Shollei & another v Judicial Service Commission & another

(Petition 34 of 2014) [2018] KESC 42 (KLR) (3 July 2018) (Ruling)

Gladys Boss Shollei v Judicial Service Commission & another [2018] eKLR
Neutral citation: [2018] KESC 42 (KLR)

REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA
PETITION 34 OF 2014
DK MARAGA, CJ & P, PM MWILU, DCJ & V-
P, MK IBRAHIM, JB OJWANG & NS NDUNGU, SCJJ
JULY 3, 2018

BETWEEN
GLADYS BOSS SHOLLEI ................................................................. 1ST PETITIONER
GLADYS BOSS SHOLLEI ................................................................ 2ND PETITIONER

AND
JUDICIAL SERVICE COMMISSION ........................................... 1ST RESPONDENT
COMMISSION ON ADMINSTRATIVE JUSTICE ................... 2ND RESPONDENT

Recusal of a Supreme Court Judge who is a member of the Judicial Service Commission in a case
where the Judicial Service Commission is a party
The Judicial Service Commission filed the application seeking among other orders that most of the court’s judges,
in the full seven-judge bench recuse themselves from the hearing of the petitioner’s appeal. The court dismissed the
application. The court noted that the matter was not one calling for the recusal of any judge of the court. The court
held that committed to the judges’ oaths of office, the court would pronounce itself unbiased and ready and willing
to own up to Kenya’s constitutional mandate of dispensing justice in matters falling within its jurisdiction.
Reported by Kakai Toili
Judicial Officers - judge – recusal of a judge of the Supreme Court – application for the recusal of a judge of
the Supreme Court – grounds for recusal – membership to the Judicial Service Commission – where the Judicial
Service Commission was a party to a case - whether a judge of the Supreme Court who was a member of the Judicial
Service Commission had to recuse himself or herself from a case in which the Judicial Service Commission was a
party – Constitution of Kenya, 2010, article 163 and 171(2): Public Officers Ethics Act, section 10(1).
Judicial Officers - judge – doctrine of the duty of a judge to sit - what was the scope of the doctrine of the duty
of a judge to sit.
Judicial Officers - judge – recusal of a judge – application for recusal of a judge – what was the purpose of an
application for the recusal of a judge and whether an application for recusal of a Supreme Court Judge could be
determined in a similar manner as that of a judge of other superior courts.

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Constitutional Law – superior courts – Supreme Court – quorum of the Supreme Court – effect of lack of
quorum - what was the effect of failure of the Supreme Court to determine a matter due to lack of quorum.
Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms
- right to fair hearing - when balancing the rights of different claimants before a court over the same right - what
parties were to be given priority in the enforcement of the right to fair hearing when balancing the rights of different
claimants before a court over the same right - Constitution of Kenya, 2010, article 19 (3)(a) and 21(1).
Judicial Officers – judges – removal of judges from office - what was the procedure of removal of a judge from
office - Constitution of Kenya, 2010, article 168.
Brief facts
The petitioner’s case had been referred to the Employment and Labour Relations Court, which upheld her
claim that the 1st respondent, the Judicial Service Commission (JSC) had violated her fundamental rights and
freedoms in removing her from oce without a basis in law. The Court of Appeal reversed the decision of
the Employment and Labour Relations Court leading to an appeal pending before the instant court. The
petitioner prayed for judgment setting aside the Court of Appeal’s decision.
The JSC led the instant application seeking orders that the time-span for ling the application be extended
beyond the limit earlier prescribed, that most of the court’s judges, in the full seven-judge bench recuse
themselves from the hearing of the petitioner’s appeal and that the costs of the application be provided for.
The JSC proered the following justications for seeking the recusal of the court’s judges:
1. Chief Justice as Chairperson of JSC and the Deputy Chief Justice as the court’s representative in JSC,
had been involved in JSC’s deliberations which JSC took the decision to le the application.
2. Lady Justice Njoki had active pending litigation against the JSC.
3. Justice JB Ojwang had 3 pending disciplinary proceedings with the JSC.
4. Justice Lenaola recused himself from hearing the appeal, having been a member of the JSC at the
material time that the petitioner’s case was before the JSC.
Issues
i. Whether a judge of the Supreme Court who was a member of the Judicial Service Commission had to
recuse himself or herself from a case in which the Judicial Service Commission was a party.
ii. What was the scope of the doctrine of the duty of a judge to sit?
iii. What was the purpose of an application for the recusal of a judge?
iv. What was the eect of failure of the Supreme Court to determine a matter due to lack of quorum?
v. What parties were to be given priority in the enforcement of the right to fair hearing when balancing
the rights of dierent claimants before a court over the same right?
vi. Whether an application for recusal of a Supreme Court Judge could be determined in a similar manner
as that of a judge of other superior courts.
vii. What was the procedure of removal of a judge from oce?
Relevant provisions of the Law
Constitution of Kenya, 2010
Article 22
1. Every person has the right to institute court proceedings claiming that a right or fundamental freedom in
the Bill of Rights has been denied, violated or infringed, or is threatened.
Held
1. The court had a special constitutional mandate which could not be delegated to any other forum in the
entire governance set-up. The court was guided by certain precious values, which provided the context within
which it took ultimate responsibility for matters of dispute settlement in accordance with the law. The instant
matter was not one calling for the recusal of any judge of the court. Committed to the judges’ oaths of oce,

