Wakilii

A.G. of Kenya v Nyong'o and Others (Application 5 of 2007)

East African Court of Justice · [2007] EACJ 1 · 2007 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application for recusal of judges and to set aside interim injunction ruling in pending reference
Decision
Application for recusal and to set aside ruling dismissed with costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court dismissed the application for recusal and to set aside its earlier ruling. Held that a judge is not obliged to disclose facts that are within public knowledge and known to the applicant. The applicant failed to establish reasonable apprehension of bias. A litigant who knows facts giving rise to alleged bias must raise objection at the earliest opportunity; delay and failure to object when the matter was first heard amounts to waiver. The application was an abuse of process brought to delay the hearing of the reference.

Outcome

Application for recusal and to set aside ruling dismissed with costs

Facts

The Attorney General of Kenya applied to disqualify Justice Moijo Ole Keiwua and Justice Kasanga Mulwa from hearing a reference concerning the election of members to the East African Legislative Assembly, and to set aside the Court's ruling of 27 November 2006 granting an interim injunction. The application was based on the judges' suspension from judicial functions in Kenya in October 2003 and the appointment of tribunals to investigate their conduct. The application was filed on 22 January 2007, just before a scheduled conference, despite the Attorney General having knowledge of these facts since 2003 and having participated in the hearing on 24-25 November 2006 without objection. During submissions, the applicant withdrew the application against Justice Kasanga Mulwa after being shown documents evidencing his early retirement and appointment to the EACJ. The applicant also withdrew allegations that the people of East Africa had lost confidence in the Court.

Issues

  1. Whether Justice Moijo Ole Keiwua was under duty to disclose his suspension from judicial functions in Kenya and the appointment of a tribunal to investigate his conduct.
  2. Whether Justice Moijo Ole Keiwua was under duty to recuse himself from participating in the hearing of the application for interim injunction on the ground of perceived bias.
  3. Whether the ruling of the Court granting the interim injunction is null and void by reason of the failure of Justice Moijo Ole Keiwua to make disclosure and/or to recuse himself from participating in the proceedings.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Judicial Impartiality — Duty of Disclosure — Facts Within Public Knowledge
A judicial officer is not under obligation to disclose facts that may raise apprehension of possible bias where those facts are within public knowledge and within the knowledge of the applicant or his legal advisors. Failure to disclose such facts cannot be a ground on which a reasonable member of the public would apprehend bias.
Judicial Impartiality — Recusal Applications — Timing and Waiver
A litigant seeking disqualification of a judge from sitting on the ground of appearance of bias must raise the objection at the earliest opportunity. Where a party has knowledge of facts giving rise to apprehension of bias and allows proceedings to continue without protest, he is held to have waived his objection and the determination cannot be challenged on that ground.
Judicial Impartiality — Test for Reasonable Apprehension of Bias
The test for reasonable apprehension of bias is objective: do the circumstances give rise to a reasonable apprehension, in the view of a reasonable, fair-minded and informed member of the public, that the judge did not or will not apply his mind to the case impartially. An unfounded or unreasonable apprehension concerning a judicial officer is not a justifiable basis for a recusal application.
Judicial Impartiality — Automatic Disqualification Distinguished from Perceived Bias
Automatic disqualification applies where a judge is directly or indirectly a party to the cause or has a financial, proprietary or other relevant interest in its subject matter or outcome. Where a judge is not a party and does not have such interest, disqualification on grounds of perceived bias is not presumed; the applicant must establish that the apprehension of bias is reasonable and not a mere figment of imagination.
Abuse of Court Process — Recusal Applications Brought to Delay Proceedings
Where a litigant with knowledge of facts allegedly giving rise to bias participates in proceedings without objection, files pleadings within agreed timelines, and only raises a recusal application when the case is moving close to hearing, the court may conclude that the application is brought more out of a desire to delay the hearing than to ensure a fair hearing, amounting to abuse of court process.
Rule of Law — Respect for Court Decisions
One of the cardinal rules in the doctrine of the Rule of Law is respect for court decisions. Where Partner States to a treaty establishing a regional court have agreed to the principle of the Rule of Law and mandated the court to ensure adherence to law, deviation from respect for court decisions renders the principle hollow and causes the treaty and its objectives to stand on sinking sand.
Judicial Impartiality — Collective Duty of Multi-Judge Panel
Where a recusal application comes before a court constituted by several judges, subject to the judge whose recusal is sought giving his individual decision, all the judges constituting the panel have a collective duty to determine if there is sufficient ground for the judge to recuse himself from further participation in the case.

Legislation cited (12)

  • Treaty for the Establishment of the East African Community Art.6
  • Treaty for the Establishment of the East African Community Art.23
  • Treaty for the Establishment of the East African Community Art.24
  • Treaty for the Establishment of the East African Community Art.26
  • Treaty for the Establishment of the East African Community Art.27
  • Treaty for the Establishment of the East African Community Art.35
  • Treaty for the Establishment of the East African Community Art.38
  • Treaty for the Establishment of the East African Community Art.50
  • East African Court of Justice Rules of Procedure r.17
  • East African Court of Justice Rules of Procedure r.52
  • East African Court of Justice Rules of Procedure r.70
  • Constitution of the Republic of Kenya s.62

Cases cited (5)

  • R v Bow Street Metropolitan Stipendiary Magistrate & Others Ex parte Pinochet Ugarte (No.2) [1999] 1 All ER 577
  • President of the Republic & 2 Others v South African Rugby Football Union & 3 Others (CCT 16/98)
  • Ole Keiwua v Chief Justice of Kenya & 6 Others [2006] eKLR
  • King Woollen Mills Ltd & Another v Standard Chartered Financial & Another (Civil Appeal No. 102 of 1994)
  • Locabail (UK) Ltd vs. Bayfield Properties Ltd &Another

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

A.G. of Kenya v Nyong'o and Others (Application 5 of 2007) [2007] EACJ 1 (6 February 2007)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.