Five Eleven Traders and Auctioneers Through Its Owners Crispus Waithaka v Muses & another (Miscellaneous Application E006 of 2022) [2022] KEELC 3304 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to disqualify Justice Naikuni, ruling that vague suspicions of bias are not enough and punishing the applicant for hiding key facts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What are the basic legal grounds and/or parameters required for a Judge and/or a Presiding Officer to disqualify and/or recuse himself/herself?
- 2.Whether the application meets the established threshold for a Judge to recuse himself/herself from adjudicating proceedings before him
- 3.Whether the parties are entitled to the orders sought
- 4.What directions the Court should render in the given circumstances
- 5.Who will bear the costs of the application
Key legal issues
#Test and threshold for judicial recusal
The application did not meet the objective threshold for recusal; no reasonable and fair-minded observer armed with the facts would conclude the judge was biased
The court surveyed Kenyan, South African and English authority establishing the objective test for apparent bias: whether a fair-minded and informed observer, having considered the facts, would conclude there is a real possibility of bias. Facts constituting bias must be specifically alleged and established; vague suspicion, surmise or conjecture is not enough. Judges have a duty to sit absent a direct conflict of interest, and unwarranted recusal applications undermine justice. The 2nd Respondent adduced no proof of the alleged bias-inducing facts.
Material non-disclosure in the ex parte application for execution
The applicant withheld material facts, including the stay of the magistrate's court orders, misleading the court; the ex parte applicant bears a duty of full and fair disclosure
The court found that the auctioneer applicant had not disclosed that the court had stayed identical orders in CMCC Misc. Application No. 36 of 2022 when filing the ex parte miscellaneous application. Citing Court of Appeal authority, an ex parte applicant must make the fullest possible disclosure of all material facts, including facts that would have been known on proper inquiry; the penalty for breach is deprivation of any advantage obtained. This non-disclosure, not judicial bias, explained the impugned orders.
Multipicity of suits and forum shopping
Five cases had been filed across various courts over the same subject matter, amounting to forum shopping and abuse of process warranting reference to the Presiding Judge
The court traced the litigation history from the 2014 judgment through the Court of Appeal's 2020 decision, subsequent execution attempts and multiple new suits, observing that parties had interpreted and implemented the appellate orders each in their own way. Multiplicity of suits clogs the wheels of justice and is an abuse of process; parties should instead have pursued the Court of Appeal's directions on boundary survey and avoided judge-shopping.
Legal principles established
#- The test for recusal is objective: whether there is a reasonable ground for assuming the possibility of bias such as to create a reasonable doubt in the minds of the public about the fairness of the administration of justice, and facts constituting bias must be specifically alleged and established
- An ex parte applicant is under a duty to make full and fair disclosure of all material facts, failing which the court will deprive the applicant of any advantage obtained
- Multiplicity of suits over the same subject matter between the same parties constitutes forum shopping and an abuse of court process
- Recusal should not be undertaken lightly but only upon a conscientious decision based on plausible reasons backed by evidence; judges have a duty to sit
Court orders
#- 1.The Judge categorically refused to recuse himself from the matter
- 2.The notice of motion application dated April 1, 2022 by the 2nd Respondent/Applicant was dismissed with costs to the respondents in the instant application
- 3.All five related matters (ELC No. 30 of 2014, Court of Appeal No. 14 of 2016 consolidated with Civil Appeal No. 32 of 2016, Kwale ELC Case No. E001 of 2021, CMCC Misc. Application No. 36 of 2022 and ELC Misc. Application No. E006 of 2022) to be placed before the Environment & Land Court Presiding Judge at Mombasa on 7th July 2022 for further direction and guidance based on the Court of Appeal orders of 20th April 2020
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 50 of the Constitution of Kenya; section 10(2) of the Public Officers and Ethics Act; the Judicial Service Code of Conduct and Ethics
Relief refused
#Recusal of Hon. Justice L.L Naikuni from proceedings in Misc. Application No. E006 of 2022
The 2nd Respondent failed to establish a factual basis for apparent bias; the test is objective and no reasonable, fair-minded and informed observer would conclude bias; the application was an afterthought made in bad faith
Reallocation of Misc. Application No. E006 of 2022 to the Hon. Presiding Judge of the Division
Recusal having been refused, the referral sought had no basis
Costs
The application dismissed with costs to the respondents in the instant application
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That I categorically refuse to recuse myself from the matter particularly on the reasoning raised and advanced by the 2nd Respondent.
That the notice of motion application dated April 1, 2022 by the 2nd Respondent/Applicant be and is hereby dismissed with Costs to the Respondents in the instant application.
It is directed that the aforementioned matters be placed before the Environment & Land Court, Presiding Judge at Mombasa, on 7th July, 2022 for further direction and guidance moving forward based on the orders made by the Court of Appeal on 20th April, 2020 thereof.
when courts are faced with such proceedings for disqualification of a Judge, it is necessary to consider whether there is a reasonable ground for assuming the possibility of bias and whether it is likely to produce in the minds of the public at large a reasonable doubt about the fairness of the administration of justice.
Clearly, my conclusion is that this application has been made as an afterthought, in bad faith and all intended to disparage my name, reputation and fame as a Judge.
the multiplicity of actions on the same subject matter between the same parties even where there exists a right to bring the action is regarded as an abuse of the court process.
Issues in the judgment
#The date of the Court of Appeal judgment is inconsistently stated as 24th April 2020 and 20th April 2020 in the same judgment
The 2nd Respondent (Estate of Sonrisa Limited) is inconsistently described in the heading as the '2nd Respondent' but the recusal application filed by it is referred to as the application 'by the Applicant' while Five Eleven Traders is called 'the Applicant'
The chronology paragraph states the auctioneers filed this Miscellaneous Application on February 16, 2022 while the 2nd Respondent's affidavit states the Applicant filed it on 17th February 2022
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Estate Sonrisa Limited v Macharia & another (Civil Appeal E076 of 2023) [2026] KECA 39 (KLR)[2026] KECA 39 (KLR)30 Jan 2026applied
Cite this brief
#Cite this brief
Caselaw, "Five Eleven Traders and Auctioneers Through Its Owners Crispus Waithaka v Muses & another (Miscellaneous Application E006 of 2022) [2022] KEELC 3304 (KLR)", Case Analysis (2022). ELC Misc. Application No. E006 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3304/eng@2022-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.