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the court would pronounce itself unbiased and ready and willing to own up to Kenya’s constitutional mandate
of dispensing justice in matters falling within its jurisdiction.
2. The concept of fundamental rights was a subject of constitutional safeguard and a core pillar upon which
the court’s mandate was founded. The rights in question were inherently and expressly attributed to citizens as
the legatees of good governance and democratic process. On that account, all rational and tenable perception
of the question of access to the judicial dispute-resolution process, had to be placed on balancing scale ensuring
the entitlement of the citizen to justice, fair trial and constitutional safeguard. The cause of the individual who
came knocking on the doors of the Judiciary was the very rst consideration in determining whether or not
a hearing fell due.
Per MK Ibrahim, SCJ (Concurring)
3. The doctrine of necessity was more pronounced in the matter and it was amplied by the Constitution. The
preamble to the Constitution was unequivocal that it was the people of Kenya who gave unto themselves the
Constitution. They gave unto themselves the Constitution in its entirety. At article 163 of the Constitution,
the people of Kenya established the court, consisting of 7 justices (the Chief Justice, the Deputy Chief Justice,
and ve other Judges). The Constitution also established the JSC, with its membership composition clearly
stipulated under article 171(2) of the Constitution. A scrutiny of that membership showed that at any given
time 2 members of the court had to be JSC Commissioners.
4. Among the court’s judges, the court would or could have former JSC commissioners. It could not therefore
be stated in general terms that any judge of the court who sat in the JSC would, as a matter of cause, not
adjudicate in a matter where the JSC was a party. Such a pronouncement would be a total mockery of the
sovereign will of the people of Kenya who established the two institutions in the Constitution and willed that
they carried out their various functions simultaneously.
5. The doctrine of the duty of a judge to sit, though not profound in Kenya’s jurisdiction, every judge had a
duty to sit in a matter which he duly should sit. Recusal should not be used to cripple a judge from sitting
to hear a matter. That duty to sit was buttressed by the fact that every judge took an oath of oce: to serve
impartially and to protect, administer and defend the Constitution. The doctrine recognized that having taken
the oath of oce, a judge was capable of rising above any prejudices, save for those rare cases when he had to
recuse himself. The doctrine also safeguarded the parties’ right to have their cases heard and determined before
a court.
6. There was a criticism of the doctrine of the duty of a judge to sit for being subject of abuse by judges, so as
to sit in matters when it was blatantly clear that they were biased and ought not to have sat. However, where
judiciously invoked, the doctrine was a key component of constitutionalism. All judges of the court, members
of the JSC or former members, had a duty to sit in the matter so as to arm constitutionalism.
7. Judges too, as individual persons, enjoyed all the rights in the Bill of Rights. They too enjoyed the protection
provided by article 22 of the Constitution to approach the High Court where they felt their rights had been
violated. A person did not waive the protection of article 22(1) when he/she became a judge. Consequently,
a judge who pursued his/her constitutional rights protected by the Bill of Rights could not have that used
against him/her as a ground for recusal. Membership in the JSC by a judge in the court or any other court was
a constitutional imperative and as such it could not be used without very good and valid reasons to exclude
such a member of JSC from sitting in a matter where the JSC was involved.
8. An application for recusal should not seek to arm the decision of the court/tribunal whose decision was
subject of appeal. An application for recusal was a shield to protect the applicant’s interest so that his/her
matter was heard by an impartial court. It was not a sword to be wielded by an applicant to steal a match and
deny a chance to the other party. Hence by praying that the eect of the application would be the armation
of the Court of Appeal decision, the applicant sought to go beyond the genuine province of a recusal motion.
9. The fact that 3 judges recused themselves from hearing the matter in Kalpana H. Rawal, Philip Tunoi and
David A. Onyancha v Judicial Service Commission and the Judiciary, (2016) eKLR did not by itself arm

