Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEmbu ELC Appeal (file initially at Meru Law Courts; exact number not stated in judgment)· [2019] KEELC 1931 (KLR)

Michael Kungu Kigia v Agricultural Finance Corporation [2019] KEELC 1931 (KLR)

Environment and Land Court
25 July 2019
2,355 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Losing a case before a judge is not, on its own, a valid reason to have that judge step aside from your other cases in Kenya.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Embu (Y.M. Angima, J) on a notice of motion dated 12th July 2019 by the Appellant, Michael Kungu Kigia, seeking (i) the recusal of the judge and (ii) the transfer of his appeal to the ELC at Meru for alternative dispute resolution or mediation. The appeal challenged the judgment and decree of the Chief Magistrate in Meru CMCC No. 257 of 1996 delivered on 25th April 2016. The Appellant's sole stated ground was that he had no faith in the court because it had dismissed his petition in Embu ELC Petition No. 3 of 2018 on 28th March 2019, in which he had fully participated without objection. The court reviewed the recusal jurisprudence, including the objective 'reasonable apprehension of bias' test from the East African Court of Justice in the Anyang Nyong'o case, the Supreme Court's doctrine of the duty to sit in the Shollei case, and the caution against acceding too readily to allegations of bias in Galaxy Paints and Kalpana Rawal. The court held that no allegation of actual or apparent bias had been made and that merely losing a case before a judge is not a ground for recusal in other pending matters. It further held that there was no legal basis for transferring the appeal to Meru, as the ELC Presiding Judge had specifically directed that the files be heard at Embu after a series of disqualifications by three judges, and any mediation would still require a judge's supervision. The notice of motion was dismissed in its entirety, with 'It is so ordered' as the closing disposition.

Key legal issues

#
01

Grounds for recusal of a judge

Holding

The Appellant failed to demonstrate legitimate grounds for recusal under the objective test; mere loss of a prior case is insufficient

Reasoning

The court applied the objective 'reasonable apprehension of bias' test from the East African Court of Justice and South African authorities. No allegation of actual bias, inappropriate contact or conflict was made. The only ground was the Appellant's subjective loss of faith after his petition was dismissed on the merits, which cannot disqualify a judge from related pending matters.

p. 3
02

Duty of a judge to sit

Holding

Judges should not accede too readily to suggestions of bias; recusal must be well founded and proved

Reasoning

Relying on Gladys Boss Shollei v JSC, Galaxy Paints and Kalpana Rawal, the court emphasized the doctrine of the duty to sit, balancing it against the need for justice to be seen to be done, and held that flimsy or baseless allegations do not warrant disqualification.

p. 3
03

Transfer of the appeal to Meru for ADR

Holding

No legal basis for transfer; the Presiding Judge's allocation directions bind and mediation would still require judicial supervision

Reasoning

The appeal had already been handled by three judges who disqualified themselves, prompting the ELC Presiding Judge to direct that it be heard at Embu. Transferring it to Meru would disregard those directions, and any mediation outcome would have to be recorded and adopted as a judgment before a judge.

p. 3

Legal principles established

#
  • The objective test of reasonable apprehension of bias applies to recusal applications
  • Loss of a case before a judge is not a ground for that judge's recusal in other matters
  • Every judge has a duty to sit; recusal should not be used to cripple a judge from hearing a matter

Court orders

#
  1. 1.The Appellant's notice of motion dated 12th July 2019 seeking recusal of the judge and transfer of the appeal to Meru is dismissed

Authorities

#

Legislation

  • Civil Procedure Rules 2010Order 51 Rule 3
  • Civil Procedure Act (Cap 21)Sections 3, 3A and 63(e)

Cases cited (9)

  • R V Raphael Muoki Kalungu
    [2015] eKLR
  • Gladys Boss Shollei Vs Judicial Service Commission & 2 Others
    [2018] eKLR, Petition No. 34 of 2014
  • Muir -v- Commissioner of Inland Revenue
    [2007] 3 NZLR 495
  • JRL ex CJL
    (1986) 161 CLR 342
  • Attorney General of Kenya V Prof. Anyang Nyong'o & 10 Others
    EACJ Application No. 5 of 2007
  • President of the Republic of South Africa V South Africa Rugby Football Union
    [1999] 4 SA 147
  • Galaxy Paints Co. Ltd V Falcon Guards Ltd
    [1999] eKLR
  • Hon. Kalpana H. Rawal V Judicial Service Commission & 2 Others
    Civil Appeal (Application) No. 1 of 2016 [2016]
  • Locabail UK Ltd Vs Bayfield Properties Ltd
    [2000] Q.B. 451
On appeal from
Chief Magistrate's Court, Meru
Meru CMCC No. 257 of 1996
Jurisdiction invoked
Order 51 Rule 3 of the Civil Procedure Rules 2010; Sections 3, 3A and 63(e) of the Civil Procedure Act (Cap 21)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Michael Kungu Kigia v Agricultural Finance Corporation [2019] KEELC 1931 (KLR)", Case Analysis (2019). Embu ELC Appeal (file initially at Meru Law Courts; exact number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1931/eng@2019-07-25

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