125 4.7.6.2 However, for appeals from the Magistrate’s Court, the decision of the court does not operate as a stay of the certificate of the election court certifying the results of that election until the appeal is heard and determined. This means that for such appeals, a specific application for stay must be made. 4.7.6.3 The concept of ‘deferred and sequential’ jurisdiction of appellate courts in EDR, discussed in Chapter 2 of this Bench Book, leads to the conclusion that the automatic stay of proceedings, introduced by the 2016 amendments, does not apply to interlocutory decisions of an election court. Previously, the prevailing jurisprudence was that a court which had appellate jurisdiction in EDR could entertain and grant an application for conservatory orders, stay of proceedings and similar reliefs pending the filing, hearing and determination of an appeal (Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Supreme Court Civil Application No. 5 of 2014; Nathif Jama Adam v Abdikhaim Osman Mohamed & 3 Others, Supreme Court Civil Application No. 18 of 2014; George Mike Wanjohi v Steven Kariuki, Supreme Court Civil Application No. 6 of 2014). 4.7.6.4 In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Supreme Court Civil Application No. 5 of 2014, it was held that an appellate court could grant applications for conservatory orders, stay of proceedings and similar reliefs pending the filing and determination of an appeal where: • the intended appeal is arguable and not frivolous; • the intended appeal would, if eventually successful, be rendered nugatory; and • it is in the public interest to grant an injunction, conservatory order, stay of proceedings or similar relief. 4.7.6.5 Nonetheless, in Samwel Kazungu Kambi v Nelly Ilongo, the Returning Officer, Kilifi County & 2 Others, Malindi Election Petition 4 &5 of 2017, the Court juxtaposed the above authorities in light of the 2016 amendments to the Elections Act, leading to the conclusion that the jurisdiction of the appellate court is deferred and consequential, can only be taken up upon final determination. Dismissal of an election petition at the interlocutory stage is a final determination. Therefore, the Appellate court has jurisdiction to hear an appeal against such dismissal. 4.7.7 Recusal of Judges and Magistrates 4.7.7.1 Article 50 of the Constitution entitles every person to have any dispute that can be resolved by application of the law heard by an impartial and independent court or tribunal. The presiding officer(s) of a court or tribunal must have the characteristics of inter alia independence, impartiality, integrity, propriety, even-handedness, competence and diligence (Judicial Code of Conduct; and Bangalore Principles of Judicial Conduct). The constitutional requirement of an impartial and independent court or tribunal is an indispensable component of the right to a fair trial. Moreover, the right to a fair trial is absolute, which means it cannot be limited (Article 25(c) of the Constitution). 4.7.7.2 The right to a fair trial cannot be guaranteed where reasonable or fair-minded persons would think there was actual bias or apprehend the likelihood of bias on the part of the judge or magistrate (Kalpana H. Rawal v Judicial Service Commission & 2 Others, Nairobi Civil Appeal No. 1 of 2016). Judges and magistrates, therefore, should recuse themselves from presiding over a dispute if the circumstances of the case are such that reasonable or fair-minded persons would think there was actual bias or apprehend the likelihood of bias. BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION