Just Judge

NAME: WAMUKOTA HUDSON SITATI
REGISTRATION NUMBER: LAW/M/0380/05/16
UNIT: TRIAL ADVOCACY
LECTURER: ELISHA ZEBEDEE ONGOYA
Seminar Question 3: Discuss the attributes of a just judge.

THE JUST JUDGE
If justice has a voice, she would speak like a judge .Each and every judge seek to be fair in his or
her decisions. Every judge will see it that every person coming before him or her has a fair trial.
Some of the principles that will assist the judge to be just include;1
1. THE JUDGES MUST BE INDEPENDENT.2
The judges and magistrate should be absolutely Independent of the Government. Judges and
magistrate should stand between the individual and the state, protecting the individuals from any
interference with his freedom which is not justified by the law. It is vitally important in a
democracy that individual judges and the judiciary as a whole are impartial and independent of
all external pressures and of each other so that those who appear before them and the wider
public can have confidence that their cases will be decided fairly and in accordance with the law.
When carrying out their judicial function they must be free of any improper influence. Such
influence could come from any number of sources. It could arise from improper pressure by the
executive or the legislature, by individual litigants, particular pressure groups, the media, self-
interest or other judges, in particular more senior judges.
Lord Denning explains the principle of independency by referring to an incident during the days
of King James there was a great judge called Sir Edward Coke who boldly asserted the
independence of the judges. Time after time he clashed with the King over it. The climax came
when King sought to interfere with the decision of the judges on a case by telling them not to
1 Lord Denning:The Just Judge in Justice Malik: The Art of a Lawyer(10th Edition, New Delhi: Universal Law Publishing
Co.Pvt.Ltd.,2019) 76
Co.Pvt.Ltd.,2019) [76]-[78]
proceed with it till they had consulted the King .Coke resolutely refused. He said “obedience, to
his majesty’s command to stay proceedings would have been a delay of justice ,contrary to the
law, and contrary to oaths of the judges. ‘The question was to put all twelve judges: ‘’when the
king believes his interest is concerned and requires the judges to attend him for their advice
,ought they not stay proceedings till His majesty has consult ‘’All the judges save coke said,
‘’Yes,yes,yes.’’ But Coke said, ‘When that happens I will do that which it shall be fit for a judge
to do.’ The King dismissed him for affirming his independently.3
In the case of R v Hampdem,4 the King sought to levy money to build ships of war without the
authority of parliament the judges working during his reign held it was lawful.
In the case Holden v Hales,5A Roman Catholic, Sir Edward Hales, had incurred a penalty of 500
pound. He pleaded a Royal dispensation. Chief Justice Herbert relieved him of the penalty of the
penalty and said: ‘There is no law whatsoever but may be dispensed with by the chief law giver.’
The constitution of Kenya confirms the independence of the judiciary which affirms that judicial
officers shall be the subject only to the constitution and the law and shall not be subject to the
control or direction of any person or authority.6
2. NO MAN A JUDGE IN HIS OWN CASE7
To ensure a fair trial, the second principle is that the judge must have no interest himself in any
matter that he has to try. He must be impartial. In the case R v Hendon RDC ex p Chorley,8 An
application under the Town Planning Act 1925 for permission to carry out certain development
was considered by the town planning interim development authority. One of the members of the
authority was an estate agent acting as the judge and therefore having a pecuniary interest. There
was no evidence that he took part in the discussion, but he was at the meeting when it was
decided to approve the application. It was held that the matter was of a sufficiently judicial
nature for the rules of natural justice to apply. The decision was quashed.
3 [1916] Hobart 140

