Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of motion dated 17/11/2023 (suit number not stated in judgment)· [2024] KEELC 4415 (KLR)

Son Hardware Limited v Development Bank of Kenya Limited & another (Environment & Land Case 10 of 2021) [2024] KEELC 4415 (KLR)

Environment and Land Court
30 May 2024
MGM.N. Gicheru
1,802 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Kajiado dismissed a request for the judge to step aside, finding no genuine appearance of bias.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Kajiado, delivered on 30 May 2024 by M.N. Gicheru J, determines a notice of motion dated 17 November 2023 in which the plaintiff, through the affidavit of its director Peter Juma Muinami, sought the recusal of the presiding judge and remittal of the matter to the Principal Judge for reassignment. The plaintiff alleged bias on the basis that the judge was harsh to its counsel, rushed proceedings, delivered a ruling on an application not due for ruling, conditioned interim injunctions on proof of loan repayment, took no action over the respondent's sale of the suit property during the hearing, and allowed Ariumba Limited to join as an interested party without hearing opposition. The motion was unopposed. The court applied the objective test of reasonable apprehension of bias from Attorney General of Kenya v Anyang Nyong'o (EACJ). It found each complaint misconceived: the impugned ruling concerned the plaintiff's own urgent application; there was no session on the date alleged; injunctions lapse after twelve months absent sufficient reason under Order 40 Rule 6; no formal application for breach of injunction was filed, and the ELC and commercial court have mutually exclusive jurisdictions; and joinder without hearing frivolous objections serves the overriding objective. The court noted the plaintiff had filed four applications and delayed the main fraud and charge dispute concerning Kshs. 12.5 million. The motion was dismissed with costs in the cause.

Key legal issues

#
01

Test for reasonable apprehension of bias and recusal

Holding

The court applied the objective test from Attorney General of Kenya v Anyang Nyong'o and found no reasonable apprehension of bias.

Reasoning

The court examined each complaint: the ruling on a certificate-of-urgency application within six months was proper; the alleged 23/9/2022 session never occurred and injunction extensions are governed by Order 40 Rule 6; no formal application for breach of injunction was filed; and joining an interested party without hearing opposition served the overriding objective. The deponent lacked knowledge of these legal requirements and thus failed the objective test.

p. 4
02

Jurisdiction of the Environment and Land Court versus the commercial court

Holding

The two jurisdictions are mutually exclusive; the ELC handles only environment and land matters under Article 162(2)(b).

Reasoning

The plaintiff filed a separate suit in the commercial division over the loan dispute, indicating the loan matters belong to the commercial court. The ELC exercises a narrow jurisdiction over the environment and the use, occupation of and title to land.

p. 3
03

Joinder of an interested party without hearing opposition

Holding

The court may overrule frivolous objections under Section 1A(3) of the Civil Procedure Act to expedite hearings.

Reasoning

The interested party claimed current ownership of the suit property and was directly affected by interim orders. The court held that expeditious hearing may be served by allowing joinder applications without hearing opposition, citing the overriding objective and the duty of parties to assist the court.

p. 3

Legal principles established

#
  • The objective test for recusal is whether the circumstances give rise to a reasonable apprehension in the mind of a reasonable, fair minded and informed member of the public that the judge will not act impartially.
  • An injunction lapses after twelve months unless sufficient reason is shown for its extension, under Order 40 Rule 6 of the Civil Procedure Rules.
  • The Environment and Land Court's jurisdiction is mutually exclusive with that of the commercial court, being limited to environment and land disputes.

Court orders

#
  1. 1.The notice of motion dated 17/11/2023 seeking recusal is dismissed
  2. 2.Costs in the cause

Authorities

#

Legislation

  • Civil Procedure ActSections 3, 3A, 1A, 1B
  • Constitution of KenyaArticles 168, 48, 159(2)(b), 162(2)(b)
  • Civil Procedure RulesOrder 40 Rule 6; Order 4 Rule 1(1)(f)
  • Environment and Land Court ActSection 3(1)
  • Judicial Service Code of Conduct and EthicsRules 5, 3(e), 3(h)

Cases cited (1)

  • Attorney General of Kenya v Anyang Nyong’o
    Application No. 5, Ref No. 1 of 2006
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Son Hardware Limited v Development Bank of Kenya Limited & another (Environment & Land Case 10 of 2021) [2024] KEELC 4415 (KLR)", Case Analysis (2024). Notice of motion dated 17/11/2023 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4415/eng@2024-05-30

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