L H Ltd & 2 OTHERS V R J W & 4 OTHERS [2012] KEHC 2301 (KLR)

L H Ltd……………….....………..….1ST PLAINTIFF/APPLICANT

Dr. F M W………...…....…………...…2ND PLAINTIFF/APPLICANT

Dr. F M W…..…….....………………...3RD PLAINTIFF/APPLICANT

Suing as the guardian and next friend toH B M W

VERSUS

R J W……….……….……………1ST DEFENDANT/RESPONDENT

J M W…….……....………….……2ND DEFENDANT/RESPONDENT

N R B…….…….…………….…….3RD DEFENDANT/RESPONDENT

J M S M………..................………...4TH DEFENDANT/RESPONDENT

RULING

1. On 5th August, 2011, the Plaintiffs commenced this suit through the firm of Njoroge Regeru & Company Advocates. Together with the Plaint, they also filed a Motion on Notice praying for various injunctive orders against the Defendants and obtained various exparte orders before Hon. Gacheche J. The said orders were variously extended by various judges and for the first time appeared on my cause list on 19th October, 2011 having been allocated by the Divisional head. The injunction application was argued before me on various days and by a ruling delivered on 20th January, 2012, I allowed the same. Subsequently, the parties appeared before me whereby I made several orders which were geared towards sustaining the 1st Plaintiff pending the parties finding a suitable way out of the gridlock the company had found itself as the only two directors then running the 1st Plaintiff could not see eye to eye. The orders I made sustained the company until the 3rd Plaintiff became of majority capable of being appointed a director of the 1st plaintiff and thereby rescue the 1st Plaintiff from possible collapse because of the aforesaid impasse.

2. I should state here that the only directors as at the time were the 2nd Plaintiff and 1st Defendant who were (and I believe still are if their divorce proceedings are not yet over) wife and husband. The 3rd Plaintiff is a son of the two. He is now 18 years and 4 months old. At the time of the dispute before me, the only shareholders of the 1st Plaintiff were Father and son (1st Defendant and 3rd Plaintiff) whose share holding was at 50% each. Therefore, whilst the Father and Mother were the only directors of the 1st Plaintiff, the Father and Son were the only shareholders. The Father and Mother (1st Defendant and 2nd Plaintiff) were involved in a bitter divorce cause, the reason why I earlier stated that the orders made consequent to the injunctive order of 20th January, 2012 were geared towards sustaining the 1st Plaintiff.

3. On 26th June, 2012, Mr. Murgor with Mr. Abuor for the Defendants together with Mr. Monari for the 1st Plaintiff appeared before me on a Certificate of Urgency. They applied  for a variation of the previous orders that had restrained the Defendants from operating the accounts of the 1st Plaintiff to allow the Defendants withdraw Kshs.7,351,377/- without the signature of the 2nd Plaintiff who is a mandatory signatory to the 1st Plaintiff’s accounts. After considering their representations, I granted the orders ex parte and fixed a return date of 12th July, 2012. On the said 12th July, 2012, Mr. Githaiga then appearing for the 2nd Plaintiff was ready to argue a Preliminary Objection he had filed against the Defendant’s application.   However, the matter did not proceed as Mr. Murgor and Mr. Monari applied for an adjournment as they required more time to look at the said Preliminary Objection. I adjourned the matter to the 19th July, 2012.

4. At 2. 30 p.m. of the same day, the file came back to me on a Certificate of Urgency filed by Mr. Githaiga on behalf of the 2nd Plaintiff. He sought various orders but more importantly an order to stay a consent order that had been recorded on 11th June, 2012. That consent had been entered into between the firms of Murgor and Murgor Advocates for the Defendants and Daly and Figgis Advocates for the 1st and 3rd Plaintiffs terminating the suits of the latter two against the Defendants. I declined to grant any order ex parte and directed that the application be served upon Ms Daly and Figgis Advocates and Murgor & Murgor Advocates and fixed the matter for inter partes hearing  the following morning at 11. 00 a.m. When the parties appeared before me on the 13th July, 2012 they requested that the matter be mentioned in Chambers whereby Mr. Murgor orally applied that I should disqualify myself from further hearing this matter on the ground that I had served pupilage in the law firm of Salim Dhanji & Company Advocates wherein Mr. Njoroge Regeru was a partner. I directed that a formal application be filed which Mr. Murgor did by way of Notice of Motion dated 24th July, 2012 which is the subject of this ruling. I thought it was important to give the brief history of the matter as I believe it is important.

