The Board of Management Kenya Hospital Association T/A The Nairobi Hospital & 1 other v The Chief Executive Officer Kenya Hospital Association & 2 others

1. That I issued interim ex parte orders that he considers to be ambiguous. 2. That I have demonstrated bias towards him, by ruling and insisting that he was in disobedience over a board meeting convened by a Mr Samson Kinyanjui. 3. That I demonstrated bias by ruling that the defendants were in contempt despite their plea that they abandoned all scheduled activities of the retreat upon being served with the subject court order. 4. That my ruling on who according to the court record is the Plaintiff’s advocate, manifested bias. 5. That I have already ruled on the contempt Application. 6. That I quoted Dr Duncan Okubasu (a proposed party’s Advocate), as having admitted to the contempt, when he only confirmed that the meeting the subject of the pending contempt Application was convened by the said Mr Samson Kinyanjui, and was limited to seeking legal representation in the case. 7. That I directed the Defendants to physically attend court on 17th July 2025. Ostensibly for punishment while at the same time affording him a formalistic opportunity to be heard; and as if they had already been convicted and were due for sentencing. 8. That I issued orders staying Milimani MCCOMMSU E873 of 2025 that two members of the Kenya Hospital Association (one Lindsey Mandirani and one Yasmin Aligas Mohammed) had during the pendency of this suit, filed in the Milimani Chief Magistrate’s Court relating to the same dispute in this suit, and obtained orders from Hon William Lopokoyit (Principal Magistrate) regarding leadership of the Hospital’s Board of Directors. 9. That I stayed the said proceedings in the magistrate’s court without being prompted by the parties in that suit. 10. That I declined to allow Prof John Mwero and Mr Eric Okeyo (proposed Interested Parties), to participate in the contempt application in support of the 3rd Defendant. 11. That I declined an oral Application for review of the said order on the said Prof John Mwero and Mr Eric Okeyo, and allow them to join in the contempt Application and also contribute on it. 12. That I called out the names of the Defendants in the court session of 17th July 2025. 13. That I declined a patently reasonable request by Mr Kiragu Kimani, Senior Counsel (the 1st Defendant’s Counsel) for an adjournment to prepare a detailed response to the contempt application and the suit itself. 14. That throughout the said court session of 17th July 2025, five policemen were strategically placed at the court precincts. That which to him was evidence that he was due for punishment for contempt through jail. 15. That I during the proceedings in the said session reminded the parties of the provisions of Order 40 Rule 3 as to the consequences of disobedience of injunctive orders. 16. That I gave and enforced strict timelines for addresses. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13318/eng@2025-07-31 2

page 2 of 6

Analysis and Determination 4. The Application was opposed by the Plaintiffs. Parties, then filed written submissions, propagating their respective positions on the sought recusal. There is only one issue for determination in this Application, i.e whether I should recuse myself from this matter or not. 5. In reaching a determination on the issue, I have considered the Application and its Supporting Affidavit; as well as the response to it, the rival submissions that the parties filed, and the relevant law and applicable legal principles. 6. I have carefully distilled the reasons that the Applicant/3rd Defendant Dr Barcley Onyambu has in this Application advanced as the basis for my recusal from this suit. I note that many of those reasons qualify as grounds for review and appeal, and not recusal. Only some of them are framed in a manner befitting a recusal Application, and I have addressed them later in this ruling. 7. Firstly, as to the presence of police officers in the court premises during the court proceedings of 17th July 2025, ground 17 of the Application states as follows: “During all this time 5 policemen were strategically placed at the Court precincts, further evidence the 3rd Defendant was due for punishment for contempt through jail.” 8. This allegation is repeated by Dr Onyambu the Applicant, in his Supporting Affidavit sworn by him on 22nd July 2025. Where he has under oath stated in paragraph 36 as follows: “…during all this time, 5 policemen were strategically placed at the Court precincts, further evidence that I was due for punishment for contempt through jail.” 9. This is rather problematic, because he was absent in that court session of 17th July 2025. In that session, his own Advocate Mr Wanyama, informed the Court that Dr Onyambu was not in court. That he was not able to attend court. The record of that day states that he was absent, and only the 1st Defendant (Felix Osano) and the 2nd Defendant (Gilbert Nyamweya), were present. The proceedings of that day bear me witness on this fact. 10. Surprisingly, Dr Onyambu has in that Supporting Affidavit, deponed to that allegation, without stating his source of information. That is contrary to the provisions of Order 19 Rule 3 of the Civil Procedure Rules, but I excuse him for that, and will just consider the statement. 11. On this allegation of the presence of police officers in the court premises, I need to clarify that the deploying of police officers in court premises, is the role of the judiciary’s administration in collaboration with the Judiciary Police Unit. In any case their role is to provide security for the premises and also to ensure the safety of those in the court house. 12. It is unclear why a Judge presiding over a court session and conducting court proceedings, can be associated with such deployment, or be vilified for the presence of police officers in the court premises. The mere presence of police officer in the court precincts cannot be a reason for a party to apply for recusal of the Judge, as is the case with this Application. That is too remote and too far-fetched a reason to propagate in support of a recusal motion. 13. In any case, for law-abiding persons, the presence of police officers in the court premises and precincts should neither worry nor perturb them. Neither should it worry or dismay the litigants or their Advocates. To the contrary, it should assure them of their security and safety in going about what has brought them to court. A judge will not recuse, just because there were police officers in the court premises. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13318/eng@2025-07-31 3

