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ELCDismissedELC Case No. 339 of 2011 (formerly HCCC No. 339 of 2005)· [2024] KEELC 651 (KLR)

Continental Credit Finance Limited (In Liquidation) v Wanjohi & 2 others (Environment & Land Case 339 of 2011) [2024] KEELC 651 (KLR)

Environment and Land Court
12 February 2024
2,651 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 Kenyan court dismissed a request to have a land case heard by a different judge, ruling the claimed bias was unfounded.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (Mogeni J) on a Notice of Motion dated 13/12/2023 by the 1st Defendant/Applicant, Isaac Gathungu Wanjohi, brought under Sections 6, 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. The Applicant sought an order that this suit be heard by a different judge from the judge hearing ELC Case No. 162 of 2019 (Spartan Developers Ltd v The Official Receiver and Interim Liquidator of Continental Credit Finance Ltd), contending that both suits concern ownership of the same property and that if the same judge heard both, impartiality and Article 48 fair-hearing rights would be compromised. The Plaintiff/Respondent opposed, arguing the application was frivolous, an attempt at forum shopping and delay, that the two suits have different causes of action, and that ELC No. 162 of 2019 has been stayed by consent pending determination of this suit since 9/12/2019. The court applied the objective test for recusal drawn from Okiya Omtatah Okoiti, Republic v David Makali, the Anyang Nyong'o East African Court of Justice decision, and the SARFU/de Grandpre two-fold objective test, together with the duty to sit from Kaplan & Stratton and Locabail. Finding the Applicant had not established any factual or legal basis for recusal - noting that the Applicant is not a party to ELC No. 162 of 2019 and that the stay remains in force - the court held the apprehension of bias unreasonable and unfounded. The application was dismissed with costs to the Plaintiff, and the suit was directed to proceed to hearing on 12/03/2024.

Key legal issues

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Whether the Applicant established a basis for the court's recusal or transfer of the suit to a different judge on grounds of apprehended bias arising from the pendency of ELC No. 162 of 2019 before the same judge

Holding

The application fails; no sufficient basis for recusal was established as the apprehension of bias was unreasonable, speculative and unfounded, particularly since ELC No. 162 of 2019 has been stayed and the Applicant is not a party to it

Reasoning

The court applied the objective test for bias from R v Jackson Mwalulu, Republic v David Makali and the East African Court of Justice in Anyang Nyong'o: bias must not be a mere figment of imagination and must be specifically established. The Applicant's only concern was that the same judge handles ELC No. 162 of 2019, but that suit is stayed pending determination of this suit, and the Applicant is not a party to it. The court also invoked the duty to sit per Kaplan & Stratton and SARFU, and declined the recusal, dismissing the motion with costs.

p. 4

Legal principles established

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  • The test for recusal is objective: whether a reasonable person seized of the facts would conclude that the judge hearing the matter will be biased; allegations of bias must be specifically alleged and established, and unfounded or unreasonable apprehensions do not justify recusal
  • It is the duty of a judicial officer to hear and determine the case allocated to them; a judge should not accede to an unfounded disqualification application (duty to sit)

Court orders

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  1. 1.The Notice of Motion dated 13/12/2023 is dismissed with costs to the Plaintiff
  2. 2.Hearing of the suit to proceed as scheduled on 12/03/2024

Authorities

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Legislation

  • Civil Procedure ActSections 6, 1A, 1B, 3A
  • Civil Procedure RulesOrder 51 Rule 1
  • Judicial Service (Code of Conduct and Ethics) Regulations, 2020not specified
  • Constitution of Kenya, 2010Article 48

Cases cited (14)

  • Spartan Developers Ltd v The Official Receiver and Interim Liquidator of Continental Credit Finance Ltd
    ELC Case No. 162 of 2019
  • Gladys Boss Shollei v Judicial Service Commission & another
    [2018] eKLR
  • JRL EX CJL
    (1986)
  • Alliance Media Kenya Limited v Monier 2000 Limited & Njoroge Regeru
    HCCC No. 370 of 2007 (eKLR)
  • Okiya Omtatah Okoiti & Another v Attorney General & 3 Others
    [2014] eKLR
  • R v Jackson Mwalulu and Others
    CA Civil Appl. No. NAI 310 of 2004 (Unreported)
  • Republic v David Makali and Others
    CA Criminal Application Nos NAI 4 and 5 of 1995 (Unreported)
  • Attorney General of Kenya v. Peter Anyang Nyong'o & Others
    East African Court of Justice Application No. 5 of 2007 (Ref. No. 1 of 2006)
  • The President of the Republic & 2 Others v South African Rugby Football Union & 3 Others
    Case CCT 16/98
  • Committee for Justice and Liberty et al v National Energy Board
  • Kaplan & Stratton v. L.Z. Engineering Construction Ltd & 2 Others
    [2001] eKLR
  • Kenya Shell Limited v James G.K Njoroge
    Civil Application No. Nai. 292 of 1998 (unreported)
  • Locabail Ltd v Bayfield Properties Ltd
    [2000] 1 All. E.R. 65
  • Clenae Pty v Australia & Newzeland Banking Group Limited
    (1999) VSCA 35
Jurisdiction invoked
Sections 6, 1A, 1B & 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules

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, "Continental Credit Finance Limited (In Liquidation) v Wanjohi & 2 others (Environment & Land Case 339 of 2011) [2024] KEELC 651 (KLR)", Case Analysis (2024). ELC Case No. 339 of 2011 (formerly HCCC No. 339 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/651/eng@2024-02-12

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