Incidents of judges recusing themselves from court cases have been in the spotlight, with many wondering why certain judges had to step down, especially in cases which have captured the attention of the public.
On Monday, February 24, two Magistrates recused themselves from the divorce case between Meru Senator Mithika Linturi and former Chief of Staff at Deputy President William Ruto's office, Maryanne Kitany. Justice D.W Mburu cited personal reasons for his decision to step away from the case while Magistrate Liza Gicheha, for her part, stated that she had previously handled a different matter involving one of the parties.
This came a few days after Lands Court Judge Sila Munyao, on Wednesday, February 19, recused himself from a bench of three judges hearing the Mau Forest eviction case, after petitioners argued that he may be biased. Munyao withdrew from the case on grounds of conflict of interest. His wife was the vice-chairperson of the task force: the government wishes to use its report to revoke 599 title deeds.
A report by Muma & Kanjama Advocates details that the recusal of judges is based on the perspective that a party would want to walk out of court knowing that a case was determined with absolute fairness. Most recusal cases according to the law firm, occur on the basis of conflict of interest.
"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 confidence in the administration of justice.
"On the other 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," the firm quoted Justice Ibrahim, who made a ruling on a case involving Uasin Gishu Woman Representative, Glady's Boss Sholei (then former Chief Registrar of JSC) versus Judicial Service Commission.
Speaking to Kenyans.co.ke on Tuesday, February, lawyer Charles Kanjama on Wednesday, February 19, further detailed more reasons as to why a judge may withdraw from a case. According to the attorney, the doctrine of necessity stipulates some reasons for recusal.
"The Supreme Court came up with the doctrine of necessity law which stipulates that 5 judges, rather than 7, can sit and listen to a case as people have a right to have their cases heard and the judges will be necessitated to listen to the case, this is despite an existence of a conflict of interest at the Supreme/High Court.
"The principle of law further states that a recusal happens when there appears an interest of bias, not the existence of bias. One can recuse oneself based on perception. This is whereby a judge analyses his/her previous relationship with parties named in a case. A relationship can cut across, from business to blood. Other reasons are a previous action ruled by a judge. If the judge handled a case involving that party and made a decision on that previous case. If there is suspicion of poor conduct that would make it appropriate to involve in the matter. Also if a judge doesn't want to deal with the case, he can withdraw," Kanjama informed.
The arbitrator, further detailed that a judge can withdraw on his own accord upon being requested by a lawyer.
"However, you need to have a serious allegation and not a casual one to recuse oneself," Kanjama added.
In another situation involving Embakasi MP Babu Owino, Magistrate Francis Andayi, on Tuesday, February 18, disqualified himself from hearing the attempted murder case.
This was after the DPP wrote a complaint to the Judicial Service Commission on the bail he granted Babu. Andayi had directed Babu's Ksh 10 million bail to be paid in instalments.
In 2019, Kisumu Chief Magistrate, Julius Ngarngar, recused himself from Nandi Governor, Stephen Sang's case. Ngarngar disqualified himself from the entire case citing the existence of a conflict of interest that would potentially compromise his need to be impartial.
He went ahead and declared that he had close relations with the accused, thereby placing his sworn ethical code of conduct under jeopardy.
In 2018, High Court judge Justice George Odunga declined to hear a case that challenged the new practice rules introduced by Chief Justice David Maraga.
Odunga, who is known to make bold judgements on controversial political and constitutional issues, stated that he had been part of the committee that drafted the practice rules that will guide hearing of all corruption cases in Kenya.
In 2017, High Court Judge William Musyoka also opted out of a case between the National Super Alliance (NASA) and the IEBC on grounds that he is related to NASA co-principal Kalonzo Musyoka.
