Gikunda v Bogani Gardens Management Company Ltd
The bottom line
#A Kenyan court dismissed a company's bid to disqualify a judge and pause its case, ruling that losing a ruling is not evidence of bias.
What this practically means
#Executive summary
#Key legal issues
#Whether a reasonable basis for recusal was established
No. The deponent to the supporting affidavit was not in court when the impugned ruling was delivered, so his allegations were hearsay; the other complaints amounted to dissatisfaction with the ruling.
The court applied the objective fair-minded and informed observer test from Porter v Magill as adopted in Tunoi, and the Republic v Mwalulu requirement that facts constituting bias be specifically established. The deponent could not have heard the alleged words since the record showed another advocate appeared. A judge is not obliged to apply only the authorities cited by parties, and deciding a matter one way does not connote a pre-determined mindset.
Whether the threshold for stay of proceedings pending appeal was met
No. The applicant only asserted the appeal had high chances of success and did not meet the stringent requirements for stay.
Relying on Kenya Wildlife Service v Mutembei, Global Tours & Travels and Halsbury's Laws, the court held stay of proceedings is a grave interference with access to justice to be granted sparingly. The appeal could be prosecuted to conclusion and the trial court would abide by its outcome; Order 42 Rule 6(1) would be worded differently if a pending appeal alone warranted stay.
Legal principles established
#- An application for recusal must be anchored on cogent, credible and reasonable basis; dissatisfaction with a ruling is not a ground for recusal.
- The test for recusal is objective: whether a fair-minded and informed observer would conclude there is a real possibility of bias.
- A judge has a duty to sit and may only refuse to hear a case for an extremely good reason.
- Stay of proceedings is a discretionary, grave judicial action to be granted sparingly and only in exceptional cases.
- A pending appeal does not by itself constitute a basis for stay of proceedings.
Court orders
#- 1.The Notice of Motion dated July 19, 2022 is dismissed with costs to the Plaintiff/Respondent.
- 2.The subject file shall be placed before the Honourable Presiding Judge of the Environment and Land Court for re-allocation of the suit to any other Judge of the Environment and Land Court.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; Article 159(2)(b) of the Constitution 2010 invoked on stay of proceedings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikunda v Bogani Gardens Management Company Ltd", Case Analysis (2022). Environment & Land Case E034 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15547/eng@2022-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.