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ELCOtherNot stated in judgment (motion dated 4/11/2020 within an ELC suit filed 16/9/2020)· [2021] KEELC 4372 (KLR)

Sylvia Wangechi Njoki & another v John Chege Njoki [2021] KEELC 4372 (KLR)

Environment and Land Court
11 February 2021
JKJ G Kemei
2,001 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to disqualify a judge over bias claims, but moved the case to Thika to protect public confidence in the proceedings.

What this practically means

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Executive summary

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The Defendant in an Environment and Land Court suit at Murang'a moved by a motion dated 4th November 2020 seeking that the matter be placed before another court of similar jurisdiction, on the ground that the 1st Plaintiff was an Accountant employed by the Judiciary at Murang'a Law Courts, working near the High Court registry and the presiding judge's chambers, giving rise to an apprehension of interference with the court file and bias. The Respondents opposed through a replying affidavit sworn by their advocate, who denounced the application as misconceived and an affront to judicial authority, and gave notice to cross-examine the Applicant. The Applicant, in a supplementary affidavit, faulted the advocate for swearing the affidavit and sought its striking out. No written submissions were filed despite directions, so the Court determined the motion on the pleadings. Framing the sole issue as whether the Court should recuse itself, the Court applied the objective test of a reasonable apprehension of bias drawn from R. v. S. (R.D.) and the Supreme Court's decision in Gladys Boss Shollei v Judicial Service Commission. It held the Applicant had not pleaded with specificity how or by whom the file would be interfered with, that Judiciary staff enjoy Article 50 rights of access to courts, and that no bias was proved. The application was disallowed. Nonetheless, to safeguard institutional integrity and public confidence, and since the suit property at Kenol borders the jurisdictions of two ELC courts, the Court transferred the file to Thika ELC for hearing and determination. Judgment delivered on 11th February 2021 by J G Kemei J.

Key legal issues

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Whether the Court should recuse itself from hearing the matter

Holding

The application failed on unproved bias, but the Court nonetheless transferred the file to Thika ELC to safeguard the appearance of impartiality and public confidence

Reasoning

The test for recusal is objective: a reasonable apprehension of bias held by reasonable, right-minded and informed persons must be demonstrated, and the threshold is high. The Applicant alleged only that the 1st Respondent, a Judiciary employee at Murang'a Law Courts, shared a working environment with the presiding judge, without pleading with specificity how or by whom the court file would be interfered with. Interference with a court file is serious and cannot be whimsically stated. Judiciary staff are entitled to access to the courts under Article 50. Weighing the right to be heard against the judge's duty to sit, the Court found no proof of bias but transferred the file to Thika ELC given the suit property's location near the boundary of the two ELC jurisdictions.

p. 3

Legal principles established

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  • Recusal is a serious matter and the applicant bears the duty of establishing facts upon which a fair-minded and informed observer would infer bias; the test is objective and the threshold is high

Court orders

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  1. 1.Application for recusal disallowed on the basis of unproved bias
  2. 2.Court file transferred to Thika ELC for hearing and determination, for the sake of safeguarding the integrity and due process of the Court and maintaining the appearance of impartiality

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Judicial Service Code of Conduct and EthicsRule 10(1)
  • Bangalore Principles of Judicial ConductNot specified

Cases cited (3)

  • R. v. S. (R.D.)
    [1977] 3 SCR 484
  • South African Defence Force and Others v. Monnig and Others
    (1992) (3) SA 482 (A), p.491
  • Gladys Boss Shollei vs Judicial Service Commission & Another
    2018 eKLR
Jurisdiction invoked
Inherent/recusal jurisdiction of the Environment and Land Court over a matter pending before it (no specific constitutional or statutory provision invoked for jurisdiction)

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, "Sylvia Wangechi Njoki & another v John Chege Njoki [2021] KEELC 4372 (KLR)", Case Analysis (2021). Not stated in judgment (motion dated 4/11/2020 within an ELC suit filed 16/9/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4372/eng@2021-02-11

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