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ELCOtherNot stated in the excerpt· [2021] KEELC 228 (KLR)
Simandi Investments Limited v Rosaline Njeri Macharia & 2 others; Gershom Otachi Bwomanwa, Chairman National Land Commission& another (Intended Contemnor); Equity Bank Limited & 2 others (Intended Interested Parties) [2021] KEELC 228 (KLR)
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·~16 min to read original · ~4 min briefThe bottom line
#A Kenyan judge refused to disqualify himself for bias but stepped aside anyway, confirming that losing an interlocutory ruling is grounds for appeal, not recusal.
What this practically means
#Executive summary
#This ruling of the Environment and Land Court at Nairobi (S. Okong'o, J.) determines a Notice of Motion dated 29th March 2021 by the plaintiff seeking the judge's disqualification and recusal from a long-running land suit over L.R No. 209/11293/1, which is subject to compulsory acquisition for the Nairobi Expressway Road Project. The application was founded on the court's ruling of 4th March 2021, which joined the National Land Commission and KeNHA as defendants and directed them to withhold one-half of the compensation payable pending trial, an order partly made on the court's own motion and now under appeal to the Court of Appeal. The plaintiff alleged apparent bias and loss of confidence in the trial court. The 1st defendant, the 2nd defendant (through the Attorney General) and the 2nd intended contemnor opposed, pointing out this was a second recusal application, that the plaintiff had appealed the impugned order, and that mere dissatisfaction with an unfavourable interlocutory order cannot ground recusal. Applying the fair-minded and informed observer test from Porter v Magill as adopted in Accredo AG v Steffano Ucceli, and citing Kalpana Rawal, Dari Limited and Samuel Kazungu Kambi, the court held the plaintiff had not discharged the burden of proving a real likelihood of bias; indeed, its unsubstantiated claim of the judge's personal interest showed bad faith. Notwithstanding finding the application baseless, the judge recused himself, noting prior recusal attempts and a complaint to the Judicial Service Commission, and allocated the matter to Angote J. No costs order was made in the reproduced ruling.
Key legal issues
#01
Whether the order of 4th March 2021, made partly on the court's own motion, established apparent bias against the plaintiff
Holding
No. The order was made on the plaintiff's own application, reasons were given, and the plaintiff had appealed; nothing in the order showed bias.
Reasoning
The court held the impugned order was made on the plaintiff's application and reasoned reasons were supplied. Dissatisfaction with an interlocutory order is a matter for appeal or review, not recusal. The plaintiff's unsubstantiated allegation of personal interest, made only in submissions without affidavit evidence, showed bad faith and fell far short of the high threshold for perceived judicial bias.
p. 5
Legal principles established
#- The threshold for a successful allegation of perceived judicial bias is high and the presumption that judges carry out their oath can only be displaced by cogent evidence
- The test for recusal is whether a fair-minded and informed observer, having considered the facts, would conclude there was a real possibility of bias
- A judge cannot be called upon to recuse himself merely because he has made an unfavourable order against a party
Court orders
#- 1.The judge, S. Okong'o, recused himself from continuing to handle the matter
- 2.The matter allocated to Angote J. for further action
- Jurisdiction invoked
- Inherent jurisdiction of the court; application for recusal of the trial judge
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simandi Investments Limited v Rosaline Njeri Macharia & 2 others; Gershom Otachi Bwomanwa, Chairman National Land Commission& another (Intended Contemnor); Equity Bank Limited & 2 others (Intended Interested Parties) [2021] KEELC 228 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/228/eng@2021-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.