In this Hot from the Bench commentary, LawAfrica’s Charles Kanjama addresses the sensitive issues sorrounding allegations of judicial bias by Advocates.
There is nothing that is so calculated to arouse the eloquence and displeasure of a judge as an allegation of bias or impropriety against him. And with good reason, because as with advocates, not just his personal reputation but the entire trust and confidence placed in the administration of justice hinges on his assiduous avoidance of fear or favour.
The pained almost unbearable strain of this burden as custodian of public trust comes out well in Omolo JA’s judgment, joined by Cockar and Tunoi JJ.A, in R v David Makali 1994. Why, he agonises, does the Kenyan public have such a low opinion of its judges? Why are they considered so spineless and mere playthings of the executive? He adds, “How I wish that lawyers in particular will understand and appreciate that they very seriously hurt the feelings of Judges by painting us as men and women of no conscience, men and women who know no law or morals…”
Again, who would forget Kuloba J’s flowery and fiery eloquence (Muthanwa v Apollo Insurance 1999) in the face of a similar insinuation of bias: “[That lawyers] are triple satanic … and the wrongs done are in a litany which stretches like Banquo’s line of kings to the cracks of doom.” Or again, the most resounding Appeal Court judgments in R v Tony Gachoka 1999? In the face of all this, it would seem unthinkable that a litigant would allege bias against a judicial officer.
Yet the last five years have seen a blossoming of such accusations, made no less from the bar and the bench as from the public gallery. Witness the not-very-oblique attack with which Kwach JA prefaces his judgment in Express Kenya v Manju Patel 2001: “There was a time when this Court enjoyed the integrity of Caesars wife. It was above suspicion. But that is now water under the bridge. Something has to be done to redeem the reputation and independence of this Court.”
In Miller v Miller 1988 the plaintiff sought the disqualification of a judge on the ground that allegations of bias had been made against him. In rejecting this reasoning, the Appeal Court insisted, “It would be disastrous if this were to become practice. The administration of justice through the court would be adversely affected. Mischievous parties… would obtain disqualification of judges with ease.” The Court was clear that the mere fact that the presiding judge was acquainted with the respondent would not justify disqualification. If that were so, considering the fact that the respondent was a member of the same bench, the whole bench would be disqualified.
In R v David Makali 1994, a contempt case, the court reasoned that although justice must be seen to be done, judges should discharge their duty and not accede too easily to allegations of bias made by litigants. Regarding applications for disqualification, the same ratio had been followed in Nyamodi Ochieng v KPTC 1994 where the plaintiffs application that certain judges conversant with the case hear an application for contempt was denied. In a blunt judgment, the court held that the luxury of shopping for judges was not available in law.
The precise juridical formulation of the test against bias has not quite been settled by our local judges. In Uhuru Highway v Exchange Bank 1996 (Akiwumi, Tunoi & Shah JJ.A), the court adopted the reasoning of Lord Goff, in R v Gough 1993, who re-stated the afore-said test, "in terms of real danger rather than real likelihood [of bias] to ensure the court is thinking in terms of possibility rather than probability of bias." Yet one year later in Kimani v Njoroge 1997 (Gicheru, Omolo & Lakha JJ.A), the majority opinion had dumped Lord Goff in favour of Lord Dennings ratio in the older Metropolitan Properties v Lannon 1968. Lord Denning had said, "In considering whether there was a real likelihood of bias… the court looks at the impression which would be given to other people… what right-minded persons would think."
In the sequel to the Uhuru Highway case, Uhuru Highway v Central Bank 1998 the court lashed out at the counsel of the first defendant CBK: "[they have] the tendency to seek disqualification of judges whenever a matter before the Court is not decided in their favour… This gives the impression that they are shopping around for judges of their own choice… This practice is intimidatory and no court will condone it as it undermines the rule of law."
In Galaxy Paints v Falcon Guards 1999, two previous appeals had been struck out as incurably defective. The appellant sought the disqualification of two of the judges who sat in the previous appeal on the ground that there would be an appearance of bias if they presided again. In dismissing this allegation, the court considered the decision in the notorious English case of R v Bow Street Magistrates ex parte Pinochet 1999.
The rule of natural justice, nemo judex in causa sua, was held to have two implications. It would be applied literally if the judge is a party in the litigation, or has financial or propriety interest in the outcome of a case. Secondly, a person may indirectly be judge in his own cause if his conduct or behaviour gives rise to a suspicion that he is impartial, for example due to friendship with one party. The court however concluded that the appellant had not proved any actual bias and was therefore not entitled to the remedy sought.
It is unclear whether the court in Galaxy Paints intended to adopt the ‘suspicion of partiality’ test as used in Pinochet. What is clear is that in effect the court dismissed the application for disqualification on the ground that there was no actual or real likelihood of bias. Whatever the ambiguity, Lakha JA in Kaplan v L.Z. Engineering (No. 1) 2000 asserted that real danger of bias must be established, not just a reasonable suspicion of bias as in R v Sussex Justices. Hence, “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 predisposed or prejudiced against one party’s case for reasons unconnected with merits of the issue.”
Subsequently after reference to a full bench, in Kaplan v L.Z. Engineering (No. 2) 2001, the court upheld Lakha’s “real danger of bias” test. The mere fact that the judge had two lunches with a litigant’s counsel in a public restaurant two years previously was not a meritorious reason to infer danger of bias. The court cited Locabail v Bayfield Properties 2000 1 All ER 65 where it was held as follows:
“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, … judge’s background, nor that of any members of the Judges family; … or previous judicial decisions or extra-curricular utterances (whether in textbooks, lectures, speeches… ); or previous receipt of instructions to act for or against any party…
“By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the Judge and [a litigant]; … 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.”
In light of the courts’ evident displeasure with any allegations of bias, it remains to be seen whether the ‘danger of bias’ test will endure the test of time, or whether the same would be cast more narrowly or widely as the convenience of the moment demands.
Cases cited Court citation
1. R v David Makali (2/6/94) Cr.A. 4/94
2. R v Tony Gachoka (20/8/99) Cr.A. 4/99
3. Express Kenya v Manju Patel (29/6/01) C.A. 158/2000
4. Miller v Miller (22/9/88) C.A. 83/88
5. Nyamodi Ochieng v KPTC (13/1/94) C.A. 264/93
6. Uhuru Highway v Exchange Bank (15/5/96) C.A. 36/96
7. R v Gough  2 All ER 724
8. Kimani v Njoroge (21/11/97) C.A. 79/97
9. Metropolitan Properties v Lannon  3 All ER 304
10. Uhuru Highway v Central Bank (20/5/98) C.A. 83/98
11. Galaxy Paints v Falcon Guards (4/6/99) C.A. 219/98
12. R v Bow S Magistrates ex p. Pinochet (No. 2)  1 All ER 577
13. Kaplan v L.Z. Engineering (No. 1) (14/8/00) C.A. 115/00
14. R v Sussex Justices  1 KB 25
15. Kaplan v L.Z. Engineering (No. 2) (4/3/01) C.A. 115/00
16. Locabail v Bayfield Properties  1 All ER 65