page 3 of 6

14. As for the other grounds in Application, many of them are on the directions as well as rulings and orders I made while conducting the proceedings. I hold that those are to be challenged through review applications or appeals to the Court of Appeal; and not an Application to recuse me. These being civil proceedings, they are governed not only by the Bangalore Principles and the Judicial Code of Conduct, but also the Civil Procedure Act Cap 21 Laws of Kenya (Sections 65 to 79G, and Section 80) and the Civil Procedure Rules (Order 42, Order 43, and Order 45). 15. In any case, Section 1A (3) of the Civil Procedure Act, as follows: “ A party to civil proceedings or an Advocate for such party is under a duty to assist the Court to further the overriding objective of the Act, and, to that effect to participate in the processes of the Court and to comply with the directions and orders of the Court.” 16. Several other grounds relate to other parties- the co-defendants and proposed Interested Parties. For those grievances relating to those others, those grievances should be pursued by those particular parties and their advocates on review or appeal. Those others all have appointed Advocates to represent them in this suit. The 2nd Defendant is represented by Mr Omwebu Advocate, while the 1st Defendant is represented by Senior Counsel Mr Kiragu Kimani an eminent legal practitioner and member of the Senior Counsel bar. These other Defendants like the 3rd Defendant, are competently represented by Advocates. 17. Even the proposed Interested Parties such as Prof John Mwero, Mr Eric Okeyo, Dr Agnes Gachoki, Lindsey Mandirani, and Yasmin Aligas Mohammed; have also instructed their own Advocates to represent them in this suit. Those advocates are competently representing them and defending their interests very vigorously. 18. It is unclear why the 3rd Defendant should in this recusal Application be complaining on their behalf, when they are ably and competently represented by counsel in this suit. His co-Defendants and all those others are adequately represented by counsel, and should neither be surrogated nor patronised, as attempted by the 3rd Defendant in this Application. 19. Notably, the Applicant has in the grounds of his Application mentioned a Mr Samson Kinyanjui who is not a party to this suit. He has in ground 2 and 7 of the Application, and paragraph 17 of the Supporting Affidavit, stated that it is the said Kinyanjui who convened a Board meeting after this Court issued orders. He is the one who is introducing the said Kinyanjui in this suit. The Plaintiffs have neither mentioned the said Kinyanjui nor cited him for contempt; and for now he remains a nonparty. Despite the fact that, the subject court order had in fact prohibited the convening or continuing with of any board meeting or retreat. 20. As to the striking out of the Notice of Change of Advocate and the Notice of Withdrawal of this suit which counsel Dr Okubasu filed hot on the heels of the said Notice of Change of Advocate, and this Court’s rejection of his purporting to act for the Plaintiffs without their instructions, and for purposes only of withdrawing this suit, that can be pursued by him through a review Application or an Appeal. Not through this recusal Application. 21. The last and most grave grounds of this recusal Application is alleged bias and alleged lack of impartiality. It has stated that I am biased and non-impartial. Anyone reading the particulars enumerated in the Application, and which I have earlier in this ruling set out almost in extenso, will find that these two are perhaps the principal anchor of the Application. In the context of a recusal Application, allegations and perceptions of bias and lack of impartiality, ought to not only https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13318/eng@2025-07-31 4

