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Supreme CourtDismissedPetition (Application) E012 of 2023· [2024] KESC 58 (KLR)

Dari Ltd & 5 others v East African Development Bank

Supreme Court of Kenya
11 October 2024
3,524 words in judgment
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AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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You cannot pause a court case just because you filed a complaint against the judge.

What this practically means

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The Supreme Court has ruled that filing a complaint against a judge with the Judicial Service Commission does not automatically stop your case. If you believe a judge is biased, you must ask that judge to step aside (recuse themselves), not ask for the whole case to be paused. There is no law that allows a case to be frozen while a complaint is investigated. The court dismissed this request and the judges withdrew from the case, leaving the earlier Court of Appeal decision in place for now.

Executive summary

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This ruling disposes of the appellants/applicants' notice of motion seeking a stay of proceedings in the Supreme Court pending the determination of a complaint they had lodged against the five-judge bench before the Judicial Service Commission (JSC). The appellants had filed an appeal against a Court of Appeal judgment concerning the interpretation of the High Court's jurisdiction under the Foreign Judgment (Reciprocal Enforcement) Act. After a series of interlocutory applications were dismissed, the appellants filed a complaint with the JSC accusing the bench of bias, impropriety, and working towards a predetermined outcome. Instead of seeking recusal, they applied for a stay of proceedings. The Supreme Court dismissed the application, holding that there is no legal provision entitling a litigant to such an order. The court stated that the proper remedy for a party alleging bias is to seek recusal, not a stay. Consequently, each judge on the bench recused themselves from further participation in the appeal. The court ordered that the Court of Appeal judgment would stand until affirmed or reversed by a competent bench, and each party was to bear its own costs.

Key legal issues

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01

Whether a party can obtain a stay of proceedings in the Supreme Court pending the determination of a complaint against the bench before the Judicial Service Commission.

Holding

No. Such an application is not supported by any legal provision and is a disingenuous strategy. The proper remedy for a party alleging bias is to seek recusal of the judge, not a stay of proceedings.

Reasoning

The court found that the applicants were accusing the entire bench of bias and working towards a predetermined outcome. Instead of seeking recusal, they sought a stay pending the JSC complaint. The court held that no provision of the Constitution, the Supreme Court Act, or the Rules allows such an application. The court further noted that the doctrine of necessity could not save the applicants because they themselves had levelled the accusations. Consequently, the court dismissed the application and each judge recused themselves from further participation in the appeal.

Legal principles established

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  • A litigant who accuses a judge of bias must seek recusal, not a stay of proceedings.
  • No law in Kenya allows a court case to be paused pending a JSC complaint against the bench.
  • Accusing the entire bench of bias without seeking recusal is a disingenuous legal strategy.
  • The doctrine of necessity cannot rescue a party who themselves created the conflict of interest.
  • A court can dismiss an application that has no legal basis, even if it delays the main appeal.

Court orders

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  1. 1.The notice of motion dated May 16, 2024, is hereby dismissed.
  2. 2.The judgment of the Court of Appeal dated April 20, 2023, shall stand until it is either affirmed, or reversed by a competent bench of this court.
  3. 3.Each party shall bear its own costs.

Authorities

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Legislation

  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 163
  • Constitution of KenyaArticle 163(3)
  • Constitution of KenyaArticle 163(4)
  • Supreme Court ActSection 24
  • Supreme Court ActSection 24(1)
  • Supreme Court ActSection 24A
  • Supreme Court ActSection 23A
  • Supreme Court ActSection 29E
  • Supreme Court RulesRule 32
  • Supreme Court RulesRule 3(3)
  • Supreme Court RulesRule 3(5)
  • Judicial Service ActSection 3
  • Judicial Service (Code of Conduct and Ethics) Regulations, 2020Part II
  • Judicial Service (Code of Conduct and Ethics) Regulations, 2020Section 8
  • Judicial Service (Code of Conduct and Ethics) Regulations, 2020Section 9
  • Judicial Service (Code of Conduct and Ethics) Regulations, 2020Section 11
  • Judicial Service (Code of Conduct and Ethics) Regulations, 2020Section 14
  • Judicial Service (Code of Conduct and Ethics) Regulations, 2020Section 15
  • Judicial Service (Code of Conduct and Ethics) Regulations, 2020Section 16

