Farouk Ravate & Justin Samourgompoulle v Eric Agbeko, Phillip Nyambok & Spire Bank (Formerly known as Equatorial Commercial Bank Limited); Ravasam Development Company Limited(Interested Party) [2020] KEHC 4258 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

COMMERCIAL & ADMIRALTY DIVISION

HCCC NO. 450 OF 2011

(CONSOLIDATED WITH HCCC NO. 476 OF 2015 AND HCCC NO. 637 OF 2015)

FAROUK RAVATE............................................................................ 1ST PLAINTIFF

JUSTIN SAMOURGOMPOULLE..................................................2ND PLAINTIFF

VERSUS

ERIC AGBEKO ............................................................................ 1ST DEFENDANT

PHILLIP NYAMBOK ................................................................. 2ND DEFENDANT

SPIRE BANK (FORMERLY KNOWN AS EQUATORIAL

COMMERCIAL BANK LIMITED)............................................3RD DEFENDANT

RAVASAM DEVELOPMENT COMPANY LIMITED......INTERESTED PARTY

RULING

1. The Application before Court seeks that I recuse and/or disqualify myself from further hearing/handling this matter and that it be referred to the Presiding Judge of the Commercial Division of the High Court for allocation to another Judge to dispense with pending applications. The application is in a Notice of Motion dated 1st June 2020.

2. It is opposed.

3. Regulation 21 of the Judicial Service Code of Conduct and Ethics Regulations 2020 has provisions on recusal of a Judge from proceedings:-

“21. (1) A judge may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned where the judge—

a. is a party to the proceedings;

b. was, or is a material witness in the matter in controversy;

c. has personal knowledge of disputed evidentiary facts concerning the proceedings;

d. has actual bias or prejudice concerning a party;

e. has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter;

f. had previously acted as a counsel for a party in the same matter;

g. is precluded from hearing the matter on account of any other sufficient reason; or

h. or a member of the judge’s family has economic or other interest in the outcome of the matter in question.

(2) Recusal by a judge shall be based on specific grounds to be recorded in writing as part of the proceedings.

(3) A judge may not recuse himself or herself if—

(a) no other judge can deal with the case; or

(b) because of urgent circumstances, failure to act could lead to a serious miscarriage of justice;

(c) the merits of the application for recusal have been considered by a plural bench of judges, and recusal held to be unnecessary.

(4) In the case of a collegiate bench, the decision to dispense with the disqualification of any judge shall be made by the bench.”

4. The principles to be considered on a request for recusal of a Judge have been discussed time and time again. This Court is therefore content in rehashing those principles as so ably set out and discussed by Majanja J in Gitobu Imanyara & 3 Others V Attorney General[2012] eKLR as follows;-

General Principles

13. Requesting the recusal of a judge is a serious matter going to the heart of the administration of justice and that is why the Court of Appeal inGalaxy Paint Company Ltd v Falcon Guards LimitedNairobi Civil Appeal No. 219 of 1998 (Unreported) stated that, “Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty 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 case tried by someone thought to be more likely to decide the case in their favour.”

14. The petitioner’s complaint is in relation to the perception or apprehension of bias on his part in regard to the incidents I have outlined above. In this case, therefore, the test applicable in determining this matter is to be found in the case of Attorney General of Kenya v Prof Anyang’ Nyong’o and 10 OthersEACJ Application No. 5 of 2007 (Unreported)where the court stated, “We think that the objective test of “reasonable apprehension of bias” is good law. The test is stated variously, but amounts to this: do the circumstances give rise to a reasonable apprehension, in the mind of the reasonable, fair minded and informed member of the public that the judge did not (will not) apply his mind to the case impartially. Needless to say, litigant who seeks disqualification of a judge comes to court because of his own perception that there is appearance of bias on the part of the judge. The court however, has to envisage what would be the perception of a member of the public who is not only reasonable but also fair minded and informed about all the circumstances of the case.”

