Suleiman Murunga v Nilestar Holdings Limited & 4 others [2018] KEELC 3098 (KLR)
The bottom line
#A Kenyan court refused to step aside from a land dispute, ruling that a judge's legal mistakes are not bias and must be challenged through appeal or review.
What this practically means
#Executive summary
#Key legal issues
#Whether the court's conduct on 9/4/2018 established apparent bias warranting recusal
No; applying the reasonable and informed observer test, the 2nd Defendant's apprehension of bias was not reasonable
The court adopted the test from R v S(RD) and the Tunoi decision: the apprehension of bias must be reasonable, held by reasonable and right-minded persons, and both the observer and the apprehension must be reasonable. The threshold is high; mere suspicion is insufficient. Errors of law are remediable by appeal or review, not recusal. On the facts, the directions of 9/4/2018 were premised on the pending contempt application and the consent order of 22/12/2016, not on prejudice.
Whether a judge's alleged error of law (on contempt and injunctions) amounts to bias
No; a mistake of law or fact is cured by review or appeal and cannot ground recusal
The court held that judicial error, however apparent, does not demonstrate personal or extra-judicial bias. The aggrieved party's recourse is review or appeal. Judicial bias disqualifies a judge only where it is personal or based on some extra-judicial reason, per Black's Law Dictionary definitions of actual and judicial bias.
Whether the court could direct reinstatement of the Plaintiff and require directors to show cause in the pending contempt application
The application for contempt had not been heard; the 9/4/2018 directions were an opportunity to purge contempt and show cause, not a predetermined conviction
The Plaintiff's application of 5/3/2018 sought mandatory injunctions reinstating possession and committal of the directors for disobeying orders of 14/7/2014 extended on 15/12/2016. The court's directions gave the Defendants time to purge the contempt and file responses; the contempt application remains unheared. Section 5 of the Contempt of Court Act confers power on superior courts to punish for contempt and Section 7 requires summary trial with a record.
Legal principles established
#- The test for apparent bias is objective: the apprehension of bias must be reasonable, held by reasonable and right-minded persons, and the threshold is high with the onus on the party alleging bias
- A mistake of law or fact apparent on the face of the record is not bias; the remedy is appeal or review
Court orders
#- 1.The application for recusal dated 10/4/2018 is dismissed; the court declines to allow the application and will continue hearing the suit and applications
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; recusal application under the court's inherent powers, engaging Articles 10, 25 and 50(1) and (2) of the Constitution and the Contempt of Court Act No. 46 of 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Suleiman Murunga v Nilestar Holdings Limited & 4 others [2018] KEELC 3098 (KLR)", Case Analysis (2018). Suit relating to L.R. No. 209/918 Simmers Restaurant, Kenyatta Avenue, Nairobi (application dated 10/4/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3098/eng@2018-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.