126 4.7.7.3 The test for considering applications for the recusal of a judge or magistrate is an objective one. It is one of reasonable apprehension of bias, i.e., whether a reasonable or fair minded and informed observer, having considered the facts, would conclude that there is a real possibility that the judge or magistrate would be biased (Kalpana H. Rawal v Judicial Service Commission & 2 Others, Nairobi Civil Appeal No. 1 of 2016). 4.7.7.4 The burden of establishing bias lies on the person alleging its existence. The standard of proof in this regard is high, with the result that allegations of real likelihood or probability of bias on the part of a judge or magistrate must be demonstrated (Kalpana H. Rawal v Judicial Service Commission & 2 Others, Nairobi Civil Appeal No. 1 of 2016). An application for recusal which is based merely on suspicion, therefore, will not succeed (Kalpana H. Rawal v Judicial Service Commission & 2 Others, Nairobi Civil Appeal No. 1 of 2016). 4.7.7.5 A judge or magistrate must recuse himself/herself where actual bias on their part is established, e.g., where a judge or magistrate is a party to the suit or has a direct financial or proprietary interest in the outcome of the case (Kalpana H. Rawal v Judicial Service Commission & 2 Others, Nairobi Civil Appeal No. 1 of 2016). The rationale for the automatic disqualification and recusal in such situations is that bias is presumed to exist where a judge or magistrate is a party to the suit or has a direct financial or proprietary interest in the outcome of the case. 4.7.7.6 In Republic v Malindi Land and Environment Court ex parte Japheth Noti Charo & 2 Others, Nairobi High Court Miscellaneous Civil Application No. 167 of 2014, the Court at para 12 outlined the appropriate procedure in applications for recusal as follows: • counsel for the applicant seeks a meeting in chambers with the judge or magistrate in the presence of the opponent; • the grounds upon which recusal is sought are put to the judge or magistrate who is given an opportunity to respond to them; and • should the judge or magistrate refuse to recuse themselves, the applicant, if he/she so wishes, makes a formal application for recusal in open court. 4.7.7.7 The rationale behind the requirement for making the application in chambers first is to mitigate against the risk of unnecessarily maligning the integrity of the judge or magistrate by rushing to open court without full facts (Republic v IEBC & Another ex parte Coalition for Reforms and Democracy (CORD), Nairobi High Court Miscellaneous Civil Application No. 648 of 2016). Further, applications for recusal should be made at the earliest opportunity possible, as doing it late in the proceedings unnecessarily creates the risk of perception of bias (Moijo Matavia Ole Keiwua v Chief Justice of Kenya & 6 Others, Nairobi Civil Appeal Application No. 202 of 2005). 4.7.7.8 Beyond our borders, the Constitutional Court of South Africa in the case President of the Republic of South Africa & Others v South African Rugby Football Union & Others, CCT 16/98 [1999] ZACC 9, developed the test for bias. In an application for recusal of five of the ten justices on the grounds that they would be biased against the applicant, the Constitutional Court stated as follows: It follows from the foregoing that the correct approach to this application for the recusal of members of this Court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION