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ELCDismissedELC Case of 2018 (Murang'a) - Ruling on recusal application dated 10/5/2021· [2021] KEELC 2309 (KLR)

Mugumoini Farmers Co Limited v Inshwil Builders & Engineers Ltd ; Ephraim Waithaka Ruitha & another (Interested Parties) [2021] KEELC 2309 (KLR)

Environment and Land Court
30 July 2021
3,454 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to disqualify a judge for bias, ruling that losing past rulings is not evidence of unfairness.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Murang'a (J G Kemei, Judge) determined an application by the Defendant/Applicant, Patrick Gukura Muraya, filed on 10 May 2021 seeking the recusal of the trial judge on grounds of apprehended bias. The underlying suit by the Plaintiff, Mugumoini Farmers Co Limited, seeks injunctions, revocation and cancellation of title to LR No Kakuzi/Kirimiri/Block 7/37 on allegations of fraud, including the allegation that the Defendant procured consent orders of 17 December 2009 in HCCC No 3086 of 1994 (Erastus Nduhiu t/a Emac Enterprises v Mugumoini Farmers Co Limited) by fraud and concealment. The Applicant contended that the consent order conclusively determined ownership, that the court had ignored it, and that the filing of the suit in Murang'a after dismissal of a Thika suit showed forum shopping and judicial bias. The Respondent opposed, arguing that no evidence of bias had been adduced and that adverse rulings do not establish bias. The court reviewed the settled law on recusal, including the duty to sit and the objective test of a reasonable, fair minded and informed observer, and the Judicial Service (Code of Conduct and Ethics) Regulations 2020, Regulation 21. It found that the Applicant had not discharged the high evidential burden of proving bias or a reasonable apprehension of it, and dismissed the application with no order as to costs.

Key legal issues

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01

Whether the Applicant demonstrated actual or apprehended bias warranting the judge's recusal

Holding

The application was dismissed; the Applicant merely recited a chronology of adverse rulings and did not table evidence of bias

Reasoning

The court applied the settled test of a reasonable, fair minded and informed observer and the high threshold for proving bias. The Applicant's grounds rested on the court's failure to give effect to the consent order of 17/12/2009 and on prior rulings in its disfavour. Adverse rulings cannot establish bias; the Applicant had already filed an appeal against the ruling, and the consent order had been before the court and considered. No evidence pointing to possible bias was tabled.

p. 4

Legal principles established

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  • Every judge has a duty to sit; recusal should not be used to cripple a judge from hearing a matter
  • The test for recusal is the objective reasonable apprehension of bias test, assessed from the perspective of a fair minded and informed observer
  • The threshold for finding bias is high, the facts must be specifically alleged and established, and the onus lies on the party alleging bias

Court orders

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  1. 1.The application for recusal dated 10/5/2021 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Judicial Service (Code of Conduct and Ethics) Regulations 2020Regulation 21
  • Judicial Code of Conduct (Bangalore Principles)

Cases cited (15)

  • Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others
    {2013} eKLR
  • Philip K Tunoi & Another vs Judicial Service Commission & Another
    [2016] eKLR, Nairobi Court of Appeal Civil App No. 6 of 2016
  • Galaxy Paints Company Limited vs Falcon Guards Limited
    {1999} eKLR
  • Kaplan & Straton vs L.Z. Engineering Construction Ltd & 2 others
    {2001} eKLR
  • Syngenta East Africa Limited vs Soy Kabatik Agri Center Limited
    {2019} eKLR
  • JGK vs FWK
  • Accredo AG & 3 Others vs Steffano Ucceli & Another
    {2018} eKLR
  • Gladys Boss Shollei Vs Judicial Service Commission & 2 Others
    [2018] eKLR
  • Kaplana H. Rawal v Judicial Service Commission & 2 others
    [2016] eKLR
  • Magill v. Porter
    (2002) 2 AC 357
  • Attorney General of Kenya v Prof Anyang' Nyong'o & 10 Others
    EACJ Application No. 5 of 2007
  • R. v. S. (R.D.)
    [1977] 3 SCR 484
  • R VS. David Makali and Others
    C.A Criminal Application No. 4 and 5 of 1995 Nairobi (unreported)
  • R Vs. Jackson Mwalulu & Others
    C.A Civil Application No. 310 of 2004 Nairobi
  • Simonson –vs- General Motors Corporation
    U.S.D.C. p.425 R. Supp, 574, 578 (1978)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit; recusal application under the Judicial Service (Code of Conduct and Ethics) Regulations 2020, Regulation 21

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, "Mugumoini Farmers Co Limited v Inshwil Builders & Engineers Ltd ; Ephraim Waithaka Ruitha & another (Interested Parties) [2021] KEELC 2309 (KLR)", Case Analysis (2021). ELC Case of 2018 (Murang'a) - Ruling on recusal application dated 10/5/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2309/eng@2021-07-30

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