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the decision of the Court of Appeal on the retirement age of judges appointed before the promulgation of
the Constitution. That was clear and certain from the nal orders of the court in that matter. As the matter
before the court was an interlocutory application, the recusal and inability of the ve-bench to determine the
applications meant that, de facto, the Court of Appeal judgment remained in force. The applications in the
court were not spent or determined but remained in abeyance until another bench was empaneled.
Per NS Ndungu (Concurring)
10. Pursuant to article 25(c) of the Constitution, the right to a fair trial was non-derogable. All persons who
came to the court were entitled to a fair hearing whether the matter instituted was criminal or civil in nature.
The right to a fair trial set out in article 50(1) and (2) of the Constitution were the same and were both non-
derogable by the provisions of article 25 of the Constitution. As such, when an individual citizen petitioner
rightly approached the court, seeking to assert their constitutional rights, the court would be hard-pressed to
turn them away on the basis of claims of bias by a respondent State organ.
11. There was a positive duty by the State to ensure that every Kenyan had the right to fair hearing which
involved the right of appeal where conferred by the law or the Constitution. That obligation included the
Judiciary’s own participation as a State organ. The obligation equally applied to the JSC that stemmed from
article 21(1) of the Constitution. Article 19(3)(a) of the Constitution was categorical that the rights and
fundamental freedoms in the Bill of Rights belonged to each individual.
12. In the course of enforcement of the right to fair hearing, when balancing the rights of dierent claimants
before the court over the same right and because of the personal nature of rights, priority had to be given to:
a. The parties that were directly aected by the violation of that right.
b. Other parties to the suit that were indirectly aected, such as interested parties.
c. The general public.
d. The interests of the State.
In the instant matter the court ought to have regard to the right to fair hearing of the petitioner rst.
13. JSC was a State organ which was dened in article 260 of the Constitution as a commission, oce, agency
or other body established under the Constitution. JSC was established under article 171 of the Constitution.
It was also listed in Chapter 15 of the Constitution which pertained to commissions and independent oces.
Under that chapter, pursuant to article 249 of the Constitution, JSC was supposed to protect the sovereignty
of the people, secure the observance by all State organs of democratic values and principles and promote
constitutionalism. It was unclear what prejudice JSC would suer if the court heard the instant matter. The
petitioner herself had not raised the issue of an impartial bench, bias or any prejudice that would arise if the
bench as constituted sat on her matter. It therefore baed the mind how JSC could claim bias in the face of
an individual’s right to a fair hearing.
14. JSC could not claim prejudice or bias when an individual citizen was seeking to exercise her constitutional
right to be heard. That ew in the face of securing democratic values and principles and promoting
constitutionalism. In addition, JSC had not suciently demonstrated the nexus between the interest and the
resulting apprehension of bias. There was no nexus established between the facts of the relevant matter between
the court and the JSC and the instant matter. To nd that membership of a judge in the JSC, automatically
disqualied him or her on the basis of perceived bias from hearing and determining any matter relating to the
JSC would be to stretch the perception of bias too far. That would inevitably mean that matters involving the
JSC would, more often than not, be determined by the Court of Appeal as the nal court; an absurdity and
outright contravention of the Constitution.
15. A party was entitled to be heard by a court before which he or she appeared even though it was perceived
to be conicted, if there was no other court to which he or she could go. The doctrine of necessity and the
duty to sit would have to apply.
16. There was a presumption of impartiality of a judge. They would be able to disabuse themselves of any
irrelevant personal beliefs or predispositions when hearing and determining matters. The role of a judge was to

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ensure that cases were determined in accordance with the Constitution and the law. An application for recusal
of a Supreme Court Judge could not be determined in a similar manner as that of a judge of the other superior
courts due to the special consideration that had to be given to its quorum. The court was the nal bastion in
the architectural design of Kenya’s Constitution that protected and defended the rights of every citizen and
enforced the obligations of the State towards them. Its intervention, when rightly invoked, as in the instant
case ought to be available to the citizens of Kenya.
17. The court had previously dealt with matters in which the JSC had been a party and no issue of conict
of interest had arisen. The fact that the JSC did so in the instant case raised an eyebrow and might even be
construed as cherry–picking an adjudication fora or forum shopping which the law frowned upon. Article 168
of the Constitution concerned removal of a judge from oce. That removal could be initiated by the JSC on
its own motion or upon petition by any person to the JSC. If satised that the petition was merited, the JSC
sends the petition to the President. Within 14 days after receiving the petition, the President must suspend the
judge from oce acting in accordance with the recommendation of the JSC and appoint a tribunal.
18. Article 168(8) of the Constitution allowed a judge who was aggrieved by a decision of the tribunal
appointed by the President, to appeal against the tribunal’s decision to the court within 10 days after the
tribunal made its recommendations. The court would not have to down its tools merely because the JSC could
be a party to such cause. If the court downed its tools in an article 168(8) petition, merely because the JSC
was a party to that suit, that would be tantamount to the court abdicating its constitutional duty. It would be
equivalent to violating both the Judicial Code of Conduct which revered the oath of oce taken by judges and
section 10(1) of the Public Ocers Ethics Act which required judges of the superior courts as public ocers
to carry out their duties in accordance with the law.
Application dismissed.
Orders
i. Petitioner’s appeal to be fixed for hearing on priority basis.
ii. Costs of the application to abide the determination of the main cause.

RULING

A. Background Facts
1. This Court has considered certain basic facts: the petitioner’s case had been referred to the
Employment and Labour Relations Court, which upheld her claim, that the 1st respondent had
violated her fundamental rights and freedoms, in removing her from oce without a basis in law.

2. The Court of Appeal had reversed the decision of the Employment and Labour Relations Court,
leading to an appeal now pending before this Court. The petitioner prays for Judgment, setting aside
the Appellate Court’s decision.

B. An Individual’s Appellate Cause -versus- Public- Agency Quest For Bench-disqualication

3. In the meantime, the 1st respondent has, at this stage, moved this Court by application, by way of notice
of motion dated 24 May 2017, seeking Orders as follows:

(a) that the time-span for ling such an application be extended beyond the limit earlier prescribed,
as from 17 May 2017, so as to cover the belated date of lodgement of the application;

(b) that most of the Supreme Court Judges, in the full seven-Judge bench of that Court – namely,
Maraga, C.J. & P., Mwilu, DCJ. & V-P, Ojwang and Njoki, SCJJ – should recuse themselves
from the hearing of the petitioner’s appeal;

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 (c) that the costs of the application be provided for.

