Republic v Director of Land Adjudication & 4 others Ex parte Peter Munoru; Henry Kang’ethu & 4 others (Interested parties) [2021] KEELC 2295 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Test for recusal of a judge on grounds of alleged bias
The recusal application fails because no bias or reasonable apprehension of bias was established; the test is objective, that of a fair-minded and informed member of the public, and the facts of bias must be specifically alleged and proved.
The judge explained that he handled the case for the first time during a backlog-clearance service week and neither knew the parties nor had any prior dealings with them beyond ordinary professional interaction with counsel. Applying the objective test from the decided authorities, the court found the apprehension of bias rested on conjecture rather than specific established facts, and dismissed the application.
Whether the orders of 01/09/2020 should be reviewed for error apparent on the face of the record
Review is warranted because the earlier directions of 30/01/2020 by the Presiding Judge were not brought to the judge's attention on 01/09/2020, creating an error apparent on the face of the record; but the review is not granted for 'other sufficient reason'.
The court examined the two sets of directions: on 30/01/2020 the matter was to proceed by viva voce evidence with cross-examination of interested parties on their affidavits, while on 01/09/2020 it was directed that the judicial review matter be canvassed by written submissions. Having sighted a copy of the 30/01/2020 directions, which neither party had cited on 01/09/2020, the court found an apparent error justifying review under Order 45.
Legal principles established
#- An applicant for a judge's recusal must demonstrate a reasonable apprehension of bias, judged objectively from the standpoint of a fair-minded and informed member of the public; the facts constituting bias must be specifically alleged and established.
- A court may review its own interlocutory directions under Order 45 where an error or mistake apparent on the face of the record is shown, including where earlier directions by another judge were overlooked.
Court orders
#- 1.The first application dated 15th September 2020 seeking stay of proceedings and recusal dismissed
- 2.The second application dated 28th September 2020 allowed only on the ground of error and/or mistake apparent on the face of the record, and not for 'other sufficient reason'
- 3.The orders of 01/09/2020 reviewed to align with the earlier directions of 30/01/2020
- 4.The fourth prayer in the second application (that the review be heard by another judge) not allowed as superfluous
- 5.No order as to costs
- Jurisdiction invoked
- Order 45 rule 1(1) and 2(1) of the Civil Procedure Rules as read with Section 50 of the Civil Procedure Act, Chapter 21 Laws of Kenya (review); inherent jurisdiction over recusal applications
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Director of Land Adjudication & 4 others Ex parte Peter Munoru; Henry Kang’ethu & 4 others (Interested parties) [2021] KEELC 2295 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2295/eng@2021-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.