Miller v Miller [1988] KECA 129 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial judge misdirected himself on the law governing the disqualification of a judge and ought to have disqualified himself
- 2.Whether the trial judge erred in disallowing the plea that the suit be heard in open court
Key legal issues
#Disqualification of a judge on grounds of alleged bias
The appellant's evidence of friendship between the judge and the respondent was too bare to establish a real likelihood of bias; the failure to seek disqualification before the application was filed showed it was an afterthought; a judge is entitled to answer allegations made against him without descending into the arena
The affidavit asserted friendship but gave no period, duration, or particulars capable of supporting an inference of bias. Judges necessarily know litigants; if personal knowledge disqualified, no judge could sit. Allowing allegations alone to force disqualification would let mischievous parties choose their trial judge and disrupt the administration of justice. The trial judge had no interest in the case and was right to refuse disqualification.
Right to a public hearing and in camera proceedings under Section 77 of the Constitution
Subsection 11 of Section 77 is an exception to the public-hearing requirement in subsection 10; interlocutory proceedings may properly be heard in camera, and the paramount consideration is that justice be attained
Kenya's written Constitution expressly permits exclusion of the public in specified circumstances, including interlocutory proceedings. The proceedings before the trial judge were interlocutory. The exceptions secure the fundamental principle that justice must be done; where publicity would defeat justice, in camera proceedings are justified. The judge's discretionary refusal to order a public hearing could not be disturbed on appeal.
Legal principles established
#- Mere personal acquaintance or friendship between a judge and a party does not justify disqualification; there must be a real likelihood of bias or an appearance of bias established on evidence
- A judge does not descend into the arena by answering allegations made against him personally
- Interlocutory proceedings fall within the constitutional exception to the requirement that proceedings be held in public
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- Not stated in the judgment
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a ruling and order of the High Court (no specific constitutional/statutory provision stated)
Relief refused
#Disqualification of the trial judge
No real likelihood of bias was established; the allegation of friendship was bare and the disqualification application was an afterthought
Order that the suit be heard in open court
Subsection 11 of Section 77 of the Constitution excepts interlocutory proceedings from the requirement of a public hearing, and the trial judge's exercise of discretion could not be faulted
Costs
No order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There are no circumstances explained to us pointing to a real likelihood of bias or an appearance of bias. The fact that the judge knows the respondent would not justify disqualification.
Mischievous parties to cases would obtain disqualification by judges with ease and the consequence would be choice of trial judge by a party.
Subsection 11 properly construed, has several limbs, each limb independent of the other. Interlocutory proceedings are included in the sub-section as an exception to hearing in public.
It follows that in our opinion the appeal fails. No order as to costs. That is the order of this court.
Issues in the judgment
#The judgment is anonymised in the source text: the names of the parties and the appeal number are not stated, though the presiding judge below (Rauf J) and the date of the ruling are given
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Miller v Miller [1988] KECA 129 (KLR)", Case Analysis (1988). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/129/eng@1988-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.