Introduction

An allegation of judicial bias calls into question the concept of fair hearing, and the often-touted clarion call against perceptions of judicial bias is that “justice must not only be done but must also be seen to be done” – as per Lord Hewart, the then Chief Justice of England in Rex v Sussex Justices (1924) 1 KB 256.

Judicial recusal refers to the withdrawal of a judicial officer from ongoing proceedings, for reason of a conflict of interest, perceived bias or lack of impartiality. As an inherent rule, judicial officers are expected to be independent, impartial and beacons of integrity – with recusal offering a means of redress should questions arise as to the lack of the foregoing attributes in relation to a judicial officer.

The importance of recusal in fostering confidence and trust in the administration of justice was underscored by Warsame J (as he then was) in the case of Alliance Media Kenya Limited v Monier 2000 Limited & Njoroge Regeru (2007) KEHC 2518 (KLR) as follows:

“In my understanding, the issue of disqualification is a very intricate and delicate one. It is intricate because the attack is made against a person who is supposed to be the pillar and fountain of justice…justice is deeply rooted in the public having confidence and trust in the determination of disputes before the Court. It is of paramount importance to ensure that the confidence of the public is not eroded by the refusal of Judges to disqualify themselves when an application has been made.”

When to Recuse Oneself?

A judicial officer should recuse himself in the event a conflict of interest arises in a matter in which he is acting. Under Regulation 20 (1) of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 (the Judicial Service Regulations) a Judge is obligated to use the best efforts to avoid being in situations where personal interests conflict or appear to conflict with his official duties. Recusal is a matter of judicial discretion and judicial officers should recuse themselves whenever they feel they may not appear to be fair or where they feel their impartiality would be called into question. Regulation 21 of the Judicial Service Regulations, behoves a judicial officer to disqualify oneself in proceedings where his or her impartiality might reasonably be called into question, including but not limited to instances in which the judicial officer has a personal bias or prejudice concerning a party or his advocate or personal knowledge of facts in the proceedings before him. The Judicial Service Regulations are intended to ensure maintenance by judicial officers of integrity and independence of the judicial service.

A judicial officer may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned, including instances where the judicial officer:

1. is a party to the proceedings
2. was, or is a material witness in the matter in controversy
3. has personal knowledge of disputed evidentiary facts concerning the proceedings
4. has actual bias or prejudice concerning a party
5. has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter
6. had previously acted as a counsel for a party in the same matter
7. is precluded from hearing the matter on account of any other sufficient reason
8. a member of the judicial officer’s family has economic or other interest in the outcome of the matter in question

The foregoing list is by no means exhaustive and the overriding principle is to ensure that the perception of fairness is at all times maintained as was stated by the Supreme Court in the case of Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others (2013) eKLR as follows:

“…it is evident that the circumstances calling for recusal, for a Judge, are by no means cast in stone. Perception of fairness, of conviction, of moral authority to hear the matter, is the proper test of whether or not the non-participation of the judicial officer is called for. The object in view, in the recusal of a judicial officer, is that justice as between the parties be uncompromised; that the due process of law be realized, and be seen to have had its role; that the profile of the rule of law in the matter in question, be seen to have remained uncompromised.”

Objective Standard Noting that bias may be easy to detect in others but difficult to detect in oneself – the standard to be applied when considering recusal is an objective rather than subjective one. As was stated by the Court in Sabatasso v Hogan 91 Conn. App. 808, 825 (2005):

“The standard to be employed is an objective one, not the Judge’s subjective view as to whether he or she can be fair and impartial in hearing the case… Any conduct that would lead a reasonable person knowing all the circumstances to the conclusion that the Judge’s impartiality might reasonably be questioned is a basis for the Judge’s disqualification. Thus, an impropriety or the appearance of impropriety that would reasonably lead one to question the Judge’s impartiality in a given proceeding clearly falls within the scope of the general standard… The standard is not whether the Judge is impartial in fact. It is simply, whether another, not knowing whether or not the Judge is actually impartial, might reasonably question his impartiality, on the basis of all the circumstances.”

Doctrinal Exceptions

There may be circumstances in which judicial officers may be compelled to continue sitting, notwithstanding concerns on perceptions of bias or conflicts of interest. The “doctrine of necessity” has been used for a long time in common law jurisdictions to allow judges to sit in matters where the Court does not have an alternative competent person to adjudicate a matter before it, and thus quorum cannot be formed without him and no other competent Court can be constituted. The “doctrine of the duty to sit” flows from the Constitution and common law. Since all judicial officers take an oath to serve and administer justice, it is implied that there is a duty to sit imposed upon them by the value and the principle of the rule of law. Judicial officers should thus resist the temptation to recuse themselves simply because it would be more convenient to do so. The doctrine requires judicial officers not to recuse themselves unless there are compelling reasons not to sit. The doctrine was discussed by the Supreme Court (Ibrahim, SCJ) in his Lordship’s concurring opinion in Gladys Boss Shollei v Judicial Service Commission (2018) eKLR stating that the doctrine safeguards a party’s right to be heard and determined before a Court of law:

“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 dushould 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 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 has to recuse himself. The doctrine also safeguards the parties’ right to have their cases heard and determined before a Court of law.”

Recusal is a matter of judicial discretion and judicial officers should recuse themselves whenever they feel they may not appear to be fair or where they feel their impartiality would be called into question. Regulation 21 of the Judicial Service Regulations, behoves a judicial officer to disqualify oneself in proceedings where his or her impartiality might reasonably be called into question…

Judicial officers must therefore take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. They should therefore not readily succumb to bullying or intimidation by a party to recuse themselves. In the case of Prayosha Ventures Limited vs NIC Bank Ltd & Others (2020) eKLR the Court (Omondi, J – as she then was) dismissed a recusal application and found thus:-

“It is not lost to me that the issue of recusal was spontaneously announced once I declined to extend the orders, and there should be no pretence by Mr. Lagat that the Interested Party instructed him to apply for my recusal… I have no lien over the matter, and would be more than willing to have this matter taken over by another judicial officer, except that the manner in which the recusal is sought reeks of mala fides clothed with sharp practice, outright bullying and intimidation. That where a litigant does not call the tune and pay the piper, then the bias flag is waved all over. Indeed, for good measure, Dr Kiprono reminded this Court that his client would be considering presenting a complaint to the Judicial Service Commission over my conduct in this matter. If that was not intended to scare the daylights out of me, then I do not know why the name of my employer was being invoked at that point.”

Similarly, in Dobbs v Tridios Bank NV (2005) EWCA 468 the Court cautioned itself as follows with respect to the antics of a certain Mr. Dobbs:

“… But it is important for a Judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If Judges were to recuse themselves whenever a litigant – whether it be a represented litigant or a litigant in person – criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select Judges to hear their cases simply by criticizing all the Judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a Judge felt obliged to recuse himself simply because he had been criticized – whether that criticism was justified or not. That would apply, not only to the individual Judge, but to all Judges in this court; if the criticism is indeed that there is no Judge of this court who can give Mr. Dobbs a fair hearing because he is criticizing the system generally. Mr. Dobbs’ appeal could never be heard.”

Conclusion

Judicial recusal is a fundamental principle that upholds the integrity and impartiality of the justice system. It ensures that judicial officers presiding over cases have no conflicts of interest and can deliver fair and unbiased decisions. It is essential for judicial officers to exercise their discretion judiciously when considering recusal, balancing the principles of fairness, independence, and the efficient administration of justice. Ultimately, the goal is to maintain the integrity of the judicial system and safeguard the fundamental right to a fair and impartial trial for all parties involved.