4. In the quest for such Orders, which if granted would leave only two Judges available for service
(contrary to the terms of Article 163(2) of the Constitution of Kenya, 2010 which stipulates that “[t]he
Supreme Court shall be properly constituted for the purposes of its proceedings if it is composed of ve
judges”) – with the eect that the petitioner’s cause would stand technically declined – the applicant
proers the following justications:

(a) Chief Justice Maraga as Chairperson of 1st respondent, and Lady Justice Mwilu as Supreme
Court representative in 1st respondent [a public agency], had been involved in 1st respondent’s
deliberations of 16 May 2017 at which 1st respondent took the decision to le the instant
application – and so “they are conicted and should not sit [on] the bench to determine this
appeal”;

(b) Both Lady Justice Njoki and Justice J.B. Ojwang “are conicted” and “there is real likelihood
of bias in their hearing and determining the appeal,” for the following reasons:

(i) “Lady Justice Njoki has active pending litigation against 1st respondent in Petition
No. 218 of 2016. In this petition, she is challenging the disciplinary mandate of 1st
respondent. This petition is pursuant to a complaint led by advocate Apollo Mboya
on 9 October 2015”;

(ii) “Justice J.B. Ojwang has 3 pending disciplinary proceedings with 1st respondent,
namely: a petition led by Nelson Oduor Onyango on 29 January 2016 in respect of
Supreme Court Misc. application No. 49 of 2014; a petition led by advocate Apollo
Mboya with respect to Supreme Court Applications No. 11, 12 and 13 of 2016 (judge-
retirement cases), and another petition led by [advocate Apollo Mboya] on 9 October
2015”;

(iii) “On 3 May 2017 Justice Lenaola recused himself from hearing the appeal, having been
a member of the 1st respondent at the material time that the appellant’s case was before
the [1st respondent].”

5. What is the factual material given to support such averments? The 1st respondent’s registrar, Ms.
Winfrida Mokaya, on 25 May 2017, swore an adavit stating, in eect, that all the Supreme Court
Judges now sought to be disqualied from the mandate of resolving the petitioner’s appellate cause,
are “conicted,” and ought not to be part of the nal appellate bench to entertain and adjudicate
upon the petitioner’s quest for justice under the Constitution. The applicant resorts to Ms. Mokaya’s
depositions in aid of the proposition that the Supreme Court is an inappropriate forum to answer to
the petitioner’s pursuit of justice – and for the contention that the Court of Appeal’s Judgment which
reversed the trial Court’s decision in favour of the petitioner, should now stand as the nal edict of
the Kenyan Judiciary.

C. Public Agency Claim, And The Supreme Court’s Time-scheduling

6. Of the statement by 1st respondent’s counsel – that at an earlier scheduling for the hearing of the
petitioner’s case, on 3 May 2017, one of the Judges (Lenaola, SCJ) had recused himself – it is to be
noted that the Court had then ruled that the said Judge would be replaced at the hearing by Lady
Justice Mwilu, DCJ & VP. The Court had on that occasion also directed that the 1st respondent do le
a formal application on the issue of Judge-recusal, within 14 days. This was not done as directed; and
the 1st respondent is now asking that its procrastination be overlooked.

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D. Public-agency Interests -versus- Individual’s Quest For Justice In The Apex Court
7. Learned counsel for 1st respondent submits that his client is moved by bona des, in asserting that
public agency’s “right to fair hearing”, as proclaimed in Article 50(1) of the Constitution of Kenya,
2010 which thus stipulates:

“Every person has the right to have any dispute that can be resolved by the application
of the law decided in a fair and public hearing before a court or, if appropriate, another
independent and impartial tribunal or body.”

Counsel urges that his client was not at all questioning the integrity of any of the Judges claimed to
be “conicted” and ought not to be part of the bench entertaining the petitioner’s appeal. However,
learned counsel states his apprehensiveness that the said Judges being “conicted”, his client – the
public agency (1st respondent) faces the risk of not being accorded “a fair hearing”, and that a “real
likelihood of danger or bias” exists.

8. In his quest for recusal by most members of the Supreme Court bench, counsel for the 1st respondent
urged that there was indeed precedent for such recusal – the eect of which was to render the Supreme
Court a lame duck judicial forum, with the Court of Appeal appearing as the ultimate Court of the
judicial system. He cited the situation represented by the case, Kalpana H. Rawal, Philip Tunoi and
David A. Onyancha v. Judicial Service Commission and the Judiciary [2016] eKLR.

E. Supreme Court, Recusal, And Ends Of Appellate Justice: Petitioner’s Submission

9. Learned counsel for the petitioner contested the public agency’s prayer for Judge-recusal, in his
submissions of May 2018. He urged that recusal of a Judge of the apex Court, the ultimate recourse
in the citizen’s quest for justice, ought not to be invoked, but for good cause – and certainly, not so
as to impede access to justice by the individual-citizen appellant, in the terms of Article 50(1) of the
Constitution. Counsel urged that the right to fair hearing, for his client as for other citizens, is an
absolute right which cannot be limited, in view of the terms of Article 25 of the Constitution:

“Despite any other provision of this Constitution, the following rights and fundamental
freedoms shall not be limited –

(a) ….

(b) …..

(c) the right to a fair trial…..”

