Republic v Export Processing Zones Authority & 2 others; London Distillers (K) Ltd & 3 others (Interested Parties) Ex parte Erdermann Property Limited [2020] KEELC 1242 (KLR)
The bottom line
#A Kenyan court ruled that a judge cannot be disqualified from a case based on unproven accusations of bias alone.
What this practically means
#Executive summary
#Key legal issues
#Test for recusal on ground of bias
The objective test applies: whether a fair minded and informed observer, considering the facts, would conclude there is a real possibility of bias; the applicant bears the burden of establishing facts from which bias may be inferred, and mere perception is insufficient.
The court adopted the Court of Appeal's test in Philip K. Tunoi and the Supreme Court's formulation in Jasbir Singh Rai, noting that bare allegations are insufficient; reasonable grounds must be presented. The Kalpana Rawal decision requires the applicant to establish facts upon which an inference of bias may be drawn.
Whether the alleged remarks amounted to a pre-determination
No: the remarks were not on record, no circumstances of their utterance were stated, and the Ruling of 18th October 2019 did not determine the pollution question; any remark could only have been a question eliciting responses, not a predetermined decision.
The court found the attributed remarks existed only in the Applicant's mind. The question whether LDK pollutes the environment could only be determined after evidence was heard before the court or the Tribunal. The Ruling of 18th October 2019 concerned setting aside ex parte orders and had nothing to do with the truth of the pollution allegations.
Legal principles established
#- A Judge must recuse himself if a fair minded and informed observer, having considered the facts, would conclude there is a real possibility of bias; the facts constituting bias must be specifically alleged and established.
- A court cannot disqualify itself on the basis of a litigant's own unsubstantiated perception of bias.
- Once clothed with jurisdiction, a court has a general duty to sit; allowing unsubstantiated recusal applications gags the Judge and derails the administration of justice.
Court orders
#- 1.The Application dated 30th January, 2020 is dismissed
- 2.Costs of the Application are awarded to the 1st Interested Party
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; right to a fair hearing under Article 50 of the Constitution raised by the Applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Export Processing Zones Authority & 2 others; London Distillers (K) Ltd & 3 others (Interested Parties) Ex parte Erdermann Property Limited [2020] KEELC 1242 (KLR)", Case Analysis (2020). Machakos ELC Case (Notice of Motion dated 30th January, 2020 in JR No. 41 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1242/eng@2020-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.