15. In this, I would add the dicta of Tunoi JA., in Republic v David Makali and Others,CA Criminal Application Nos NAI 4 and 5 of 1995 (Unreported) where he stated that, “the test is objective and the facts constituting bias must be specifically alleged and established. It is my view that where such allegation is made, the court must carefully scrutinise the affidavit on either side.....”

16. In addition, I fully adopt the sentiments of Justice G. B. M. Kariuki in the case of RPM v PKM Nairobi Divorce Cause No. 154 of 2012 (Unreported), where he stated, “The test to be applied to ascertain existence or otherwise of bias is whether a reasonable man or woman, or a Wanjiku so to speak, appraised of the facts would be apprehensive that justice might not be done or that there would be real likelihood of bias. Where there is reasonable suspicion based on ascertainable materials that justice, even if done, may not be seen to be done, the court should be disinclined to hear the matter. The terms real likelihood and reasonable suspicion are however not interchangeable or analogous. The former calls for a slightly higher degree of proof than the latter. In matters such as this where assurance of the integrity of the court decision is paramount as it leads to public confidence in the system of justice and hence in the Judiciary which is enjoined by the Constitution to give the citizenly justice, the test to be applied is that of a reasonable man or a Wanjiku.”

5. As the Court turns to examine each of the grounds for which my recusal is sought, I need to point out that the Court will from time to time make reference to two Court of Appeal Rulings arising out of this matter.

6. The grounds are revealed on the face of the Motion itself, the affidavit of Eric Agbeko (one of the applicants) in support of the Motion and an affidavit by the same person made on 5th June 2020. In considering the grounds, I also take into account the response made by the Plaintiffs.

7. First, it is alleged that sometimes in 2012, my law firm acted for and/or represented the Plaintiffs in a transaction relating to the suit property herein. In support of that allegation a copy of a letter dated 18th December 2012 allegedly written by the Plaintiffs to the firm of Nyaundi Tuiyott & Co. Advocates is produced.

8. The Applicant then argues that it is very unbecoming of a Judge to handle a matter without disclosing his previous engagement as an advocate with one of the parties to the proceedings.

9. The Plaintiffs disown that letter and state that it is in fact a crude forgery. Counsel for the Plaintiffs points out that the letter has no physical address or postal address of the author and there is no evidence of its receipt.

10. I choose not to dwell on whether or not the letter is a forgery because that may require further evidence from the Plaintiffs and, perhaps, the office said to have received it. There will be occasion for that because, as will be apparent shortly, matters relating to the issue are the subject of a complaint against me before the Judicial Service Commission. But, for now, I need to point out that up until my appointment as a Judge of the High Court, I was practicing law as a partner in the law firm of Nyaundi Tuiyott & co Advocates. As correctly stated by counsel for the Plaintiffs, and evidenced by Gazette Notice No 10225 , I was appointed Judge on 22nd August 2011. I was then sworn in on 2nd September 2011. This would be in the public domain and anyone can verify it.

11. Upon my appointment I ceased practicing law as an advocate and being a partner in the said firm. The averment by Mr. Agbeko is very pointed and attempts to give the impression that I was a partner in the said law firm as at the date of the letter. So as to demonstrate this, I reproduce the averment:-

“THAT further to the foregoing, it has come to my knowledge that sometimes in 2012, Hon. Justice Tuiyott’s law firm as he was then (Nyaundi Tuiyott & Co. Advocates) was acting for and/or representing the Plaintiffs in a transaction relating to the suit property herein (A letter by the Plaintiffs dated 18th December 2012 addressed to the said firm of Advocates is annexed at Page 19 of the bundle)”

12. It is simply not true that I was an advocate and partner in the firm of Nyaundi Tuiyott & Co. Advocates on 18th December 2012. This would be about 16 months after my appointment to the position of a Judge of the High Court. As has been said “A lie never lives to be old”. This untruth has been swiftly revealed.

