Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC Case (Murang'a); prior suit ELC No. 111 of 2017· [2020] KEELC 1961 (KLR)

Mukunya Mugo A & another v Elizabeth Mugure Mukunya [2020] KEELC 1961 (KLR)

Environment and Land Court
18 June 2020
JKJ G Kemei
2,261 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Murang'a land judge stepped aside from a case, ruling that losing earlier rounds before the same judge is not proof of bias.

What this practically means

#

Executive summary

#
The Defendant/Applicant moved the court by Notice of Motion dated 16/3/2020 seeking the recusal of the trial judge on grounds of apparent bias arising from her decisions in ELC No. 111 of 2017, a prior suit between the same parties over the same land, which had been struck out for non-joinder of a joint registered trustee. The applicant further cited ongoing investigations into two allegedly threatening letters to the judge said to have been authored by her. The Respondents filed no response and were denied leave to file out of time. Framing the issues as whether there was evidence of bias and who should bear costs, the court applied the objective test from the Supreme Court, Court of Appeal, EACJ and Canadian authorities: whether a fair minded and informed observer would conclude there was a real possibility of bias, with the burden of specifically establishing facts of bias resting on the applicant. The court found no objective evidence of bias - the applicant's complaints were deductions from, and disagreement with, the merits of the earlier rulings, for which appeal was the proper avenue. However, the judge nonetheless recused herself on the distinct ground that the ongoing investigations and the probability of the court being called as a witness made recusal conducive to substantive justice and expedition. The file was directed to the Presiding Judge for allocation to another court, with no orders as to costs.

Key legal issues

#
01

Whether the judge's prior decisions in ELC 111 of 2017 gave rise to a reasonable apprehension of bias

Holding

No - the applicant's deductions from the earlier rulings were her own disagreement with the merits, not objective evidence of bias; the proper avenue was appeal

Reasoning

The court reviewed the history of ELC 111 of 2017: striking out the suit for non-joinder, dismissing the application to set aside the ex parte proceedings, and dismissing the stay application. It held these decisions were made judicially with reasons on the facts of that case. The applicant's expressions of dissatisfaction were deductions, not facts from which a fair minded and informed observer could infer bias, and no evidence of any motive to favour the respondents was tabled.

p. 2
02

Whether recusal was nonetheless warranted

Holding

Yes, on the distinct ground of ongoing investigations into alleged threatening letters to the judge, with the probability of the court being called as a witness

Reasoning

Although no bias was established, the judge found that recusal would serve substantive justice given the ongoing investigations into matters in which the court might become a witness, and that the alternative - remanding the case pending investigations or prosecution - would delay hearing and finalisation of the suit.

p. 3

Legal principles established

#
  • The test for recusal is objective: whether a fair minded and informed observer, having considered the facts, would conclude there is a real possibility of bias
  • Every judge has a duty to sit; recusal should not be used to cripple a judge from hearing a matter
  • The applicant bears the burden of specifically alleging and establishing facts constituting bias; the threshold is high

Court orders

#
  1. 1.Recusal of the judge from hearing and determining the suit
  2. 2.The Deputy Registrar to place the file before the Presiding Judge of the Environment & Land Court for allocation to another Court for further orders and directions
  3. 3.No orders as to costs

Authorities

#

Cases cited (7)

  • Gladys Boss Shollei Vs Judicial Service Commission & 2 Others
    [2018] eKLR
  • Kaplana H. Rawal v Judicial Service Commission & 2 others
    [2016] eKLR
  • Magill v. Porter
    (2002) 2 AC 357
  • Attorney General of Kenya v Prof Anyang' Nyong'o & 10 Others
    EACJ Application No. 5 of 2007
  • R. v. S. (R.D.)
    [1977] 3 SCR 484
  • R VS. David Makali and Others
    C.A Criminal Application No. 4 and 5 of 1995 Nairobi (unreported)
  • R Vs. Jackson Mwalulu & Others
    C.A Civil Application No. 310 of 2004 Nairobi
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over an application for recusal of the trial judge

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Mukunya Mugo A & another v Elizabeth Mugure Mukunya [2020] KEELC 1961 (KLR)", Case Analysis (2020). ELC Case (Murang'a); prior suit ELC No. 111 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1961/eng@2020-06-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.