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ELCDismissedKajiado Environment and Land Court suit (number not stated in extract)· [2019] KEELC 1594 (KLR)

Francis Nganga Mundia v Isaac Gathungu Wanjohi & 3 others [2019] KEELC 1594 (KLR)

Environment and Land Court
2 October 2019
COChristine Ochieng
1,350 words in judgment
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The bottom line

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A Kajiado land court ruled that losing interim applications is not grounds for a judge to step aside, and the case will proceed to full hearing.

What this practically means

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Executive summary

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The 1st Defendant made an oral application on 28 May 2019 asking the Judge to recuse herself from hearing the land suit. He relied on two prior rulings: the dismissal of his application of 19 March 2018 to strike out the suit, and the refusal of an application dated 15 March 2019 to stay the proceedings pending an appeal against Justice Nyakundi's ruling in Kajiado High Court Family Division Misc. Application No. 49 of 2018, in which the High Court had found the Plaintiff validly purchased the suit land. He argued that the Court's refusals amounted to an endorsement of the High Court's findings, that the High Court had usurped the Environment and Land Court's jurisdiction, and that a reasonable observer would doubt the Court's impartiality, citing Attorney General v Anyang Nyong'o and Shilenje v Republic. The Plaintiff opposed, invoking the Porter v Magill test as adopted in the Tunoi case, and arguing that a litigant cannot pick and choose his forum whenever rulings go against him. The 2nd and 3rd Defendants also opposed, citing Gladys Boss Shollei v JSC, contending the application was a ploy to derail the hearing. Applying the objective test of the fair-minded and informed observer, the Court held that the applicant had highlighted no grounds of bias beyond adverse rulings, and that ownership of the suit land lay squarely within its own jurisdiction. The recusal application was disallowed and the parties directed to set down the suit for hearing. Judgment was delivered at Kajiado on 2 October 2019 by Christine Ochieng, Judge.

Key legal issues

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01

Whether the Court should recuse itself from the suit

Holding

The application for recusal fails; the applicant did not establish a real possibility of bias

Reasoning

The 1st Defendant's apprehension rested solely on two rulings that went against him - the dismissal of his striking-out application and the refusal to stay proceedings pending an appeal against Justice Nyakundi's ruling. The Court held that ownership of the suit land lies squarely within its jurisdiction and it is competent to make its own determination on the pleadings and evidence. Except for those adverse rulings, no real grounds of bias were highlighted, so the objective test of the fair-minded and informed observer was not met.

p. 2

Legal principles established

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  • The test for bias/recusal is objective: whether a fair-minded and informed observer would conclude there is a real possibility of bias
  • Facts constituting bias must be specifically alleged and established; mere apprehension from adverse rulings does not meet the threshold

Court orders

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  1. 1.The 1st Defendant's application for the Judge to recuse herself is disallowed
  2. 2.The parties are directed to set down this suit for hearing

Authorities

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Legislation

  • Environment and Land Court ActSection 13

Cases cited (8)

  • Attorney General Vs Anyang Nyongo & Others
  • Shilenje Vs the Republic
  • Porter V Magill
  • Hon Philip K. Tunoi & Another V JSC & Anor
    Civil Appeal NAI 6 of 2016 (2016) eKLR
  • Philip K. Tunoi & another v Judicial Service Commision & another
    [2016] eKLR
  • Taylor v. Lawrence
    [2003] QB 528
  • Andrew Alex Wanyande V AG & Anor
    HCC No. 844 of 2005
  • Gladys Boss Shollei Vs JSC & Another
    Petition No. 34 of 2014 (2018) eKLR
Jurisdiction invoked
Environment and Land Court Act, Section 13 (in relation to disputes over ownership of land)

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, "Francis Nganga Mundia v Isaac Gathungu Wanjohi & 3 others [2019] KEELC 1594 (KLR)", Case Analysis (2019). Kajiado Environment and Land Court suit (number not stated in extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1594/eng@2019-10-02

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