Nyabomite Farmers Cooperative Society v Chief Land Registrar & 5 others (Environment & Land Case 130 of 2020) [2022] KEELC 3090 (KLR)
The bottom line
#Kenya's High Court dismissed a bid to remove a judge for bias, warning that recusal applications cannot be used to dodge accountability in a case.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial Judge should recuse herself for apprehended bias
The application was dismissed; the Plaintiff failed to adduce demonstrable evidence of bias
The court reviewed authorities on recusal, including Anyang Nyongo, Kaplan & Stratton and the South African Rugby Football Union case, which establish a presumption of judicial impartiality and a high threshold for displacing it. The Plaintiff's complaint rested on the setting aside of its preservation orders, which occurred because it failed to serve the orders within the statutory timeline under Order 40 Rule 4(3). The Plaintiff also mischaracterised the court's ruling of 12th March 2021 as granting the 3rd Defendant's application when only prayer 2 was granted and the application directed to interparties hearing. The court found the application dishonest and tactical.
Validity of the supporting affidavit sworn by Stanley Michira Kibore but attributed to Geofirey Nyansete Nyaenya
The supporting affidavit was incompetent and could not be relied upon
The affidavit was sworn by Stanley Michira Kibore but the averments were attributed to Geofirey Nyansete Nyaenya, who swore a further affidavit disowning it, stating he never made the averments nor appeared before a commissioner for oaths. Relying on Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli, where the Supreme Court found a defective affidavit of no value, the court held the supporting affidavit improper and incompetent.
Legal principles established
#- A party seeking recusal must demonstrate bias; recusal cannot be used as a tactic to escape accountability
- A judge who is not a party and has no relevant interest is disqualified only on a likelihood or apprehension of bias, which must be established and not presumed
Court orders
#- 1.The notice of motion dated 31st May 2021 is dismissed with costs to the Defendants/Respondents
- 2.The trial judge refrained from handling the matter further
- 3.The matter to be placed before the Honourable Presiding Judge on 25th May 2022 for reallocation to another Judge
- 4.The interim orders are extended until reallocation
- Jurisdiction invoked
- Article 25 and 50(1) of the Constitution of Kenya (2010); Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyabomite Farmers Cooperative Society v Chief Land Registrar & 5 others (Environment & Land Case 130 of 2020) [2022] KEELC 3090 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3090/eng@2022-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.