FAIR, INDEPENDENT

& IMPARTIAL
TRIBUNAL
CIVIL PROCEDURE LECTURES
 INTRODUCTION

• Article 25 CoK- Right to fair hearing is a non-derogable right.

• Article 50 CoK- …Fair and public hearing before…an independent & impartial
tribunal/body.
• Article 159 CoK- “Judicial authority is derived from the people and vests in, and shall be
exercised by, the courts and tribunals established by or under this Constitution.”
• Article 160 CoK- Independence of the judiciary
• Both institutional and decisional independence.

• Judicial Service Code of Conduct and Ethics & Bangalore Principles of Judicial Conduct
 PRINCIPLES OF JUDICIAL CONDUCT

• Independence- Value 1 Bangalore Principles and Rule 3 of Judicial Code of Conduct

• In both individual and institutional aspects.
• No improper influence- personal feelings, external pressure from person(s) with interest in
cases,

• Rationale for independence

• Pre-requisite for rule of law & guarantee of a fair trial; and
• Reinforcement of public confidence in the judiciary.
 IMPARTIALITY

• Impartiality- Value 2 Bangalore Principles and Rules 3,5,7 & 10 of Judicial Code of
Conduct
• Judicial duties shouldn’t be subordinate to judge’s private interests- Rule 10;
• Avoidance of conflicts of interest- Rule 7; and
• Instances that warrant disqualification of judicial officers- Rule 5 (personal bias/prejudice to a
party or their lawyer, served as a lawyer in the matter, financial or other interests that could
substantially affect outcome of case and relationship with either party)

• Applies to both the decision and the process leading to the decision.
 INTEGRITY

• Integrity- Value 3 Bangalore Principles and Rules 3 and 12 of Judicial Code of Conduct
• Judicial officers must ensure their conduct must be dignified, honest and impeccable while
upholding dignity and integrity of judicial service.
• Conduct of judicial officers should be above reproach in the view of a reasonable observer.
• Behavior and conduct of judicial officers should reaffirm people’s faith in integrity of the
judiciary.
• Justice must not merely be done but must also be seen to be done.
 PROPRIETY

• Propriety- Value 4 Bangalore Principles and Rule 3 of Judicial Code of Conduct

• Judicial officer should avoid impropriety and appearance of impropriety- Rule 3;
• Judicial officers to avoid public statements and communication with the press, unless specifically
authorized by the CJ- Rule 14;
• Judicial officers should not vie for election as MP or other political offices- Rule 15;
• Judicial officers, while entitled to their views on political matters, should not express them publicly- Rule
16;
• Judicial officers shouldn’t canvass for favour in the judicial service or any other organization- Rule 17;
• Judicial officers shouldn’t improperly enrich themselves- Section 11 Public Officer Ethics Act, 2003;
 CTND: PROPRIETY

• Judicial officers may engage in social and recreational activities that do not adversely affect
dignity of their office or interfere with performance of their duties- Rule 6;
• Judicial officers may only participate in civil and charitable activities (harambees) to the extent
that such activities do not interfere with their judicial duties- Rule 8;
• Judicial officers shouldn’t practice law (offering legal advice or drafting legal documents) pro
bono or for a fee- Rule 9;
• Judicial officers shouldn’t engage in prohibited conduct- asking for or accepting property or any
benefit for a thing done, omitted to be done or by virtue of the officer’s official position- Rule 11.
 EQUALITY

• Equality- Value 5 Bangalore Principles and Rules 3 of Judicial Code of Conduct

• Judicial officers shouldn’t hold membership in organizations that practice discrimination
on the basis of race, sex, religion, ethnic or national origin.
 COMPETENCE & DILIGENCE

• Competence and diligence- Value 6 Bangalore Principles and Rule 3 of Judicial Code of Conduct
• Judicial officer should decide all cases assigned to them, except those in which they’ve disqualified
themselves;
• Judicial officers should be faithful to the law and not deviate to appease public clamour, avoid criticism or
advance improper interest;
• Judicial officers are to maintain professional competence in the law;
• Judicial officers to dispose off all matters promptly, efficiently and fairly;
• Judicial officers should observe professionalism and be courteous- Rule 12;
• Judicial officers should be true and faithful to their oath of allegiance and judicial oath taken on
appointment- Rule 2.
 BIAS

• Inclination or prejudice for or against one thing or person – Black’s Law Dictionary
• Actual or perceived bias undermines the public confidence in a judicial officer’s ability to
dispense justice
• Lord Goff in R-v-Gough [1993] 2 All CR 724- “Justice must be rooted in confidence, and
confidence is destroyed when right-minded people go away thinking 'the judge was biased’.”
• R-v-Sussex Justices ExP. Mc Carthy [1924] 1 KB 256- “Justice should not only be done but
should manifestly and undoubtedly be seen to be done.”
 TEST FOR BIAS

• Attorney General of the Republic of Kenya-v-Prof Anyang' Nyong'o and Others (5/2007)
[2007] EACJ 1 (6 February 2007)
•  “We think that the objective test of “reasonable apprehension of bias” is good law. The test is stated
variously, but amounts to this: do the circumstances give rise to a reasonable apprehension, in the mind
of the reasonable, fair minded and informed member of the public that the judge did not (will not)
apply his mind to the case impartially.”