5. The motion for determination is dated and filed on 24th July 2012. The Defendants seek orders for my disqualification from further hearing this matter and further that the orders of stay I granted suo moto on 17th July, 2012 be vacated. In the alternative, the Defendants seek that I should refer the file to either the Presiding Judge of the Division or the Chief Justice for further directions. They sought that the costs of the Application be in the cause.

6. The motion was supported by the Affidavit of Robert Wells, the 1st Defendant who was authorized to swear the same on behalf of the other Defendants. He deponed that having served Pupilage under Njoroge Regeru, Advocate  whose firm is now appearing for the 2nd Plaintiff, I  cannot in the present case act in an impartial manner as I allegedly owe a debt of gratitude to Mr. Regeru. Further, the  deponent swore that both Mr. Regeru and myself failed to disclose this apparent conflict of interest from the outset and that if I continued to preside over the present case there shall be a miscarriage of Justice.

7. The Defendants further contended that I had admitted that I had indeed served my pupilage under the mentorship, guidance and instruction of Mr. Njoroge Regeru, they relied on a letter written by Mr. Regeru addressed to the Law Society of Kenya and dated 24th November 1994  certifying that I had completed pupilage with Ms Salim Dhanji & Co. Advocates. The Defendants’ contended that throughout the inter parties hearing of the injunction application, Mr. Regeru, seemed to have complete domination over the court even going to the length of telling the Counsel for the Defendants to sit down when Mr. Regeru was addressing the court. On the ruling I delivered on 20th January, 2012, the Defendants contended that I had misdirected myself on several issues, that it was wrong on my part to have certified as urgent the 2nd Plaintiff’s application on 12th July, 2012 and to have directed that the same be served on the defendants and be heard inter parties on 13th July 2012, that  I certified the said application as urgent while there was no real urgency. The Defendants complained that it was wrong for me to have ordered a stay of the order of 11th June, 2012 sue motto yet there was an objection on record to the effect that the court was fuctus officio, that by doing so, it reflected extreme bias on my part.

8. Mr. Murgor submitted that in view of the Court’s conduct, pattern of rulings, concealed and undisclosed past relationship between myself and Mr. Regeru,  I should disqualify myself without delay to avoid the continuing miscarriage of Justice in this matter.

9. The 2nd Plaintiff opposed the Application by way of a Replying Affidavit sworn on the 26th July, 2012. She averred that the application brought by the Defendants was brought in the face of gross contempt of the Orders of the Court issued on 20th January, 2012 and is an attempt to restore an illegal state of affairs through an illegal Consent Order. She contended that the application made under Certificate of Urgency on 12th July 2012 on which the Court ordered that the said application be served upon the Defendant’s Counsel and appearance in Court on 13th July, 2012 pending grant of the interim orders sought for stay of the irregular Consent Orders was an indication that the court is fair. That given the directions made by the Court, the same is a manifest illustration of the impartiality of the Court and that this matter had been before me for more than 28 occasions and the Defendants had never raised an issue on bias. It is only upon the application by the 2nd Plaintiff, bringing to light the Defendants’ illegal and irregular acts and seeking that they be found in contempt of Court, that the Application for my recusal was suddenly brought, indicating that the same is but a mere afterthought.

10. The 2nd Plaintiff further deponed that the Application cannot stand as, the Defendants’ assertions on conflict of interest between Mr. Regeru and myself having been his Pupil 18 years ago is so scanty and so remote and cannot warrant any suspicion of bias on my part, that the firm of Njoroge Regeru & Co. has prosecuted several matters before me and several of them have been decided in favour of the opposing parties. That there has never been any allegation in any of the other matters with regard to impartiality and or bias by any party and as such, this is the first such case. Moreover, it is deponed that the Defendants have been the beneficiaries of exparte Orders issued by me including the orders given on the 27th June, 2012 and that she has never been granted any ex parte Orders whatsoever by myself although Mr. Regeru has been her Advocate.

