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ELCDismissedApplication dated 25 September 2020 within Environment and Land Court suit (originally High Court Nairobi, 1999)· [2021] KEELC 4457 (KLR)

Kutima Investments Limited v Muthoni Kihara & another [2021] KEELC 4457 (KLR)

Environment and Land Court
25 January 2021
4,703 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that a judge's case management directions cannot prove bias, dismissing a recusal application with costs.

What this practically means

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Executive summary

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The 1st defendant in a long-running trespass and mining suit (originally filed in the High Court at Nairobi in 1999 over LR No. 12199/4 in Taita Taveta) applied for the recusal of Munyao Sila J and transfer of the case to the Environment and Land Court at Nairobi. Her apprehension of bias arose from directions of 27 January 2020 in which the judge ordered that the plaintiff's application to withdraw the suit be heard in priority to her application to amend the defence to introduce a counterclaim, and from the judge's remark that if withdrawal succeeded there would be nothing left on which the amendment could be founded. She also relied on prior proceedings in Nakuru in which her counsel, Mr. Kanjama, had been involved. The plaintiff and the 2nd defendant opposed the application. Applying the objective test for apprehended bias drawn from Kalpana Rawal v JSC and the South African SARFU case, the court held that a reasonable, objective and informed person would not apprehend bias merely because a judge gave one application priority over another, since sequencing applications is ordinary judicial work and the remedy for an aggrieved party is appeal, which had already been granted and pursued. Stating the natural consequence of a successful withdrawal was not predetermination, and the prior Nakuru proceedings were a red herring with no common thread beyond the appearance of the same counsel. The court declared it had no bias against the applicant or her counsel. The recusal application was dismissed with costs, and no prejudice was found to the applicant, who retains the option of a fresh suit on the counterclaim if the suit is withdrawn.

Key legal issues

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01

Apprehension of bias arising from case-management directions

Holding

Recusal on apprehended bias fails; prioritising one application over another is an ordinary judicial function and cannot ground an objective apprehension of bias.

Reasoning

Judges are routinely required to decide the sequence in which competing applications are heard. If such directions grounded recusal applications, courts would only hear recusal motions. The judge had granted leave to appeal the directions, and the applicant had exercised that right, making appeal the proper avenue. The applicant also suffered no prejudice, since a counterclaim could be pursued in a fresh suit if the suit fell away.

p. 4
02

Whether the judge's reasons for sequencing disclosed a closed mind

Holding

Stating the natural consequence of allowing withdrawal (no suit left to amend) is not predetermination.

Reasoning

The court illustrated with the analogy of a preliminary objection heard first because, if upheld, the suit collapses. Pointing out the obvious course of events does not close the judge's mind; the application to withdraw had yet to be heard and would be decided on its merits, impartially.

p. 4
03

Prior proceedings involving the applicant's counsel

Holding

The Nakuru Constitutional Petition No. 7 of 2011 episode is irrelevant; mere appearance of the same counsel in a different matter cannot be transported into a subsequent suit.

Reasoning

There was no common thread between that case and this suit apart from the counsel's appearance. The judge confirmed he had nothing against counsel and would readily recuse himself if he had.

p. 4

Legal principles established

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  • There is a presumption of judicial impartiality, and the party alleging bias bears the burden of disproving it.
  • The test for apprehended bias is objective: whether a reasonable, objective and informed person would reasonably apprehend that the judge will not bring an impartial mind to the case.
  • A judge making procedural directions on the sequencing of applications does not thereby become biased; the remedy for an aggrieved party is appeal, not recusal.
  • A judge pointing out the natural consequence of an order (e.g. that a successful withdrawal leaves nothing to amend) does not amount to predetermination or bias.

Court orders

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  1. 1.The 1st defendant's application dated 25 September 2020 seeking recusal of the judge and transfer of the matter to Nairobi is dismissed with costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the 2010 Constitution; interlocutory recusal application within pending suit

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, "Kutima Investments Limited v Muthoni Kihara & another [2021] KEELC 4457 (KLR)", Case Analysis (2021). Application dated 25 September 2020 within Environment and Land Court suit (originally High Court Nairobi, 1999). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4457/eng@2021-01-25

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