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ELCDismissedNot stated in judgment (subject Petition at Narok)· [2019] KEELC 2023 (KLR)

Oloololo Game Ranch Ltd v National Land Commission & 2 others; Chief Land Registrar & 2 others (Interested Parties) [2019] KEELC 2023 (KLR)

Environment and Land Court of Kenya
31 July 2019
MKMohammed Noor Kullow
1,421 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Narok court refused to step aside from a land case, ruling that complaints about unrecorded proceedings did not prove actual bias.

What this practically means

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Executive summary

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By a Notice of Motion dated 17th June 2019 brought under Order 51 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and Articles 50 and 159 of the Constitution, the Applicant sought certification as urgent, stay of proceedings including any ruling in the subject Petition, the recusal and/or disqualification of Hon. Justice M. Kullow from further conduct of the matter, and that the matter be placed before any other court of competent jurisdiction. The application was anchored on allegations that proceedings of 19th March 2019 started late, that the court file disappeared, and that the court recorded the Petitioner's counsel's submissions verbatim but failed to record those of the Cross-Petitioner on 3rd May 2019, creating a perception that the court was compromised. The Petitioner opposed through a replying affidavit, contending the allegations were subjective and unfounded and that all parties were accorded an opportunity to be heard. The application was disposed of by written submissions. The Judge first affirmed the Applicant's right to seek recusal, citing Republic v Raphael Muoki Kalungu, and adopted the objective test of reasonable apprehension of bias from Attorney General v Prof. Anyang Nyong'o. The court found that no inappropriate contact or conflict was alleged, that the sole complaint rested on the Applicant's personal and subjective view that proceedings were not recorded, and that the allegations of bias were neither well founded nor proved. Holding that a judge should not yield to every tenuous and frivolous application, the court found the application lacked merit and dismissed it with costs on 31st July 2019 at Narok.

Key legal issues

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01

Whether the alleged non-recording of the proceedings of 3rd May 2019 established bias warranting recusal

Holding

No; the complaint was the Applicant's personal and subjective view and did not meet the objective test for reasonable apprehension of bias

Reasoning

The court noted that no inappropriate contact or communication with any party was alleged and no conflict existed save that the Judge gave directions in fulfilment of his functions, which directions the Applicant had sought to appeal. The sole ground was the Applicant's subjective perception that proceedings were not recorded, which fell short of the objective test and was unproved.

p. 3
02

The applicable test for judicial recusal

Holding

The objective test of reasonable apprehension of bias applies, as adopted from Attorney General v Prof. Anyang Nyong'o

Reasoning

The court adopted the East African Court of Justice formulation that the inquiry is whether the allegations would give rise to reasonable apprehension in the mind of a reasonable, fair minded and informed member of the public. It is the applicant's right to seek recusal, but allegations must be well founded and proved; courts must not yield to tenuous or frivolous applications.

p. 3

Legal principles established

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  • The objective test of reasonable apprehension of bias applies: the question is whether the allegations would give rise to reasonable apprehension in the mind of a reasonable, fair minded and informed member of the public
  • Not every allegation of bias results in recusal; the allegations must be well founded and proved, and a judge should not yield to tenuous and frivolous applications
  • Recusal applications balance the judge's duty to sit against the requirement that justice be seen to be done

Court orders

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  1. 1.The Application dated 17th June, 2019 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 51
  • Civil Procedure Actsections 1A, 1B and 3A
  • Constitution of KenyaArticles 50 and 159

Cases cited (2)

  • Republic -versus- Raphael Muoki Kalungu
    (2015) EKLR
  • Attorney General -versus- Prof. Anyang Nyong'o
Jurisdiction invoked
Order 51 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act, Articles 50 and 159 of the Constitution

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, "Oloololo Game Ranch Ltd v National Land Commission & 2 others; Chief Land Registrar & 2 others (Interested Parties) [2019] KEELC 2023 (KLR)", Case Analysis (2019). Not stated in judgment (subject Petition at Narok). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2023/eng@2019-07-31

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