Case ID:141582

Mohamud Iltarakwa Kochale & 5 others (Suing on behalf of the residents of Laisamis Constituency and Karare ward of Marsabit County) v Lake Turkana Wind Power Ltd & 4 others; Aaron Iltele Lesiantam & 4 others (Interested Parties) [2019] eKLR

Case Metadata

Case Number:

Environment and Land Case 163 of 2014 (Formerly Nairobi ELC 1330 of 2014)

Parties:

Mohamud Iltarakwa Kochale, Kochale Somo Chale, Issa Jitewe Gambare, David Tomasot Arakhole, William Lengoyiap & Sekotey Seye (Suing on behalf of the residents of Laisamis Constituency and Karare ward of Marsabit County) v Lake Turkana Wind Power Ltd, Marsabit County Government, Attorney General, Chief Land Registrar & National Land Commission; Aaron Iltele Lesiantam, Henry Parasian Sakalpo, Stephen Nakeno, Job Lmalasian Lengoya & Dair Lentipan

Date Delivered:

24 Jul 2019

Case Class:

Civil

Court:

Environment and Land Court at Meru

Case Action:

Ruling

Judge(s):

Boaz Nathan Olao, Lucy Ngima Mbugua, Enock Chirchir Cherono

Citation:

Mohamud Iltarakwa Kochale & 5 others (Suing on behalf of the residents of Laisamis Constituency and Karare ward of Marsabit County) v Lake Turkana Wind Power Ltd & 4 others; Aaron Iltele Lesiantam & 4 others (Interested Parties) [2019] eKLR

Advocates:

Mr. Sagana & Ms. Hashi for the Plaintiffs

Mr. Wairoto for the 1st Defendant

Mr. Minishi & Ms. Barako for the 2nd Defendant

Ms. Kungu for the 3rd & 4th Defendants h/b for Ms. Njuguna for the 5th Defendant

Mr. Kiprop for the Interested Parties

Court Division:

Environment and Land

County:

Meru

Advocates:

Mr. Sagana & Ms. Hashi for the Plaintiffs

Mr. Wairoto for the 1st Defendant

Mr. Minishi & Ms. Barako for the 2nd Defendant

Ms. Kungu for the 3rd & 4th Defendants h/b for Ms. Njuguna for the 5th Defendant

Mr. Kiprop for the Interested Parties

Case Summary:

A judge can recuse him/herself where one of the party’s advocate makes remarks to the effect that justice was not being dispensed to his/her clients

Mohamud Iltarakwa Kochale & 5 others (Suing on behalf of the residents of Laisamis Constituency and Karare ward of Marsabit County) v Lake Turkana Wind Power Ltd & 4 others; Aaron Iltele Lesiantam & 4 others (Interested Parties) [2019] eKLR

ELC Case No. 163 of 2014 (Formely Nairobi ELC 1330 of 2014)

Environment and Land Court at Meru

B N Olao, L N Mbugua & E C Cherono, JJ

July 24, 2019

Reported by Kakai Toili

Constitutional Law

– fundamental rights and freedoms – enforcement of fundamental rights and freedoms – right to fair trial – conducting of court proceedings in the absence of all parties - where witnesses and the court assistant were threatened for their role in a case -

w

hether a court could conduct its proceedings in the absence of all the parties in order to expedite the case - Constitution of Kenya, 2010, article 50 (8)

Judicial Officers

- judge – recusal of a judge – self recusal of a judge – factors to consider - where one of the party’s advocate made remarks to the effect that the court was not dispensing justice to his/her clients - whether a court could recuse itself where one of the party’s advocate made remarks to the effect that the court was not dispensing justice to his/her clients

Advocates

– duties of advocates – duty to the court – nature of - what was the nature of an advocate’s duty to a court

Brief Facts

The Court delivered a ruling directing that the instant suit, which was about to come to an end with only two witnesses remaining, be heard in the absence of all the parties. The said ruling was made following a complaint raised both the counsel for the interested parties and the court assistant. It was alleged that there was a video recording that was circulated meant to intimidate the witnesses. The court assistant alleged that she had been accosted by persons asking her to step aside from interpreting in the instant case. Soon after delivery of the said ruling, the plaintiffs’ counsel complained that excluding the parties from the proceedings was drastic and exceptional. Counsel for the plaintiffs stated that they were not willing to proceed without the involvement of the plaintiffs and that the Court had taken the role of both investigator and prosecutor. He also stated that the Court was a court of law and not for the interested parties or their counsel. The plaintiffs’ counsel therefore sought an adjournment in order to seek a review of the ruling.

