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ELCOtherMeru ELC Case (instituted 11/08/2011) - land parcel NTIMA/IGOKI/4485· [2019] KEELC 471 (KLR)

Registered Trustees, Gospel of God Church v Elias Rimberia Mborothi & 8 others [2019] KEELC 471 (KLR)

Environment and Land Court
27 November 2019
LMLucy N. Mbugua
2,273 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The court refused to step aside over bias claims, holding that vague complaints don't disqualify a judge — but paused the case for five months anyway.

What this practically means

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Executive summary

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This is an interlocutory ruling by the Environment and Land Court at Meru on an application for recusal. The Head Pastor of the 6th defendant, Moses Kamundi, wrote to the Office of the Ombudsman on 19th September 2019 stating he had lost faith in the court, complaining about a series of interlocutory rulings delivered in a land dispute over parcel NTIMA/IGOKI/4485, filed in 2011 though the underlying dispute dates to 1985. Counsel for the 3rd to 6th defendants brought the letter to the court's attention; the plaintiffs and the Attorney General opposed recusal. The court reviewed the litigation history, including six rulings delivered between 28.2.2018 and 7.5.2019 on production of copies, late discovery, amendment of defence, stay of proceedings, and recalling of witnesses, and found each ruling justifiable. Applying the objective test of a fair-minded and informed observer, and relying on authority including Gladys Boss Shollei v JSC and Muir v Commissioner of Inland Revenue, the court held that the letter raised no reasonable grounds for inferring bias and that a judge has a duty to sit absent extremely good reason. Recusal at the defence stage would itself delay the suit and occasion a miscarriage of justice. The court declined to recuse itself but, to give the defendants a window to pursue the bias claims, put the matter on hold for five months, after which the hearing would resume.

Key legal issues

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01

Whether the complaint letter established reasonable grounds for recusal

Holding

No grounds of bias were established; the rulings complained of were justifiable and made after considering submissions

Reasoning

The court reviewed its six interlocutory rulings between 28.2.2018 and 7.5.2019 and found each was arrived at justifiably after hearing the parties. Applying the objective test of a fair-minded and informed observer, the letter disclosed no reasonable possibility of bias. Recusal at the defence stage of a long-running trial would itself cause delay amounting to a miscarriage of justice.

p. 3
02

The duty of a judge to sit

Holding

A judge may only decline to sit for an extremely good reason; the judicial duty to sit counterbalances the requirement of impartiality

Reasoning

Drawing on Gladys Boss Shollei v JSC, Muir v Commissioner of Inland Revenue, and the Makali and Mwalulu decisions, the court held that judicial independence is protected by the duty to sit, preventing parties from gaining strategic advantage through recusal applications, and that grounds for disqualification must be specifically alleged and established.

p. 3

Legal principles established

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  • A judge has a duty to sit in cases assigned to him or her and may only refuse to hear a case for an extremely good reason
  • The test for bias is objective: whether there is a real possibility of bias as perceived by a fair-minded and informed observer
  • The judge's duty to sit protects judicial independence against strategic recusal applications

Court orders

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  1. 1.The court declined to recuse itself from hearing the suit
  2. 2.The matter was put on hold for a period of 5 months to allow the 3rd to 6th defendants a window to have the claims of bias investigated or challenged
  3. 3.Thereafter the court to proceed to hear the matter and give a date for hearing

Authorities

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Legislation

  • Constitution of KenyaArticle 159

Cases cited (6)

  • Charity Muthoni Gitabi v Joseph Gichangi Gitabi (Substituted By) Michael Wachira Gitabi
    [2017] eKLR
  • Gladys Boss Shollei v Judicial Service Commission & another
    [2018] eKLR
  • Muir v Commissioner of Inland Revenue
    [2007] 3 NZLR 495
  • R VS. David Makali and Others
    C.A. Criminal Application No. 4 and 5 of 1995 Nairobi (unreported)
  • R Vs. Jackson Mwalulu & Others
    C.A Civil Application No. 310 of 2004 Nairobi
  • JRL ex CJL
    (1986) 161 CLR 342
Jurisdiction invoked
Article 159 of the Constitution of Kenya (expeditious disposal of disputes); original civil jurisdiction of the Environment and Land 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, "Registered Trustees, Gospel of God Church v Elias Rimberia Mborothi & 8 others [2019] KEELC 471 (KLR)", Case Analysis (2019). Meru ELC Case (instituted 11/08/2011) - land parcel NTIMA/IGOKI/4485. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/471/eng@2019-11-27

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