Farah & another v Adan & another (Environment & Land Case E229 of 2022) [2024] KEELC 3751 (KLR)
The bottom line
#A Kenyan land judge found no bias but still stepped aside, setting aside two days of hearings because no formal consolidation order existed between related suits.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Defendant established a real possibility of bias warranting recusal
The court found no bias but nevertheless recused itself suo motu to safeguard the integrity of the Judiciary, given irregularities in the record concerning consolidation and mediation
The court applied the objective test of a fair-minded and informed observer from Tunoi and London Distillers. It found the allegations of bias, discrimination and collusion unsubstantiated, noting the applicant had not complied with Order 11 nor filed witness statements, indicating bad faith. However, its own review of the files revealed that no consolidation order was ever made and the court had not been briefed on mediation proceedings in E156 of 2021, jeopardising the hearings of 23 and 30 October 2023. It accordingly set aside those proceedings and, citing the Sonko case, recused itself even without good reason to protect judicial integrity.
Validity of the proceedings of 23.10.2023 and 30.10.2023
The proceedings were set aside because the status of the related suit E156 of 2021 was not captured
The court found that although counsel on both sides spoke of consolidation, no order of consolidation was ever made in the two files, and the court was never briefed about mediation proceedings in E156 of 2021. These two issues put the proceedings of 23.10.2023 and 30.10.2023 in jeopardy since the status of the other suit was not reflected. The proceedings were accordingly set aside and the two files directed to be handled by one judge.
Whether the 1st Defendant was discriminated against based on age and health, and denied a fair hearing under Article 50
The allegations of discrimination and infringement of the right to hearing were unsubstantiated
The court noted that no evidence was tabled of the 1st Defendant's illness or travel abroad when first raised on 27.9.2023, and that the record showed repeated adjournment requests while the applicant had neither filed his witness statement nor trial bundle. The court found the discrimination claim untrue and unsubstantiated and observed that the applicant's non-compliance with Order 11 was a choice, as he was filing affidavits in another High Court suit during the same period.
Legal principles established
#- The test for bias is that of a fair-minded and informed observer assessing whether there is a real possibility of bias
- Facts constituting bias must be specifically alleged and established to the standard of reasonable apprehension by a reasonable, objective and informed person
- Every judge has a duty to sit; recusal should not be used to cripple a judge from hearing a matter
Court orders
#- 1.This court hereby recuses itself from hearing this matter (E229 of 2022) as well as E156 of 2021
- 2.The proceedings of 23.10.2023 and 30.10.2023 in E229 of 2022 are hereby set aside
- 3.The application dated 19.10.2023 is marked as spent as it was overtaken by events
- 4.Each party is to bear their own costs of the applications
- 5.The two files E229 of 2022 and E156 of 2021 shall be handled by one judge
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court over applications for recusal and setting aside of proceedings; Civil Procedure Act (Section 1A, Overriding Objective) and Order 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Charles Muchui Mugwika, Liquidator of Abogeta Farmers Cooperative Society Ltd v CECM Lands, Housing, Urban Areas And Physical Planning Of The County Government of Meru & 8 others; Meru Youth Service & 3 others (Interested Parties) (Environment and Land Case Judicial Review Application E001 of 2024) [2024] KEELC 6519 (KLR)[2024] KEELC 6519 (KLR)2 Oct 2024applied
Cite this brief
#Cite this brief
Caselaw, "Farah & another v Adan & another (Environment & Land Case E229 of 2022) [2024] KEELC 3751 (KLR)", Case Analysis (2024). ELC E229 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3751/eng@2024-04-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.