13. There is, as I have said, contention as to the authenticity of the letter, but let this Court assume, arguendo, that it is genuine. Mr. Tom Onyambu Ogutu who continued with the law firm after I joined the Judiciary never informed me of the purported instructions. Prior to when the allegation was made in the affidavit of 1st June 2020, I never had any information of such instructions from any quarter. It was not therefore possible for me to disclose what I did not know. Neither was it possible for me to disclose the purported “previous engagement as advocate” because the truth is that I was never an advocate for the Plaintiff or Ravasam.

14. And I must add that there are a good number of Judges who join the bench from their private practices. Are we (the Judges) to be omnipresent, or to have such other supernatural powers, so as to know new instructions that the firms receive after we left?

15. I turn to the next issue. It has been alleged that I have issued favourable post-judgment orders to the Plaintiffs at great prejudice to the Applicants. It is averred that I allowed an application by the Plaintiffs and set aside stay orders on a day set for mention. The Applicants must be talking about the order made by this Court on 11th March 2020.

16. This requires some background. When this Court delivered its decision on 20th January 2020, it gave a raft of orders as follows:-

“83. In the upshot I make the following orders:-

83. 1 I declare that the first and second Plaintiffs namely Farouk Ravate and Justin Samourgompoulle are the true and rightful Directors of Ravasam Development Company Limited.

83. 2 The names of Eric Agbeko and Philip Nyambok shall be struck out from the records of Ravasam Development Company Limited and be replaced with those of Farouk Ravate and Justin Samourgompoulle.

83. 3 A mandatory injunction is hereby issued to compel Erick Agbeko and Philip Nyamboke to transfer all shares held by them in Ravasam Development Limited to the 1st and 2nd Plaintiffs through Heaven Heights Properties Limited and Bid Ocean Indien respectively or to the directions of the Plaintiffs within 30 days pursuant to the signed declaration of trust, failing which the Registrar of Companies do make the necessary share transfers.

83. 4 An order of permanent injunction do issue restraining the 1st and 2nd Defendants whether by themselves, agents, employees, assigns, servants or otherwise howsoever and any persons whatsoever from selling, disposing of, charging, pledging, diluting, dealing, interfering with and/or intermeddling in any manner whatsoever with:

a) The Interested Party’s Company’s property known as L. R Number 2/186 situated off Elgeyo Marakwet Road within Nairobi’s Kilimani area (“the suit property”);

b) The shares and shareholding in and of the Interested Party Company.

c) All other properties, funds and assets belonging to the Interested Party Company.

83. 5 A permanent injunction do issue restraining the 1st and 2nd Defendants whether by themselves, their agents, employees, assigns, servants or otherwise howsoever and any persons whatsoever from withdrawing or otherwise dealing with the Interested Party’s bank account with any Bank.

83. 6 A permanent injunction do issue restraining the 1st and 2nd Defendants whether by themselves, their agents, employees, assigns, servants or otherwise howsoever from issuing, allotting or transferring any shares in the Interested Party or causing or permitting any shares in the Interested Party to be issued, allotted or transferred or otherwise dealt with without the consent of the Plaintiff.

83. 7 The 1st and 2nd Defendants to account for all the monies, assets, and property that they have unlawfully misappropriated from the Interested Party.

83. 8 An order of restitution of all documents, agreements, monies, assets, accounts, or any other property unlawfully taken from the Interested Party by the 1st and 2nd Defendants.

83. 9 The first and second Defendant shall within 90 days hereof render an account of monies, assets, property and affairs of Ravasam Development Limited including but not limited to the occupation and use of LR. No. No. 2/186 (the suit property upto the times of the judgment).

83. 10 It is hereby declared that the corporate guarantee by Ravasam Development Company Ltd. in favour of the 3rd Defendant Bank to secure the loan to Vakkep and the variations of the charge dated 11th May 2015 are void and the third Defendant has no right to recover from Ravasam in respect thereof.

83. 11 A declaration is hereby made that the mortgage dated 13th September 2011 is valid.

83. 12 An account be taken by the Plaintiffs, Ravasam Development Limited and the 3rd Defendant Bank in respect to the repayment of the facility of Kshs.180,000,000. 00 made pursuant to the credit Agreement of 18th August 2011.

