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ELCPartially AllowedELC (Second Suit) – Notice of Motion dated 27th March 2014· [2014] KEELC 588 (KLR)

Lawrence Mukiri Mungai v Attorney General & 5 Others [2014] KEELC 588 (KLR)

Environment and Land Court

11 July 2014

MGMARY M. GITUMBI

672 words in judgment

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The bottom line

A Nairobi land court judge stepped aside from a case involving the same plaintiff and similar facts, confirming Kenyans can ask judges to withdraw to keep justice appearing fair.

What this practically means

Executive summary

The Plaintiff, Lawrence Mukiri Mungai, moved the court by Notice of Motion dated 27th March 2014 seeking the recusal of Lady Justice Mary Gitumbi from hearing what he termed the 'Second Suit', concerning property Ruiru/Ruiru East Block 7/11. He had also been the plaintiff in ELC No. 169 of 2008 (the 'First Suit'), filed as attorney of Francis Muroki Mwaura over the neighbouring property Ruiru/Ruiru East Block 7/13, in which Gitumbi J had delivered judgment on 10th May 2013. In that judgment the court found the 2nd Defendant had fraudulently acquired the plaintiff's title but that third-party buyers were innocent purchasers with valid title. The Plaintiff averred that the facts of the two suits were very similar and he was apprehensive that the Second Suit would be decided in the same manner, wishing that another judge hear it so it would not appear predetermined. The application was unopposed. The court acknowledged the established principle that justice must not only be done but be seen to be done, and applied Warsame J's dictum in Alliance Media Kenya Limited v Monier 2000 Limited & Njoroge Regeru on the paramount importance of public confidence in the administration of justice. Finding no obstacle to granting the orders, the court allowed the application, ordered costs to be in the cause, and directed that the file be placed before Nyamweya J on 14th July 2014 for reallocation to another judge.

Key legal issues

Whether a judge who has previously decided a suit with similar facts involving the same plaintiff should recuse herself

Holding

The court allowed the recusal application, seeing nothing preventing it from granting the orders sought, having regard to the apprehension that the case might appear predetermined

Reasoning

The plaintiff, having lost in the First Suit decided by the same judge on very similar facts concerning irregular transfers of adjoining land parcels, was apprehensive that the Second Suit would be decided the same way. The court invoked the principle that justice must be seen to be done, cited Warsame J in Alliance Media Kenya Ltd v Monier 2000 Limited on the importance of public confidence, and found no reason to refuse the application, which was also unopposed.

p. 2

Legal principles established

Justice must not only be done but should always be seen to be done, and public confidence in the courts is paramount when recusal is sought

Court orders

1.The Notice of Motion dated 27th March 2014 allowed; the judge recused herself from hearing the Second Suit
2.The file be placed before Nyamweya, J. on 14th July 2014 for reallocation to another judge
3.Costs of the application shall be in the cause

Authorities

Cases cited (1)

Alliance Media Kenya Limited vs Monier 2000 Limited & Njoroge Regeru
HCCC No. 370 of 2007 (eKLR)

Jurisdiction invoked: Inherent jurisdiction of the court over recusal of the judge hearing the suit

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Lawrence Mukiri Mungai v Attorney General & 5 Others [2014] KEELC 588 (KLR)", Case Analysis (2014). ELC (Second Suit) – Notice of Motion dated 27th March 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/588/eng@2014-07-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.