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ELCDismissedMachakos ELC Case (Notice of Motion dated 30th January, 2020 in JR No. 41 of 2019)· [2020] KEELC 1242 (KLR)

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)

Environment and Land Court
25 September 2020
7,263 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a judge cannot be disqualified from a case based on unproven accusations of bias alone.

What this practically means

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Executive summary

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Erdermann Property Limited, the Applicant in Judicial Review No. 41 of 2019, moved the Environment and Land Court at Machakos by a Notice of Motion dated 30th January 2020 seeking the recusal of Angote J from the dispute, and reference of the file to the Principal Judge for reallocation. The application was anchored on remarks the Applicant alleged the court made shortly after its Ruling of 18th October 2019 (which vacated ex parte orders previously granted in the judicial review), to the effect that the 1st Interested Party, London Distillers (K) Limited, could not be liable for environmental pollution since it had operated on its site for over 30 years without complaints. The Applicant argued this betrayed a prematurely closed mind contrary to the Judicial Code of Conduct and infringed its right to a fair hearing under Article 50. The 1st Interested Party opposed, contending the application was mala fides, stage-managed for the media, and aimed at frustrating the hearing of its pending striking-out application. Angote J restated the objective test of bias - whether a fair minded and informed observer, on the established facts, would conclude there is a real possibility of bias - and held that the facts constituting bias must be specifically alleged and established. He found the alleged remarks were not on record and that any question about LDK's 30-year operation could only have been posed to elicit responses, not as a pre-determination; the Ruling of 18th October 2019 had not decided the pollution issue. The application was dismissed with costs to the 1st Interested Party.

Key legal issues

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01

Test for recusal on ground of bias

Holding

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.

Reasoning

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.

p. 7
02

Whether the alleged remarks amounted to a pre-determination

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The Application dated 30th January, 2020 is dismissed
  2. 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

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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, "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.