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ELCDismissedEnvironment & Land Petition E030 of 2022· [2023] KEELC 21087 (KLR)

Aura v Cabinet Secretary, Ministry of Education Science and Technology & 9 others; Wainaina & another (Interested Parties)

Environment and Land Court of Kenya
26 October 2023
5,754 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to step aside from a Kenyatta University land case, ruling that losing a ruling is not proof a judge is biased.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (O. A. Angote J) determines a Notice of Motion dated 18th August 2022 in which the Petitioner, Joseph Enock Aura, sought the recusal of the judge from hearing his petition challenging the alleged unconstitutional takeover of Kenyatta University land. The Petitioner alleged bias arising from the court's conduct of proceedings on 27th July, 8th August and 12th August 2022, including its refusal to hear an allegedly unopposed Motion dated 14th July 2022, its entertainment of allegations of non-service, its finding that service was not established, its refusal to consolidate the petition with Nairobi ELC Petition E029 of 2022, and the ruling of 12th August 2022 in that related petition, which the Petitioner said amounted to the court sinking into the arena and defending the grabbing of public land. The respondents, through the Attorney General and Kenyatta University, opposed the application as frivolous, an abuse of process and forum shopping. The court set out the legal framework for recusal under Article 160 of the Constitution and Rules 9 and 21 of the Judicial Service Code of Conduct and Ethics Regulations 2020, and applied the objective test of reasonable apprehension of bias from Jasbir Singh Rai and Kalpana Rawal, requiring facts from which a fair-minded and informed observer would infer bias. It found the impugned conduct to be ordinary case management, held that a prior decision in a similar matter is not a ground for recusal, and observed that a dissatisfied party should pursue review or appeal. The application was dismissed with costs.

Key legal issues

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01

Whether the conduct of interlocutory proceedings disclosed a real possibility of bias

Holding

No bias was established; the court's handling of the service dispute and refusal to consolidate did not depict any bias

Reasoning

The court reviewed the record of the impugned proceedings: it had directed the Motion dated 14th July 2022 be heard contemporaneously with Petition E029 of 2022; on 8th August 2022 respondents contested service; the court deferred determination of service to 12th August 2022 and found service unestablished, noting the Affidavit of Service had not been uploaded on the portal by 8:30 am that morning. These were ordinary case-management decisions, not manifestations of prejudice.

p. 9
02

Whether a prior ruling in a similar petition (ELC E029 of 2022) justifies recusal

Holding

A previous decision in a similar matter is not a ground for recusal; a dissatisfied party should appeal or seek review

Reasoning

Relying on Saad Yusuf Saad v IEBC and the passage from Odunga J in the CORD exparte case, the court held that seeking recusal because a judge decided a similar matter implies forum shopping for a different outcome, would produce conflicting decisions of concurrent jurisdiction and bring the judicial process into disrepute. The Petitioner, who was not even a party to E029 of 2022, could not found recusal on that ruling.

p. 10
03

The legal framework and test for judicial recusal

Holding

Recusal is governed by Article 160 of the Constitution, Regulation 9 and Rule 21 of the Judicial Service Code of Conduct and Ethics Regulations 2020, and the objective test of reasonable apprehension of bias by a fair-minded and informed observer

Reasoning

The court set out Rule 21 grounds for recusal (party, material witness, personal knowledge, actual bias, personal interest, prior counsel, other sufficient reason, family interest) and adopted the Supreme Court's test in Jasbir Singh Rai and the Court of Appeal's objective test in Kalpana Rawal: the applicant bears the duty of establishing facts from which a fair-minded and informed observer would infer bias; bare allegations are insufficient.

p. 7

Legal principles established

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  • The test for recusal is the perception of a reasonable, well-informed and thoughtful observer; unsubstantiated suspicion of personal bias will not suffice
  • A party aggrieved by a court's ruling must pursue review or appeal, not an application for recusal
  • A judge cannot be recused merely because he previously decided a matter with similar facts
  • Every judge has a duty to sit; recusal should not be used to cripple a judge from hearing a matter

Court orders

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  1. 1.The application dated 18th August, 2022 is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticles 10(2)(a),(b),(c), 25(c), 51(1), 160
  • Public Officers Ethics ActSection 5(1)
  • Judicial Service (Code of Conduct and Ethics) Regulations, 2020 (Legal Notice No 102 of 2020)Rules 3(1), 3(5), 3(8)(a),(c), 5, 9(1), 21(1)

Cases cited (15)

  • Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others
    [2014] eKLR; Petition No. 4 of 2012 [2013] eKLR

    Rationale and test for recusal: perception of a reasonable, well-informed observer; unsubstantiated suspicion insufficient

  • Kalpana H. Rawal vs Judicial Service Commission & 2 Others
    [2016] eKLR

    Objective test of reasonable apprehension of bias; applicant must establish facts, not bare allegations

  • National Water Conservation & Pipeline Corporation vs Runji & Partners Consulting Engineers and Planners Limited
    [2021] eKLR

    Cited by petitioner's counsel; cited Litekey v United States on judicial bias

  • Republic vs Honourable Jackson Mwalulu & Others
    Civil Application No 310/2004 (unreported)

    Whether there is reasonable ground for assuming possibility of bias producing reasonable doubt about fairness of justice

  • Accredo AG & 3 Others vs Steffano Ucceli & Another
    [2018] eKLR

    Cited SARFU on presumption that judges carry out their oath; high threshold for perceived judicial bias

  • President of the Republic of South Africa and Others vs South African Rugby Football Union and Others
    (CCT16/98) 2000 (1) SA 1

    Quoted R v S(R.D) on presumption of judicial impartiality and high threshold for perceived bias

  • R vs S(R.D)
    [1997] 3 SCR

    Presumption that judges carry out their oath of office; threshold for perceived judicial bias is high

  • Gladys Boss Shollei vs Judicial Service Commission & Another
    [2018] eKLR

    Doctrine of the duty of a judge to sit; recusal should not cripple a judge from hearing a matter

  • JGK vs FWK
    [2019] eKLR

    Recusal should not be undertaken lightly but upon plausible reasons backed by evidence

  • Engen Kenya Limited vs Rukan Limited
    (2020) eKLR

    A party dissatisfied with orders should seek review or appeal, not recusal of the judge

  • Saad Yusuf Saad vs Independent Electoral and Boundaries Commission (IEBC) & 2 others
    [2017] eKLR

    Whether a judge should recuse on the basis of a previous decision in a similar matter

  • Locabail (UK) Ltd v Bayfield Properties Ltd & Another
    2000 1 All ER 65

    Previous judicial decisions listed as factors on which objection to a judge may not be raised

  • Republic v Independent Electoral & Boundaries Commission & another Exparte Coalition For Reforms and Democracy (CORD)
    [2017] eKLR

    Odunga J: seeking recusal because judge decided similar matter is bad faith and forum shopping

  • AG of Kenya vs Anyang Nyong'o
    Appeal No. 5, Ref No. 1 of 2006

    Objective test of reasonable apprehension of bias

  • Simonson vs General Motors Corporation
    U.S.D.C. p.425 R. Supp, 574, 578 (1978)

    Absent valid reasons for recusal, there remains a duty to sit

Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court; application brought under Article 25(c) and 51(1) of the Constitution, Section 5(1) of the Public Officers Ethics Act and the Judicial Service Code of Conduct and Ethics Regulations, 2020

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, "Aura v Cabinet Secretary, Ministry of Education Science and Technology & 9 others; Wainaina & another (Interested Parties)", Case Analysis (2023). Environment & Land Petition E030 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21087/eng@2023-10-26

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