Recusal in high court matter follows letter, ‘vitriolic outbursts’, ‘intensive negative energy’

26 October 2023 · Carmel Rickard

The question of when judges should recuse themselves is a fraught one in many jurisdictions. In a new decision from the high court in Mombasa a judge has decided to recuse himself after a letter of complaint was delivered to his chambers. The judge even comments that the applicant in the case appeared to be ‘stalking’ him and had sent yet another letter. Yet despite these inappropriate actions by one of the parties, the judge felt he had to stand down. It’s the kind of situation where readers could well wonder what they would have done in the circumstances.

Read judgment

The case before Mombasa high court judge Dennis Kizito Magare dealt with a dispute between two companies of lawyers. The nature of the dispute wasn’t explained in this ruling by the judge. Instead, he was here dealing with something quite different – the question of how he should respond to an inappropriate letter delivered to his chambers.

He said that he had heard the parties and had given directions for submissions, and that his ruling on the matter had been ready for delivery.

Then, as he was winding up work one Friday afternoon, he was informed that an envelope had arrived, addressed to him and marked ‘private and confidential’. He said that he decided not to handle it, since it didn’t identify the sender and he sent it back, presumably to his staff, for it to be opened.

Highly irregular

The following week the opened letter was brought to him. ‘It was a prolixious letter’, headed ‘complaint’, said the judge. ‘I have neither read nor considered the letter as I consider [it] highly irregular and a waste of judicial time.’

Having found that it related to the case between the two law firms, he ordered that his staff file the letter and that the two parties should be told to appear before him. At that point, he read the entire letter and asked for it to be filed on the online portal where the respondent could read it. It was in the form of a complaint, ‘by someone I have never met,’ he added.

He wrote that ‘the party herein’ – presumably a reference to the person who wrote the letter – was ‘meting out vitriol and verbal incontinence throughout the proceedings and now through these letters. Whichever way I rule, the private communication will linger in the minds of the parties.’

It appears from the next sentence that the letter came from the applicant: ‘The applicant neither had the courtesy to copy the counterpart nor file the communication in the CTS [Kenya’s online case tracking system]. It is at this point that courts consider recusal.’

Untenable

He read out regulations forming part of the code of conduct for judges in Kenya that forbid a judge to ‘initiate, permit or consider private communication relating to a … case … regarding a pending matter’. Further, if a judge does receive a private communication, then he or she must ensure that the other parties are promptly informed of this.

So far, the judge in this case seems to have acted exactly as the code of conduct requires. He continued to do so in terms of the next regulation which is to the effect that a judge must ‘speak primarily through his or her judgments’ and should not get involved in a correspondence with a litigant on any pending matter.

Further, he wrote that a judge must not recuse him or herself ‘in circumstances that do not merit.’ However, in this case, the court was uncomfortable that while it was handling a matter, a complaint was received. ‘It is untenable to continue without bias being alleged,’ he writes.

Stalking

‘Since the complaint is pending, whatever its worth, it is untenable to handle this matter. This is made worse by what appears to be stalking by the applicant. As I was finalising this extempore ruling, it came to my attention that another letter had been written, requesting for handwritten notes I made for perusal.’

Mombasa is an e-filing station, the judge points out, and the court has ‘forbidden physical documents’. Despite this, however, ‘these letters have found themselves in the sanctum of my chambers. I have taken advice from my security advisers and taken several pre-emptive steps to ensure my personal safety and security, of body, mind and soul.’

Judicial independence would be compromised if the court ‘succumbs to machinations and intimidation by parties,’ he writes, but it might not be possible for judicial independence to be exercised ‘in a situation where vitriol is of cataclysmic proportions.’

Affront

Courts had to balance considerations. On the one hand, unnecessary applications for recusal were ‘an affront to the independence of the judiciary and the decisional independency of the judge.’ On the other hand, ‘a biased court is anathema to the independence of the court and the image of the judiciary.’ Here, however, there was no recusal application.

He said the recusal test he preferred was ‘perception of real likelihood of bias’ – in this case, whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased.

So far, an outside observer might have thought the judge was going to chastise the party that wrote the letter, but continue to deal with the case. However, the decision went the other way.

Vitriolic

He wrote, ‘In the circumstances, I will recuse myself from handling this matter any further for reasons of the vitriolic outbursts and intensive negative energy directed in a sustained manner to the court and increasingly acts by the applicant who caused to be written to the court and had neither the decorum nor the courtesy to file on the e-filing platform and/or copy his counterparts.’

His final order reads, ‘I find it neither tenable [nor] advisable to continue with this matter in view of the muddying of practice waters by the applicant’, and he adds that the matter will be called on a date in November that he has set, ‘to give fresh directions on hearing of the matter’.

It’s obviously difficult to appreciate fully the judge’s reasoning without knowing what the letter, or letters, actually said and what happened in court during argument of the original dispute. But should a party be able to ensure the recusal of a judge merely by writing an inappropriate, ‘vitriolic’, letter or two, delivered to the judge’s chambers?

Carmel Rickard

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