[57] Learned Counsel was emphatic that the unique provisions in our Constitution required a unique Kenyan solution in determining whether it is possible for a judge to sit where there is clear conflict of interest. [58] As to whether the right to appeal was sacrosanct, the learned Counsel made reference to Article 24 of the Constitution and submitted that certain rights under the Constitution are subject to limitation and as such even the right to appeal can be limited. The right to appeal is not among the rights in Article 25 of the Constitution that cannot be limited. Only four rights under the Constitution could not be limited and one amongst those rights was the right to fair trial. [59] Mr. Kanjama opposed the arguement that the right to fair trial is synonymous to the right to fair hearing. He contended that Article 50 refers to the right to a fair hearing and that indeed all rights under Article 50 were part of fair hearing but that Article 50(2) was indeed part of the right to fair hearing but solely and wholly dedicated to a criminal trial. [60] It was submitted that while indeed the right to fair hearing includes the right to an appeal, the overriding concern was that the right is subject to limitation under Article 24 0f the Constitution. He also cited the Hlophe case in buttressing the argument that the right of appeal is not an absolute right and that since the intended appellants had already had the benefit of an appeal they would not be prejudiced. [61] He submitted that while the test in determining bias was that of the perceived appearance of bias, in the instant matter it was not a matter of oblique conflict but rather direct conflict which was precipitated by a decision by some members of the currently constituted bench. He cited the case of Nicholas Kiptoo arap Salat versus Independent Electoral and Boundaries Commission and 7 Others, Petition No. 23 of 2014, (Salat case) in this regard. He also made reference to a memoranda drafted by some members of this bench and submitted that indeed a reasonable person would be able to discern that there is a conflict.
Application No. 13 of 2016, on the basis that it is an application for disqualification at the instance of an application by one of the parties. [98] In the case of Bernert v Absa Bank Ltd [2010] ZACC 28 the Constitutional Court set down the applicable legal principles in a case that concerned the apprehension of bias thus: “The apprehension of bias may arise either from the association or interest that the judicial officer has in one of the litigants before the court or from the interest that the judicial officer has in the outcome of the case. Or it may arise from the conduct or utterances by a judicial officer prior to or during proceedings. In all these situations, the judicial officer must ordinarily recuse himself or herself. The apprehension of bias principle reflects the fundamental principle of our Constitution that courts must be independent and impartial. And fundamental to our judicial system is that courts must not only be independent and impartial, but they must be seen to be independent and impartial.” [99] The Court held that the test for recusal which had been adopted by the Court was whether there is a reasonable apprehension of bias, in the mind of a reasonable litigant in possession of all the relevant facts, that a judicial officer might not bring an impartial and unprejudiced mind to bear on the resolution of the dispute before the court. Further, it was stated that judicial officers are required by the Constitution to apply the Constitution and the law 'impartially and without fear, favour or prejudice. That their oath of office requires them to administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.