George Gathuki Nganga v National Land Commission & 3 others [2019] KEELC 3529 (KLR)
The bottom line
#A Kenyan land court refused to disqualify a judge, ruling that accusing a judge of bias requires real evidence, not just suspicion.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established a reasonable apprehension of bias warranting the Judge's recusal
The application fails; no tangible evidence of bias or of any relationship between the Judge and Silas Kiogora Mburugu was adduced, even upon cross-examination of the Interested Party
The Applicant alleged a relationship between the Judge and the Interested Party's Director and relied on remarks by the Interested Party's Advocate. Cross-examination of Mr. Mburugu produced no evidence of bias or familiarity. The alleged closeness between State Counsel and the Interested Party could not translate into bias by the Judge, since the Attorney General's office and the court are different offices. Judges take an oath of office and are bound by the Judicial Service Code of Conduct and Ethics, so there is a presumption of impartiality.
Who bears the burden of proving bias
The Applicant, as the party alleging bias, bore the burden of proof under Section 107 of the Evidence Act and failed to discharge it
Relying on Section 107 of the Evidence Act, the court held that whoever desires a court to give judgment on asserted facts must prove those facts. The Applicant had a duty to avail instances or evidence of bias but none was brought even when Mr. Silas Kiogora Mburugu was cross-examined. The cross-examination dealt with the integrity of Mr. Mburugu rather than the alleged bias of the Judge. The Canadian authority in R v S (RD) was applied on the high threshold for a reasonable apprehension of bias.
Legal principles established
#- A Judge should not recuse himself or herself on flimsy and baseless allegations; the person alleging bias must demonstrate its existence
- The threshold for a finding of reasonable apprehension of bias is high and the onus of demonstrating bias lies with the person alleging its existence
- Courts must guard against litigants who attribute their losses to judicial bias
- There is a presumption that judicial officers are impartial, and allegations of bias should not be lightly made
Court orders
#- 1.The instant application dated 11th October 2018 is dismissed entirely with costs being in the cause
- Jurisdiction invoked
- Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B & 3A of the Civil Procedure Act, Article 159 of the Constitution and the inherent jurisdiction of the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Gathuki Nganga v National Land Commission & 3 others [2019] KEELC 3529 (KLR)", Case Analysis (2019). Notice of Motion dated 11th October 2018 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3529/eng@2019-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.