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ELCPartially AllowedNotice of Motion dated 5th April 2017 in ELC suit filed in 2008 (Thika Environment and Land Court)· [2018] KEELC 2833 (KLR)

Alvin Kamande Njenga & another v Esther Njeri Njenga & 5 others [2018] KEELC 2833 (KLR)

Environment and Land Court of Kenya
19 June 2018
LGL. Gacheru
3,078 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Thika court let land dispute plaintiffs swap judges despite finding no proof of bias, but made them pay the costs of trying.

What this practically means

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Executive summary

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This first-instance ruling of the Environment and Land Court at Thika determined a recusal application by the Plaintiffs/Applicants, anchored on Sections 3 and 3A of the Civil Procedure Act, seeking that Lady Justice Gacheru disqualify herself from the suit. The Applicants alleged that the suit had been wrongly transferred to Thika on a false assumption that it was part-heard before her; that documents went missing from the court file; that she improperly directed that the matter proceed by written submissions, denying them a chance to cross-examine; and that she fabricated the proceedings of 2nd June 2015. The 6th Defendant/Respondent, Sophie Kabura Njenga, opposed the application as baseless, defective and an attempt to delay the suit, noting that the property in Limuru, Kiambu County fell within the Thika ELC's jurisdiction and that no evidence of missing documents or bias was tendered. The court reviewed its record and found the 1st Applicant attended and addressed the court on 2nd June 2015, that no evidence of bias or conflict of interest was adduced, and that the Applicants had accused every Judge who handled the matter, perfected sideshows, and benefited from delay since they occupied the entire suit property. Applying the recusal principles from the South African Constitutional Court and the EAC jurisprudence in the Nyong'o case, the court held the threshold of a reasonable apprehension of bias was not met, but - noting that justice must be seen to be done and that further delay was likely - allowed the application and disqualified itself. The court awarded costs against the Applicants and directed mention before the Presiding Judge at Milimani ELC on 4th July 2018.

Key legal issues

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Whether the threshold for recusal was met on the allegations of bias, conflict of interest and fabricated proceedings

Holding

The application was not merited on the evidence - no bias or conflict of interest was demonstrated - but the court nonetheless allowed recusal for the interest of justice and expeditious disposal of the decade-old suit

Reasoning

The court examined its record and found the 1st Applicant was present and addressed the court on 2nd June 2015, contradicting his claim of fabricated proceedings. It noted the Applicants had accused every Judge who handled the matter, used serial applications to delay a suit filed in 2008 while enjoying injunctive orders, and occupied the whole suit property so delay favoured them. Despite finding no evidence of bias, the court held it prudent to allow recusal to preserve confidence and enable expeditious disposal before another Judge.

p. 5

Legal principles established

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  • There is a presumption of judicial impartiality which can only be displaced by cogent evidence giving rise to a reasonable apprehension of bias
  • A court cannot review orders of a Judge of concurrent jurisdiction, as that would amount to sitting as an appeal court
  • Courts must guard against litigants who attribute their losses to judicial bias

Court orders

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  1. 1.The Notice of Motion dated 5th April 2017 seeking recusal of Lady Justice Gacheru is allowed entirely
  2. 2.Lady Justice Gacheru disqualified herself from hearing the matter
  3. 3.Costs of the application to be borne by the Applicants
  4. 4.Matter to be mentioned before the Presiding Judge at Milimani Environment and Land Court on 4th July 2018 for further orders

Authorities

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Legislation

  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A

Cases cited (6)

  • Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others
    Petition No. 4 of 2012 (2013) eKLR
  • Civicon Ltd vs The Commissioner of Customs & Another
    (2014) eKLR
  • Attorney General of Kenya vs Peter Anyang Nyong'o & Others
    East African Court of Justice Appl. No. 5 of 2007; (2007) 1 EA 12
  • President of the Republic of South Africa vs The South Africa Rugby Football Union & 3 Others
    Case CCT 16/98
  • R vs (R.D) 37
  • RPM vs PKM
    (2011) eKLR
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act (inherent power of the court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Alvin Kamande Njenga & another v Esther Njeri Njenga & 5 others [2018] KEELC 2833 (KLR)", Case Analysis (2018). Notice of Motion dated 5th April 2017 in ELC suit filed in 2008 (Thika Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2833/eng@2018-06-19

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