Judicial Impartiality and Administrative Authority: Kenya Court of Appeal’s Decision on Bench Constitution and Recusal Standards
In the Court of Appeal at Nairobi. (Musinga (P), Mumbi Ngugi & Tuiyott, JJ.A.). Civil Appeal No. E829 of 2024 as Consolidated with Civil Appeal No. E022 of 2025. Delivered: 9th May 2025.
Background
These consolidated appeals arose from two separate rulings of a three-judge bench of the High Court. The underlying matters were constitutional petitions challenging the impeachment proceedings against H.E. Rigathi Gachagua, the then Deputy President of Kenya. Several of these petitions were certified by single High Court judges as raising substantial questions of law and public interest, warranting hearing by an uneven number of judges (an expanded bench) under Article 165(4) of the Constitution. This certification directed the files to the Chief Justice for the empanelment of such a bench.
Subsequently, on 18th October 2024, a three-judge bench comprising Justices Ogola, Mrima, and Dr. Mugambi was constituted by the Hon. Deputy Chief Justice (DCJ). This bench proceeded to issue directions on 19th October 2024, a Saturday, consolidating several petitions and scheduling them for inter-partes hearing on 22nd October 2024.
Two key challenges were brought before this newly constituted High Court bench. First, an application questioned the DCJ’s authority to empanel a bench under Article 165(4) of the Constitution, arguing that this power is exclusively vested in the Chief Justice. In a ruling delivered on 23rd October 2024, the High Court held that the DCJ did possess this power, characterising it as an administrative function exercisable in the Chief Justice’s absence. This decision led to Civil Appeal No. E829 of 2024.
Second, an application sought the recusal of the three judges on grounds of alleged bias and conflict of interest, citing perceived inconsistencies in case handling and alleged personal relationships between the judges and key parties in the litigation. In a ruling delivered on 25th October 2024, the High Court declined to recuse itself, finding no compelling evidence to support the claims of bias or conflict of interest. This decision resulted in Civil Appeal No. E022 of 2025.
The two appeals, Civil Appeal No. E829 of 2024 and Civil Appeal No. E022 of 2025, were consolidated due to their interrelated issues concerning the competence and impartiality of the three-judge bench.
Authority to Empanel a High Court Bench under Article 165(4) of the Constitution
The first substantive issue before the Court of Appeal was whether the Deputy Chief Justice had the constitutional authority to empanel a three-judge bench under Article 165(4). The appellants in Civil Appeal No. E829 of 2024 contended that this power is exclusively vested in the Chief Justice by Article 165(4) and is non-delegable. They argued that the High Court erred in characterising this power as merely administrative and in relying on general provisions of the Constitution (Article 259(3)(b)) and statutes to justify the DCJ’s actions, especially when the Chief Justice had recently empanelled a bench for related matters. Counsel for H.E. Gachagua invoked constitutional interpretation principles, arguing that specific provisions like Article 165(4) take precedence over general ones like Article 259. They asserted that the DCJ was not formally acting as Chief Justice and that holding the title did not automatically confer the power to empanel. Furthermore, they argued that any assumption of this power by the DCJ would require justification by necessity and documentation of delegation, neither of which was demonstrated.
The respondents, including the National Assembly, the Senate, the Attorney General, and others, defended the High Court’s position, arguing that the empanelment function under Article 165(4) is administrative, not judicial, and can be exercised by the DCJ, particularly in the Chief Justice’s absence. They submitted that Article 161(2)(b) designates the DCJ as Deputy Head of the Judiciary, implying authority to perform such administrative duties. They cited the High Court’s reasoning that the power is administrative because it follows the judicial certification of a substantial question of law by a High Court judge; the Chief Justice merely implements this decision by assigning judges, without determining substantive rights. They referenced previous decisions, including Leina Konchellah & others v Chief Justice and President of Supreme Court of Kenya & others; Speaker of National Assembly & others (Interested Parties) eKLR, where a High Court bench also held that empanelment is an administrative task.
The Court of Appeal embarked on an analysis of the nature of the empanelment power under Article 165(4). It contrasted this provision with Section 67 of the repealed Constitution, noting that the power to constitute an expanded bench is now constitutionally mandated for the Chief Justice, unlike the previous regime where it was primarily governed by rules made by the Chief Justice acting as a High Court Judge. The Court agreed with the High Court’s decisions in Kenya Medical Research Institute v Attorney General & 3 Others eKLR and Leina Konchellah that the empanelment mandate is constitutional.
The Court delved into the distinction between administrative and judicial functions, referencing Black’s Law Dictionary definitions and case law such as A. K. Kraipak & Ors. Etc vs Union of India & Ors 1 SCR which highlighted the blurring lines between the two and the need to look at the nature, conferral, framework, consequences, and manner of exercise of the power. It considered the argument that the Chief Justice’s role under Article 165(4) is merely to “assign” judges following certification by the High Court, agreeing with the Leina Konchellah interpretation that “assign” means to allocate a job or duty, which is an administrative function.
However, the Court of Appeal proceeded to consider whether, despite being administrative, this specific constitutional function of empanelment by the Chief Justice could be exercised by the DCJ. It examined Article 161(2)(b) of the Constitution, which designates the DCJ as the Deputy Head of the Judiciary, and Section 5(3) of the Judicial Service Act, which states the DCJ shall be responsible to the Chief Justice in exercising her functions. The Court accepted the High Court’s reasoning that a deputy is appointed to act as a substitute and that the DCJ’s functions are generally in the nature of a “general deputy”.
Crucially, the Court found that while the DCJ can undertake functions of the Chief Justice, the exercise of the extra-ordinary constitutional administrative function under Article 165(4) by the DCJ is only permissible in exceptional circumstances where the Chief Justice is unable to perform the task for valid reasons. The Court held that the existence of these exceptional circumstances must be demonstrable and communicated, not only to the parties but to the public, in the interest of justice, transparency, and accountability. It stated that the absence of such communication leaves room for suspicion and speculation, which is inimical to the administration of justice.