4 [1637] State Trials 825
5 [1686] State trials 1165
6 The constitution of Kenya,2010,Article 260
8 (1933) 2 KB 696
In the case of R V Bowstreet Metropolitan Stipendiary Magistrate and others, Ex parte
Pinochet Uganda9 the court noted as follows:
“The fundamental principle is that a man may not be a judge on his own cause. This principle, as
developed by the courts, has two very similar but not identical implications. First it may be
applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary
interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere
fact that he is a party to the action or has a financial or proprietary interest in its outcome is
sufficient to cause his automatic disqualification. The second application of the principle is
where a judge is not a party to the suit and does not have a financial interest in its outcome, but
in some other way his conduct or behavior may give rise to a suspicion that he is not impartial
because of his friendship with a party. This second type of case is not strictly speaking an
application of the principle that a man must not be judge in his own cause, since the judge will
not be normally himself benefiting, but providing a benefit for another by failing to be
impartial.”
3. A JUDGE MUST HEAR EACH SIDE10
In the case of Martin Nyaga Wambora v Speaker of the Senate11 , The Court stated that the
twin notions of natural Justice embodying the duty to act fairly: that “no man shall be a Judge in
his own cause” (Nemo Judex in causa sua) and that “no man shall be condemned unheard” (audi
alteram partem) are now cardinal constitutional principles and merely common law derivatives.
4. A JUDGE MUST ACT ONLY ON EVIDENCE.12
A judge or a magistrate should only decide a case upon production of evidence by the parties
unless it is provided by the law. Judges and magistrates should consider evidence of both parties
to make determination.
5. A JUDGES SHOULD GIVE REASONS13
9 (1999)1All ER 577
11 [2014] eKLR
Co.Pvt.Ltd.,2019) 84-85
A just judge should obey this principle so doing, he or she gives proof that he or she has heard
and considered the evidence and arguments that have been adduced before him on each side: and
also that he or she has not take extraneous considerations into account.
6. CONSTITUTIONAL PROBLEM.14
Judicial officers consist of Judges of the Superior courts, magistrates, other judicial officers and
staff. Constitution of Kenya provides for grounds in which a judge of a superior court may be
dismissed. A judge of a superior court may be removed from office only on the grounds of—15
(a) Inability to perform the functions of office arising from mental or physical incapacity;
(b) A breach of a code of conduct prescribed for judges of the superior courts by an Act of
Parliament;
(c) Bankruptcy;
No person may claim to have any other ground that is not provided in the constitution to have
any judge or magistrate removed from his or her office. This is to assure the magistrate to act
within the limits that will not go contrary to the dictates of the provision of the constitution. The
magistrate or the judge will work justly knowing that if he or she should not act in a manner that
will make any person to proof the grounds of his or her removal as provided under the
constitution.
7. SIR LIVINGSTON CHURCHILL’S VIEW16
Executive have no power to dismiss a judges in any circumstance. The removal of a judge may
be initiated only by the Judicial Service Commission acting on its own motion, or on the petition
of any person to the Judicial Service Commission. A petition by a person to the Judicial Service
Commission should be in writing, setting out the alleged facts constituting the grounds for the
judge’s removal. The Judicial Service Commission shall consider the petition and, if it is
satisfied that the petition discloses a ground for removal, it sends the petition to the President.
Co.Pvt.Ltd.,2019) 78-79
The President shall, within fourteen days after receiving the petition, suspend the judge from
office and, acting in accordance with the recommendation of the Judicial Service Commission in
the case of the Chief Justice or any other judge, appoint a tribunal. The President shall act in
accordance with the recommendations made by the tribunal.
The constitution provides for an elaborate procedure for the removal of a judge. Judges should be
firm on their decisions since any party which is not pleased by the decision or who has any claim
against the judge has an established procedure for his or her removal.
Sir Livingston Churchill stated as follows;17
‘’The principle of the complete independence of the judiciary .From the executive is the
foundation of many things in our island life; it has been widely imitated in varying degrees
throughout the Free world. It is perhaps only subordination which a judge knows in his judicial
capacity is that past by his brethren on the bench, past and present and upon the laws passed by
