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ELCOtherNot stated in the judgment (suit filed 23rd June 2020; Notice of Motion dated 25th September 2020)· [2021] KEELC 2692 (KLR)

Swing Limited v Attorney General (Sued on Behalf of the Kenya Meteorological Department) & 2 others [2021] KEELC 2692 (KLR)

Environment and Land Court
24 June 2021
1,428 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan judge refused to find bias over his own tough questions but stepped aside anyway, confirming that courts may probe discrepancies without losing impartiality.

What this practically means

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Executive summary

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The plaintiff sued the Attorney General and others on 23rd June 2020 seeking, inter alia, a temporary injunction restraining trespass on, sale, transfer or alienation of L.R No. 209/20791, which it claimed to have purchased from United Care Ltd. The court, while considering an interim injunction application, drew counsel's attention to a Kshs. 50,000,000 discrepancy between the purchase price in the sale agreement (Kshs. 110,000,000) and the value declared in the Grant for stamp duty purposes (Kshs. 60,000,000). The plaintiff's advocate took offence, alleging the court had taken sides. The plaintiff then filed a Notice of Motion dated 25th September 2020 seeking the judge's recusal on grounds of bias and re-allocation of the suit. The Attorney General and the 2nd defendant opposed through grounds of opposition, contending that no reasonable basis for bias was established and accusing the plaintiff of forum shopping. The court applied the fair-minded and informed observer test from Porter v Magill, as restated in Accredo AG v Steffano Ucceli and R v S(R.D.), holding that the threshold for a successful allegation of judicial bias is high and the presumption of impartiality can only be displaced by cogent evidence. It held that a court does not become biased merely by asking uncomfortable questions, and must be free to scrutinise the material placed before it. The application was found to have no merit, but since the plaintiff felt strongly it would not get justice before the court, the judge recused himself and allocated the matter to Eboso J. for further action.

Key legal issues

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01

Whether the judge's inquiry into the inconsistency in the declared purchase price created a real likelihood of bias

Holding

No; the court has a duty to peruse all documents and ask questions, and no reasonable person would conclude bias from such inquiry

Reasoning

The plaintiff alleged prejudicial remarks arising from the court's question about the Kshs. 50,000,000 discrepancy between the sale agreement price and the value declared for stamp duty. The court held that it must have a free hand to robustly scrutinise materials and engage parties. Applying the reasonable/man informed observer test, the court found the threshold for recusal not met, but recused itself anyway since the plaintiff felt strongly it would not get justice before the court.

p. 2
02

Burden of proof on an application for recusal for bias

Holding

The burden lies on the applicant to establish bias, applying the test of the fair-minded and informed observer (Porter v Magill)

Reasoning

The court restated the evolution of the bias test from mere suspicion to the reasonable man test, citing Accredo AG v Steffano Ucceli which quoted Porter v Magill and R v S(R.D.). The applicant must show that a fair-minded and informed observer, considering the facts, would conclude there is a real possibility of bias. The plaintiff failed to discharge this burden with cogent evidence.

p. 2

Legal principles established

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  • The threshold for a successful allegation of perceived judicial bias is high and the presumption of impartiality can only be displaced by cogent evidence
  • A court does not become biased merely by asking questions or scrutinising the material placed before it by the parties

Court orders

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  1. 1.The judge recused himself from hearing the matter notwithstanding the dismissal of the application
  2. 2.The matter is allocated to Eboso J. for further action

Authorities

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Cases cited (4)

  • Accredo AG & 3 others v Steffano Ucceli & another
    [2018] eKLR
  • President of the Republic of South Africa v The South African Rugby Football Union & Others
    Case CCT 16/98
  • R. v S. (R.D.)
    [1977] 3 SCR 484
  • Porter vs. Magill
    [2002] 1 All ER 465
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit; interlocutory recusal application under the court's inherent powers

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, "Swing Limited v Attorney General (Sued on Behalf of the Kenya Meteorological Department) & 2 others [2021] KEELC 2692 (KLR)", Case Analysis (2021). Not stated in the judgment (suit filed 23rd June 2020; Notice of Motion dated 25th September 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2692/eng@2021-06-24

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