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ELCPartially AllowedNotice of Motion dated 16th October 2020 in ELC suit (Thika)· [2021] KEELC 4106 (KLR)

Marriot Africa International Limited v Margaret Nyakinyua Murigu & 3 others; Ukombozi Holdings Ltd (Interested Party) [2021] KEELC 4106 (KLR)

Environment and Land Court
4 March 2021
LGL. GACHERU
3,237 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court judge stepped aside from a case even after finding no proof of bias, showing judges may recuse themselves so justice appears fair.

What this practically means

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Executive summary

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The 3rd Defendant, Willy Kihara Njoki Kanyotu, moved the Environment and Land Court at Thika by Notice of Motion dated 16th October 2020 under Articles 50(1) and 25(c) of the Constitution seeking the recusal of the Presiding Judge (L. Gacheru J) and referral of the matter to the Presiding Judge of the Environment and Land Court for reallocation. He alleged the judge had handled three prior disputes concerning the suit property, LR No. 11261/76, involving overlapping parties, had personal knowledge of the facts, and had ruled in favour of the Plaintiff on 24th September 2020 despite fraud allegations. The application was supported by the other Defendants and opposed by the Plaintiff and the Interested Party, who argued it was a belated, meritless attack triggered only by the adverse ruling and an abuse of process. Applying the objective test of reasonable apprehension of bias from Kalpan Rawal and related authorities, the court found that the Applicant had not raised the issue until after the adverse ruling, that the prior matters were not concluded before the judge, and that no actual or perceived bias was demonstrated. However, noting the disparaging allegations made and the maxim that justice must be seen to be done, the judge found it prudent and in the interest of justice to disqualify herself. The application was allowed in terms of prayers 2 and 3, with costs in the cause, and the file was directed to be placed before the Presiding Judge of the Environment and Land Court for allocation to another judge. Judgment delivered virtually at Thika on 4th March 2021.

Key legal issues

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01

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

Holding

No actual or perceived bias was demonstrated; prior handling of related disputes at preliminary stages does not establish bias

Reasoning

The Applicant knew of the prior matters since 2019 but only objected after the ruling of 24th September 2020 went against him. Judges cannot be expected to remember all land parcels they have encountered. The objective test requires specific facts establishing bias, not mere allegations stemming from dissatisfaction with an interlocutory outcome.

p. 4
02

Whether recusal should nonetheless be granted notwithstanding absence of established bias

Holding

Yes - the judge exercised her discretion judiciously to disqualify herself in the interest of justice given the disparaging allegations made

Reasoning

Although no evidence of bias was found, the judge considered the maxim that justice must not only be done but be seen to be done, and found it prudent, fair and in the interest of justice to disqualify herself, allowing the application in totality.

p. 4

Legal principles established

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  • The objective test of a reasonable, fair-minded and informed member of the public governs recusal applications
  • A party seeking recusal bears the burden of specifically alleging and establishing facts constituting bias; recusal is discretionary but must be exercised judiciously
  • Every judge has a duty to sit; recusal should not be used to cripple a judge from hearing a matter

Court orders

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  1. 1.The 3rd Defendant/Applicant's Notice of Motion Application dated 16th October 2020 is allowed in terms of prayers No. 2 and 3 with costs being the cause
  2. 2.The Deputy Registrar to place the file before the Presiding Judge of the Environment & Land Court for allocation to another Court and/or another Judge

Authorities

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Legislation

  • Constitution of KenyaArticles 50(1), 25(c)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (8)

  • Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others
    Petition No.4 of 2012 (2013) eKLR
  • Gladys Boss Shollei vs Judicial Service Commission & Another
    [2018] eKLR
  • Kalpan Rawal vs Judicial Service Commission & 2 others
    (2016) eKLR
  • Attorney General vs Prof. Anyang Nyongo & 10 Others
    Application No. 5 of 2007
  • R vs David Makali and others
    C.A. Application No. 4 and 5 of 1995 Nairobi (unreported)
  • R vs Jackson Mwalulu & Others
    C.A Civil Application No. 310 of 2004, Nairobi
  • Attorney General vs Prof. Anyang Nyongo & 2 others
    (2007) IEA
  • RPM vs PKM
    (2011) eKLR
Jurisdiction invoked
Articles 50(1) and 25(c) of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Marriot Africa International Limited v Margaret Nyakinyua Murigu & 3 others; Ukombozi Holdings Ltd (Interested Party) [2021] KEELC 4106 (KLR)", Case Analysis (2021). Notice of Motion dated 16th October 2020 in ELC suit (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4106/eng@2021-03-04

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