Attorney General v Ndii & 73 others
The bottom line
#Supreme Court dismissed recusal bid for lack of evidence; judges must hear public interest cases.
What this practically means
#The Supreme Court refused to remove three judges from a case about the BBI process. The person asking for their removal claimed he had filed a complaint against them, but he provided no proof. The court checked with the Judicial Service Commission, which had no record of any complaint. The judges also said they knew nothing about it. Because the case is important to the public, the court ruled that the judges must continue hearing it.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has demonstrated bias or reasonable apprehension of bias on the part of Justices Mohammed Khadhar Ibrahim, Smokin Wanjala and Njoki Ndungu Susanna to warrant their recusal from hearing the petition of appeals.
- 2.Whether the doctrine of necessity and duty to sit applies to require the bench to hear the matter on its merits despite the recusal application.
Key legal issues
#Whether the applicant's right to fair hearing under article 50(1) of the Constitution is violated by the refusal to recuse the judges.
The right to fair hearing under article 50(1) does not apply to civil proceedings; article 50(2) applies only to accused persons in criminal proceedings. The applicant's claim of bias was speculative and unsupported by evidence, so no violation occurred.
The court distinguished between article 50(1) (fair hearing in general) and article 50(2) (fair trial for accused persons). It held that article 25 protects the right to fair trial under article 50(2), which applies only to criminal proceedings. The applicant's reliance on article 50(1) was misplaced in the context of a recusal application in a civil appeal. Additionally, the lack of evidence of bias meant the right to fair hearing was not engaged.
Whether the doctrine of necessity and duty to sit applies to override the recusal application.
Yes, the doctrine applies because the matter is of public interest and the recusal application lacked merit. The court must hear the appeal on its merits.
The court noted that none of the other parties supported the recusal application. Given the public interest nature of the appeals and the court's mandate under article 163(7) and section 3 of the Supreme Court Act to settle points of law, the doctrine of necessity required the bench to proceed. The applicant's unsubstantiated allegations did not justify recusal.
Legal principles established
#- A request for a judge to step down must be backed by real evidence of bias, not just suspicion.
- The right to a fair trial under Article 50(2) of the Constitution only applies to criminal cases, not civil ones.
- The doctrine of necessity requires judges to decide important public matters even if a party asks them to leave.
- Courts can verify claims of pending complaints against judges by checking with the Judicial Service Commission.
- A party cannot use a recusal application to delay a case that involves public interest.
Court orders
#- 1.The notice of motion application dated October 26, 2021 lacks merit and is hereby disallowed.
- 2.There shall be no order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Civil Appeal No E291 of 2021 as consolidated with Civil Appeal Nos E292 of 2021, E293 of 2021 and E294 of 2021
- Jurisdiction invoked
- Article 163(7) of the Constitution and section 3 of the Supreme Court Act
Relief refused
#Recusal of Justices Mohammed Khadhar Ibrahim, Smokin Wanjala and Njoki Ndungu Susanna from hearing the petition of appeals.
The applicant did not adduce evidence of bias or the petition to the Judicial Service Commission; the possibility of bias was speculative.
Alternative dispute resolution (arbitration) of the appeals under article 159(2)(c) of the Constitution.
The court implicitly rejected this proposal by disallowing the application and ordering the matter to proceed on merits.
Costs
There shall be no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The applicant has not adduced any evidence as to the nature and contents of his alleged petition to the Judicial Service Commission against the judges to enable the court determine the extent to which the applicant is aggrieved against each of the judges.
In the absence of the petition by the applicant against the judges before this court either directly or through the Judicial Service Commission, the possibility of bias or impartiality is farfetched and speculative.
The doctrine of necessity and duty to sit as set out in Jasbir Singh Rai & 3 others v Turlochan Singh Rai & 4 others [2013]eKLR and Gladys Boss Shollei v Judicial Service Commission & another [2018] eKLR and appreciated by the applicant necessitates the present matter being heard on merits.
Article 25 of the Constitution protects the right to fair trial under article 50(2) of the Constitution which only applies to accused persons in criminal proceedings. This is distinguishable from fair hearing alluded to by the applicant under article 50(1) of the Constitution.
The notice of motion application dated October 26, 2021 lacks merit and is hereby disallowed.
There shall be no order as to costs.
Key timeline
#Practical implications
#Prove bias claims with solid evidence
When filing a recusal application, you must attach concrete proof of bias, such as a copy of a complaint to the Judicial Service Commission. Speculation or unsubstantiated allegations will not suffice. The court may independently verify your claims, and if they are false, your application will be dismissed as an abuse of process.
Public interest cases proceed despite challenges
If your business is involved in a high-stakes public interest case, be aware that courts may apply the doctrine of necessity to keep the same judges on the bench. This prevents delays and ensures that important legal questions are resolved. You cannot rely on unproven bias claims to derail proceedings.
Your right to a fair hearing in civil cases
The right to a fair trial under Article 50(2) of the Constitution applies only to criminal cases, not civil ones. In civil matters, your right to a fair hearing is broader but does not automatically require a judge to step down without evidence. If you want a judge removed, you must provide clear proof of bias.
Frequently asked questions
#What happened in the Isaac Aluoch Polo Aluochier v BBI Secretariat case in Kenya?+
The Supreme Court dismissed an application by Isaac Aluochier to remove three judges from hearing BBI appeals. He claimed he had filed a complaint against them, but the court found no evidence and the Judicial Service Commission had no record of any complaint. The judges stayed on the case.
Can a judge in Kenya be forced to step down from a case if a party says they are biased?+
No, not without proof. The party must provide evidence of bias, such as a complaint filed with the Judicial Service Commission. The court can check with the Commission to verify. If the claim is unsupported, the judge will remain on the case, especially if the matter is of public interest.
What is the doctrine of necessity in Kenyan courts?+
It is a legal principle that requires judges to hear and decide a case even if a party asks them to step down, when the case is important to the public and there is no real evidence of bias. This ensures that critical legal issues are resolved without unnecessary delay.
Does Article 50 of the Kenyan Constitution apply to civil cases?+
Article 50(2) which guarantees a fair trial applies only to criminal cases. Article 50(1) covers fair hearing in all proceedings, but it does not automatically require a judge to recuse just because a party alleges bias. The party must prove the bias with evidence.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mutuku v Teachers Service Commission (Miscellaneous Application E038 of 2025) [2025] KEELRC 2285 (KLR)[2025] KEELRC 2285 (KLR)31 Jul 2025followed
Cite this brief
#Cite this brief
Caselaw, "Attorney General v Ndii & 73 others", Case Analysis (2021). Petition 12 (E016) of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/15/eng@2021-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.