Sabastian Paul Muinde Kathilu (suing through his Attorney Marcella Mbithe Kathilu) v Benl Development Limited [2018] KEELC 2339 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the oral application for recusal met the criteria of apprehended bias
It did not; the court's references to the complaint lodged with the Chief Justice and its caution against maligning judges were factual statements and general cautions, not indications of partiality
The court applied the objective 'reasonable, fair-minded and informed member of the public' test from Kalpana Rawal, Anyang Nyongo (EACJ) and the Supreme Court of Canada. Counsel could not demonstrate how the two impugned observations created a reasonable apprehension of bias. The first was a factual statement of what transpired regarding the undisclosed complaint; the second was a general caution. The application was also seen as triggered by the court's direction that the defendant file a formal application to bar the plaintiff.
Whether all previous orders of the court should be expunged
The request was refused for want of any basis
The second limb of the oral application sought expungement of all prior orders, which counsel for the plaintiff characterized as a disguised attempt to review the consent orders recorded on 12/3/2018. The court found no basis laid for the request and rejected it, observing that the weighty issues earlier raised by the defendant required a proper formal application.
Whether, despite dismissing the recusal application, the judge should step aside
The judge, on his own motion, decided to withdraw and have another judge appointed, to avoid becoming the focus of further unwarranted attacks
Although the recusal application failed the jurisprudential test, the judge reflected on the baseless complaints made against Judge Okongo and himself and on counsel's conduct. He stated he knew no party and had no personal interest, but chose to withdraw sua sponte to avoid unnecessary drama, directing the file to the Presiding Judge of the Environment and Land Court for reassignment.
Legal principles established
#- The objective test for recusal is whether circumstances give rise to a reasonable apprehension, in the mind of a reasonable, fair-minded and informed member of the public, that the judge will not apply his mind impartially; the threshold is high and the onus lies on the applicant
- An order barring a litigant from participating in proceedings is weighty and should only be made after the parties are given adequate opportunity to be heard
Court orders
#- 1.The oral application for recusal of the judge and for expunging previous orders of the court is dismissed
- 2.On the court's own motion, another judge is to handle the matter henceforth; the file shall be taken to the Presiding Judge of the Environment and Land Court to appoint another judge
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; the ruling determines an interlocutory oral application within a pending suit (fair-hearing guarantee under Article 50 of the Constitution invoked as context)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sabastian Paul Muinde Kathilu (suing through his Attorney Marcella Mbithe Kathilu) v Benl Development Limited [2018] KEELC 2339 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2339/eng@2018-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.