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ELCAllowedPetition dated 31st August 2023 (recusal application dated 29th February 2024)· [2024] KEELC 3370 (KLR)

Philip & 22 others v National Housing Corporation & another (Environment & Land Petition E006 of 2023) [2024] KEELC 3370 (KLR)

Environment and Land Court
23 April 2024
NMN.A. Matheka
2,690 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Mombasa land judge stepped aside from a housing dispute, not because she was biased, but because the parties had lost confidence in her court.

What this practically means

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Executive summary

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The applicants, petitioners in an eviction/redevelopment dispute against the National Housing Corporation before the Environment and Land Court at Mombasa, moved by an application dated 29th February 2024 seeking the disqualification and recusal of the trial judge, N.A Matheka J. They alleged hostility, insensitivity to their applications for conservatory orders, the lifting of status quo orders, failure to prioritise their contempt application, and pre-knowledge of a ruling by the respondent, contending the judge sat with a predetermined mind. The respondent opposed, contending the eviction occurred on 26th January 2024, over a month after the ruling of 13th December 2023 dismissing the conservatory application, and that the allegations were unsubstantiated and designed to undermine public confidence in the court. The court set out the settled test for recusal: whether a fair-minded and informed observer, considering the facts, would conclude there was a real possibility of bias, citing Jan Bonde Nielsen, Porter v Magill, Jasbir Rai, Kalpana Rawal, Anyang' Nyong'o, the Judicial Service (Code of Conduct and Ethics) Regulations 2020, and comparative authority. The judge found on the file that the petitioners' two conservatory applications had been dismissed for failure to establish a prima facie case, and that on the objective test no real possibility of bias arose. However, taking account of the applicants' demonstrated lack of confidence in the court, the judge allowed the recusal application as prayed, with costs in the cause. The application was allowed, not on a finding of bias, but on loss of confidence.

Key legal issues

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01

Whether the conduct of the trial judge gave rise to a reasonable apprehension of bias warranting recusal

Holding

The court found no reasonable apprehension of bias on the objective test but, because the applicants had lost confidence in the court, allowed the recusal application as prayed.

Reasoning

The court reviewed the settled test of the fair-minded and informed observer from Porter v Magill, Jan Bonde Nielsen, Jasbir Rai and Anyang' Nyong'o, and the Judicial Service Code of Conduct grounds for recusal. It found the applicants' allegations were founded on displeasure with adverse rulings: the court had found no prima facie case and dismissed the conservatory applications. Applying the objective test, the judge concluded there was no real possibility of bias, but given the applicants' evident lack of confidence in the court, allowed the recusal as a matter of discretion rather than on established bias.

p. 6

Legal principles established

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  • The objective test for recusal is whether a fair minded and informed observer, having considered the facts, would conclude there was a real possibility that the judge was biased; facts constituting bias must be specifically alleged and established.

Court orders

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  1. 1.Honourable N.A Matheka disqualified/recused from further proceeding with this matter or any further conduct of this matter
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 25(c), 27, 48, 50(1), 73(2)(b), 159, 232
  • Civil Procedure ActSections 1A, 1B, 3B
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Magistrates' Court ActSection 3
  • Judicial Service (Code of Conduct and Ethics) Regulations 2020Regulation 9(1), Regulation 21 Part II
  • Court of Appeal RulesRule 77

Cases cited (10)

  • Jan Bonde Nielson vs Herman Philipus Steyn & 2 others
    (2014) eKLR
  • R v David Makali and others
    C.A Criminal Application No Nai 4 and 5 of 1995 (Unreported)
  • R v Jackson Mwalulu & Others
    C.A. Civil Application No Nai 310 of 2004 (Unreported)
  • Philip K. Tunoi & another vs Judicial Service Commission
    (2016) eKLR
  • Porter vs Magill
    (2002) 1 All ER 465
  • Jasbir Rai and 3 Others v Tarlochan Singh Rai and 4 Others
    SCK Petition No. 4 of 2012 [2013] eKLR
  • Kaplana Rawal vs Judicial Service Commission and 2 Others
    (2016) eKLR
  • Constitutional Court of South Africa Vs. The South African Rugby Football Union and Others
    CCT 16/98
  • Attorney General of Kenya Vs. Professor Anyang' Nyong'o & 10 Others
    EACJ Application No. 5 of 2007
  • R Vs. S.C.R.D.
    [1977] 3 SCR 484
Jurisdiction invoked
Articles 25(c), 27, 48, 50(1) & 159 of the Constitution of Kenya; Sections 1A, 1B and 3B of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules, 2010; Section 3 of the Magistrates' Court Act

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, "Philip & 22 others v National Housing Corporation & another (Environment & Land Petition E006 of 2023) [2024] KEELC 3370 (KLR)", Case Analysis (2024). Petition dated 31st August 2023 (recusal application dated 29th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3370/eng@2024-04-23

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