83. 13 For purposes of Order 83. 12 above the parties to the Accounts shall within 21 days hereof appoint a joint accountant failing which each party shall appoint their accountant and the accountants so appointed shall appoint an umpire.

83. 14 The Accounts ordered above shall be concluded and completed within 90 days and the report of the joint account or of the accountants and umpire as the case may be shall be filed with Court within 90 days.

83. 15 Final orders in respect to the claim for damages by the Plaintiffs against the Defendants and the Counterclaim by the 3rd Defendant against Ravasam Development Limited shall be made upon receipt of the all accounts ordered above.

83. 16 Prayer (p) of the Plaintiffs claim in the Further Amended Plaint dated 29th March 2018 is dismissed.

83. 17 All the prayers in the joint Amended Defence dated 12th July 2018 on behalf of the 1st, 2nd and Interested Party are hereby dismissed.

83. 18 The Plaintiffs shall have costs of their claim against the 1st and 2nd Defendants.

83. 19 The Order of costs as between the Plaintiffs and the 3rd Defendant shall await the final orders of this Court.”

17. At the request of the current Applicants, this Court granted a stay of execution of its Judgment for 21 days to enable whichever party apply formally for stay orders. The Applicants filed an Application on 10th February 2020, on which I issued directions on 12th February 2020. Again on the urging of the Applicants herein, I stayed orders 83. 1, 83. 2, 18. 3, 83. 5, 83. 8 of the Judgment of 20th January 2020 pending the hearing of their Notice of Motion. The Motion was fixed for hearing on 5th March 2020. This Court shall shortly again reproduce the specific orders stayed so as to remain in focus.

18. Prior to that date the Plaintiffs filed a Notice of Motion dated 27th February 2020 seeking, inter alia, that the Court reviews, vacates or sets aside the orders issued on 14th February 2020 (must have meant 12th February 2020).

19. On 5th March 2020, the Deputy Registrar ordered that the matter be mentioned before me on 11th March 2020. On that day, it was brought to my attention that the Applicants had transferred the shareholding and directorship in Ravasam to one Nicholas Sankok Teeka. I thought the matter to be critical and I sought to know from counsel for the Applicants when the transfer had been effected and he responded that he did not know.

20. It was then that I made the following orders:-

“Considering the representation made by the counsel for the 1st and 2nd Plaintiffs and of the 3rd Defendant and the ambivalent response by counsel for the 1st and 2nd Defendants and Interested Party, I am inclined to discharge any protective orders that this Court may have made in the interim. It is possible that the orders I made are now a platform of abuse. Any orders of stay are discharged.

As the Court of Appeal is due to make its decision on stay, it is may be needless for parties to agitate the same questions before me.

I direct that this matter be mentioned on any day after 19th June 2020 when the Court of Appeal is due to Rule on stay. Mention on 25th June 2020. ”

21. This Court stands by that decision! The Applicants had from the date of the Judgment sought its stay of execution and the Court had acceded to the request on two occasions. On the latter occasion, that is on 12th February 2020, the Court had stayed the following specific orders:-

“83. 1 I declare that the first and second Plaintiffs namely Farouk Ravate and Justin Samourgompoulle are the true and rightful Directors of Ravasam Development Company Limited.

83. 2 The names of Eric Agbeko and Philip Nyambok shall be struck out from the records of Ravasam Development Company Limited and be replaced with those of Farouk Ravate and Justin Samourgompoulle.

83. 8 An order of restitution of all documents, agreements, monies, assets, accounts, or any other property unlawfully taken from the Interested Party by the 1st and 2nd Defendants.”

22. Basically, the two orders stayed the transfer of ownership of Ravasam from the Applicants to the Plaintiffs at the request of the Applicants. When, on 11th March 2020, it was brought to this Court’s attention that the transfer of shares had in fact been effected by the Applicants to the Plaintiffs, the Court was interested in knowing when this happened but the Applicants’ counsel was unhelpful in that regard.

23. The Applicants do not deny that they effected the transfer of shares and directorship. And in an affidavit said to be sworn by Mr. Sankok on 8th May 2020, which has been produced in the Plaintiffs’ application of 15th May 2020, he deposes:-

“I became a director and shareholder of the Plaintiff following the signing of a Share Transfer Agreements on 3rd October 2019 and 4th November 2019 and to date I am the sole shareholder and director of the company.”

To be noted is that by these two dates, the taking of evidence had been finalized, closing submissions made by counsel for the parties and the matter was awaiting Judgment.

24. Whether or not the transfer was effected during the pendency of the hearing or after the Judgment would amount to abuse of the stay orders this Court had granted. If the former, then it has to be asked why the Applicants were seeking stay of transfer of the shares and directorship to the Plaintiffs when in fact the shares and directorship had been transferred to a third party. The Applicants would have been guilty of misleading the Court by giving the impression that they still held the shares and were still directors when in fact they had transferred them. Indeed, in the affidavit sworn by Mr. Agbeko on 10th February 2020 in support of the Motion for stay he deposes that he and the 2nd Applicant were directors of Ravasam at the of making the affidavit. Was that not perjury?

25. If, however, the transfer had been effected after the Judgment, then the abuse would even be more startlingly because the stay orders would have been used as an opportunity to effect transfer of ownership of the shares in a manner that would defeat the Judgment of this Court.

26. I, again, state that I stand by the decision I made on 11th March 2020.

27. This Court has learnt through the Court of Appeal decision of 24th April 2020 in Nairobi Civil Application No. 29 of 2020 that, after I made the orders discharging the stay, the Applicants sought the intervention of the Court of Appeal. In refusing to grant intervention to the Applicants, the Court of Appeal observed:-

“…….The shareholding of the 3rd respondent has changed. They are now in the hands of Nicholas Sankok Teeka, who now holds all the shares in the 3rd applicant. He is not a party in this application. Whereas in the suit before the magistrate’s court, CMCC No. 1661 of 2020, he swore that he bought the company, 3rd applicant from its previous owners on 18th November, 2019, making him the sole shareholder. And the question that position begs is, after divesting all their shares in the 3rd applicant, what interests’ do the 1st and 2nd applicants have left in the 3rd applicant to defend in this application.” (Underlining mine)

28. This Court feels vindicated and any fair-minded, reasonable and informed member of the public reading the Court of Appeal decision side by side with the decision I made on 11th March 2020 cannot, in good conscience, question the impartiality of this Court.

29. It has also been said that I ordered the appointment of a receiver over the suit property in Misc. Case No. 546 of 2019 despite an order of the Court of Appeal. The decision referred to is that of 18th January 2019. It was made about 18 months before the current application for my recusal. It was in the current proceedings that I have learnt, for the very first time, that the Applicants view my orders as unfair. But of course, one notices that they do not specifically point out how my orders disregards that of the Court of Appeal. If the Applicants were dissatisfied with my decision then the proper course would be for them to appeal against it and not to make a belated accusation of partiality on my part. I do not know whether the Applicants appealed that decision, and I leave it at that.

30. I turn to another issue. That despite directions of the Chief Justice on stay of execution proceedings following the outbreak of Covid 19, I proceeded to “satisfy” (sic) as urgent, the Plaintiffs’ application for execution dated 26th March 2020 and gave directions on hearing of the application. This is little to say to this because as conceded by Applicants, the Court simply gave directions as to service of the summons on the Respondent and timelines for responses to be filed. It neither considered the application nor determined it because the matter did not return to me.

31. In addition, I think that the Applicants are making reference to the Practice Directions issued by the Chief Justice on 20th March 2020. My understanding of those directions is not the same as that of the Applicants. First, reading Direction Number 17, the Court does not understand it to be suspending or staying executions indefinitely. Second, it does not bar the Court from hearing an application for execution.

