Dursoma Investments Limited v Chirunga Bongo Mundalu & 2 others [2020] KEELC 1035 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Recusal where actual bias is established versus appearance of bias
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
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.
Whether the applicants, being strangers to the suit pending joinder, could maintain a recusal application
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
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.
Whether the orders of 5th March 2019 were improperly obtained
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
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.
Legal principles established
#- 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
#- 1.The judge recused himself from further conduct of the matter
- 2.The Deputy Registrar of the Court to remit the file to the Honourable the Chief Justice for re-allocation to another Judge
- 3.Costs of the application awarded to the 1st Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.