Capital Markets Authority v Okumu (Civil Appeal 302 of 2018) [2023] KECA 1212 (KLR) (6 October 2023) (Judgment)

Facts

The Capital Markets Authority (CMA) served the respondent with a notice to show cause regarding the operations of Uchumi Supermarkets Limited during his tenure as Chief Finance Officer. The respondent appeared before the Board and the appellant's external Legal Counsel and provided his responses.

Issues

1. whether the Capital Markets Authority would be prevented from performing functions that it had delegated
2. whether there was a possibility of bias or reasonable apprehension of bias on the part of the Capital Markets Authority in conducting a show cause hearing
3. what was the test for bias or apprehension of bias
4. whether the overlap of functions of the Capital Markets Authority as the regulator of capital markets and adjudicating over errant parties in the capital markets was a breach of the right to a fair hearing and the right to fair administrative action

Reasoning

The Court of Appeal considered the statutory mandate of the appellant and its power to delegate functions. It found that the appellant was acting within its statutory mandate and that there was no basis for finding a possibility of bias.

Outcome

The appeal was allowed, and the High Court's finding of a possibility of bias was set aside. The proceedings and the consequential decision were declared null and void. The appellant was awarded the costs of the appeal.

Authorities cited