32. Mr. Agbeko has, further in his affidavit, referred to a complaint he has made against me to the Judicial Service Commission and has annexed an affidavit he swore on 5th June 2020 in support of his complaint. One quickly notices that the affidavit was sworn after the date of the current Motion and just five days before its hearing on 8th June 2020. In the affidavit he raises many issues, some of which this Court has already considered and will not be repeating.

33. In Paragraph 5 he states:-

“THAT, in the cause of the proceedings, the Judge also approached me through his proxy to solicit for bribe which I declined and stood on the ground that I believe in the rule of the law. However the said Judge invited us to meet him at the Panafric Hotel, Ground Floor Restaurant and I accompanied Mr. Sagelo but he refused to meet me. I was later told to look FOR Kshs.10,000,000 which I could not pay. I, however, took photos of the Judge at the venue with the said person. I annex here and mark E.A.1 a copy of the photo. The photo was taken on 3rd December 2019 at 16:38pm.”

34. I want to make it clear that I never asked one Mr. Sagelo or any other person to ask for a bribe from Mr. Agbeko. I do not take or solicit for bribes. I have not done it previously, I do not do it now and I have no intention of ever doing it. No such allegation or complaint has ever been made against me in the years (over 8 now) I have served as a Judge. The allegation is insulting and hurting.

35. Because of the seriousness in which I took the allegation, I lodged a criminal complaint about it at the Directorate of Criminal Investigations, Kilimani Police Station Nairobi just two days after I learnt of it in open Court on 8th June 2020. The Covid 19 lockdown found me at my Eldoret home from where I conducted a virtual hearing of this application. I was forced to make quick arrangements to travel to Nairobi to make the complaint. I hope and trust that the investigations by the Police will eventually vindicate me and shame any person who had schemed to pervert the administration of Justice or bring disrepute to this Court and its proceedings.

36. I would have stopped here for now on this allegation but I must point out that there is something particularly wicked about this allegation and entire complaint of 5th June 2020.

37. Mr. Agbeko states that, through a proxy, I solicited a bribe from him. This would have been about 3rd December 2019, and that he declined to give it. At this time he would be well aware that delivery of the Judgment was pending. Why did he not raise the complaint before the Court delivered the Judgment?

38. Judgment was delivered on 20th January 2020, and he and his co-Applicant lost the case. If he truly believed that the Judge solicited for a bribe and he lost the case because of his refusal to give it, then surely he would have raised this serious allegation before or just as soon as the delivery of the Judgment on 20th January 2020. Yet he waits until 5th June 2020, over five months later!

39. Again, Mr. Agbeko chose to complain about my handling of the matter to the Chief Justice through a letter of 31st March 2020. In it he complains about the discharge of the stay orders on 11th March 2020 and second that I was wrongfully considering execution proceedings during the Covid 19 pandemic period. He does not for a moment raise the issue of demand for a bribe. Would it be possible that he forgot the most serious of the allegations when he wrote the letter on 31st March 2020?

40. I think not! I take a view that the new allegations were made to give credence to the scheme of having me out of these proceedings. My view is further fortified because of the timing of the complaint to the Judicial Service Commission. The Motion for my recusal is dated 1st June 2020. From the Court papers, his affidavit in support of the Motion is said to have been sworn on 1st June 2020. On this first day of the month he depones under oath;

“THAT a complaint against the learned Judge has been referred and lodged with the Judicial Service Commissionin respect to the conduct of the Judge’s handing (sic) of matter as per the annexed affidavit and annexure thereof.” (My emphasis)

41. What is telling is that, as at 1st June 2020, when he was deposing that he had lodged the complaint with Judicial Service Commission, he had not even sworn the affidavit which is the basis of the complaint. He swore that affidavit on 5th June 2020, four days after deponing that he had already done so. Such was the haste and eagerness to get this particular Judge out of these proceedings that even the 1st Applicant could not notice that the dates of his affidavits do not add up. And there might be a case that he perjured himself when he, on oath, stated that complaint had been “referred and lodged” with the Judicial Service Commission as at the date he swore the affidavit on 1st June 2020.

