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ELCDismissedNot stated in extract (related matter: ELC No. 1015 of 2016 (OS))· [2020] KEELC 2553 (KLR)

Kenya Veterinary Vaccines Production Institute ( KEVAVAPI) v Attorney General & 15 others [2020] KEELC 2553 (KLR)

Environment and Land Court
7 May 2020
EOE. O. Obaga
1,720 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to step aside from a land case, ruling that unfounded suspicion of bias is not grounds for a judge's recusal.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (E.O. Obaga, J) at Nairobi determined a Notice of Motion dated 14th May 2019 in which the 7th and 14th Respondents sought the Judge's recusal from a land petition on grounds of bias. The Applicants relied on remarks in the Judge's judgment of 4th April 2019 in a related matter (ELC No. 1015 of 2016 (OS), Banque Villa Estate Management Limited v Kenya Veterinary Vaccines Production Institute) in which the Judge described the blocking of an access road and retention of illegally acquired land as 'the height of impunity'. The Petitioner opposed the application. The court framed a single issue: whether the Applicants had established a likelihood of bias warranting recusal. Applying the reasonable, fair-minded and informed observer test drawn from Perry v Schwarzenegger, Philip K Tunoi v Judicial Service Commission, and Republic v IEBC Ex-parte Wavinya Ndeti (quoting Committee for Justice and Liberty v National Energy Board), the Judge held that the impugned remarks referred to an unnamed person in a different suit, were taken out of context, and that an unfounded apprehension based on incorrect facts cannot justify recusal. The Judge declined to follow judges who had recused themselves on far-fetched grounds, expressing conviction that no bias existed. The application was dismissed with costs to the Petitioner on 7th May 2020.

Key legal issues

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01

Whether the Judge's remarks in a related judgment established a likelihood of bias warranting recusal

Holding

No reasonable apprehension of bias was established; the remarks were taken out of context and referred to an unnamed party in a different suit, not the Applicants

Reasoning

The court examined the impugned remarks in ELC No. 1015 of 2016 (OS) and found they were made about an unnamed person who had blocked an access road, not about the Respondents in this petition. The test is that of a fair-minded and informed observer examining the record; the Applicants' counsel had merely circulated his own interpretation of the judgment without examining the record.

p. 2

Legal principles established

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  • The test for judicial impartiality is the perception of a reasonable, fair-minded and informed observer who has examined the record and the law; unsubstantiated suspicion will not suffice.
  • An unfounded or unreasonable apprehension of bias, or one founded on incorrect facts, is not a justifiable basis for recusal.
  • Judicial officers should not accede too readily to suggestions of apparent bias, as this would encourage parties to shop for favourable judges.

Court orders

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  1. 1.The Notice of Motion dated 14th May 2019 seeking the Judge's recusal is dismissed
  2. 2.Costs of the application awarded to the Petitioner

Authorities

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Cases cited (5)

  • Perry Vs Schwarzenegger
    671 F 3D 1052 (9th Cir., February 7, 2012)
  • Philip K Tunoi & Another Vs Judicial Service Commission & another
    (2016) eKLR
  • Republic Vs Independent Electoral and Boundaries Commission & 3 Others Ex-Parte Wavinya Ndeti
    (2017) eKLR
  • Committee for Justice and Liberty et al vs National Energy Board
  • In Re J.R.L.: Ex parte C.J.L.
    (1986) 161 CLR 342
Jurisdiction invoked
Inherent jurisdiction of the court over recusal applications (not expressly stated in the judgment)

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, "Kenya Veterinary Vaccines Production Institute ( KEVAVAPI) v Attorney General & 15 others [2020] KEELC 2553 (KLR)", Case Analysis (2020). Not stated in extract (related matter: ELC No. 1015 of 2016 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2553/eng@2020-05-07

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