Cases cited (7)

  • R v Bow Street Metropolitan Stipendiary Magistrates & Others Ex Parte Pinochet Urgate
  • Gladys Boss Shollei & Another v Judicial Service Commission and Another
    Petition 34 of 2014 [2022] KESC 5 (KLR)
  • Khan v International Commercial Company (K) Ltd
    Petition (Application) E009 & E010 of 2023 (consolidated) [2023] KESC 84 (KLR) (Ruling)
  • Odinga & 16 Others v Ruto & 10 Others; Law Society of Kenya & 4 Others (Amicus Curiae)
    Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated) [2022] KESC 54 (KLR) (Election Petitions) (Judgment)
  • R v Ahmad Abolfathi Mohamed & Sayed Mansour Mousavi
    Petition 39 of 2018 [2019] KESC 48 (KLR) (Judgment)
  • Board of Governors, Moi High School Kabarak & Another v Bell & 2 Others
    Petition No 6 &7 of 2013 & Civil Application No 12 &13 of 2012(Consolidated) [2013] KESC 12 (KLR) (Ruling)
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
On appeal from
Court of Appeal at Nairobi
Civil Appeal No 70 of 2020
Jurisdiction invoked
Articles 48, 50(1), 163(3) and (4) of the Constitution, section 24 of the Supreme Court Act, and rule 32 of the Supreme Court Rules

Key timeline

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2024-05-16
Applicants filed notice of motion seeking stay of Supreme Court proceedings pending JSC complaint.
2024
Supreme Court dismissed the stay application and each judge recused themselves.
2023-04-20
Court of Appeal judgment was delivered, which now stands until a competent bench decides otherwise.

Practical implications

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For lawyers

No stay for JSC complaints

Do not advise clients to file a JSC complaint as a tactic to delay proceedings. The Supreme Court has made clear this is not a valid ground for a stay. Instead, if bias is genuinely suspected, file a formal recusal application immediately. This ruling also means you must be prepared for the possibility that the entire bench may recuse, leaving the lower court judgment in place.

For businesses

Litigation delays are limited

If you are involved in a commercial dispute, you cannot use a complaint against a judge to buy time. The court will not pause your case for that reason. This ruling helps businesses by reducing opportunities for opponents to stall proceedings. However, if a judge does recuse, the case may be reassigned, which could cause some delay. Plan your litigation strategy accordingly.

For individuals

Your case won't stop for complaints

If you are a party in a court case and believe the judge is unfair, you must ask the judge to step down (recuse). You cannot simply complain to the Judicial Service Commission and expect the case to pause. The court will continue unless the judge agrees to recuse. This protects you from the other side using complaints to waste time and drag out your case.

Frequently asked questions

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Can I stop my court case in Kenya by filing a complaint against the judge?+

No. The Supreme Court has ruled that filing a complaint with the Judicial Service Commission does not automatically pause your case. You must ask the judge to recuse themselves if you believe they are biased.

What should I do if I think a judge is biased in Kenya?+

You should file a formal application asking the judge to recuse themselves (step aside). Do not wait for a JSC complaint to be resolved. The court will not stop proceedings just because you filed a complaint.

What happens to my appeal if all Supreme Court judges recuse in Kenya?+

The earlier Court of Appeal judgment remains in place until a new, competent bench of the Supreme Court either affirms or reverses it. Your case does not automatically end.

Is there a law in Kenya that allows a stay of proceedings pending a JSC complaint?+

No. The Supreme Court confirmed that neither the Constitution, the Supreme Court Act, nor the Supreme Court Rules provide for such a stay. The proper remedy is to seek recusal of the judge.

Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dari Ltd & 5 others v East African Development Bank", Case Analysis (2024). Petition (Application) E012 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/58/eng@2024-10-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.