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ELCDismissedEnvironment & Land Case 214 of 2016· [2023] KEELC 17854 (KLR)

Athi Paper Mills Limited v Dakawou Transport Limited

Environment and Land Court
8 June 2023
2,518 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to disqualify a judge, ruling that losing a case or an earlier ruling is not proof of bias.

What this practically means

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Executive summary

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The Defendant, Dakawou Transport Limited, applied by Notice of Motion dated 29th November 2022 for the recusal of Angote J from further conduct of ELC No. 214 of 2016 and for reallocation of the matter. It relied on two grounds: first, that the judge had presided over and dismissed Machakos ELCJR No. 56 of 2018, a judicial review application by the same Defendant concerning the same suit property, LR No. 337/1208, in which the National Land Commission's revocation of title was upheld; and secondly, that on 8th November 2022 the court expunged the Defendant's amended Defence and Counter-claim - filed without leave - without adjourning or weighing the prejudice, denying the Defendant a fair hearing. The Plaintiff opposed, arguing there was no factual or legal basis for recusal, that the bias allegations were not specifically established, and that the application was made in bad faith. The court applied the objective test: whether a fair minded and informed observer, considering the facts, would conclude there is a real possibility of bias. Relying on the Supreme Court's decision in Jasbir Singh Rai, Perry v Schwarzenegger, and Kalpana H. Rawal, the court held that mere apprehension of bias is insufficient; the facts constituting bias must be specifically alleged and established. It found that the judge having previously decided a related matter involving the same party is not, without more, a ground for disqualification, and that the Defendant had acquiesced to the court's jurisdiction since March 2022, raising bias only after the adverse ruling striking out its pleading. The court read mischief in the application, since the suit had been fully heard. The application was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether the judge's prior determination of Machakos ELCJR No. 56 of 2018 concerning the same suit property establishes a real possibility of bias

Holding

No. The prior judicial review suit was dismissed with reasons, as the court must give; deciding a related matter against a party is not, without more, a ground for disqualification.

Reasoning

The court applied the objective test from Jasbir Singh Rai and Perry v Schwarzenegger: the perception of a well-informed, thoughtful observer who has examined the record and the law. Mere apprehension or unsubstantiated suspicion of bias does not suffice; the facts constituting bias must be specifically alleged and established. The judge's earlier dismissal of the Machakos judicial review, with reasons, does not demonstrate prejudice.

p. 4
02

Whether the striking out of the Defendant's amended Defence and Counter-claim filed without leave demonstrates bias

Holding

No. The court struck out the pleading for cause and gave its reasons; the recusal application was raised only after this adverse ruling, indicating mischief.

Reasoning

The court noted it had handled the matter since 15th March 2022 and the Defendant never raised apprehension of bias earlier, instead acquiescing to the court's jurisdiction and defending the suit. The bias claim surfaced only after the amended Defence, filed without leave, was struck out. The court held that where litigants lose interlocutory rulings they attribute the outcome to bias, and read mischief in the application given the suit had been fully heard.

p. 5

Legal principles established

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  • The test for recusal is objective: whether a fair minded and informed observer, considering the facts, would conclude there is a real possibility of bias; unsubstantiated suspicion or mere apprehension of bias is insufficient
  • The applicant for recusal bears the duty of establishing specific facts from which an inference of bias may be drawn; bare allegations are not enough
  • The fact that a judge previously decided a related matter involving the same party, without more, is not a ground for recusal

Court orders

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  1. 1.The Defendant's application dated 29th November 2022 seeking recusal of Angote J is dismissed
  2. 2.Costs of the application awarded to the Plaintiff
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to determine an application for recusal of the presiding judge, guided by Article 50 of the Constitution and the Judicial Code of Conduct

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, "Athi Paper Mills Limited v Dakawou Transport Limited", Case Analysis (2023). Environment & Land Case 214 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17854/eng@2023-06-08

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