparent bias was set by the House of Lords in the case of Porter vs Magill (2002) I ALL ER 465 when the court held; “The question is whether the fair minded and informed observer having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” When faced with such an application, the court has to consider whether there is a reasonable ground for assuming the possibility of bias and whether it is likely to produce in the minds of the public at large, a reasonable doubt, the reasonableness of the Judge/Magistrate. It is the applicant who has to specifically allege the facts for the court’s consideration. The complainant was called to testify as PW3 on 24/01/2019. After she had partially testified, the State Counsel applied to stand her down and declared her a refractory witness. Counsel requested that PW3 be remanded at Nyahururu Police Station. The court observed “Indeed, the minor after being asked several times has refused to say what she recorded yet she acknowledged her signature and her statement. She is therefore declared a refractory witness and detained for 8 days at Nyahururu Police Station. Further hearing on 01/02/2019.” On 01/02/2019, the State Counsel was not available to proceed with the hearing. The hearing was adjourned to 04/02/2019. On that date, PW3 went ahead and testified. After she completed her testimony, the applicant was called upon to cross – examine PW3 but instead stated that he had no faith in the court. Section 152 of the CPC Act provides as follows; Refractory witnesses “1. Whenever a person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence: (a) Refuses to be sworn; or (b) Having been sworn, refuses to answer any question put to him; or (c) Refuses or neglects to produce any document or thing which he is required to produce; or (d) Refuses to sign his deposition, Without offering sufficient excuse for his refusal or neglect, the court may adjourn the case for any period not exceeding eight days, and may in the meantime commit that person to prison, unless he sooner consents to do what is required of him. 2. If the person, upon being brought before the court at or before the adjourned hearing, again refuses to do what is required of him, the court may again adjourn the case and commit him for the same period, and so again from time to time until the person consents to do what is so required of him. 3. Nothing contained in this section shall affect the liability of any such person to any other punishment or proceeding for refusing or neglecting to do what is so required of him, or shall prevent the court from disposing of the case in the meantime according to any other sufficient evidence taken before it.” From the above provision, it is clear what a refractory witness is, one who was summoned to appear or while in court and is required to give

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evidence, refuses to be sworn or after being sworn, refuses to respond to questions or produce a document or exhibit which is required of him. If that witness does not explain his action, then the court invokes the procedure in Section 152 CPC. The court noted that the witness had refused to answer questions put to her before the State Counsel made an application to declare PW3 a refractory witness. I therefore find that the trial court did act within the law in remanding PW3 until she came and answered questions put to her in terms of her statement and that is no reason for the court to recuse itself. The applicant also complained that he was not allowed to cross – examine some witnesses. From the record, the applicant cross – examined PW1 and 2 at length. PW1 is a Doctor while PW2 is the complainant’s father. After PW3 testified, the applicant declined to cross examine him. He also refused to cross, the complainant’s mother, PW4. The applicant objected to the substitute investigating officer from testifying. It is clear that the accused opted not to cross – examine witnesses after PW3 testified. The court could not force him to cross – examine them. He waived his right to do so and cannot blame the trial court for that. The appellant also complained that the trial court continued with the case yet he had filed this application before the High Court. The filing of this application before this court did not act an automatic stay of the lower court proceedings. Since this court had not granted any stay, the trial in the lower court could proceed and the trial court cannot be faulted for continuing with the trial. In fact, once the trial court confirmed that indeed this instant application had been filed, it halted the hearing but by then the applicant had been placed on his defence. This is not an appeal. The applicant seemed to be challenging the veracity and admissibility of the doctor’s evidence but that is not for this court to deal at this stage. That can only be challenged on appeal, if it will necessary. The applicant also complained that he told the court that he is a student at Pan African High School and the court has declined to grant him bond or review the terms. When the applicant alleged that he was 17 years old, an age assessment was conducted at J.M. Kariuki County Hospital which found him to be 18 years. As to the applicant’s contention that he is a student, the court asked the probation officer to procure a social enquiry report which is on the file. It is dated 23/05/2018. It confirms that the applicant had joined Pan African High School in Kisima in 2017 but left school in 2017 and at the time of arrest in April, 2018, he was not attending school. The court granted the applicant bond of Kshs.200,000/= and even on learning that he was 18 years old, and not in school, the court did not alter the said terms. Since then the applicant has not requested for variation of bond terms. The grant of bond by a court is an exercise of its discretion. Unless the applicant shows that the said exercise was not judicious or actuated by some bias on the part of the court, it cannot be a ground to ask for recusal. Having considered all the grounds raised by the applicant, I find no reason to inpute bias or likelihood of bias on the part of the trial court. Unless good reasons are shown, the court must be firm and not allow frivolous applications for recusal as the same would be an abuse of the court process and used for forum shopping. I therefore find no good reason adduced to warrant the transfer of this case to a different magistrate other than the one seized of the matter now. As regards bond, the applicant has already been placed on his defence and I believe the case is about to come to an end. But just, in the event that it is delayed, I hereby reduce/alter the bond terms and order that the applicant may be released on bond of Kshs.100,000/= with a surety of the same amount or cash bail of Kshs.50,000/=. It is so ordered Dated, Signed and Delivered at NYAHURURU this 26th day of November, 2019. ............................ R.P.V. Wendoh JUDGE PRESENT: Ms. Rugut for State Soi Court Assistant Applicant - present

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