parliament which have received the Royal assent. The judge has not only to do justice between
man and man. He also and this is one of his most important functions considered
incomprehensible in some large parts of the world has to do justice between the citizens and the
state…
8. JUDICIAL SALARIES18
The constitution of Kenya establishes a fund to be known as the Judiciary Fund which is
administered by the Chief Registrar of the Judiciary.19 The Fund is used for administrative
expenses of the Judiciary and such other purposes as may be necessary for the discharge of the
functions of the Judiciary. Each financial year, the Chief Registrar is to prepare estimates of
expenditure for the following year, and submit them to the National Assembly for approval. On
approval of the estimates by the National Assembly, the expenditure of the Judiciary shall be a
charge on the Consolidated Fund and the funds shall be paid directly into the Judiciary Fund.
This ensures that the judges expedite their mandates without financial constrains.
17 House of common Debutes 23, 1954, [1].106,
Co.Pvt.Ltd.,2019) 79-80
9. NO PROMOTION FOR JUDGES20
A man who accepts the office of a judge in England must reckon that he will stay in that position
always.’’Its benefits are perceptibly diminished when the promotion of judges is at the discretion
of the government in advancement has continued to be largely in the hands of minister of justice,
a political official. The present systems still leaves a large share open to favoritism and
influence,”
This ensures judges to work without seeking attention of certain people who may influence his or
her promotion.
10.’’GUINEAS ARE HANDSOMER’’21
Chief justice should not take bribes to award tenders or to influence any promotion of any
judicial officer after being bribed. The top leaders in the Judiciary should act fairly in awarding
any opportunity that may be vacant within the judiciary.
11. JUSTICE MUST BE SEEN TO BE DONE. 22
A judge must not have any interest in the matter he or she tries. In the case of Dimes v Grand
Junction canal,23 Lord Cottenham was a shareholder in the Grand Junction company .He had 92
shares in the company. The company had a dispute with Mr.Duries who claimed that the canal
was his property. He placed a bar across it and threw bricks into It.The Company applied for an
injunction against the man. It was granted by the vice chancellor and on appeal to Lord
Chancellor affirmed the decree. Lord Cottenham did not disclose that he was a shareholder in the
company. The House of Lords, after consulting the judges, held that the decree must be set aside.
Co.Pvt.Ltd.,2019) 81-82
Co.Pvt.Ltd.,2019) 82-83
Co.Pvt.Ltd.,2019) 83-84
23 [1852]3 HCC 759
12. MODERN INSTANCES24
A just judge should not listen to any advocate either in criminal or in civil proceedings which he
or she is about to try; and he or she would not take notice of any information about the case
unless it was given in evidence properly before him in the presence of both parties.
13. A JUDGE SHOULD BE BEYOND REPROACH25
Judges and magistrate should endeavor not to mingle with any party to a matter because it may
be deemed to be an element of bias when he or she delivers a judgement. No party to a suit
should be seen with the judge or magistrate if not in courtroom. In the case of Kaplan &
Straton Vs Zengineering Construction Limited & 2 others [2000] KLR, Justice Lakha was
asked to disqualify himself with one of the grounds for the request being that the judge had had
two lunches with one of the counsels appearing in that matter. The judge declined the request
and held as follows:-
“Although it is important that justice must be seen to be done, it is equally important that judicial
officers discharge their duty to sit and do not, by acceding too readily to suggestions of
appearance of bias, encourage parties to believe that by seeking the disqualification of a judge,
they will have their case tried by someone thought to be more likely to decide the case in their
favour.”
24Lord Denning:The Just Judge in Justice Malik: The Art of a Lawyer(10th Edition, New Delhi: Universal Law Publishing
Co.Pvt.Ltd.,2019) 87-88

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NAME: WAMUKOTA HUDSON SITATI

REGISTRATION NUMBER: LAW/M/0380/05/16

UNIT: TRIAL ADVOCACY

LECTURER: ELISHA ZEBEDEE ONGOYA

Seminar Question 3: Discuss the attributes of a just judge.

1. THE JUDGES MUST BE INDEPENDENT.2

2. NO MAN A JUDGE IN HIS OWN CASE7

3 [1916] Hobart 140

4. A JUDGE MUST ACT ONLY ON EVIDENCE.12

5. A JUDGES SHOULD GIVE REASONS13

7. SIR LIVINGSTON CHURCHILL’S VIEW16

Sir Livingston Churchill stated as follows;17

17 House of common Debutes 23, 1954, [1].106,

10.’’GUINEAS ARE HANDSOMER’’21

11. JUSTICE MUST BE SEEN TO BE DONE. 22

13. A JUDGE SHOULD BE BEYOND REPROACH25

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