10. In further demonstration of the Supreme Court’s obligation in regard to the instant matter, learned
counsel cited the terms of Article 20(3) of the Constitution:

“In applying a provision of the Bill of Rights, a court shall –

(a) develop the law to the extent that it does not give eect to a right or
fundamental freedom; and

(b) adopt the interpretation that most favours the enforcement of a right or
fundamental freedom.”

11. Within the foregoing context of constitutional imperatives bearing upon the Courts of law, and in this
regard bearing upon this Supreme Court, learned counsel submitted that the right to a fair trial must

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 be viewed in the context of the slender numerical span of the bench: with only seven members, and
with the prescribed quorum of ve Judges.

12. Learned counsel called upon the Supreme Court to discern a mischief in the quorum-decit scheme
of the instant application: that the Court may be rendered inadequate to its prescribed constitutional
function as the ultimate appellate Court, with the last word in the safeguarding of the petitioner’s
fundamental rights, secured by the express terms of the Constitution. Were the instant application to
be allowed, counsel urged, the Supreme Court would have improperly taken leave of its obligation to
ensure that every person enjoys the right to fair trial.

13. Learned counsel urged it to be an unsound proposition, that the Supreme Court, merely for having two
of its members attending at any moment, meetings of the 1st-respondent public agency, will constantly
be unable to perform its constitutional mandate of dispensing justice, whenever the 1st respondent is
a party to a dispute. The eect of such an impugned prospect, it was urged, would be that in many
causes meriting nal determination by the Supreme Court, the constitutional rights of fair trial for the
parties, would have been drastically abridged and negated.

14. Learned counsel called for an objective view of some of the broad claims made in limitless numbers
of cases, in petitions against serving Judges of the Supreme Court, before the public agency which is
the 1st respondent. It was urged that, in this regard, the Court may address its mind to such objective
impressions as must guide the perceptions of the ordinary reasonable person; and that it may reect
upon its standing as a proper judicial body, or perhaps, a body of irrational Judges who lack the capacity
to render justice as necessitated by the situations, needs and deserts of the parties who come calling!

15. The appellant invoked an earlier, precedent-setting decision of the Supreme Court, Jasbir Singh Rai
and Another v. Tarlochan Singh and 4 Others [2003] eKLR, in which this Court had formally
proclaimed the application of the doctrine of necessity – which ought to apply in this instance, to avert
a real danger of miscarriage of justice coming in the shape of Judge-recusal. On those submissions the
appellant urged us to dismiss this application.

F. Analysis
16. We have considered the above rival submissions. The Supreme Court has a special constitutional
mandate which cannot be delegated to any other forum in the entire governance set-up. The Court
is rmly guided by certain precious values, which provide the context within which it takes ultimate
responsibility for matters of dispute settlement, in accordance with the law. This scenario is objectively
depicted by the late Lord Denning (1899-1999) of England who thus spoke of the candour and trust
associated with the judicial appointment:

“[E]very Judge on his appointment discards all politics and all prejudices. Someone must be
trusted. Let it be the Judges” [see Allan C. Hutchinson, Laughing at the Gods: Great Judges
and How they made the Common Law (Cambridge: University Press, 2012), p.156.

17. Beneting from such profound observations, we conscientiously take the stand that the instant matter
is not one calling for the recusal of any Judge of the Supreme Court. Committed to our oaths of
oce, we would pronounce ourselves unbiased, and ready and willing to own up to our constitutional
mandate of dispensing justice in matters falling within our jurisdiction.

18. It is our conviction that the concept of fundamental rights, is a subject of constitutional safeguard,
and a core pillar upon which the Supreme Court’s mandate is founded. The rights in question are
inherently and expressly attributed to citizens, as the legatees of good governance and democratic
process. On this account, all rational and tenable perception of the question of access to the judicial

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 dispute-resolution process, must be placed on balancing scale ensuring the entitlement of the citizen
to justice, fair trial, and constitutional safeguard.

19. In the circumstances, we decline the applicant’s call, and declare the undoubted principle that, in all
cases of this nature, the cause of the individual who comes knocking on the doors of the Judiciary, is
the very rst consideration in determining whether or not a hearing falls due.

20. For these reasons, we are disinclined to grant this application.

G. The Concurring Ruling Of Justice M. K. Ibrahim

21. I have had the advantage of reading the composite Ruling of my Brother Judges and the concurring
opinion of my Sister Judge. I wholly agree with the reasoning and arguments therein, and would like
to add further reasons for reaching the same conclusion.

22. In the Jasbir Singh Rai and Another v. Tarlochan Singh and 4 Others, PARA 2003] eKLR case, the
Court alluded to the doctrine of necessity in the concurring opinion and the numerical challenge of
the Supreme Court, more so as there was a vacancy. That doctrine is even more pronounced in this
matter and it is amplied by the Constitution itself.

23. First, the preamble to the Constitution is unequivocal that it is the People of Kenya who give unto
themselves the Constitution. They give unto themselves the Constitution in its entirety. In this
Constitution at Article 163, the People of Kenya have established the Supreme Court, consisting
of seven Justices (the Chief Justice, the Deputy Chief Justice, and ve other Judges). In this same
Constitution, the People of Kenya have also established the Judicial Service Commission (hereinafter
referred to as ‘JSC’), with its membership composition clearly stipulated under Article 171 (2). A
scrutiny of this membership clearly shows that at any given time, two (2) members of the Supreme
Court shall be JSC Commissioners.

