Samson K.A. Tim v Hillary Kangogo Songoyo & another [2014] KEELC 200 (KLR)
The bottom line
#If you believe a Kenyan judge or magistrate is biased, you must raise it with that same officer first — not ask another court to intervene.
What this practically means
#Executive summary
#Key legal issues
#Proper procedure for raising alleged judicial bias and recusal
The application for recusal must first be made before the judicial officer whose recusal is sought; a superior court should not pass judgment on whether another officer is biased absent an appeal.
The court held that any party may ask a judicial officer to recuse themselves, but the prudent course is to table the application before that officer, who assesses whether to recuse. If the officer declines, the remedy is appeal or revision. Here the applicant never made such an application before the trial Magistrate, so the court declined to determine her impartiality, and noted other competent Magistrates at Eldama Ravine could take the suit.
Whether the decided application dated 19 March 2014 could be heard afresh by the superior court
No - the court lacked jurisdiction to rehear an application already determined by a competent court, as that would offend res judicata.
The applicant was aggrieved by the ruling allowing the defendants to file defence out of time. The court held the application was heard by a competent court and rehearing afresh would contravene sections 6 and 7 of the Civil Procedure Act, Cap 21. The applicant's remedy was an appeal, not a fresh hearing before a Superior Court.
Jurisdiction of the Environment and Land Court over the underlying suit
The court declined to determine jurisdiction, noting the claim was unclear whether it concerned land or unlicensed legal practice, and the core ground of the application was alleged bias, not jurisdiction.
The court reviewed Article 162(2)(b) and the Environment and Land Court Act, confining its jurisdiction to disputes related to the environment and use, occupation of and title to land. The plaint's claims against the respondents centred on taking instructions and acting without a practising certificate, causing cautions to be registered. The court found it unwise to determine jurisdiction on the substance of the transfer application.
Legal principles established
#- Applications for recusal of a judicial officer should first be made before that judicial officer, and if refused, the remedy is appeal or revision, not an application before another judicial officer.
- A suit filed before a wrong court ordinarily ought to be struck out rather than transferred, though courts have lately been liberal in transferring suits amongst superior courts.
Court orders
#- 1.The application for transfer was dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and the Environment and Land Court Act, Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samson K.A. Tim v Hillary Kangogo Songoyo & another [2014] KEELC 200 (KLR)", Case Analysis (2014). Miscellaneous Application (Eldoret Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/200/eng@2014-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.