Gatatha Farmers Company Limited v Chemtingei & 3 others; Kaitet Tea Estates (1977) Limited & another (Interested Parties) (Environment & Land Case 9 of 2023) [2024] KEELC 3299 (KLR)

The court noted the twin doctrines that a judge must sit and litigants cannot choose their judicial officer. Recusal requires actual bias or an objectively reasonable apprehension of bias. The applicant tendered no evidence of bias, used abusive language, and the application was designed to tarnish the judge and shop for a favourable forum. Recusal applications should not be used for blackmail or arm-twisting.

Under Rule 7 of the Mutunga Rules and Order 1 Rule 10(2) CPR, joinder as an interested party requires an application with leave or the court's own motion. Applying Muruatetu, the applicant demonstrated no proximate identifiable stake, no prejudice, and no distinct submissions. Moreover, the underlying suit had been dismissed for want of prosecution on 16/01/2002, so no live suit existed to which he could be joined.

While courts have wide discretion to allow amendments at any stage, voluntary amendment after the close of pleadings is discretionary, not a right. The applicant, not being on record, fundamentally altered the heading, added and removed parties, and sought amendments for other parties. In an adversarial system a party cannot amend pleadings of the adverse party.

Order 9 rules 1 and 2 CPR permit appearance through a recognised agent holding a power of attorney, but subject to court approval and limited in scope. Relying on Mwongo J in Khanjira, the court held that rights of audience, pleading and examining witnesses are acts of advocacy reserved to qualified persons. Section 31 of the Advocates Act prohibits unqualified persons acting as advocates; subsidiary rules cannot contradict the Act. No agreement can waive public law.