11. As regards the Defendant’s protest on the stay of the Consent Order of 11th June, 2012, the 2nd Plaintiff contended that the protest was unfounded in that such a stay had been specifically prayed for  in her application of 11th July, 2012 and the grounds therein enumerated illustrating the basis for the same, that the consent order was stayed by virtue of the fact that it purported to reinstate and restore a position that had already been declared illegal by the court. To the 2nd Plaintiff, I had conducted this matter with absolute fairness.

12. I have carefully considered the Affidavits on record and Counsel’s submissions. I have also carefully considered the authorities relied on by the parties.

13. The Defendant’s contention is that having served Pupilage under Njoroge Regeru, Advocate for the 2nd Plaintiff, there  is  a likelihood that I cannot in the present case act in an impartial manner as I  owe a debt of gratitude to Mr. Regeru. They further contend that both Mr. Regeru and myself, failed to disclose this apparent conflict of interest from the outset.

14. The question raised herein is a question on the administration of Justice. Indeed, it is a well established principle that justice must not only be done, but should always be seen to be done. It is a constitutional requirement that all courts and tribunals should be independent and impartial in determining disputes. This is why each judicial officer before assuming office must take an oath to uphold his independence and impartiality. Indeed in the case of Alliance Media Kenya Limited –vs- Monier 2000 Limited & Njoroge Regeru HCCC No. 370 of 2007 (eklr) Warsarme J did state that ;

“In my understanding, the issue of disqualification is a very intricate and delicate matter. It is intricate because the attack is made against a person who is supposed to be the pillar and fountain of justice……justice is deeply rooted in the public having confidence and trust in the determination of disputes before the court. It is of paramount importance to ensure that the confidence of the public is not eroded by the refusal of judges to disqualify themselves when an application has been made”

From the foregoing, it is clear that the question of disqualification is a weighty matter which should not be trivialized.

15. In the matter before me, bias has been alleged on the basis of the alleged way I have made my rulings and the conduct of Mr. Regeru Advocate during the hearing of the injunction application before me. By reason that I did my pupilage in the firm in which Mr. Regeru was a partner, the Defendants allege that I owe a debt of gratitude to the Mr. Regeru, and therefore ruling in favour of his client on numerous occasions in a biased fashion.  What does bias entail?

In Locabail –vs- Bayfield Properties Ltd & Another 2000 1 ALL ER 65it was held:-

“It would be dangerous and futile to attempt to define or list the factors which may give rise to a real danger of bias…….We cannot however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class…….judges background, nor that of any members of the Judges family…..or previous judicial decisions………..by contrast a real  danger of bias might well be thought to arise if there were personal friendship or animosity between the Judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case,………………or if in a case where the credibility of any individual were an issue decided by the Judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such persons evidence with an open mind on any later occasion”( emphasis mine)

What about perceived relationships?

16. In the Court of Appeal case of Miller –vs- Miller (1988) e KLR 1, the appellant in that case made an application for the trial judge to disqualify himself on the ground that the Respondent was personally known to and was a friend of the trial judge. The trial judge dismissed the application and on appeal, the Court of Appeal held:-

“The evidence in the application consisted of an affidavit sworn by the appellant and of parts of proceedings of the record of appeal. Upon the first two paragraphs of the appellants affidavit, it was submitted that the Respondent and the trial judge have been close friends for a very long time. The appellant deponed that she has entertained the judge in their house on Dennis Pritt Road. However, there is singularly little information about the alleged friendship. The period and duration of the claimed friendship is not given. ……

There are no circumstances explained to us pointing to a real likelihood of bias. The fact that the judge knows the respondent would not justify disqualification. The Respondent knows, and is known by all the judges. If that personal knowledge is to disqualify, there would be no judge who would not be held disqualified – see Shimon Shetreet Judges on Trial, page 304 & 306. ” (Emphasis Supplied)

17. In the case of Kaplan –vs- L.Z. Engineering Construction Ltd & 2 others (2000) KLR 364,the applicants therein applied that Hon. Justice Lakha J.A disqualify himself from hearing a matter before him for the reason that the judge had previously had lunch on two (2) occasions with Mr. Ismail Advocate who was now appearing for one of the parties. Dismissing the application, the court observed:-

“In making his application for my disqualification, Mr. Deverell, for the applicant did not suggest that I had any proprietary or pecuniary interest in this litigation or any actual bias against his client. His own affidavit speaks of it having been unwise to have had two luncheons with Mr. Ismail, Advocate who now appears before me on behalf of the first respondent however innocent it may have been. He expressly relied on the oft-quoted dictum in R –vs- Sussex Justices that Justice should not only be done, but should be seen to be done.”