The Court found no evidence presented to the High Court or on appeal demonstrating that the DCJ was formally acting as Chief Justice or that exceptional circumstances existed that prevented the Chief Justice from exercising the empanelment mandate under Article 165(4) on 18th October 2024, especially considering the Chief Justice had empaneled a bench for related matters just four days prior. It rejected the High Court’s reasoning that the Chief Justice’s alleged acquiescence justified the DCJ’s actions as contrary to Article 2(4) of the Constitution.
Therefore, the Court of Appeal held that the High Court erred in finding that the DCJ validly empaneled the bench on 18th October 2024.
Judicial Recusal on Grounds of Bias
The second core issue was whether the High Court judges erred in declining to recuse themselves on grounds of alleged bias, either actual or perceived. The appellants in Civil Appeal No. E022 of 2025 argued that there was a reasonable apprehension of bias based on alleged relationships between judges and parties and the manner in which the bench handled the case. They highlighted concerns about Justice Mrima’s alleged long-standing relationship with the Speaker of the Senate (a respondent), Justice Ogola’s spouse’s appointment to a public board by the Executive, and the bench’s action of issuing directions on a Saturday.
The respondents countered that the recusal applications failed to meet the legal threshold for judicial disqualification, arguing that suspicion or sensitivity is insufficient to justify recusal. They maintained that mere social or professional associations do not automatically undermine judicial impartiality. They argued that the High Court applied the correct legal standard for recusal.
The Court of Appeal affirmed the fundamental right to a fair hearing before an independent and impartial tribunal guaranteed by Article 50(1) of the Constitution. It extensively discussed the concept of bias, distinguishing between actual and perceived bias. Referencing the Bangalore Principles and case law like Otkritie International Investment Management Ltd & Others vs Urumov EWCA Civ 1315, the Court emphasised that bias includes anything that undermines or appears to undermine impartiality and that justice must not only be done but be seen to be done (R vs Sussex Justices, Ex-parte MacCarthy All E.R. 233). Recusal is the mechanism to safeguard the integrity of the judicial process and public confidence.
The Court confirmed the objective test for recusal, aligning with established jurisprudence from the Supreme Court and its own previous decisions: whether a fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility of bias. It cited key cases solidifying this test in Kenyan law, including Jasbir Singh Rai and 3 Others vs Tarlochan Singh Rai and 4 Others (2013) eKLR, Kibisu vs Republic (Petition 3 of 2014) KESC 34 (KLR), Rawal vs Judicial Service Commission & Another (Civil Appeal (Application) 1 of 2016) KECA 717 (KLR), and Philip K. Tunoi & Another vs Judicial Service Commission & Another eKLR. The Court stressed that this test is concerned with the appearance of partiality as perceived by a reasonable observer, not the judge’s actual state of mind, and that the burden of proof rests on the applicant.
Applying this test to the specific allegations:
- Justice Mrima’s Alleged Relationship with Senate Speaker: The Court agreed with the High Court that no evidence was presented to show an ongoing or sustained relationship between Justice Mrima and the Speaker of the Senate. It noted that the alleged interaction occurred three years prior when Hon. Amason Kingi was not the Senate Speaker, and the passage of time significantly weakened any legitimate concern (Locabail (UK) Ltd vs Bayfield Properties Ltd QB 451 (CA)). The Court reiterated that mere social or professional associations do not automatically disqualify a judge unless there is a clear and reasonable apprehension of partiality (Kaplan & Stratton vs L. Z. Engineering Construction Ltd & 2 Others KECA 161 (KLR)).
- Justice Ogola’s Spouse’s Appointment: The Court upheld the High Court’s finding that no evidence was presented proving the appointee was Justice Ogola’s spouse. Furthermore, even assuming such a connection, the appointment was made by a Cabinet Secretary (not the President directly involved in the impeachment) over three years prior, making it legally and temporally remote. The Court affirmed that judges’ family members are entitled to independent careers, and such appointments, without more, do not compromise impartiality.
- Saturday Directions: The Court agreed with the High Court that this issue was res judicata, having been addressed in the 23rd October 2024 ruling. It added that the directions issued on Saturday, 19th October 2024, were merely administrative orders scheduling hearings in an urgent matter, consistent with Practice Directions No. 19(ii) of the High Court. Issuing such directions on a weekend or public holiday is not inherently improper, though it noted the need for clear practice directions for urgent matters outside standard hours.
The Court also briefly addressed the argument that lodging a complaint with the Judicial Service Commission against judges required their recusal, clarifying that the Supreme Court decision in Dari Limited & 5 Others vs East African Development Bank KESC 58 (KLR) did not establish a principle that judges must recuse themselves solely based on a complaint being lodged.
In conclusion on recusal, the Court found that the appellants failed to present credible evidence warranting the recusal of the judges. It determined that a fair-minded and informed observer, fully appraised of the facts, could not reasonably conclude that the judges were biased or likely to be biased.
Final Disposition
The Court dismissed Civil Appeal No. E022 of 2025, finding no merit in the grounds for recusal. Civil Appeal No. E829 of 2025 was allowed, but only to the extent of quashing the orders of the Deputy Chief Justice dated 18th October 2024, which assigned specific petitions to the three-judge bench. The Court directed that the affected matters be immediately placed before the Chief Justice for her Ladyship to empanel a bench under Article 165(4) of the Constitution within 14 days. However, the Court declined the request to exclude the previously assigned judges from the new bench, finding no reason to bar them. Considering the public interest nature of the consolidated appeals, the Court made no order as to costs.