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ELCDismissed· [2024] KEELC 3559 (KLR)

Kihara (Suing as a legal representative of Pricilla Wambui Kihara) v Mbagu & another (Environment & Land Case 1265 of 2016) [2024] KEELC 3559 (KLR)

Environment and Land Court
11 April 2024
1,211 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed defendants' bid to disqualify the judge and pause execution, confirming that losing parties cannot demand a judge's removal without real bias.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi, delivered by Lucy N. Mbugua J on 11 April 2024, determines the Defendants' Notice of Motion dated 29 November 2023 by which they sought the judge's recusal, re-allocation of the file to a different judge or bench, and a stay of the court's orders of 30.9.2022 and 21.11.2023 to enable them to appeal against the ruling of 21.11.2023. The Plaintiff opposed, contending no grounds for recusal were advanced and that the stay conditions under Order 42 rule 6(2) of the Civil Procedure Rules were unmet. The court framed two issues: recusal and stay pending appeal. On recusal, it held that the Defendants' complaint that the judgment was ultra vires the Constitution and the Limitation of Actions Act concerned judicial pronouncement, not misconduct or bias, and quoted Prayosha Ventures on the dangers of easy recusal. The court further held itself functus officio on the merits following the judgment of 30.9.2022 and the refusal of review on 21.11.2023, leaving only implementation. On stay, applying Order 42 rule 6 and the Halai v Thornton & Turpin criteria, the court found inordinate unexplained delay of about a year, no demonstration of substantial loss and no security furnished. The application was dismissed with costs to the Plaintiff.

Key legal issues

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01

Recusal of the trial judge

Holding

Recusal was refused; allegations that a judgment is ultra vires the Constitution do not constitute grounds for recusal absent any allegation of misconduct or bias

Reasoning

The Defendants contended the judgment of 30.9.2022 was ultra vires Article 40 of the Constitution and contravened the Limitation of Actions Act. The court held these are issues in the realm of judicial pronouncement, not misconduct. No ground of bias was pleaded, and the Defendants had not questioned the court's competence for over a year after judgment.

p. 2
02

Power to re-allocate the file to another judge

Holding

Re-allocation cannot arise because the court is functus officio on the merits

Reasoning

Having delivered judgment on 30.9.2022 and declined review by the ruling of 21.11.2023, the court's mandate is exhausted; only implementation of the judgment remains, so placing the file before a different judge serves no purpose.

p. 3
03

Stay of execution pending appeal

Holding

Stay refused for inordinate unexplained delay, failure to demonstrate substantial loss and failure to furnish security under Order 42 rule 6

Reasoning

The application was brought about a year after judgment of 30.9.2022 with no explanation for the delay. The Defendants neither showed they would suffer substantial loss nor offered security, contrary to the conditions in Order 42 rule 6(2) and the Halai v Thornton & Turpin criteria.

p. 3

Legal principles established

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  • A judge should not recuse himself on unproven allegations of illegality in a judgment; recusal requires grounds of misconduct or bias
  • After delivery of judgment and a ruling declining review, a court is functus officio on the merits and limited to implementation
  • Stay of execution pending appeal requires sufficient cause, substantial loss, security, and application without unreasonable delay

Court orders

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  1. 1.The Defendants' Notice of Motion dated 29.11.2023 is dismissed with costs to the Plaintiff.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Limitation of Actions ActNot specified
  • Civil Procedure RulesOrder 42 rule 6(1) and (2)
  • Judicial Service (Code of Conduct and Ethics) Regulations 2020Not specified

Cases cited (7)

  • Okiya Omtatah Okoiti v Principal Secretary for Health, Board of Directors & 3 others
    [2022] eKLR
  • Republic v Independent Electoral & Boundaries Commission & Another ex parte Coalition for Reforms and Democracy (CORD)
    [2017] eKLR
  • Philip K. Tunoi & Another v Judicial Service Commission & Another
    CA Civil Application NAI No. 6 of 2016 [2016] eKLR
  • Vishram Ravji Halai v Thorton & Turpin
    Civil Application No. Nairobi 15 of 1990 [1990] KLR 365
  • Prayosha Ventures Limited v NIC Bank Ltd & another; Beatrice Jeruto Kipketer & Another (Interested Parties)
    [2020] eKLR
  • Elena Doudoladova Korir v Kenyatta University
    [2014] eKLR
  • Halal & another v Thornton & Turpin Ltd
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit; stay sought under Order 42 rule 6 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, "Kihara (Suing as a legal representative of Pricilla Wambui Kihara) v Mbagu & another (Environment & Land Case 1265 of 2016) [2024] KEELC 3559 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3559/eng@2024-04-11

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