The judge continued:-

“ I am satisfied that there was no such danger in the instant case for the following reasons.

1)I have no pecuniary or financial interest in the outcome of the litigation.

2)I have no proprietary interests in the outcome of the litigation.

……………

……………

……………

6) The actual evidence of apparent bias in this case is no more than that I had about two years ago the two luncheons with Mr. Ismail, Advocate at a public restaurant under the gaze of public eye. There is no evidence or even suggestion that he discussed any of the cases then pending before me, which he certainly did not.

7) There is no actual evidence that there are real grounds for doubting my ability to ignore extraneous considerations prejudices and predilections and bring an objective judgment to bear on the issues before me.”

Further,  the judge in dismissing the application, upheld the test for the real danger of bias tests as held in R-vs- Sussex Justices which stated that:-

“If an allegation of apparent bias is made, it is for the court to determine whether there is a real danger of bias in the sense that the judge might have unfairly regarded with favour or disfavour the case of a party under consideration by him or in other words, might be presupposed or prejudiced against one party’s case for reasons unconnected with the merits of the issue”

Even after reference to the full bench, in Kaplan –vs- LZ Engineering (No.2) 2001,the Court of Appeal upheld the decision of Lakha’s JA’s “real danger of bias” test. The Court held that the mere fact that the litigants counsel had had lunch with the judge in a public restaurant two years previously was not a meritorious reason to infer a danger of bias.

18. The judges in R –vs- Mwalulu & 8 others (2005) eKLR affirmed the principles set out in Kimani –vs-Kimani ( 1995-1998) 1 EA 134on the test of likelihood of biasand stated that:-

“…..the court hearing the matter is not, indeed it cannot, go into the question of whether the officer is or will be actually biased. All the court can do is carefully examine the facts which are alleged to show bias and from those facts draw an inference, as any reasonable and fair minded person would , that the judge is biased or is likely to be biased”

19. In the case of Alliance Media Kenya Limited –vs- Monier 2000 Limited & Njoroge Regeru ( 2007) eKLRHon. Warsame Jheld that:-

“As was rightly pointed by all the Advocates, the test to be applied is an objective test and the onus of establishing it rests upon the applicant”

20. From the foregoing, one must ask whether by fully examining the facts which are alleged to show bias, a right minded person with an objective view would come to the conclusion that I have been biased or is likely to be biased against the Defendants. Are the facts alleged in this application sufficient reason for me to recuse myself in this matter? Is there any “debt of gratitude” that I owe Mr. Regeru that can cloud my judgment to the extent portended by the Defendants?

21. It is a fact that in August, 1993, I joined the then law firm of Salim Dhanji and Company, Advocates for pupilage. That law firm had two partners Mr. Salim Dhanji and Mr. Njoroge Regeru. It also had three (3) associates. Together with me as a pupil in that law firm was Mr. John Bosco Muindi (now deceased, may his soul rest in peace.) Each one of us was required  to serve under each partner for half the period we did our pupilage. It is therefore a fact that Mr. Regeru was my pupil master and did sign the requisite certificate to the Law Society of Kenya in November, 1994 confirming that I had undertaken pupilage with that law firm. After admission to the bar in 1995, I moved to Mombasa and practiced in two firms the latest of them being Mogaka Omwenga & Mabeya, Advocates which the Defendants have claimed had a fiduciary relationship with Mr. Regeru’s law firm by virtue of that law firm holding brief for Mr. Regeru’s law firm in the latter’s matters at Mombasa.

