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ELCDismissedNotice of Motion dated 9th July 2019 (ELC case, Thika)· [2020] KEELC 3954 (KLR)

Engen Kenya Limited v Rukan Limited [2020] KEELC 3954 (KLR)

Environment and Land Court
23 January 2020
LGL. GACHERU
2,161 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 9th July 2019 in which the Defendant sought the recusal of Justice L. Gacheru from hearing the suit, reassignment of the case to another Judge, and costs. The Defendant's Director, Edward Rurii Kanjabi, deposed that he was reasonably apprehensive of bias because the Judge extended exparte injunctive orders issued on 20th March 2019 on 2nd April, 29th April and 29th May 2019, allegedly without reasons and despite the Defendant's protests and objections, creating a perception that the Judge had pre-formed views on the dispute. The Plaintiff opposed through Grounds of Opposition, characterising the application as a disguised appeal, an attack on judicial authority and an abuse of process. In its written submissions the Defendant relied on Mobile Kitale Services Station v Mobil Oil Kenya Ltd, while the Plaintiff relied on the Bangalore Principles of Judicial Conduct and Attorney General v Anyang' Nyong'o & Others. Justice Gacheru held that recusal requires a reasonable apprehension of bias held by reasonable, right-minded persons, assessed on the true facts. The extensions of the interim orders were lawful exercises of judicial discretion under Order 40; a dissatisfied party's remedy lay in review or appeal, neither of which the Applicant pursued. Citing Miller v Miller and Anyang' Nyong'o, the court found no evidence of partiality, observed that the Applicant had not even lost the case at the interlocutory stage, and declined to allow parties to choose their trial Judge. The application was dismissed entirely with costs to the Plaintiff/Respondent.

Key legal issues

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01

Whether extension of exparte interim orders by the Judge establishes a reasonable apprehension of bias

Holding

No - the extensions were lawful exercises of discretion under Order 40, and no evidence of bias or partiality was demonstrated.

Reasoning

The court held that extensions of interim injunctive orders are provided for under Order 40 Rule 1(a) and were made after consideration of the circumstances. A party dissatisfied with such an exercise of discretion has remedies of review or appeal, neither of which the Applicant pursued. Recusal cannot be used as a substitute for those remedies, and the Applicant's apprehension of bias was neither reasonable nor supported by evidence.

p. 3
02

The legal test for recusal on apprehension of bias

Holding

The test is objective: what would an informed person, viewing the matter realistically and practically, conclude; the apprehension must be reasonable and grounded in true facts.

Reasoning

Relying on the Bangalore Principles of Judicial Conduct (Values 2:1 and 2:5) and the South African jurisprudence adopted in President of Republic of South Africa v SARFU, the court stated that a Judge must disqualify himself where unable to decide impartially or where it may appear to a reasonable observer that he cannot, but the apprehension must be assessed against the true facts emerging at the hearing.

p. 3

Legal principles established

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  • An apprehension of bias justifying recusal must be a reasonable one, held by reasonable and right-minded persons; an unfounded or unreasonable apprehension is not a justifiable basis for a recusal application.
  • A party dissatisfied with a Judge's exercise of discretion (e.g. extension of interim orders) should seek review or appeal, not the Judge's recusal.
  • Allegations against a Judge do not oblige the Judge to disqualify himself, else mischievous parties could choose their trial Judge.

Court orders

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  1. 1.The Notice of Motion application dated 9th July 2019 is dismissed entirely
  2. 2.Costs of the application to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A(i) & 2
  • Civil Procedure ActSection 1B(i)(a)
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 1 Rule 1
  • Civil Procedure RulesOrder 40 and Order 40 Rule 1(a)
  • Environment and Land Court ActNot specified (No. 19 of 2011)

Cases cited (5)

  • Mobile Kitale Services Station Vs Mobil Oil Kenya Ltd
    (2014) 1 JLR
  • Attorney General Vs Anyang’ Nyong’o & Others
    [2007] 1EA 12
  • President of Republic of South Africa Vs The South African Rugby Football Union & Others
    case CCT16/98
  • Committee for Justice and Liberty et al Vs National Energy Board
  • Miller Vs Miller
    (1988) KLR 555
Jurisdiction invoked
Sections 1A(i) & 2, 1B(i)(a) and 3A of the Civil Procedure Act; Order 1 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Engen Kenya Limited v Rukan Limited [2020] KEELC 3954 (KLR)", Case Analysis (2020). Notice of Motion dated 9th July 2019 (ELC case, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3954/eng@2020-01-23

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