• See also Republic-v-Independent Electoral and Boundaries Commission (I.E.B.C.) ex-parte

National Super Alliance (NASA) Kenya & 6 others [2017] eKLR, para 144 as well as R-v-Bow
Street Metropolitan Stipendiary Magistrate ex-parte Pinochet Ugarte [2000] 1 AC 119 (In Re
Pinochet).
 PRESUMPTION OF IMPARTIALITY

• President of the Republic of South Africa-v-South African Rugby Football Union

[1999] (4) SA 147
• Oath of office taken by the Judges to administer justice without fear or favour;
• Ability to carry out that oath by reason of their training and experience; and
• Assumption that judges can disabuse their minds of any irrelevant personal beliefs or propositions.

• United States-v-Morgan [1941]313 U.S. 409, para. 421

• Judges are presumed to wield the conscience and intellectual discipline to enable adjudicate a
dispute fairly based on its own facts and circumstances.
 RECUSAL OF JUDGES

• Removal of oneself as judge or policy maker in a particular matter, [especially] because of a conflict of interest. –
Black’s Law Dictionary
• Duty to sit- Gladys Boss Shollei-v-Judicial Service Commission & another [2018] eKLR
• “…every judge has a duty to sit…This duty to sit is buttressed by the fact that every judge takes an oath of office: “to
serve impartially; and to protect, administer and defend the Constitution.” It is a doctrine that recognizes that having
taken the oath of office, 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.”

• Doctrine of necessity- United States-v-Will, 449 U.S. 200 (1980) & Cheney-v-U.S. Dist. Court, 541 U.S. 913, 915
(2004).
• See also Muir-v-Commissioner of Inland Revenue [2007] 3 NZLR 495
 CTND

• Kalpana H Rawal & 2 others-v-Judicial Service Commission & 2 others [2016]

eKLR
• Recusal is indeed a judicial duty and it does not amount to a judge abrogating his/her duty; and
• Protects the integrity of trial and the judiciary at large.

• “I am also acutely aware that refusal to recuse myself has the potential of inflicting
far-reaching damage to the credibility of the Supreme Court. Sometimes, not even
the doctrine of necessity can override the overwhelming demands of natural
justice.”
 RECUSAL BY SUPREME COURT JUDGES

• Are there special conditions for recusal of Supreme Court judges?

• Jasbir Singh Rai & 3 others-v-Tarlochan Singh Rai & 4 others [2013] eKLR
• The Supreme Court’s limited numerical strength;
• Good cause – public interest, constitutional burdens of the court;
• Construing the Supreme Court Act, 2011 –section 8(2) – determined subject to express
principles of recusal, subject to the SC’s integrity and obligations under CoK 2010; and
• The Supreme Court Concept – balance personal inclination versus public interest of upholding
the constitution, recusal of a SC judge to be settled by the collegiate bench.
 GROUNDS FOR RECUSAL OF JUDGES

• Rule 5 of the Judicial Code of Conduct

• Personal bias concerning a party or advocate;
• Judicial officer had acted as counsel for a party to the suit;
• Close relationship with either party to the suit;
• Financial interest in the case by the judicial office or spouse.

• What other grounds can be used to request recusal/disqualification of a judicial

officer?
 PRODECURE

• Make an Application for recusal in Chambers

• If judicial officer declines, make a formal Application for recusal in open court

• Judicial officer makes a Ruling

• If dissatisfied with the Ruling, the Applicant may appeal the decision
 RIGHT TO A PUBLIC HEARING

• Article 50 (1) CoK- right to …public hearing before a court or, if appropriate, another
independent and impartial tribunal or body.
• Senator Johnstone Muthama-v-Tanathi Water Services Board & 2 others [2014] eKLR
• “It is therefore clear that unlike in mediation, arbitral proceedings are, just like in litigation, open to
the public and follows a similar procedure to that of litigations but with a more relaxed approach.”

• Exceptions
• Article 50(8) CoK- exclusion of the press to protect witnesses or vulnerable persons, morality, public
order or national security.
• Clearing the court in children and other sensitive matters.