24. Another truth, which is a reality now, is that among the Supreme Court Judges, we shall/may have
former JSC Commissioners. It cannot therefore be stated in general terms that any Supreme Court
Judge who sits/sat in the JSC will, as a matter of cause, not adjudicate in a matter where the JSC is
a party. Such a pronouncement will be a total mockery of the Sovereign will of the People of Kenya
who established the two institutions in the Constitution and willed that they carry out their various
functions simultaneously.

25. Tied to the constitutional argument above, is the doctrine of the duty of a judge to sit. Though not
profound in our jurisdiction, every judge has a duty to sit, in a matter which he duly should sit. So that
recusal should not be used to cripple a judge from sitting to hear a matter. This duty to sit is buttressed
by the fact that every judge takes an oath of oce: “to serve impartially; and to protect, administer and
defend the Constitution.” It is a doctrine that recognizes that having taken the oath of oce, a judge
is capable of rising above any prejudices, save for those rare cases when he has to recuse himself. The
doctrine also safeguards the parties’ right to have their cases heard and determined before a court of law.

26. In respect of this doctrine of a judge’s duty to sit, Justice Rolston F. Nelson; of the Caribbean Court
of Justice in his treatise – “Judicial Continuing Education Workshop: Recusal, Contempt of Court
and Judicial Ethics; May 4, 2012; observed:

“A judge who has to decide an issue of self-recusal has to do a balancing exercise. On the
one hand, the judge must consider that self-recusal aims at maintaining the appearance of
impartiality and instilling public condence in the administration of justice. On the other

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 hand, a judge has a duty to sit in the cases assigned to him or her and may only refuse to hear
a case for an extremely good reason” (emphasis mine)

27. In the case of Simonson –vs- General Motors Corporation U.S.D.C. p.425 R. Supp, 574, 578 (1978),
the United States District Court, Eastern District of Pennsylvania, had this to say:-

“Recusal and reassignment is not a matter to be lightly undertaken by a district judge, While,
in proper cases, we have a duty to recuse ourselves, in cases such as the one before us, we
have concomitant obligation not to recuse ourselves; absent valid reasons for recusal, there
remains what has been termed a “duty to sit” . . .”

28. It is useful to refer to the case from the New Zealand Court of Appeal Muir -v- Commissioner of
Inland Revenue PARA 2007] 3 NZLR 495 in which the Court stated as follows:-

“the requirement of independence and impartiality of a judge is counter balanced by the

judge’s duty to sit, at least where grounds for disqualication do not exist in fact or in law
the duty in itself helps protect judicial independence against maneuvering by parties hoping
to improve their chances of having a given matter determined by a particular judge or to gain
forensic or strategic advantages through delay or interruption to the proceedings. As Mason
J emphasized in JRL ex CJL (1986) 161 CLR 342 “it is equally important the judicial ocers
discharge their duty to sit and do not by acceding too readily to suggestion of appearance
of bias encourage parties to believe that by seeking the disqualication of a judge, they will
have their case tried by someone thought to be more likely to decide the case in their favour.”

29. From my readings, it is not lost to my mind that there is a criticism of this doctrine for being subject
of abuse by judges, so as to sit in matters when it is blatantly clear that they are biased and ought not
to have sat. However, where judiciously invoked, this doctrine of the duty to sit is a key component of
Constitutionalism. I will invoke that doctrine in this matter and hold that all Judges of the Supreme
Court of Kenya, members of the Judicial Service Commission or former members, have a duty to sit
in this matter so as to arm Constitutionalism.

30. Another issue raised is that some of judges have matters pending in the High Court against the Judicial
Service Commission. It is beyond peradventure that judges too, as individual persons, enjoy all the
Rights in the Bill of Rights. They too enjoy the protection provided by Article 22 to approach the
High Court where they feel their Rights have been violated. Article 22(1) is emphatic that: “[E]very
person has the right to institute court proceedings claiming that a right or fundamental freedom in
the Bill of Rights has been denied, violated or infringed, or is threatened”. A person does not waive
the protection of Article 22(1) when he/she becomes a Judge. Consequently, a judge who pursues his/
her constitutional rights protected by the Bill of Rights cannot have that used against him/her as a
ground for recusal. Also membership in the JSC by a judge in the Supreme Court or any other Court
is a constitutional imperative and as such it cannot be used without very good and valid reasons to
exclude such a member of JSC from sitting in a matter where the JSC is involved.

31. It is also my considered opinion that an application for recusal should not seek to arm the decision of
the court/tribunal whose decision is subject of appeal. An application for recusal is a shield, to protect
the applicant’s interest so that his/her matter is heard by an impartial court. It is not a sword to be
wielded by an applicant to steal a match and deny a chance to the other party. Hence by praying that
the eect of the application will be the armation of the Court of Appeal decision, the Respondent
(applicant) seeks to go beyond the genuine province of a recusal motion.

