London Distillers (K) Ltd v Mavoko Water & Sewerage Co & 2 others [2020] KEELC 1227 (KLR)
The bottom line
#The Environment and Land Court dismissed a bid to have a judge step aside for alleged bias, confirming that mere suspicion and unproven remarks are not enough in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the alleged extra-judicial remarks by the judge gave rise to a reasonable apprehension of bias
No recusal was warranted; the remarks attributed to the court are not on record and the alleged remark can only exist in the Applicant's mind
The court found the alleged remarks were not on the record, no circumstances of their utterance were stated, and whether LDK pollutes the environment is an issue that can only be determined after parties are heard and evidence tendered. The Ruling of 18th October 2019 had nothing to do with the merits of the pollution allegations. An informed and fair-minded observer could not therefore conclude the court was or would be biased.
Applicable test for recusal on grounds of alleged bias
The objective test of a fair-minded and informed observer, adopting a balanced approach, applies
Relying on Philip K. Tunoi, Kalpana H. Rawal, Attorney General of Kenya v Anyang' Nyong'o and Jasbir Singh Rai, the court adopted the objective test of reasonable apprehension of bias, distinguishing actual bias (where disqualification is automatic) from appearance of bias, where the applicant bears the duty of establishing reasonable grounds from which an inference of bias may be drawn.
Whether unsubstantiated recusal applications threaten judicial independence
Acceding to unsubstantiated applications amounts to gagging a judge and dereliction of the constitutional duty to determine cases without fear or favour
The court held, relying on Gladys Boss Shollei v JSC and Tatu City v Jennings, that allowing an unsubstantiated application would interfere with the administration of justice and the independence of the court, and that mischievous parties should not be able to obtain disqualification of judges with ease.
Legal principles established
#- A judge must recuse himself or herself if a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased
- The facts constituting bias must be specifically alleged and established; the applicant must show that a reasonable, objective and informed person would, on the correct facts, reasonably apprehend that the judge will not bring an impartial mind to bear
- A court cannot disqualify itself on the basis of a litigant's own perception of apparent bias, nor on unsubstantiated allegations; once seized of jurisdiction a court has a general duty to sit
Court orders
#- 1.The Application dated 30th January 2020 is dismissed
- 2.Costs of the Application to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; right to a fair hearing under Article 50 of the Constitution invoked by the Applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "London Distillers (K) Ltd v Mavoko Water & Sewerage Co & 2 others [2020] KEELC 1227 (KLR)", Case Analysis (2020). Machakos Judicial Review Case No. 41 of 2019 (Notice of Motion dated 30th January, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1227/eng@2020-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.