Issues

Whether a court could conduct its proceedings in the absence of all the parties in order to expedite the case.

Whether a court cold recuse itself where one of the party’s advocate made remarks to the effect that the court was not dispensing justice to his/her clients.

What were the factors a court should consider in determining whether to recuse itself?

What was the nature of an advocate’s duty to a court?

Relevant Provisions of the Law

Constitution of Kenya, 2010

Article 50 (8)

This article does not prevent the exclusion of the press or other members of the public from any proceedings if the exclusion is necessary in a free and democratic society to protect witnesses or vulnerable persons, morality, public order or national security.

Held

The Court had always endeavored to expedite the instant case by giving it priority. The decision to direct that the instant case continued in the absence of all the parties was informed by the fact that the overriding interest in the case was to expedite the trial taking into account the concerns raised in the letter addressed to the Chief Justice that parties had to travel over 600 kilometers to attend court and that they had been doing so diligently since October 2014. The Court had the option of adjourning the case while the police investigated the serious allegation by the court assistant because witnesses and court officers could not be expected to continue participating in a case when their security was at risk. In order for the remaining witnesses to be able to testify freely, and since the person who was circulating the offending video recording or intimidating the court assistant was not known, the better option was to exclude all the parties from the court room. The order was for the exclusion of all the parties.

The word of the counsel for the interested party was not taken as gospel truth, that was why the order was to exclude all the parties. The complaint by the court assistant was made in chambers when the court had retired to write its ruling. The court assistant was already shaken and distraught when she narrated the incident and even requested to be relieved of her duties. It was not always that court assistants followed judicial officers to chambers to complain about being harassed by litigants. There was therefore no reason to doubt the veracity of her complaint.

The Court did not go further to investigate the complaint or direct for any prosecution. The Court looked at the bigger picture of expediting the trial and requested the court assistant to continue serving which she agreed. Had she declined to continue serving, the case would have had to be adjourned to enable the Registrar appoint another Samburu interpreter. The court assistant was sourced from Isiolo court specifically to do interpretation in the instant case. In the circumstances, it was difficult to understand the complaint that the Court had acted both as an investigator and prosecutor. All that the Court did was to hear the complaint and make orders which would expedite the trial. At no time did the Court direct that any persons be summoned, investigated or prosecuted.

All the remarks and innuendos by the plaintiffs’ counsel taken together made it clear that although counsel for the plaintiffs was addressing the Court on an application for adjournment, it had become obvious that both he and his clients had no faith in the Court dispensing justice to them. It was scandalous when counsel referred to the Court as a court for the interested parties, a court that acted both as investigator and prosecutor, a court that acted at the behest of one party and a court that acted in a casual manner.

There would be no fair hearing if some of the parties were intimidated while in court. That was why the order to exclude the parties did not refer to the plaintiffs only; it referred to all the parties. In any event, the Court had the jurisdiction to eject any party whose conduct could impede the fair hearing of the case.

No application had been made by any party for the Court’s recusal. The very strong language employed by the plaintiffs’ counsel in describing the Court, cast aspersions on the Court’s impartiality to dispense justice to the plaintiffs. From the description of the Court by counsel for the plaintiffs, the perception created in the minds of his clients was that they were unlikely to get justice in the court which they would view,

inter alia

, as a court favouring the interested parties. Justice had to not only be done, but also be seen to have been done.

The submissions by counsel for the plaintiffs taken in their natural meaning, suggested that the Court was already biased against his clients. Under the Bangalore Principles of Judicial Conduct, a judge was required to perform his or her judicial duties without favour, bias or prejudice. It was no longer tenable to continue hearing the case in view of the very unfortunate remarks that the plaintiffs’ counsel had used in describing the Court.

A court which had to decide an issue of self-recusal had to do a balancing exercise. On the one hand, the court had to consider that self-recusal aimed at maintaining the appearance of impartialities and instilling public confidence in the administration of justice. On the other hand, a court had a duty to sit in the cases assigned to it and could only refuse to hear a case for an extremely good reason. Any objective person, including the plaintiffs, listening to the very unfortunate remarks by the plaintiffs’ counsel, would take the view that the Court was unlikely to be impartial. That was an extremely good reason to warrant recusal.

Whereas a counsel owed a duty to his client, he also had an overriding duty to the court, that duty demanded of him to conduct himself with decorum and to maintain the dignity required of his professional standards. The plaintiffs’ counsel had fallen far short of those standards.

The Court recused itself from further handling the case.

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELC CASE NO. 163 OF 2014 (FORMELY NAIROBI ELC 1330 OF 2014)

MOHAMUD ILTARAKWA KOCHALE....................................1

ST

APPLICANT

KOCHALE SOMO CHALE.......................................................2

ND

APPLICANT

ISSA JITEWE GAMBARE........................................................3

RD

APPLICANT

DAVID TOMASOT ARAKHOLE.............................................4

TH

APPLICANT

WILLIAM LENGOYIAP...........................................................5

TH

APPLICANT

SEKOTEY SEYE.........................................................................6

TH

APPLICANT

(

Suing on behalf of the residents of Laisamis constituency

and Karare ward of Marsabit County

)

=VERSUS=

LAKE TURKANA WIND POWER LTD...............................1

ST

RESPONDENT

MARSABIT COUNTY GOVERNMENT.............................2

ND

RESPONDENT

THE ATTORNEY GENERAL...............................................3

RD

RESPONDENT

CHIEF LAND REGISTRAR..................................................4

TH

RESPONDENT

THE NATIONAL LAND COMMISSION............................5

TH

RESPONDENT

AARON ILTELE LESIANTAM................................1

ST

INTERESTED PARTY

HENRY PARASIAN SAKALPO...............................2

ND

INTERESTED PARTY

STEPHEN NAKENO..................................................3

RD

INTERESTED PARTY

JOB LMALASIAN LENGOYA.................................4

TH

INTERESTED PARTY

DAIR LENTIPAN........................................................5

TH

INTERESTED PARTY

RULING

On 23

rd

July 2019 this court delivered a ruling directing that this suit, which is about to come to an end with only two witnesses remaining, be heard in the absence of

all the parties.

This was following a complaint raised both by Mr. Kiprop counsel for the interested parties and also MS. CECILIA EKENO a court assistant attached to this court for purposes of this trial. The gist of that directive is contained in the said ruling.

Soon after we delivered that ruling, Mr. Sagana counsel for the plaintiffs addressed us complaining that excluding the parties from these proceedings, in this public interest litigation is drastic and exceptional. He added that the court has not watched the said video recording in question yet it has already taken the case of the interested parties as the gospel truth. He added that he had not responded to the exparte submissions by Mr. Kiprop. Mr. Sagana also added that while the court had retired in chambers, the court assistant had raised another issue to which counsel had not responded to. He submitted that as counsel for the plaintiffs, they were not willing to proceed without the involvement of their clients and that the court has now taken the role of both investigator and prosecutor.

Counsel therefore sought an adjournment in order to seek a review of the ruling. He concluded by saying that this is a court of law and not for the interested parties or their counsel.

In response, Mr. Wairoto counsel for the 1

st

defendant opposed the application for adjournment reminding the court that the plaintiffs have repeatedly accused the other parties of delaying the case which is about to end with only two or three witnesses remaining.

Counsel added further that this court has been generous in expediting this case and there is no appeal and therefore this court should not down its tools.

Mr. Minishi for the 2

nd

defendant supported the application for adjournment so that he could also seek instructions on the ruling.

Ms. Kungu for the 3

rd

and 4

th

defendants and also holding brief for Ms. Njuguna for the 5

th

defendant similarly opposed the application for adjournment and associated herself with the sentiments of Mr. Wairoto.

Mr. Kiprop supported the sentiments of Mr. Wairoto and Ms. Kungu adding that any adjournment will only delay this case which had been prioritized at the request of the plaintiffs. He also referred this court to the remarks by counsel for the plaintiffs that this court is a court of law and not the interested parties, as being unfortunate.

In response Mr. Sagana told the court that justice should not be done at the behest of one party and concluded by reminding the court that the right to a public hearing is a constitutional right protected by

Article 50 of the constitution

which cannot be taken away in such a casual manner. He therefore sought an adjournment for purposes of seeking instructions to file an application for review and also put in a notice of appeal.

We have considered the application by the plaintiffs seeking an adjournment for purposes of filing an application for review and/or to appeal against our ruling dated 23

rd

July 2019. We have also considered the submissions raised by the other counsel.

It is common ground that all along, the plaintiffs have wanted this suit expedited. That is clear from the record herein. Indeed by their letter dated 29

th

October 2018, plaintiff’s counsel implored the chief Justice to empanel another bench to hear this case following the untimely demise of Justice Samuel Mukunya who was then presiding.

