Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Kitale ELC suit; application dated 25/2/2020)· [2020] KEELC 381 (KLR)

Richard Onyino v Joshua Ang’elei & 4 others [2020] KEELC 381 (KLR)

Environment and Land Court
8 December 2020
3,103 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kitale court ruled that you cannot force a judge to step aside just because you fear bias—you must prove bias with objective facts, not feelings.

What this practically means

#

Executive summary

#
By an application dated 25/2/2020 brought under Article 50(1) and 25(c) of the Constitution and Rule 5 of the Judicial Code of Conduct and Ethics, the plaintiff sought the recusal of Mwangi Njoroge J from hearing his suit, alleging bias. The 3rd defendant filed grounds of opposition arguing that no material had been placed before the court that would lead a fair-minded and informed observer to conclude the judge would not be impartial. The court framed a single issue: whether there were good grounds for recusal. Reviewing the authorities on the duty of a judge to sit, the objective test for bias, and the evil of forum-shopping, the court traced the background: a final judgment in Kitale ELC 118 of 2015 (Sheila Kabole Mabwa v Joshua Angelei & Others) had nullified the subdivision of the same suit land, and the plaintiff, claiming an interest in one of the nullified sub-plots, filed the present suit seeking an injunction and a declaration of lawful title. His bias allegations rested on the court's intimation that his suit might be res judicata, comments questioning his absence in the previous case, the refusal of ex parte interim relief, and the judge's earlier handling of the consolidated suits. Applying the objective test, the court held that a reasonable observer would not conclude the court would be impartial-incompetent merely because it had decided a prior related matter the applicant himself had disclosed, and that inquiries about an existing judgment on the same subject matter were not a gauge of partiality. The application was dismissed with no orders as to costs, the court noting that recusal on such grounds would be especially inconvenient in a one-judge station.

Key legal issues

#
01

Whether the applicant's allegation of bias justified the judge's recusal

Holding

No; the objective test was not met. A prior judgment by the same court over the same land and comments on res judicata at interlocutory stage do not establish bias, and a litigant cannot choose their judge.

Reasoning

The court applied the objective reasonable and fair-minded observer test from the authorities. The applicant's apprehension was subjective and arose from a disclosed prior judgment on the same suit land, which he himself had brought to the court's attention. The court stressed its duty to sit, the danger of forum-shopping, and that inquiries about an existing judgment over the same subject matter are not a proper yardstick of impartiality. Recusal on such flimsy grounds would inconvenience other parties, especially in a one-judge station.

p. 4

Legal principles established

#
  • Recusal should not be readily granted; a judge has a duty to sit and sound grounds of bias must first be proved on an objective test
  • The test for disqualification of a judge is objective and the facts constituting bias must be specifically alleged and established
  • A litigant has no veto over which judge hears the matter; a judge who previously handled a related case is not thereby disqualified
  • The mere fact that a judge sat over a previous related matter is a frail ground for self-recusal, worse in a one-judge station

Court orders

#
  1. 1.The application dated 25/2/2020 is dismissed
  2. 2.No orders as to costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 25(c)
  • Constitution of Kenya, 2010Articles 10, 50, 159(2)(a), 160 and 259 (as cited in J G K v F W K)
  • Judicial Code of Conduct and EthicsRule 5

Cases cited (9)

  • Hon. Kalpana H. Rawal v Judicial Service Commission & 2 Others
    Civil Appeal (Application) No. 1 of 2016 [2016]
  • Locabail UK Ltd v Bayfield Properties Ltd
    [2000] Q.B. 451
  • Galaxy Paints Co. Ltd v Falcon Guards Ltd
    [1999] eKLR
  • J G K v F W K
    [2019] eKLR
  • Gladys Boss Shollei v Judicial Service Commission & another
    [2018] eKLR
  • Andrew Alex Wanyandeh v The Attorney General & Kenya Railway Corporation
    Nairobi Milimani HCCC No. 844 of 2005
  • Republic v Mwalulu & 8 Others
    [2005] 1 KLR
  • Sheila Kabole Mabwa v Joshua Angelei & Others
    Kitale ELC 118 of 2015
  • Robert Lobur Angelei & 3 Others v Sheila Kabole Mabwa
    Kitale ELC No. 87 of 2015
Jurisdiction invoked
Article 50(1) and 25(c) of the Constitution; Rule 5 of the Judicial Code of Conduct and Ethics, 2012

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Richard Onyino v Joshua Ang’elei & 4 others [2020] KEELC 381 (KLR)", Case Analysis (2020). Not stated in judgment (Kitale ELC suit; application dated 25/2/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/381/eng@2020-12-08

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