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Court of AppealDismissedNot stated in the judgment

Miller v Miller [1988] KECA 129 (KLR)

Court of Appeal of Kenya
22 September 1988
1,921 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Court of Appeal (Nyarangi, Gachuhi and Masime JJA) dismissed an appeal against a ruling of Rauf J of the High Court at Nairobi dated June 28, 1988, which had refused two applications by the appellant: that the trial judge disqualify himself for alleged bias, and that the case be heard in open court. On the bias question, the Court held that the appellant's affidavit evidence of long-standing friendship between the judge and the respondent was so bare - lacking period, duration or particulars - that no reasonable court could act on it, and that there was no real likelihood or appearance of bias. The appellant's failure to seek disqualification before filing the application showed it was an afterthought. The Court cautioned that allowing mere allegations against a judge to force disqualification would enable mischievous parties to choose their own trial judge. A judge who answers allegations made against his own honour does not descend into the arena, distinguishing Jones v National Coal Board. On the public-hearing question, the Court construed subsection 11 of Section 77 of the Constitution as an exception, with independent limbs, to the requirement in subsection 10 that proceedings be held in public; interlocutory proceedings may be heard in camera, and the paramount consideration is that justice be done. The judge's exercise of discretion could not be faulted. The appeal was dismissed with no order as to costs. This judgment binds subordinate courts on the standard for judicial disqualification and the scope of the constitutional in camera exception.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial judge misdirected himself on the law governing the disqualification of a judge and ought to have disqualified himself
  2. 2.Whether the trial judge erred in disallowing the plea that the suit be heard in open court

Key legal issues

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01

Disqualification of a judge on grounds of alleged bias

Holding

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

Reasoning

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.

p. 2
02

Right to a public hearing and in camera proceedings under Section 77 of the Constitution

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Appeal dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

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

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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

p. 2

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

p. 3

Costs

No order as to costs

Quotable passages

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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.
p. 2Disqualification of a judge - real likelihood of bias
Mischievous parties to cases would obtain disqualification by judges with ease and the consequence would be choice of trial judge by a party.
p. 3Policy against disqualification on mere allegations
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.
Constitutional exception to public hearing
It follows that in our opinion the appeal fails. No order as to costs. That is the order of this court.
p. 3Final orders - dismissal and costs

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.