22. I should point out here that I was never employed at Salim Dhanji and Company Advocates after admission to the Roll of Advocates, I have never at any time had any financial interest whatsoever with the law firm of Njoroge Regeru & Company which was established by Mr. Regeru some ten or so years ago. My pupilage ended some eighteen (18) years ago. I have had no personal acquaintance with Mr. Regeru after my admission to the roll of advocates save on professional platform when we appeared on opposing sides for our respective clients. I have no personal interest monetary or otherwise in the outcome of this litigation. For the Defendants therefore to allege that I am forever indebted in gratitude to Mr. Regeru is astounding and surprising. In my experience in private practice,  whilst at Timamy and Company and Mogaka, Omwenga and Mabeya, Advocates close to sixty (60) lawyers passed through my hands as pupils. Neither I nor any one of them feel indebted to each other. I have always held the view that in offering pupilage to a young budding lawyer, a senior Advocate is but giving back to society. Indeed, I believe that it is an obligation the senior Advocates owe society and not a privilege to the pupils. In this regard, I do not feel and I have never in any way whatsoever felt indebted in gratitude to Mr. Regeru as Mr. Murgor submitted.

23. The Defendants contend that I or Mr. Regeru should have disclosed the fact that I had carried out my pupilage 18 years ago in a firm that Mr. Regeru was a partner. My view is that, in the circumstances of this case that was not necessary. Not only the passage of time that negated the necessity for such disclosure but also the nature of the relationship. As I have already stated, pupilage is a programme put by the Council for Legal Education in this country through which all lawyers aspiring to be admitted to the harrowed Bar must undertake. It is a requirement that does not invite any favours whether from the pupil or the pupil master. Therefore a pupil – master relationship in my view is farfetched and too remote to invite any conflict of interest.

24. I have seen the cases of Re-Pinochet, Homepark Caterers –v-s AG & 3 others (2007) e KLR and Trust Bank Ltd –vs- Midco International (K) Ltd & 4 others (2004) e KLR relied on by the Defendants. In my view those cases do not apply to the circumstances of this case. In the Pinochet case, Lord Justice Hoffman sat in a committee of the House of Lords which reinstated a warrant against senator Pinochet. Lord Justice Hoffman was a director of Amnesty International Ltd  (“AI Ltd”) and had had long relationship with Amnesty International (“AI”). Indeed, that company in which he was a director had been formed basically to promote and assist the objects of AI. AI was one of the parties that had applied for the re-instatement of the warrants against senator Pinochet.   Therefore, the interests of AI were the same interests, which AI Ltd wherein his Lordship was a director, was promoting. AI was one of the parties prosecuting for the re-instatement of the warrants against Pinochet. Obviously it was incumbent that his Lordship do disclose that relationship. In the case before me, it has not been suggested that I have any interest whatsoever in the law firm of Njoroge Regeru. Neither has it been suggested that I have any personal interest in the outcome of this litigation. I also believe that Mr. Regeru has no personal interest in the litigation save only that of prosecuting the case for his client as an Advocate. Re-Pinochet case therefore does not apply.

25. In the case of Homepark Caterers LtdHon.Justice J.A.B. Ojwang had acted as a consultant to the Task force on HIV & AIDS. Some of his contributions were contained in the final report that culminated in the enactment of the HIV & AIDS prevention and Control Act, 2004. The opinions, guidelines and recommendations of the Task force [some of which had been given by Hon. Ojwang J (as he then was)] had a bearing on the issues that were pending determination in the case before him. The constitutional court held that the judge could not preside over the case as he should have disclosed his contribution to the Task Force on HIV & AIDS which had culminated in the enactment of the law he was about to apply in the case before him. I see no connection whatsoever between that case and the case before me. Before this case appeared on my cause list on 19th October, 2011, I had had no acquaintance whatsoever with the issues herein and I have had no pre-conceived ideas or opinions that could affect my objectiveness.

26. In the case of Trust Bank Ltd –vs- Midco International (K) Ltd Hon. Ibrahim J (as he then was) held that it was incumbent upon Hon. Ombija J to have disclosed that he had personally acted for one of the parties whilst in private practice before he had heard the matter before him. In the present case, there is no allegation that I had acted for any of the parties whilst in private practice. It is therefore inapplicable.

27. In R –vs- Bow Street metropolitan Stipendiary magistrate exparte Pinochet Ugarte (No.2) 1999 I ALL ER 577 Browne Wilkinson LJ held that the rule of natural justice nemo judex in causa sua, has two implications. It would be applied literally if the judge is a party to the litigation or has financial or proprietary interest in the outcome of the case. Secondly, a person may indirectly be a judge in his own cause if his conduct or behaviour gives rise to a real suspicion that he is impartial – for example due to friendship with one party. None of the two apply to me. It has not been suggested that I have any financial or proprietary interest or that I am a friend of any of the parties!

