Republic v National Environment Tribunal Ex Parte Erdermann Property Limited; National Environment Management Authority & 4 others (Interested Parties) [2020] KEELC 1196 (KLR)
The bottom line
#A Kenyan court refused to step aside from a case, ruling that a claim of judicial bias must be backed by real evidence, not just suspicion.
What this practically means
#Executive summary
#Key legal issues
#Test for recusal of a judge on the ground of bias
The objective test of a fair-minded and informed observer, who adopts a balanced approach and is neither complacent nor unduly sensitive or suspicious, applies; there must be a real possibility of bias
The court adopted the objective test from Philip K. Tunoi vs JSC, Kalpana Rawal vs JSC (quoting the EACJ in Anyang' Nyong'o) and the Supreme Court in Jasbir Singh Rai. It noted that the Judicial Service Code of Conduct requires disqualification where impartiality might reasonably be questioned, but facts constituting bias must be specifically pleaded and proved; the applicant bears the duty of establishing reasonable grounds from which an inference of bias may be drawn.
Whether the alleged remarks by the judge amounted to a pre-determination or prejudgment of the pollution question
The remarks attributed to the court are not on record; even if made, they were in the nature of a question to elicit responses and cannot amount to a predetermined decision
The court found that the alleged utterances concerning the 2nd Interested Party's 30 years of operation without pollution complaints were not on record and the applicant did not state the circumstances in which they were made. The issue of pollution had never been heard or determined by the court; the Ruling of 18th October 2019 concerned setting aside ex parte orders, not the merits of pollution. A question posed in context cannot amount to prejudgment.
Whether the recusal application should be granted
The application was unmeritorious and was dismissed with costs
In the absence of any record showing the remarks were made, and given that the pollution question remains undetermined, a fair-minded and informed member of the public could not conclude the court was biased. Allowing an unsubstantiated recusal application would gag the judge and interfere with judicial independence and the administration of justice.
Legal principles established
#- A judge must recuse himself or herself if a fair minded and informed observer, having considered the facts, would conclude there was a real possibility that the judge was biased
- The facts constituting bias must be specifically alleged and established; a bare allegation is insufficient
- A court cannot disqualify itself on the basis of a litigant's own perception of bias absent evidence, and once clothed with jurisdiction it has a general duty to sit
- Acceding to unsubstantiated recusal applications on the basis of personal perception of bias would interfere with the administration of justice and the independence of the court
Court orders
#- 1.The Application dated 30th January, 2020 is dismissed
- 2.Costs of the application awarded to the 2nd Interested Party
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over judicial review and environment disputes; recusal application under the Judicial Service Code of Conduct and Ethics
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Environment Tribunal Ex Parte Erdermann Property Limited; National Environment Management Authority & 4 others (Interested Parties) [2020] KEELC 1196 (KLR)", Case Analysis (2020). Judicial Review Case No. 41 of 2019 (Recusal Application dated 30th January, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1196/eng@2020-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.