On 23

rd

November 2017, counsel for the plaintiffs informed the court that his clients were fatigued and wanted the trial to proceed with seriousness as they had never applied for any adjournment.

Similarly, on 21

st

September 2017, counsel for the plaintiffs urged this court to bring this litigation to an end by giving very strict time limits.

With the above background in mind, this court has always endeavored to expedite this case by giving it priority. That is why when Mr. Kiprop counsel for the interested parties invited us to intervene by punishing the persons(s) who may have been circulating the video recording that was meant to intimidate the witnesses, we took the view that to do so would derail the expeditious disposal of this case. It was also in the same vein that notwithstanding the serious complaint made by the court assistant Ms. CECILIA EKENO to the effect that she had been accosted by persons asking her to step aside from interpreting in this case, this court nonetheless directed that this case continues but in the

absence of all the parties

. That decision was informed by the fact that the overriding interest in this case is to expedite the trial taking into account the concerns raised in the aforementioned letter addressed to the Chief Justice that parties have had to travel over 600 Kilometers to attend court and have been doing so diligently since October 2014. This court had the option of adjourning this case while the police investigate this serious allegation because witnesses and court officers cannot be expected to continue participating in a case when their security is at risk. In view of the serious allegations, the court took the view that in order for the remaining witnesses to be able to testify freely, and since we did not know who was circulating the offending video recording or intimidating the court assistant, the better option would be to exclude

all the parties

from the court room. The court did not exclude only the plaintiffs in this case. The order was for the exclusion of

all the parties

. The decision to exclude

all the parties

from the court appears not to have been received well by counsel for the plaintiffs who then sought an adjournment in order to seek instructions on filing an application for review of that order or to file an appeal.

In his application for adjournment, Mr. Sagana for the plaintiffs has made remarks which even Mr. Kiprop for the interested parties has described as

‘

unfortunate

’.

We share that view.

In his submissions Mr. Sagana accused the court of having taken the word of counsel for the interested parties as the gospel truth. This court did not make any such finding to that effect. That is why it made the order to

exclude all the parties

.

Mr. Sagana further accused this court of taking upon itself the role of an investigator and prosecutor in respect to the complaint raised by the court assistant Ms. CECILIA EKENO. The complaint by Ms. CECILIA EKENO was made in chambers when the court had retired to write its ruling. Ms. CECILIA EKENO was already shaken and distraught when she narrated the incident to us and even requested to be relieved of her duties. It is not always that court assistants follow judicial officers to chambers to complain about being harassed by litigants. We therefore had no reasons to doubt the veracity of her complaint.

Nevertheless, we did not go further to investigate the complaint or direct for any prosecution. We looked at the bigger picture of expediting this trial and requested Ms. CECILIA EKENO to continue serving the court and, to her credit, she agreed to continue serving this court as an interpreter. Had she declined to continue serving, this court would have had to adjourn to enable the Registrar appoint another Samburu interpreter. It is instructive to note that Ms. CECILIA EKENO was sourced from Isiolo court specifically to do interpretation in this case.

In the circumstances, it is difficult to understand the complaint that this court has acted both as an investigator and prosecutor. All that we did was to hear the complaint and make orders which in our view would expedite this trial. At no time did we direct that any persons be summoned, investigated or prosecuted.

Further, Mr. Sagana submitted that justice should not be done at the behest of one party and that this is a court of law and not a court for the interested parties.

All these remarks and innuendos taken together, have made it clear that although Mr. Sagana was addressing this court on an application for adjournment, it has become obvious to us that both he and the clients he represents have no faith in this court dispensing justice to the plaintiffs. This court considers it to be scandalous when counsel refers to it as a court for the

“interested parties

”,

a court acting both as

“

investigator and prosecutor

”

a court that acts at the

behest of one party

and a court that acts in a

casual manner

. Mr. Sagana also cited

Article 50 of the constitution

which provides for a fair public hearing.

In view of the serious allegations raised above by both Mr. Kiprop and Ms. CECILIA EKENO, there would be no fair hearing if some of the parties are intimidated while in court. That is why the order to exclude the parties did not refer to the plaintiffs only. It referred to

all the parties

. In any event, the court has the jurisdiction to eject any party whose conduct may impede the fair hearing of the case.

