Moilo & 2 others (Suing on their own behalf and in their capacity as National Officials of Bethel Church) v Kariuki & 8 others (Being sued on their own behalf and on behalf of the members of Bethel Church)
The bottom line
#A Kenyan court refused to step aside from a church land dispute, ruling that suspicion of bias is not enough without concrete evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants established grounds for recusal on apprehended bias
Application dismissed; no evidence of bias or reasonable apprehension of bias was demonstrated
The court scrutinised the affidavits of both sides and found no specific evidence of prejudice or partiality. The applicants merely gave a chronology of events, principally the refusal to adjourn so lead counsel could attend, without guiding evidence of bias. The objective test of the fair minded and informed observer was not met, and the court noted a prior recusal application had similarly failed before Justice Okongo.
The applicable test and standard of proof for recusal
The objective 'real possibility' test applies; the standard of proof is high and the burden lies on the applicant
Drawing on Kalpana H Rawal v JSC, Magill v Porter, Anyang' Nyong'o, R v S (R.D) and the Judicial Service (Code of Conduct and Ethics) Regulations 2020 regulation 21, the court adopted the fair minded and informed observer test and held that a mere suspicion is not enough; the threshold is high and the onus of demonstrating bias lies with the person alleging it.
Legal principles established
#- The test for recusal is objective: whether a fair minded and informed observer, having considered the facts, would conclude there is a real possibility of bias
- The facts constituting bias must be specifically alleged and established; the threshold is high and the onus lies on the party alleging bias
- A judge has a duty to sit and should not recuse on flimsy or baseless allegations
Court orders
#- 1.The defendants/applicants' application dated February 24, 2022 seeking recusal of the court is dismissed with costs to the plaintiffs/respondents
- 2.The two pending applications dated February 11, 2022 and February 23, 2022 to be canvassed by way of written submissions as earlier directed on February 24, 2022
- 3.Mention on October 19, 2022 to confirm compliance and take a ruling date
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; application under Order 51 rules 1-3, Order 40 rule 10 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act, section 3(2) of the Judicature Act and Article 50 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moilo & 2 others (Suing on their own behalf and in their capacity as National Officials of Bethel Church) v Kariuki & 8 others (Being sued on their own behalf and on behalf of the members of Bethel Church)", Case Analysis (2022). Environment and Land Case Civil Suit 863 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13316/eng@2022-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.