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ELCDismissedEnvironment and Land Case Civil Suit 863 of 2015· [2022] KEELC 13316 (KLR)

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)

Environment and Land Court
28 September 2022
4,179 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (Mogeni J) determines a recusal application dated February 24, 2022 brought by the defendants in ELC Suit No 863 of 2015, a seven-year-old dispute between factions of Bethel Church over properties including LR No Limuru/Bibirioni/T.249 and other Limuru parcels. The applicants, supported by the affidavit of Samuel Mwangi Gateri, alleged bias on the part of the judge, principally that she refused to adjourn proceedings to allow lead counsel attending the Court of Appeal to argue pending applications dated February 11 and 23, 2022, and that she allowed the plaintiffs to apply to vacate status quo orders despite alleged contempt. The plaintiffs, through Bishop Joseph Moilo's replying affidavit, denied any proof of bias and noted a prior recusal application had been dismissed in 2018. The court set out the settled law: the objective test of whether a fair minded and informed observer would perceive a real possibility of bias, the high threshold of proof, the burden on the applicant, and the judge's duty to sit. Surveying authorities including Kalpana H Rawal, Galaxy Paints, Anyang' Nyong'o, R v S (R.D) and regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020, the court found no specific evidence of bias, only a chronology of events. The application was dismissed with costs to the plaintiffs, and the two pending applications were directed to be canvassed by written submissions, with mention on October 19, 2022.

Key legal issues

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01

Whether the applicants established grounds for recusal on apprehended bias

Holding

Application dismissed; no evidence of bias or reasonable apprehension of bias was demonstrated

Reasoning

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.

02

The applicable test and standard of proof for recusal

Holding

The objective 'real possibility' test applies; the standard of proof is high and the burden lies on the applicant

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The defendants/applicants' application dated February 24, 2022 seeking recusal of the court is dismissed with costs to the plaintiffs/respondents
  2. 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. 3.Mention on October 19, 2022 to confirm compliance and take a ruling date

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 rules 1-3; Order 40 rule 10
  • Civil Procedure ActSections 1A, 1B and 3A
  • Judicature ActSection 3(2)
  • Constitution of KenyaArticle 50
  • Judicial Service (Code of Conduct and Ethics) Regulations 2020Regulation 21

Cases cited (15)

  • Richard Onyino Simwa v Joshua Angelei and others
    Kitale ELC Case No 69 of 2019

    Self-recusal not readily acceded to; judges have a duty to sit; forum-shopping discouraged

  • Hon Kalpana H Rawal v Judicial Service Commission & 2 others
    Civil Appeal (Application) No 1 of 2016 [2016]

    Judges should not recuse on flimsy allegations; adopted Magill v Porter objective test

  • Galaxy Paints Co Ltd v Falcon Guards Ltd
    [1999] eKLR

    Duty of judicial officers to sit; not to accede too readily to suggestions of bias

  • J G K v F W K
    [2019] eKLR

    Recusal requires plausible reasons backed by evidence; avoid judge-shopping

  • Gladys Boss Shollei v Judicial Service Commission & another
    [2018] eKLR

    Doctrine of the duty of a judge to sit

  • Andrew Alex Wanyandeh v The Attorney General & Kenya Railway Corporation
    Nairobi Milimani HCCC No 844 of 2005

    Litigants cannot choose their judges; disqualification applications not lightly allowed

  • Republic v Mwalulu & 8 others
    [2005] 1 KLR

    Objective test; facts constituting bias must be specifically alleged and established

  • Locabail UK Ltd v Bayfield Properties Ltd
    [2000] QB 451

    A judge should neither yield to tenuous objections nor ignore objections of substance

  • Magill v Porter
    (2002) 2 AC 357

    Fair minded and informed observer test for real possibility of bias

  • Attorney General of Kenya v Prof Anyang' Nyong'o & 10 others
    EACJ Application No 5 of 2007

    Objective test of reasonable apprehension of bias; guard against litigants blaming losses on bias

  • R v S (R.D)
    [1977] 3 SCR 484

    Reasonable apprehension of bias must be reasonable and held by informed persons; high threshold

  • R v David Makali and others
    CA Criminal Application No 4 and 5 of 1995 Nairobi (unreported)

    Objective test; bias facts must be specifically alleged and established

  • R v Jackson Mwalulu & others
    CA Civil Application No 310 of 2004 Nairobi

    Reinforces the objective test for bias

  • Philip K Tunoi & another v Judicial Service Commission & another
    [2016] eKLR (Civil Appeal No 6 of 2016)

    Determination of bias discernible from material before court; fair minded and informed observer test

  • Simonson v General Motors Corporation
    USDC p.425 R. Supp, 574, 578 [1978]

    Duty to sit absent valid reasons for recusal

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.