Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment· [2022] KEELC 3090 (KLR)

Nyabomite Farmers Cooperative Society v Chief Land Registrar & 5 others (Environment & Land Case 130 of 2020) [2022] KEELC 3090 (KLR)

High Court of Kenya
5 May 2022
2,422 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

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

#
This was the Plaintiff's Notice of Motion dated 31st May 2021 seeking the disqualification and recusal of the trial judge, Hon. Justice L. Komingoi, on grounds of apprehended bias, invoking Articles 25 and 50(1) of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act. The Plaintiff alleged the judge was biased because her initial preservation orders over Title No. I.R5074/1, granted on 27th January 2021, were later set aside while a subsequent application by the 3rd Defendant for similar orders was allowed. The 3rd and 6th Defendants opposed, contending the interim orders lapsed because the Plaintiff failed to serve them within three days as required by Order 40 Rule 4(3) of the Civil Procedure Rules, and that the supporting affidavit was defective. The court applied the settled recusal principles in Anyang Nyongo, Kaplan & Stratton and the South African Rugby Football Union case, holding that a party seeking recusal must demonstrate bias, that there is a presumption of judicial impartiality, and that the threshold is high. The Plaintiff produced no demonstrable evidence of bias and had mischaracterised the record, having claimed the court granted the 3rd Defendant's motion of 12th March 2021 when only prayer 2 was granted and the application directed to interparties hearing. The supporting affidavit, sworn by Stanley Michira Kibore but attributed to Geofirey Nyansete Nyaenya who disowned it, was held incompetent by reference to Gideon Sitelu Konchellah. The application was dismissed with costs to the Defendants/Respondents. Notably, although dismissing the recusal bid, the judge nonetheless refrained from further handling of the matter and directed that it be placed before the Presiding Judge on 25th May 2022 for reallocation, extending the interim orders until then.

Key legal issues

#
01

Whether the trial Judge should recuse herself for apprehended bias

Holding

The application was dismissed; the Plaintiff failed to adduce demonstrable evidence of bias

Reasoning

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.

p. 5
02

Validity of the supporting affidavit sworn by Stanley Michira Kibore but attributed to Geofirey Nyansete Nyaenya

Holding

The supporting affidavit was incompetent and could not be relied upon

Reasoning

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.

p. 2

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. 1.The notice of motion dated 31st May 2021 is dismissed with costs to the Defendants/Respondents
  2. 2.The trial judge refrained from handling the matter further
  3. 3.The matter to be placed before the Honourable Presiding Judge on 25th May 2022 for reallocation to another Judge
  4. 4.The interim orders are extended until reallocation

Authorities

#

Legislation

  • Constitution of KenyaArticle 25
  • Constitution of KenyaArticle 50(1)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure Rules, 2010Order 40 Rule 4(3)
  • Judicial Service (Code of Conduct and Ethics) Regulations 2020Regulation 21

Cases cited (9)

  • Philip Tunoi & Another v Judicial Service Commission & Another
    [2016] eKLR
  • Rex v Sussex Justices
    [1924] 1 KB
  • Jan Bonde Nielson v Herman Philipus Steyn & 2 Others
    [2014] eKLR
  • Sylvia Wangechi Njoki & Another v John Chege Njoki
    [2021] eKLR
  • Attorney General of the Republic of Kenya v Prof. Anyang Nyongo & Others
    Application No 5 of 2006 arising from Reference No 1 of 2006
  • Kaplan & Stratton v L. Z. Engineering Construction Ltd & 2 Others
    [2000] eKLR
  • Alvin Kamande Njenga & Another v Esther Njeri Njenga & 5 Others
    [2018] eKLR
  • President of the Republic of South Africa v The South Africa Rugby Football Union & 3 Others
    Case CCT 16/98
  • Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others
    [2018] eKLR
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.