42. Look then what he says about my handling of HCCC No. 546 of 2019.

“…..The Judge entered Judgment against my company Ravasam against others for Kshs.250,000,000. 00. He refused to consider my application for setting aside of the said Judgment and was playing golf at the Royal Golf Club with a certain opposing counsel. To date he has refused to hear the oldest application in the file (my application to set aside the Judgment of Kshs250,000,000. 00) hence raising serious suspicions in the circumstances.”

43. I am happy to challenge this allegation once invited by Judicial Service Commission to answer the complaint. But does it not just look spurious? The date when I was allegedly playing golf with an “opposing counsel” is not given. Neither is the name of the said counsel given. This is because no such thing happened. It is simply not true.

44. Lastly it is averred that Senior Counsel Ahmednasir, for the Plaintiff, had bragged that their application for stay would go nowhere as he had already sorted out this matter with me, a classmate. Further, that he said that he (Agbeko) and his lawyer Mr. Kingara were very arrogant and no Judge was ready to listen to them. As it is not asserted that I was present when Senior Counsel Ahmednasir allegedly bragged, then counsel would have to speak for himself.

45. But there is a direct charge against me by Mr. Agbeko that senior counsel is a close friend of mine and a former classmate and so I favoured his clients. It is true that, just as Mr Kingara who is counsel for the Applicants, Counsel Ahmednasir was my classmate at the University of Nairobi, faculty of law. It is also true that I consider all my classmates as my friends. What, however, is clear to me is that I do not handle or decide cases on the basis of friendship or otherwise of counsel appearing for the parties. I decide cases on the basis of my understanding of the facts and law in each matter. And wonder why this issue is raised long after the substantive hearing of the suit and five months after the judgement was delivered.

46. This Court has gone to some length in evaluating the evidence placed before it as a basis for my recusal because the law expects this Court to scrutinize the evidence presented to it to see whether the alleged facts constituting impropriety on the part of the Judge has been specifically alleged and established (Republic –vs- David Makal and Others CA Criminal Application No. NAI 4 and 5 of 1995)

47. As I close the Court turns more pointedly to apply the objective test so as to discover whether the manner in which I have handled this matter so far gives rise to “reasonable apprehension, in the mind of the reasonable, fair minded and informed member of the public that the Judge did not (will not) apply his mind to the case impartially”. It is the perception of a such member of public that matters.

48. It is contended by the Applicants that in the Judgment of Court of 20th January 2020, I reached a decision that ignored other two previous rulings in favour of the Applicants made by Justices Mutava and Mabeya in the same matter.

49. Yet in truth the matter before Judge Mabeya was different. He was dealing with China Young Engineering Company -vs- 1) L.G. Mwacharo t/a Mwacharo Associates 2) Ravasam Company Ltd. and even then this is what the Judge held;

“…….The issue of the declaration of trusts transfers of shares by Agbeko and Nyambok to Ravate and Justin and the appointment of true and proper directors of the 2nd defendant is an issue that is alive in HCCC no 450 of 2011 which as I held on 24th January ,2012 ,I cannot address.”

50. The Judge did not purport to determine nor determined the issue of ownership of Ravasam. To the contrary he expressly recognized it as alive in this current matter (HCCC No. 450 of 2011). It is not conceivable that my Judgment of 20th January 2020 contradicts that ruling.

51. I am unable to comment on the decision of Mutava J because the particular decision was not pointed out to Court.

52. Yet in terms of whether the decision I made appears to have been motivated by anything else other than my understanding of the law and facts presented, I would rather leave it to what the Court of Appeal made of it in its recent decision of 19th June 2020:-

“….. The decision, the subject of the intended appeal was based on two documents that the learned Judge believed contained the intention of the parties in so far as the incorporation of the 3rd applicant and acquisition of main asset, Elysee Plaza was concerned. In the first document dated 18th July, 2008, the 1st and 2nd respondents are said to have declared that;

“(1) AUTHORITY TO REGISTER RAVASAM DEVELOPMENT COMPANY LIMITED USING NOMINEES

We, Ravate Farouk and Samourgompoulle Justin hereby authorize Mr. Philemon Koech, Advocate of KIPKENDA, LILAN & KOECK ADVOCATES to register Ravasam Development Company Limited using such two nominees as the said firm shall appoint. That the said Nominee will hold 1 share each for purposes of registration only and that they shall sign Transfer forms for the said shares in our names RAVATE FAROUK and SAMOURGOMPOULLE JUSTIN.”