page 4 of 6

be reasonable and real, but also honest, and made in good faith without any obvious, detectable or apparent mischief. 22. The Supreme Court of Uganda in Uganda Polybags Ltd v. Development Finance Company Ltd & Others [1999] 2 EA 337, was of the view that litigants have no right to choose which judicial officers should hear and determine their cases, since all judicial officers take oath to administer justice to all manner of people impartially, without fear, favour, affection or ill-will, and the oath must be respected. 23. Here at home, our Court of Appeal in Civil Appeal No. 36 of 1996 Uhuru Highway Development Ltd v. Central Bank & 2 Others stated as follows: “ Except where a person is acting in a judicial capacity had a pecuniary interest in the outcome of the proceedings, when the Court would assume bias and automatically disqualify him from adjudication, the test applied in all cases of apparent bias was whether having regard to the relevant circumstances, there was a real danger of bias on the relevant member of the tribunal in question, in the sense that he might unfairly regard or unfairly regarded with favour or disfavour the case of a party to issue under consideration by him; the real test is in terms of real danger rather than real likelihood to ensure that the Court is thinking in terms of possibility rather than probability of bias…. “Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duties to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a Judge, they will have their cases tried by someone thought to be more likely to decide the case in their favour…. Although most litigants would much prefer that they be allowed to shop around for Judges that would hear their cases, that is a luxury which is not yet available under our law to litigants.” 24. Bias and lack of impartiality, are grave judicial improprieties that ought to be based on solid facts and not mere speculation and paranoia. To demonstrate bias, the facts and grounds for arriving at that conclusion, need to be as obvious as daylight and as clear as pikestaff. Being so, they should be such as lead to one, and only one conclusion- that the judge is biased and lacks impartiality. 25. The supposed bias and lack of impartiality that the 3rd Defendant has in this Application struggled to project, are mere lamentations, engineered by sheer dislike, displeasure and paranoia. Those cannot be the legal basis for judicial recusal. It would have been different if the allegation was that I have an interest in the subject matter of these proceedings, or in their outcome, or the hospital. Hence that I am confiicted. For instance, if I am a supplier or a consultant there, or a shareholder or a member of the hospital’s board of directors. No such allegation has been made in this Application. 26. The legal threshold for judicial recusal is certainly higher than that. The Application should have been as objective and as sober as possible. It needed not be an embodiment of subjective convolution and misrepresentation of plain facts, an ensemble of misgiving, and so emotively structured. The fundamental legal principles on judicial recusal are settled and well-articulated in legal treatises and judicial decisions. 27. The level of objectiveness needs to be such as even the adverse party or a reasonable by-stander devoid of any bias and prejudice, and objectively analysing the factual background presented by the Applicant, can agree with the conclusion that the Judge should recuse. The factual background as set out in the Application, is far from that. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13318/eng@2025-07-31 5

page 5 of 6

28. I find this Application to be either a scheme for forum-shopping, or a tactic to bully, intimidate, frustrate, and blackmail me into abandoning my judicial duty, and hope into the woods. This being part of the occupational hazards of judicial office, I take it in my stride. As unfortunate as such are, they should never cloud the judgment of a judicial officer, and his ability to determine the matters before him soberly, and in accordance with the law and the Constitution. 29. In rejecting a recusal Application in Tuff Bitumen Ltd v. SBM Bank (K) Limited & Another [2023] KEHC 3198 (KLR), I observed that some recusal applications are made in the hope that they will tarnish the Judge’s reputation, as well as cause him or her psychological, mental and emotional pain, regardless of whether the application succeeds or not. This is one such application. 30. This Application has therefore been rested on quick sand, and has collapsed. It lacks merit and is an abuse of the court process. Hence it is hereby dismissed accordingly. Allowing it will not only be an over-stretching of the concept of judicial recusal, but will also be a lowering of the legal threshold for recusal applications, and condoning of an abuse of the court process. 31. There shall be no orders as to costs, as it was an Application against the Court; hence there is no winner. DATED AND DELIVERED AT NAIROBI ON THIS 31ST DAY OF JULY 2025. PROF (DR) NIXON SIFUNA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13318/eng@2025-07-31 6

page 6 of 6