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ELCPartially AllowedNotice of Motion dated 12th October 2019 in Malindi ELC Case (consolidated with ELC No. 157 of 2015)· [2020] KEELC 1035 (KLR)

Dursoma Investments Limited v Chirunga Bongo Mundalu & 2 others [2020] KEELC 1035 (KLR)

Environment and Land Court
15 October 2020
2,822 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan land court judge found a recusal application baseless but still stepped aside to protect public confidence in the justice system.

What this practically means

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Executive summary

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The Proposed Plaintiffs, members of the Waphande Clan claiming an interest in land asserted by Dursoma Investment Ltd, moved the court by Notice of Motion dated 12th October 2019 seeking suspension of proceedings and the recusal of Justice Olola, with re-allocation by the Chief Justice. The supporting affidavit deposed by Chiro Mwachiro Bongo alleged that on 5th March 2019 the judge granted orders in favour of the 1st Defendant without notice to the clan, at a time when the court knew their clan representative Chirunga Bongo Mundalu had died, and that the court had held a private hearing with the 1st Defendant. The 1st Defendant opposed, arguing the deponent was a stranger to the suit with no locus standi, the joinder application was unprosecuted, and the allegations were unsubstantiated. The court applied the Court of Appeal's guidance in Kalpana H. Rawal v JSC on recusal, noting the applicant's burden to prove bias. Perusing the record, the judge found the orders of 5th March 2019 were lawfully granted to unrepresented, unjoined strangers, and that no private hearing took place; the recusal application had no basis. Nevertheless, because the applicants' advocate had written a defamatory letter accusing the judge of holding a private hearing, and a joinder application by the same parties remained pending before him, the judge recused himself so that justice would be seen to be done, directing the Deputy Registrar to remit the file to the Chief Justice for re-allocation. Costs were awarded to the 1st Respondent in any event.

Key legal issues

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01

Recusal where actual bias is established versus appearance of bias

Holding

Where actual bias is established the judge must automatically recuse himself; where the application is founded on appearance of bias, the applicant must establish reasonable grounds from which bias may be inferred

Reasoning

The court adopted the Court of Appeal's framework in Kalpana H. Rawal v JSC, distinguishing automatic disqualification for actual bias (e.g. where the judge is a party or has a direct interest in the outcome) from applications based on apparent bias, which require the applicant to lay factual grounds that a fair-minded and informed observer would conclude amount to bias.

p. 3
02

Whether the applicants, being strangers to the suit pending joinder, could maintain a recusal application

Holding

The application had no basis as the deponent and applicants were not parties to the proceedings, their joinder application of 6th October 2019 being unprosecuted

Reasoning

The judge perused the record and found that the orders of 5th March 2019 were properly granted when no application for joinder by the applicants was on file; the plaintiffs in ELC 157 of 2015 were divided and had disowned the advocate on record. However, given a defamatory letter by the advocate questioning the judge's impartiality, the judge nevertheless recused himself so justice would be seen to be done.

p. 4
03

Whether the orders of 5th March 2019 were improperly obtained

Holding

The record showed the application of 7th December 2018 was lawfully fixed for hearing by parties in the registry and properly allowed as unopposed after adjournments for lack of service

Reasoning

The court traced the history: trial had commenced and six witnesses had testified; the 1st Defendant's application of 7th December 2018 was adjourned twice for want of service, then fixed in the registry for 5th March 2019 by parties themselves; when it came up unopposed, the court allowed it as prayed. There was thus no foundation for the allegation of a private or collusive hearing.

p. 4

Legal principles established

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  • An applicant for recusal bears the duty of establishing facts upon which a fair-minded and informed observer would infer bias; bare allegations are insufficient
  • Justice must not only be done but be seen to be done

Court orders

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  1. 1.The judge recused himself from further conduct of the matter
  2. 2.The Deputy Registrar of the Court to remit the file to the Honourable the Chief Justice for re-allocation to another Judge
  3. 3.Costs of the application awarded to the 1st Respondent

Authorities

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Cases cited (3)

  • Kalpana H. Rawal –vs- Judicial Service Commission & 2 others
    (2016) eKLR
  • Nicholas Kombe Pembe –vs- Kenga Pembe, Kaleso Kombe, Registrar of Land's Kilifi and the Attorney General
    Malindi ELC No. 11 of 2010 (eKLR)
  • Republic – vs The Chief Land Registrar (ex-parte Justice Charles Chemutut)
    Malindi JR Application Number 3 of 2016
Jurisdiction invoked
Inherent discretion of the Environment and Land Court over applications for recusal of a judge in a matter pending before it

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, "Dursoma Investments Limited v Chirunga Bongo Mundalu & 2 others [2020] KEELC 1035 (KLR)", Case Analysis (2020). Notice of Motion dated 12th October 2019 in Malindi ELC Case (consolidated with ELC No. 157 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1035/eng@2020-10-15

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