The second document, which was signed by the 1st and 2nd applicants, came only four days after the first one confirming its contents and was dated 22nd day of July 2008. It stipulated that;

“ACKNOWLEDGMENT AS TO SHAREHOLDING

We, ERIC AGBEKO GHANIAN PASSPORT NUMBER H097885 of Post Box Office Number 46937 Nairobi and PHILIP NYAMBOK ID No. 0300788 of Post Box Office Number 46937 Nairobi do hereby confirm that we are holding one share each in RAVASAM DEVELOPMENT COMPANY limited in trust for MR. FAROUK RAVATE and MR. JUSTIN SAMOURGOMPOULLE of Reunion Islands, Republic of France or any entity that they will incorporate.

We further affirm that we have no other claim to any shares in RAVASAM DEVELOPMENT COMPANY LIMITED other than as such trustees or unless otherwise directed by the said MR. FAROUK RAVATE and MR. JUSTIN SAMOURGOMPOULLE”.

In light of these two documents the Judge found that the 1st and 2nd applicants did not satisfy him that they made any financial contribution toward incorporation of the 3rd applicant and also in the acquisition of the land and development of Elysee Plaza.

Without expressing ourselves fully on these points, but having ourselves considered the pleadings and arguments, we do not think, prima facie, that the intended appeal will be arguable.”

53. This was a Ruling in answer to the Applicants’ request for stay of this Court’s Judgment. The lawyers representing the parties here know that the Court of Appeal applies two principles in determining applications of that nature. Whether the appeal is arguable and if so, if a successful appeal or intended appeal will be rendered nugatory should stay or the injunction not be granted. The lawyers would also know that it is in rarest of cases that the Court of Appeal declines to grant such order on the basis that, on the face of it, the intended appeal is not arguable.

54. The Applicant’s application belonged to this small category and I therefore wonder whether a reasonable member of public with reasonable information of the circumstances of this case can possibly say that the Judgment made by this Court was on the basis of compromise of the Judge as alleged by the Applicants.

55. Something else, although the Applicant assails this Court’s decision of 11th March 2020 as being biased and without a basis, the Court of Appeal itself made observations of the general conduct of the Applicants in these proceedings:-

“It is not contested that the 1st and 2nd applicants have also used the judicial process to make far reaching changes in the company’s shareholding and directorship by transferring to Nicholas Sankok Teeka all the shares in the company. After the transfer of all their shares, one may ask, what is left of their interest in the company capable of being protected by the Court"

It is equally conceded that the applicants have borrowed heavily from the 3rd respondent, and there is no evidence of any efforts to repay the debts whose interests continue to accrue.

An order of stay is essentially discretionary and equitable. It is no exaggeration to state that there is no maxim of equity that the applicants have spared in breach.

56. Need I say more? The Applicants have used an application for recusal to wage a personalized, sordid and vicious attack on the Judge simply because they lost the case and second, because the Court did not countenance their attempt to abuse the process of Court. That can never be good reason for a Judge to disqualify or recuse himself/herself from a matter.

57. The Notice of Motion of 1st June 2020 is dismissed with costs.

Dated, Signed and Delivered in Court at Nairobi this 13th Day of July 2020

F. TUIYOTT

JUDGE

ORDER

In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 17th April 2020, this Ruling has been delivered to the parties through virtual platform.

F. TUIYOTT

JUDGE

PRESENT:

Mirei for the Applicant

Cohen and Ondati for the Respondents.

Muchiri for the Bank.