Article 50 (8) of the constitution

provides that:

“This article does not prevent the

exclusion

of the press or other

members of the public from any proceedings if the exclusion is necessary in a free and democratic society to

protect witnesses

or vulnerable persons, morality, public order or national security”.

Emphasis added.

We repeat that this court’s order excluding

all the parties

was made in the interest of not only securing the security of the witnesses but also ensuring that they testified in a free atmosphere without fearing that their testimony was being recorded to be used against them adversely outside this court.

We remind ourselves that no application has been made by any party for our recusal in this case. If such application had been made before us, we would have been guided by the principles laid down by the court of appeal in

R.V DAVID MAKALI & OTHERS C.A CRIMINAL APPLICATION NO. 4 AND 5 OF 1995 NBI

(

unreported)

. In our case, we find that the very strong language employed by Mr. Sagana in describing this court, casts aspersions on our impartiality to dispense justice to the plaintiffs. When counsel describes this court as a court for the interested parties, a court that acts as an investigator and a prosecutor, a court that acts at the behest of one party and a court that conducts serious business in a casual manner, the perception created in the minds of his clients is that they are unlikely to get justice in the court which they will now view, inter alia, as a court favouring the interested parties. It is a cardinal principle that justice must not only be done, but also be seen to have been done. We would not want any of the parties to leave this court with a feeling that justice was only done to one party.

The submissions by Mr. Sagana, taken in their natural meaning, suggest that this court is already biased against his clients. Under the

Bangalore Principles of Judicial Conduct

, a judge is required to perform his or her judicial duties without favour, bias or prejudice.

As we have already noted above, this case has almost run its full course. This court was determined to complete the hearing of the remaining witnesses by this Friday (26

th

July 2019) taking into account that this case was filed in 2014.

We are not oblivious to the interests of the parties to have an expeditious determination of this suit. Nonetheless, it is no longer tenable for us to continue hearing this case in view of the very unfortunate remarks that counsel for the plaintiffs Mr. Sagana has used in describing this court.

It has not been an easy decision to make and we have agonized over it. In the case of

GLADYS BOSS SHOLLEI VS JUDICIAL SERVICE COMMISSION & ANOTHER 2018 eKLR, the SUPREME COURT OF KENYA

cited with approval the following passage from the treatise

JUDICIAL CONTINUING EDUCATION WORKSHOP; RECUSAL, CONTEMPT OF COURT AND JUDICIAL ETHICS, MAY 4, 2012:

“A Judge who has to decide an issue of self-recusal has to do a balancing exercise. On the one hand, the judge must consider that self-recusal aims at maintaining the appearance of impartialities and instilling public confidence in the administration of justice. On the other hand, a judge has a duty to sit in the cases assigned to him or her and may only refuse to hear a case for an extremely good reason”.

In our view, any objective person, including Mr. Sagana’s clients, listening to those very unfortunate remarks, would take the view that this court is unlikely to be impartial in this case. We find that to be an extremely good reason to warrant our recusal.

Having considered the above, we hereby recuse ourselves from further handling this case.

However as a court, we must express our strong disapproval at the intemperate language and disparaging remarks that Mr. Sagana employed in addressing us. Whereas a counsel owes a duty to his client, he also has an overriding duty to the court. That duty demands of him to conduct himself with decorum and to maintain the dignity required of his professional standards.

We take the view that Mr. Sagana has fallen far short of those standards.

HON. JUSTICE B. N. OLAO

HON. JUSTICE L. N. MBUGUA

HON. JUSTICE E. C. CHERONO

RULING DATED, SIGNED AND DELIVERED AT MERU THIS 24

TH

DAY OF JULY, 2019

Mr. Sagana and Ms. Hashi for the plaintiffs – present

Mr. Wairoto for the 1

st

defendant – present

Mr. Minishi and Ms. Barako for the 2

nd

defendant – present

Ms. Kungu for the 3

rd

and 4

th

defendants and also holding brief for Ms. Njuguna for the 5

th

defendant – present

Mr. Kiprop for the interested parties – present

Court assistants – Mr. Dennis Ndonye

Court interpreters: Ms. Cecilia Ekeno (Samburu/Turkana interpreter)

Mr. James Lomurut (Rendille interpreter)

HON. JUSTICE B. N. OLAO

Sign: ................................ Date: ...............................

HON. JUSTICE L. N. MBUGUA

Sign:................................. Date: ................................

HON. JUSTICE E. C. CHERONO

Sign: ..................................... Date: .........................