28. In my view, the claim of non-disclosure on the part of either Mr. Regeru and the myself does not hold water. What warrants disclosure in matters that are seemingly in the public domain? The records at the Law Society of Kenya on advocates of the High Court of Kenya are open to scrutiny by the public, and undeniably it is on this basis that the Advocate for the Defendants was able to acquire and utilize the information that is now the subject of application before the court. Moreover, I agree with the submissions advanced on behalf of the 2nd Plaintiff that there will be inter linkages between the judicial officers and the legal practitioners, as it is probable that people in this line of profession went to the same schools and in most instances, even practiced together. If all Judges were asked to recuse themselves on such grounds, no Judge would ever preside over cases. The Judicial Service Commission will have to hire personnel who will have no societal connection whatsoever with legal practitioners in Kenya.

29. Be that as it may, it is settled law that when looking at allegations of bias or likelihood of bias, one has to apply the objective test. It is on the onus of the applicant to prove objectively, that the Court is or is likely to be biased.

30. As submitted by Mr. Regeru, it is a fact that the pupil master relationship existed between me and Mr. Regeru 18 years ago, that after admission, I went out of Nairobi to Mombasa, that whilst in private practice we did matters with Mr. Regeru on opposing sides and he gave an example of C.A. No. 72 of 2008 in a multibillion Beach Hotel dispute wherein the Court of Appeal largely decided in favour of my firm on 18th November, 2011. I was personally involved in that case as was Mr. Regeru and none of us compromised his client’s position in favour of the other. That in HCCC NO. 385/2010, Michael Muigai Kenyatta & Anor –vs- Barclays Bank (K) Ltd & Suraya properties Ltd, on 13th December, 2011 I ruled against Mr. Regeru in another multibillion case and his clients have since appealed against my decision. That in HCCC No. 344 of 2011, a matter closely linked to the present case, due to the decision I had made in this case, I disqualified myself to give a chance to another judicial mind who did not know the facts of the present case to decide on that matter.

31. After my ruling of 20th January, 2012, no appeal was preferred against that decision although I granted leave to the Defendants to do so. The 1st Plaintiff is owned by the 3rd Plaintiff and the 1st Defendant. As I had indicated earlier, the 2nd Plaintiff and 1st Defendant are mother and father of the 3rd Plaintiff, respectively. The orders made on 20th January, 2012 returned the 2nd Plaintiff to the management of the 1st Plaintiff. When the parties came back to me on 24th January, 2012 regarding the running of the bank accounts of the 1st Plaintiff. At the time the 3rd Plaintiff was still a minor. I held thus:-

“Being mindful that the minor is only four months away and that after 1st June, 2012 he can become a director of the company and the issue of his interests being taken care of by the next friend will dissipate. I am also mindful that the two, the 2nd Plaintiff and 1st Defendant are pitted in a bitter divorce cause but that has not been shown that it will hinder the running of the 1st Plaintiff and in particular on the issue of signing of cheques mindful that the operations of the 1st Plaintiff must continue unhindered. …….”

I then proceeded to give orders varying the order of 20/1/12 to the benefit of the 1st Defendant as a 50% shareholder in the 1st Plaintiff in that I sustained the 1st Plaintiff.

32. On 13th March, 2012, Mr. Murgor appeared before me ex parte, I certified his application as urgent and ordered that the same be served for hearing on 23rd March, 2012 at 10. 30 a.m. On the 23rd March, 2012, when the matter was called out at 10. 30 a.m. Mr. Regeru was present for the Plaintiffs. He applied for the dismissal of the application.  At 10. 34 a.m., I recorded the following order:-

“It is now 10. 34 a.m. No appearance by the Defendant’s application. The Motion dated 12/3/12 is hereby dismissed with costs under order 12 Rule 3. ”

Under that provision of the law, it is provided that where a party fails to appear the court shall dismiss the matter unless there are good reasons not to. Such reasons MUSTbe recorded. On the 23rd March, 2012, there were no reasons I could record why the application should not be dismissed for Mr. Murgors non-appearance. Mr. Murgor walked into court at 10. 36 a.m. when the matter had been dismissed. Is it then bias to apply the law as it is?

