Aniket Property & Investments Limited v Mwakibibo & 10 others (As Trustees of the Ahfat Trust) (Environment and Land Case Civil Suit 134 of 2012) [2023] KEELC 954 (KLR)

The court traced the jurisprudence from Jan Bonde Nielsen, Porter v Magill as adopted in Tunoi v JSC, and Jasbir Singh Rai in the Supreme Court, alongside Regulations 5, 9 and 21 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020 and Articles 25(c) and 50(1) of the Constitution. It held that the facts constituting bias must be specifically alleged and established, and that a litigant cannot manufacture a ground of bias out of adverse interlocutory rulings.

The judge reasoned that the site visit merely recorded visible facts on the ground which remained subject to proof at trial; the report was released after the court recess; the witness sequence was a case-management direction that was not cast in stone; the court itself facilitated joinder of parties found on site with leave for substituted service; and no complaint had been raised during the proceedings until the application, filed nearly three months later, was dismissed as an afterthought made in bad faith.

Relying on Gladys Boss Shollei v JSC citing Simonson v General Motor Corporation and Munir v Commissioner of Inland Revenue, the court held that the independence and impartiality requirements must be counterbalanced by the duty to sit where no ground of disqualification exists, which guards against parties manoeuvring to secure a judge of their choice through delay and forum shopping.

Applying the general rule as stated by the House of Lords in Myres v Defries and by the Supreme Court in Jasbir Singh Rai, the court held that since the plaintiff had not succeeded in establishing its case, costs of the application were awarded to the 1st, 2nd and 4th Defendants.