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32. The 1st Respondent referred to the case of Kalpana H. Rawal, Philip Tunoi and David A. Onyancha
v Judicial Service Commission and the Judiciary, (2016) eKLR, as the basis or authority for this
argument. With respect, the 1st Respondent has all its facts on the above case wrong. The fact that three
(3) judges recused themselves from hearing the matter did not by itself arm the decision of the Court
of Appeal on the “retirement age of Judges appointed before the promulgation of the Constitution
2010”. This is clear and certain from the nal orders of the Supreme Court in that matter thus:

“These are the Orders of the Court:

1. The Preliminary Objection by the interested party (Mr. Omtatah) together

with the application No. 13 is hereby allowed.

2. The ex parte Orders granted by the Duty Judge, on 27th of May, 2016, are
hereby vacated.

3. The Judgment of the Court of Appeal shall stand until it is either armed, or
reversed by a competent Bench of this Court.

4. In view of the fact that 2 members of this Bench were minded to allow
preliminary objections No. 11 and 12, while 2 others were equally minded
to disallow the said preliminary objections, and the 5th member has recused
himself from making a nding on the objections, there is no determination
that has been made regarding preliminary objection No. 11 and 12.”

33. As the matter before the Court was an interlocutory application, the recusal and inability of the ve-
Bench to determine the applications meant that, de facto, the Court of Appeal judgment remained in
force. The Applications in the Supreme Court were not spent or determined but remained in abeyance
until another Bench was/is empaneled. For these reasons I concur with the nal orders in the main
ruling.

H. The Concurring Ruling Of Njoki Ndungu, SCJ

34. I have read the decision of the majority. While I am in agreement with the nal decision and orders in
this matter, I wish to add the following to reinforce my learned sister’s and brothers’ decision.

(a) Right to a fair trial

35. It is important to note from the onset that pursuant to Article 25 (c) of the Constitution, that the
Right to a fair trial is non-derogable.

36. In my concurring opinion in Evans Kidero & 4 others v Ferdinand Waititu & 4 others, Sup. Ct. Petition
No. 18 & 20 of 2014, [2015] eKLR, I examined the scope of fair hearing and concluded that it is trite
law that all persons who come to the Court are entitled to a fair hearing whether the matter instituted
is criminal or civil in nature.

37. Accordingly, this settled the question as to whether the right to fair hearing set out in Article 50(1) and
the right to a fair trial set out in Article 50(2) of the Constitution are dierent. The two rights are the
same and they are both non-derogable by the provisions of Article 25 of the Constitution.

38. As such, when an individual citizen petitioner rightly approaches this Court, seeking to assert their
constitutional rights, this Court will be hard-pressed to turn them away on the basis of claims of bias
by a respondent State organ.

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39. There is a positive duty by the State to ensure that every Kenyan has the right to fair hearing which
involves the right of appeal where conferred by the law or the Constitution. This obligation includes
the Judiciary’s own participation as a State organ.

40. The obligation equally applies to the Judicial Service Commission which is the 1st respondent. This
stems from Article 21(1) of the Constitution which provides that “It is a fundamental duty of the
State and every State organ to observe, respect, protect, promote and fulll the rights and fundamental
freedoms in the Bill of Rights.”

41. Article 19 (3) (a) of the Constitution is categorical that the rights and fundamental freedoms in the
Bill of Rights belong to each individual.

42. In my considered opinion, in the course of enforcement of the right to fair hearing, when balancing the
rights of dierent claimants before the Court over the same right, and because of the personal nature of
rights, priority must rst, be given to the parties that are directly aected by the violation of that right,
for instant the accused person, plainti, applicant, appellant, defendant, respondent, etc.; secondly,
other parties to the suit that are indirectly aected, such as interested parties; thirdly, the general public;
and lastly, the interests of the State.

43. In the present matter therefore, this Court ought to have regard to the right to fair hearing of the
petitioner rst.

(b) The question of bias

44. It is the 1st respondent’s case that it will not be accorded a fair hearing as there is a real likelihood or
danger of bias. The rst thing to note here is that the 1st respondent is a State organ. ‘State organ’ is
dened in Article 260 of the Constitution as “a commission, oce, agency or other body established
under this Constitution.”

45. The 1st respondent is established under Article 171 of the Constitution. It is also listed in Chapter
fteen of the Constitution of which chapter pertains to commissions and independent oces.

46. Under this chapter, pursuant to Article 249 of the Constitution, the 1st respondent is supposed to
protect the sovereignty of the people, secure the observance by all State organs of democratic values
and principles and promote constitutionalism.

47. Bearing this in mind, it is unclear to me, what prejudice the 1st respondent will suer if we hear this
matter. The petitioner herself, who instituted this matter has not raised the issue of an impartial
bench, bias or any prejudice that would arise if the bench as currently constituted sits on her matter.
It therefore baes the mind how the 1st respondent can claim bias in the face of an individual’s right
to a fair hearing.

48. It is my considered opinion that the State organ (the 1st respondent) cannot claim prejudice or bias
when an individual citizen is seeking to exercise their constitutional right to be heard. This ies in the
face of securing democratic values and principles and promoting constitutionalism.

49. In addition, the 1st respondent has not suciently demonstrated the nexus between the interest and
the resulting apprehension of bias. For my part and my learned brother Prof. Ojwang, there is no nexus
established between the facts of the relevant matter (s) between us and the 1st respondent and the instant
matter before this Court.

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50. Additionally, to nd that membership of a Judge in the 1st respondent, automatically disqualies
him or her on the basis of perceived bias from hearing and determining any matter relating to the 1st
respondent would be to stretch the perception of bias too far.

