Wakilii

Chepkwony v Attorney General of the Republic of Kenya (Application No.19 of 2023)

East African Court of Justice · [2024] EACJ 4 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for recusal of a judge arising from Reference No. 17 of 2018
Decision
Application for recusal dismissed with costs to the Respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court dismissed the application for recusal. The Applicant failed to demonstrate any reasonable basis for apprehension of bias on the part of Justice Nyachae. The application was brought long after the Reference had been heard and concluded, with no suggestion that the grounds were unavailable earlier. The allegations were unsubstantiated and did not meet the objective test of reasonable apprehension of bias in the view of a reasonable, fair-minded and informed member of the public. Justice Nyachae declined to recuse himself and the Court upheld that decision.

Outcome

Application for recusal dismissed with costs to the Respondent

Facts

The Applicant filed Reference No. 17 of 2018 on behalf of several minors against the Republic of Kenya alleging Treaty violations. The Court dismissed the Reference. The Applicant subsequently filed Application No. 33 of 2022 seeking review. The Applicant then filed the instant Application No. 19 of 2023 seeking recusal of Justice Charles Nyachae from the bench hearing the matter. The grounds alleged were: bias demonstrated through interjections during earlier proceedings that allegedly resulted in arm-twisting the Applicant's Counsel to withdraw Application No. 21 of 2021; that the Judge's family owned land in the Mau Water catchment area which was allegedly part of the area subject of Reference No. 17 of 2018; and that the Judge was improperly appointed due to influence and closeness to the President of Kenya to represent class interests.

Issues

  1. Whether Justice Charles Nyachae should recuse himself from hearing the matter on grounds of alleged bias and conflict of interest.
  2. Whether the timing of the recusal application, brought after the Reference had been heard and concluded, was appropriate.
  3. Whether the Applicant established a reasonable apprehension of bias sufficient to justify recusal.

Orders

  • Application dismissed in its entirety.
  • Costs awarded to the Respondent.

Rules and key headnotes

Civil Procedure — Recusal of Judges — Timing of Application
A litigant who has knowledge of facts giving rise to an apprehension of bias ought not to be permitted to keep the objection until after finding out that he has not succeeded. An application for recusal brought long after proceedings have been heard and concluded, where the grounds were available earlier, amounts to abuse of court process.
Civil Procedure — Recusal of Judges — Test for Bias
The objective test for recusal is whether 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. The applicant must establish that bias is not a mere figment of imagination and must adduce proof of the truth of the charges.
Civil Procedure — Recusal of Judges — Burden of Proof
The impartiality of a judge is presumed and undisputable evidence is required to refute this presumption. An unfounded or unreasonable apprehension concerning a judicial officer is not a justifiable basis for a recusal application. Mere gratuitous statements from the bar without supporting evidence are insufficient to establish bias.
Administrative Law — Judicial Independence — Duty to Sit
A judge has as much obligation not to recuse when there is no occasion to do so as there is obligation to recuse when there is occasion. Judicial officers must discharge their duty to sit and not accede too readily to suggestions of appearance of bias, lest parties be encouraged to believe that by seeking disqualification they will have their case tried by someone more likely to decide in their favour.
Administrative Law — Judicial Appointments — Qualifications
Judges of the East African Court of Justice must be of proven integrity, impartiality and independence. If a person litigating is able to demonstrate in a particular matter that a judge falls short on any of these attributes, the judge would be obligated to recuse. The absence of any of these attributes would mean the judge ceases to be qualified to be a judge of the Court.

Legislation cited (10)

  • Treaty for the Establishment of the East African Community Article 24(1)
  • Treaty for the Establishment of the East African Community Article 25(3)
  • Treaty for the Establishment of the East African Community Article 26
  • Treaty for the Establishment of the East African Community Article 26(6)
  • East African Court of Justice Rules of the Court 2019 Rule 4
  • East African Court of Justice Rules of the Court 2019 Rule 52(1)
  • East African Court of Justice Rules of the Court 2019 Rule 52(2)
  • East African Court of Justice Rules of the Court 2019 Rule 52(4)
  • East African Court of Justice Rules of the Court 2019 Rule 52(5)
  • East African Court of Justice Rules of the Court 2019 Rule 127(1)

Cases cited (10)

  • Attorney General of the Republic of Kenya v Prof. Anyang' Nyong'o and 10 Others (EACJ Application No. 5 of 2007)
  • The S. A Rugby Football Union case (supra)
  • Republic v Independent Electoral and Boundaries Commission and 3 Others, Ex parte Wavinya Ndeti [2017] eKLR
  • Philip K Tunoi and Another v Judicial Service Commission and Another [2016] eKLR
  • DARI Limited and 5 Others v East African Development Bank and 2 Others [2020] eKLR
  • MEERA Investments Limited v Commissioner General, URA (Civil Appeal No. 5 of 2007)
  • CARTER-ARTIS Case 1981
  • Muir v Commissioner of Inland Revenue [2007] 3 NZCA 495
  • JRL ex CJL (1986) 161 CLR 342
  • Woyome v Ghana (Merits and Reparations) 3 AFCLR 235

Full judgment

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

Chepkwony v Attorney General of the Republic of Kenya (Application No.19 of 2023) [2024] EACJ 4 (27 March 2024)
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.