According to Lord Hewart CJ in R vs Sussex, “it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
That is why sometimes a party to a court process, including the judge, may want a presiding judge (or magistrate) to disqualify himself from hearing the matter in court. Most commonly this happens when there is a perception that the judge may be biased in favour of or against one party or that a reasonable objective observer would think he might be. This could arise if, for example, the judge has:
- a financial interest in the outcome of the case. The rationale being that one cannot be a judge in his own cause
- a personal interest in the subject matter, or has a relationship with someone who is interested in it
- personal knowledge about the parties or the facts of the case to a point where he can be a material witness
- a background or experience, such from his prior work as a lawyer has acted as counsel for a party
- communicated with lawyers or non-lawyers of one party in absence of the others
- made biased rulings, comments or conduct during the hearing
In 2013 at Eldoret High court, (miscellaneous criminal application no. 82 of 2013), Barnaba Kipsongok Tenai applied for the Magistrate to be disqualified from hearing his criminal case on the grounds that she had shown open animosity towards him and his lawyer, Mr Omwenga.
Tenai, the applicant was arraigned in an Eldoret Magistrate’s court on 27th May 2008 on a criminal charge. He was released on bond. While out on bond, he failed to attend the court because, on the day he was expected in the court, he was attending a different court. Tenui had been expected in court on an earlier date, but this day, the trial Magistrate was absent. So he was informed by the court’s Clerk to return to court on 17th September, 2012. But on 17th, he also had another criminal trial at the Kapsabet Law Courts. He attended the Kapsabet Court and so was absent from the Eldoret Court. The Eldoret court cancelled his bond.
So, Tenai went to High court and had the bond terms were reinstated (Criminal Application No.137 of 2012).
The magistrate refused to honour the bail terms. For this Mr Tenui was of the view that from the trial Magistrate’s attitude and behaviour, she cannot be deemed as impartial and if the trial continues before her, there was a likelihood of a miscarriage of justice. Therefore having no more trust in the trial court, he made an application that the trial Magistrate Hon. Dolphina Alego disqualifies herself from hearing the matter and the case to be transferred and heard before a different magistrate.
During this application hearing, a twenty-minute altercation between the magistrate and Tanui’s lawyer ensued in an open court during which exchange Hon. Dolphina told him that she had been seen him at the Judges and Magistrates Vetting Board. She dismissed the application to disqualify herself.
Not satisfied, MrTenui, went to the High court. Here, under oath, he testified that the altercation that ensued between his counsel and the learned Magistrate Hon. Dolphina Alego on 20th May, 2013 for 20 minutes was about a personal grievance that the Honourable Magistrate had against his counsel. Yet despite his advocate’s plea that the personal scores be privately settled in Chambers, she insisted that the application seeking that she recuses herself from the trial be heard in an open court.
Miss Ruto appearing for Dolphina Alego, the magistrate, did not oppose the application. In her own words, she submitted that for justice to be seen to be done, the criminal trial should be heard by another Magistrate other than the current trial Magistrate. She also stated that there was a likelihood of a miscarriage of justice on grounds that are personal between Mr Tenu’s Lawyer and the Magistrate.
After a full hearing at the High court, the Judge concluded that the only issue for determination was whether the trial Magistrate had exhibited bias against the Applicant and by and large his lawyer to warrant a transfer of the criminal trial from her court.
The Judge found that the facts of the case spoke for themselves. The trial Magistrate by openly quarrelling the Applicant’s Counsel on matters not related to the trial before her was a clear signal that she was angry or bitter with him. This set the stage for the perception that the ends of justice would not be met and that justice would not prevail. As such the Judge concurred with Tenui that due to the exhibited bias by the Hon. Magistrate, It was clear that fairness in the administration of justice would not prevail and that the trial was unlikely to proceed in an impartial manner.
On 23rd July 2014, the High Court ruled that Tanui’s criminal case be transferred for trial before another Magistrate.