The Supreme Court of Kenya vacated its earlier order of recusal, allowing four of its judges to participate in the pending appeal in the long-running dispute between Dari Limited and five others and the East African Development Bank.
In a ruling delivered on Friday, a five-judge bench comprising Deputy Chief Justice Philomena Mwilu, Justices Smokin Wanjala, Njoki Ndung’u, William Ouko and Mohammed Warsame, allowed a Notice of Motion dated May 13, which sought to review, vary, vacate, and set aside the recusal decision made on October 11, 2024.
The recusal order had been precipitated by a complaint lodged by the applicants before the Judicial Service Commission (JSC) against all five judges then constituted to hear the appeal Lady Justice Mwilu, the late Justice Mohammed Khadar Ibrahim, Justice Wanjala, Lady Justice Ndung’u, and Justice Ouko. The applicants had alleged bias, claiming the bench was determined to render a predetermined outcome.
The Court at the time had held that it was “only fair to first allow the complaint before the JSC to run its course,” and recused itself, noting that such a decision ought only to be taken “very sparingly, on a case by case basis, and in the most compelling circumstances.”
However, by a letter dated May 11, addressed to the Registrar of the Court and copied to the Chief Justice and each of the five judges, the applicants stated that they had “unreservedly withdrawn” the complaint against the Supreme Court justices.
In its ruling today, the Court held that the applicants had not demonstrated how the 2024 ruling was procured by fraud, made without jurisdiction, based on mistaken consent, or rendered upon repealed or deliberately concealed law , the strict thresholds for review under Section 21A of the Supreme Court Act and the principles established in Outa v Okello & 3 others.
Instead, the Court found that there had been a “material supervening shift in the factual circumstances upon which the order of recusal rested.”
“That the complaints have subsequently and unequivocally been withdrawn, and in exercise of the Court’s inherent powers, we find no justification to perpetuate the recusal beyond this point,” ruled the court.
The Court said that the cessation of circumstances did not alter the validity of the October 2024 ruling, which it said “was the correct and proper decision to make in the circumstances at the time.”
It also said that it was not reopening the merits of the earlier ruling but exercising its inherent discretionary authority to make orders necessary for the ends of justice.
“Indeed, the basis of our recusal having ceased to exist, we reiterate that there is no factual and objective basis for the continued recusal,” the Court ruled.
Consequently, the Court declared that the order of recusal is vacated going forward, and the four judges with Justice Warsame substituting the late Justice Ibrahim “shall be at liberty to participate in the further proceedings in the pending appeal, which may now be listed in the normal manner for hearing.”
The Court also addressed what it termed “a matter of considerable institutional concern,” noting that while every person has the right to lodge a bona fide complaint against a judge before the JSC, there is a “corresponding responsibility on a litigant not to casually make allegations sufficiently grave to occasion the recusal of five of the seven Justices of the Supreme Court.”
“An apology cannot be compelled, nor do we insist it must be tendered first for this Court to exercise its inherent jurisdiction. We cannot, however, be indifferent to the fact that the complaints against the Judges have been withdrawn without explanation, retraction or expression of regret. We say no more,” the Court ruled.
The dispute stems from a case in which Dari Limited, Raphael Tuju, Mano Tuju, Alma Tuju, Yma Tuju, and S.A.M Company Limited are applicants against the East African Development Bank.
The applicants had alleged that David Odongo, the respondent’s witness, was suborned into making false affidavits and witness statements that misled the Court and superior courts below, and that the respondent procured judicial outcomes through material falsehoods.
The Court, however, confined its consideration to the prayer on recusal, ruling that issues live before the High Court are not available for its consideration.
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