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Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case 615 of 2017· [2022] KEELC 14907 (KLR)

Supeyo & Isaac & another (Suing as the administrators of the Estate of Keziah Gathoni Supeyo) v Millenium Dream Homes Limited & 3 others

Environment and Land Court
17 November 2022
2,707 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kajiado court refused to step aside from a land dispute, ruling that normal case-management decisions are not evidence of judicial bias.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kajiado (MN Gicheru, J) determines a notice of motion dated May 4, 2022 in which the plaintiffs, administrators of the estate of the late Keziah Gathoni Supeyo, sought the judge's recusal from their long-pending land suit against Millenium Dream Homes Limited, Wonders Valley Limited, Joseph Gregory Nyamu and the Attorney General. The application arose after the court dismissed the plaintiffs' adjournment application on April 28, 2022, refused a stay of proceedings, and counsel announced withdrawal. The plaintiffs alleged actual bias, hostility, selective interruption of their counsel, incomplete recording of proceedings and preferential accommodation of the third defendant, a former judicial officer. The second and third defendants opposed, terming the application an abuse of process and a delaying tactic in a twelve-year-old case. The court set out paragraph 20(1) of the Judicial Code of Conduct and Ethics governing recusal, identified actual bias as the only ground invoked, and tested each deposition against the record. It found no jumped-to conclusions, no hostility, lawful exercise of case-management powers under section 1A of the Civil Procedure Act, and no evidence of favouritism toward the third defendant. Applying the objective reasonable-apprehension test from Kalpana Rawal and the Supreme Court's guidance in Gladys Boss Shollei on the duty to sit, the court dismissed the application with costs to the defendants.

Key legal issues

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01

Grounds for judicial recusal under the Judicial Code of Conduct and Ethics

Holding

Only paragraph 20(1)(d) - actual bias or prejudice - was invoked; none of the eight enumerated circumstances was established on the facts

Reasoning

The court set out the eight circumstances in paragraph 20(1) of the Code warranting recusal and the three exceptions in sub-paragraph 3. The plaintiffs relied solely on actual bias. The court examined each deposition and found no conclusion jumped to, no hostility, and no preferential treatment of the third defendant.

p. 4
02

Whether the court's case-management powers evidenced bias

Holding

Dismissing an adjournment, limiting submissions and not recording every word are lawful case-management functions, not bias

Reasoning

The court held it acted within its powers under section 1A of the Civil Procedure Act to reject an undeserved adjournment, curb irrelevancies and record the point rather than every word, consistent with the overriding objective of just, expeditious and proportionate resolution.

p. 5
03

Whether the apprehension of bias was reasonable

Holding

The objective test from Kalpana Rawal was not satisfied; the applicant was found not well informed of court procedures

Reasoning

Applying the reasonable apprehension test, the court found the first plaintiff misapprehended the court's powers to record proceedings, limit submissions and issue binding directions, so no reasonable, fair-minded and informed member of the public would apprehend partiality.

p. 5

Legal principles established

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  • The test for recusal is objective: whether circumstances give a reasonable, fair-minded and informed member of the public an apprehension that the judge will not apply his mind impartially
  • Absent valid reasons for recusal, a judge has a concomitant duty to sit
  • An application for recusal is a shield, not a sword to delay or defeat the other party's hearing

Court orders

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  1. 1.The plaintiffs' notice of motion dated May 4, 2022 seeking recusal is dismissed
  2. 2.Costs of the application to the defendants

Authorities

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Legislation

  • Judicial (Code of Conduct and Ethics)paragraph 20(1) and sub-paragraph 3
  • Civil Procedure Actsection 1A(1) and 1A(3)
  • Constitution of Kenyaarticles 159 and 160

Cases cited (2)

  • Kalpana Rawal versus Judicial Service Commission and 2 others
    (2016) eKLR

    Objective test for reasonable apprehension of bias

  • Gladys Boss Shollei versus Judicial Service Commission and another
    (2018) eKLR

    Duty to sit absent valid reasons; recusal application is a shield not a sword

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the recusal application in a pending land suit

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, "Supeyo & Isaac & another (Suing as the administrators of the Estate of Keziah Gathoni Supeyo) v Millenium Dream Homes Limited & 3 others", Case Analysis (2022). Environment & Land Case 615 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14907/eng@2022-11-17

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