51. This would inevitably mean that matters involving the 1st respondent would, more often than not, be
determined by the Court of Appeal as the nal Court; an absurdity and outright contravention of the
Constitution.

(c) Recusal
52. I am conscious that the majority and my learned brother judge Ibrahim have expressed themselves on
this issue. I will only add the following. In my view, it is undisputable that a party is entitled to be heard,
by a Court before which he or she appears even though it is perceived to be conicted, if there is no
other Court to which he or she can go. The doctrine of necessity and the duty to sit would have to apply.

53. It must always be remembered that there is a presumption of impartiality of a Judge. In The President
of the Republic of South Africa & 2 others v South African Rugby Football Union & 3 others,
(CCT16/98) [1999.
the South African Constitutional Court held that there was a presumption of impartiality of judges by
virtue of their training. Therefore, they would be able to disabuse themselves of any irrelevant personal
beliefs or predispositions when hearing and determining matters.

54. The role of a Judge is to ensure that cases are determined in accordance with the Constitution and the
law. I am persuaded by the opinion of Justice Scalia (as he was) in Cheney v. U.S. Dist. Court, 541 U.S.
913, 915 (2004) that an application for recusal of a Supreme Court Judge cannot be determined in a
similar manner as that of a Judge of the other superior Courts due to the special consideration that
must be given to its quorum.

55. This court is the nal bastion in the architectural design of our Constitution that protects and defends
the rights of every citizen and enforces the obligations of State towards them. Its intervention, when
rightly invoked, as in the instant case ought to be available to the citizens of this county.

(d) The Court adjudicating on matters where the 1st respondent has been a party.
56. In as much as the 1st respondent submits that members of this Court have recused themselves in
previous proceedings in Kalpana H. Rawal, Philip Tunoi & David A. Onyancha v Judicial Service
Commission & Judiciary [2016] eKLR, this can be cited as the exception thus far.

57. This Court has previously dealt with matters in which the 1st respondent has been a party and no issue
of conict of interest had arisen. For instance, in the Judges and Magistrates Vetting Board and Others
v Centre for Human Rights and Democracy and Others Supreme Court Petition No. 13A, 14 and 15
of 2013; [2014] eKLR, this Court heard and determined a matter that involved the 1st respondent as
one of the respondents.

58. Pertinent to note is that the former Chief Justice (Willy Mutunga) and Smokin Wanjala SCJ were part
of the bench that heard and determined that matter despite being members of the 1st respondent at
the time.

59. Interestingly, the 1st respondent in this matter did not claim that this Court was conicted and
incapable of rendering an impartial decision. The fact that the 1st respondent does so now raises an
eyebrow and might even be construed as cherry –picking an adjudication fora or forum shopping
which the law frowns upon.

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(e) Jurisdiction of the Supreme Court under Article 168 (8) of the Constitution; how will it be
aected?
60. Article 168 of the Constitution concerns removal of a Judge from oce. This removal may be initiated
by the 1st respondent on its own motion or upon petition by any person to the 1st respondent.

61. If satised that the petition is merited, the Judicial Service Commission (JSC) sends the petition to
the President. Within fourteen days after receiving the Petition, the President must suspend the judge
from oce acting in accordance with the recommendation of the JSC and appoint a tribunal.

62. Article 168(8) of the Constitution allows a judge who is aggrieved by a decision of such tribunal to
appeal against the tribunal’s decision to the Supreme Court within ten days after the tribunal makes
its recommendations.

63. This then begs the question; would this Court have to down its tools merely because the 1st respondent
(JSC) may be a party to such cause? The answer must be a resounding no!

64. I am of the view that if this Court downed its tools in an Article 168 (8) petition, merely because the
1st respondent is a party to this suit, this would be tantamount the Court abdicating its constitutional
duty.

65. In addition, it would be equivalent to violating both the Judicial Code of Conduct which reveres the
oath of oce taken by Judges and Section 10(1) of the Public Ocers Ethics Act which requires Judges
of the Superior Courts as public ocers to carry out their duties in accordance with the law.

66. I conclude by stating that I have no doubt that my learned sister and brothers are able to determine the
instant matter objectively, while nurturing transparency and accountability.

I. Final Orders
67. In the result, it is the unanimous decision of this Court that:

(a) This application be and is hereby dismissed.

(b) The petitioner’s appeal shall be xed for hearing on priority basis.

(c) The costs of this application shall abide the determination of the main cause.
Orders accordingly.
DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY, 2018
………………………………………………………….
D.K. MARAGA
CHIEF JUSTICE/PRESIDENT OF THE SUPREME COURT
………………………………………………………….
P.M. MWILU
DEPUTY CHIEF JUSTICE/VICE PRESIDENT OF THE SUPREME COURT
………………………………………………………….
M.K. IBRAHIM
JUSTICE OF THE SUPREME COURT

kenyalaw.org/caselaw/cases/view/155119/ 14
………………………………………………………….
J.B. OJWANG
JUSTICE OF THE SUPREME COURT
………………………………………………………….
NJOKI NDUNGU
JUSTICE OF THE SUPREME COURT
I certify that this is a
true copy of the original
REGISTRAR,
SUPREME COURT OF KENYA

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