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ELCDismissedEnvironment and Land Case Civil Suit 1518 of 2013· [2022] KEELC 12762 (KLR)

EMCO Billets and Steel Limited v Kiambu Dandora Farmers Company Ltd

Environment and Land Court
26 September 2022
SOS. O. Okong'o
4,186 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Okong'o J) determines a notice of motion dated 21 September 2021 by the defendant, Kiambu Dandora Farmers Company Ltd, in a land dispute with the plaintiff, EMCO Billets and Steel Limited, over LR No 12504 allegedly carved from LR No 11379/3. The defendant sought three orders: setting aside the consolidation orders of 1 July 2016 (which consolidated this suit with ELC Petition No 47 of 2011 and joined the plaintiff as interested party), the recusal of the presiding judge, and the disqualification of the plaintiff's advocates. By agreement, the court first determined only the recusal prayer. The defendant alleged apparent bias arising from the court's judgment of 10 June 2021 in ELC Misc Civil Application No 35 of 2018, which quashed a National Land Commission review of third parties' titles, and from alleged negative remarks about the defendant's settlement agreement with NLC. The court reviewed the recusal jurisprudence, including the fair-minded and informed observer test, and held that the high threshold for perceived judicial bias had not been met. The defendant, a party to the 2018 application, could have sought its stay or consolidation but did not; the court's handling of the matters in the normal course of business could not constitute bias, and no negative comment was made about the agreement. An unfavourable decision is a matter for appeal or review. The recusal prayer was dismissed, with the remaining prayers left to be pursued if the defendant wishes. No costs order was made.

Key legal issues

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01

Whether the court's prior judgment in ELC Misc Civil Application No 35 of 2018 established a real likelihood of bias against the defendant

Holding

No - the court merely dealt with matters raised in those proceedings in the normal course of business; hearing one suit separately from another cannot constitute bias

Reasoning

The defendant was a party to ELC Misc Civil Application No 35 of 2018 and could have sought its stay or consolidation with ELC Petition No 47 of 2011 but did not. The court was not obliged to direct the defendant's litigation strategy or to consolidate the matters. The issues in the judicial review application were unrelated to the petition, and the defendant's remedy against any unfavourable finding was appeal or review, not recusal.

p. 7
02

Whether alleged negative comments about the defendant's settlement agreement with NLC justified recusal

Holding

No - the court made no negative comment on the agreement's validity, which was not in issue in those proceedings

Reasoning

The agreement was raised in the proceedings and the court only observed that NLC's acts complained of were undertaken pursuant to it. The court did not deal with the agreement's validity. The defendant also failed to explain the agreement's relevance to the present suit or the petition, and had a right of appeal against any alleged adverse remark.

p. 7

Legal principles established

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  • The threshold for a successful allegation of perceived judicial bias is high and can only be displaced by cogent evidence
  • An unfavourable decision of a court should be subjected to appeal or review rather than used as a basis to seek the court's recusal
  • The test for recusal is whether a fair-minded and informed observer, having considered the facts, would conclude there was a real possibility of bias

Court orders

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  1. 1.Prayer 3 of the defendant's notice of motion dated 21st September 2021 seeking the judge's recusal is dismissed
  2. 2.The matter shall proceed for determination of the remaining prayers in the application should the defendant wish to pursue them

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 50
  • Constitution of Kenyaarticle 50
  • National Land Commission Actsection 14(3)
  • Constitution of Kenyaarticle 47

Cases cited (8)

  • Accredo AG & 3 others v Steffano Ucceli & another
    [2018] eKLR

    Test for real likelihood of bias and high threshold for perceived judicial bias

  • President of the Republic of South Africa v The South African Rugby Football Union & Others
    Case CCT 16/98

    Quoted Cory J in R v S (R.D.) on presumption of judicial impartiality

  • R. v S. (R.D.)
    [1977] 3 SCR 484

    High threshold for perceived judicial bias; presumption displaced only by cogent evidence

  • Porter v Magill
    [2002] 1 All ER 465

    Fair-minded and informed observer test for real possibility of bias

  • R v S (RD)

    Two-fold objective element of the bias test

  • Samuel Kazungu Kambi v IEBC & 2 others
    [2017] eKLR

    Unfavourable interlocutory decisions are grounds for appeal, not recusal

  • Kalpana H Rawal v Judicial Service Commission & 2 others
    [2016] eKLR

    Judges should not recuse themselves on flimsy and baseless allegations

  • Dari Limited & 5 others v East African Development Bank & 2 others
    [2020] eKLR

    Judicial officers should not accede too readily to suggestions of appearance of bias

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application brought under section 3A of the Civil Procedure Act, Order 50 of the Civil Procedure Rules and article 50 of the Constitution

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, "EMCO Billets and Steel Limited v Kiambu Dandora Farmers Company Ltd", Case Analysis (2022). Environment and Land Case Civil Suit 1518 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12762/eng@2022-09-26

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