Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC No. 106 of 2017 (formerly High Court suit filed in 2007)· [2021] KEELC 1676 (KLR)

Mohamed Godana Jasro t/a Dal International Hotel v Maxwell Otieno Odongo [2021] KEELC 1676 (KLR)

Environment and Land Court
8 October 2021
1,888 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The plaintiff, Mohamed Godana Jasro trading as Dal International Hotel, sued Maxwel Otieno Odongo in 2007 in the High Court; the suit was transferred to the Environment and Land Court at Kisumu as ELC No. 106 of 2017. The plaintiff then applied for the recusal of Hon. Justice Antony O. Ombwayo, alleging a reasonable apprehension of bias. His grievance arose from the dismissal of his suit for non-attendance on 6th November 2019 when he arrived shortly before 9.00 a.m., only to learn that the Judge commenced hearings at 8.30 a.m., a fact he said was never communicated to him or his advocates nor indicated on the cause list. He asserted his confidence in the judicial process before the Judge had been irreparably eroded. The defendant, through the replying affidavit of Geoffrey O. Yogo, opposed the application, contending the 8.30 a.m. starting time had been communicated to the local chapter on the Judge's posting from Eldoret and applied uniformly to all matters, and that the application was a delaying tactic concerning an expired tenancy. The court applied the objective recusal tests in R v David Makali, Porter v Magill and Jasbir Rai, together with Regulations 9 and 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020. It held that the 8.30 a.m. starting time applied to all court users in Kisumu and that the plaintiff had not been treated differently; accordingly there was no evidence of bias. The application was dismissed with costs on 8th October 2021.

Key legal issues

#
01

Whether a reasonable apprehension of bias was established against the trial Judge

Holding

The application failed; the plaintiff was not treated differently from other litigants and no bias was shown

Reasoning

The court applied the objective test for recusal from R v David Makali and the Porter v Magill fair-minded observer standard, reinforced by the Supreme Court in Jasbir Rai. The only grievance was the court's 8.30 a.m. starting time, which had been communicated to the local chapter and applied uniformly to all matters, advocates and parties. A practice applied to all court users cannot constitute bias against one party, and the applicant made no specific factual allegations of bias established on evidence.

p. 2
02

Whether the dismissal of the suit for non-attendance at an 8.30 a.m. hearing disclosed bias

Holding

It did not; the 8.30 a.m. commencement applies to all court users in Kisumu

Reasoning

The court explained through the replying affidavit of Geoffrey O. Yogo that when the Judge was posted to Kisumu he communicated his starting time and mode of conducting hearings to the local chapter, and had done the same in Eldoret. Treating this matter differently from others would itself have shown bias. The dismissal for non-attendance followed the court's uniform practice and did not evidence a hostile disposition toward the plaintiff.

p. 2

Legal principles established

#
  • The test for recusal is objective: whether the fair-minded and informed observer, having considered the facts, would conclude there is a real possibility of bias
  • A uniform practice of the court applied equally to all parties, such as an early hearing starting time, is not an act of bias

Court orders

#
  1. 1.The application seeking the Judge's recusal is dismissed
  2. 2.Costs of the application awarded to the defendant

Authorities

#

Legislation

  • Judicial Service (Code of Conduct and Ethics) Regulations, 2020Regulation 21 Part II; Regulation 9(1)
  • Constitution of Kenya, 2010Articles 10, 27, 73(2)(b), 232 (as referenced in Regulation 9(1))

Cases cited (6)

  • Jan Bonde Nielson v Herman Philipus Steyn & 2 others
    HC COMM No. 332 of 2010 [2014] eKLR
  • R v David Makali and Others
    C.A Criminal Application No. Nai 4 and 5 of 1995 (Unreported)
  • R v Jackson Mwalulu & Others
    C.A Civil Application No. Nai 310 of 2004 (Unreported)
  • Philip K. Tunoi & another v Judicial Service Commission & Another
    CA Civil Application Nai No. 6 of 2016 [2016] eKLR
  • Porter v Magill
    [2002] 1 All ER 465
  • Jasbir Rai and 3 Others v Tarlochan Singh Rai and 4 Others
    SC Petition No. 4 of 2012 [2013] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (suit transferred from the High Court to the ELC at Kisumu); recusal application under the Judicial Service (Code of Conduct and Ethics) Regulations and the rule against bias (nemo judex in causa sua)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mohamed Godana Jasro t/a Dal International Hotel v Maxwell Otieno Odongo [2021] KEELC 1676 (KLR)", Case Analysis (2021). ELC No. 106 of 2017 (formerly High Court suit filed in 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1676/eng@2021-10-08

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