33. Then on 27th June, 2012, Mr. Murgor once again appeared ex parte and without having heard the 2nd Plaintiff, I was satisfied with his submissions and allowed Mr. R W (1st Defendant) single signature to withdraw a whooping sum of Kshs.7,357,377/- from the 1st Plaintiff’s accounts. When Mr. Githaiga from Mr. Regeru’s firm appeared before me ex parte on 12th July, 2012 although I certified the 2nd Plaintiff’s application as urgent, I declined to grant him any order exparte.

34. During the inter pates hearing of the injunction application, tempers flared between Mr. Regeru and Mr. Murgor. There were, what I considered unnecessary and uncalled for interjections but I controlled the court and allowed all Counsels to put forward their clients’ cases as best as they could. It is not true that Mr. Regeru was over bearing as it is alleged.

35. From the foregoing, it is quite clear that I have been very objective in this matter. I have not exhibited any bias whatsoever and none can be imputed. The fact that the ruling of 20th January, 2012 or any other order I have made has not been appealed against, is proof that the parties have this far been satisfied with my handling of this matter. On the order, I made suo motto on 17th July, 2012, I realized that the consent order of 11th June, 2012 which is alleged to have been made contrary to law would remain in force whilst the Defendants had sprung the issue of my disqualification which was to take some time before it is decided. It was imperative that the mischief to be committed by the existence of the said order be arrested in the meantime. The court had the power to do so and I exercised that power so that the Defendants do not misuse that order whilst they had thrown to the court the serious issue of disqualification that had to be determined.

36. In the premises, I am persuaded by the proposition by Lord Denning in Metropolitan Properties Co. (FGC) Ltd –vs- Lannon & others (1969) 1Q.B 577 that when applying the objective test:-

“……..the court must carefully scrutinize the affidavits on either side, remembering that when some litigants lose their cases before the court or quasi-judicial tribunal, they are unable or unwilling to see the correctness of the verdict and are apt to attribute that verdict to a bias in the mind of the Judge, Magistrate or Tribunal” ( emphasis mine)

37. On close scrutiny of the Applicant’s Supporting Affidavit to the present motion, I see no material whatsoever for me to recuse myself. At  Paragraph 23, the Applicants are expressing their displeasure on whatever decisions  I have previously made on this matter. This court cannot, as the 2nd Plaintiff’s advocate submitted, sit on an appeal on its own decision. If the Defendants were aggrieved by the series of orders I made, they should have sought reprieve in the appellate process and not hide under the cloak of a recusal application. Further, the Defendants have failed to show that there was truly any fiduciary relationship between the law firm of Njoroge Regeru Advocates and my former law firm of Mogaka, Omwenga & Mabeya Advocates. The Defendants have only made a casual mention of the fact that the two firms engaged in business without providing any particulars thereof. The practice of a law firm holding brief for another in a different town is usual and in my opinion raises no fiduciary relationship whatsoever.

38. As I have already stated, I have no interest (pecuniary, proprietary or financial) whatsoever in the outcome of the present litigation. I have no and have had no interest in the law firm of Njoroge Regeru and Company Advocates. I believe that I should decide disputes before me on the evidence and the law applicable. I should not consider any extraneous matters and that in arriving at my decisions, I do so without fear or favour, affection or ill-will. There is no evidence that there are real grounds for doubting my ability to ignore extraneous considerations and arrive at an objective judgment on the issues before me. I find force in the observation of Mason J in Re JRL exparte CJL 91986) 161 CLR 342 at page 352 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.” (Emphasis supplied)

The Court of Appeal in the Miller –vs- Miller case (Supra) was emphatic that the mere fact that the presiding judge was acquainted with the respondent could not justify disqualification and discouraging the tendency to apply for disqualification of judicial officers the Court emphasized that:-

“A matter which in our judgment must always be carefully watched is that no party to a suit should be placed in a position where he can choose his court. We are far from saying that in no circumstances it is possible for judge to disqualify himself or be reasonably expected to disqualify himself from hearing a case.”

And then:-

“It would be disastrous if this were to become the practice. The Administration of justice through the court would be adversely affected….. mischievious parties would obtain disqualification of judges at ease.”

39. I think I have said enough. I find the Defendant’s application to be unmerited and it is hereby dismissed with costs.

DATEDand DELIVERED at Nairobi this 1st day of October, 2012.

……………………………

A. MABEYA

JUDGE