Republic v National Land Commission & 2 others; Kimasas Farmers Co-operative Society & another (Interested Parties); Eastern Produce Kenya Limited (Exparte Applicant) (Environment and Land Judicial Review Case 1 of 2023) [2024] KEELC 4764 (KLR)
The bottom line
#A Kenyan High Court ruled that refusing a party's request to orally highlight submissions isn't bias, so Eastern Produce's bid to have the judge step aside failed.
What this practically means
#Executive summary
#Key legal issues
#Whether denial of the right to highlight oral submissions violates Article 50 fair hearing rights
It does not; written submissions filed (with time extended twice) satisfy the right to a fair trial.
The Court adopted the Supreme Court's decision in Kampala International University v Housing Finance Company Limited, which held that denial of oral highlighting submissions does not breach Article 50. The Applicant had been given opportunity to file written submissions on 20/9/2023 and 8/11/2023, with time extended again on 28/11/2023, so the fair trial right was accorded.
Whether actual or perceived bias justifying recusal was established
No. Directions were issued to all parties alike, no conflict of interest was alleged, and the reasonable-person test was not met.
The Court found no party was singled out for unfair directions; both the Applicant and the 1st Respondent had failed to comply with directions and time was extended to all equally. There was no allegation of conflict of interest, and the only bias ground rested on the misapprehended right to highlight submissions, so Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020 was not engaged.
Whether the expedition of the judicial review matter evidenced high-handedness or a predetermined outcome
No. Expedition was consistent with the 90-day timeline in Section 8 of the Fair Administrative Action Act.
Both sides agreed judicial review matters should be heard expeditiously. The judicial review application was premised on the Fair Administrative Action Act, which requires conclusion within 90 days. The delays resulted from the Applicant's and 1st Respondent's non-compliance with filing directions, not judicial haste or partiality.
Legal principles established
#- Denial of the opportunity to highlight oral submissions does not infringe the right to a fair hearing under Article 50 of the Constitution where a party has been given the opportunity to file written submissions.
- The test for judicial recusal is the perception of a reasonable, well-informed and thoughtful observer who understands all the facts and has examined the record and the law.
Court orders
#- 1.The Notice of Motion dated 12th January 2024 seeking recusal of Hon. Justice M. N. Mwanyale is dismissed.
- 2.Costs of the application awarded to the 1st Respondent and the Interested Party.
- Jurisdiction invoked
- Judicial review jurisdiction under the Fair Administrative Action Act (leave granted on 22/8/2023)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & 2 others; Kimasas Farmers Co-operative Society & another (Interested Parties); Eastern Produce Kenya Limited (Exparte Applicant) (Environment and Land Judicial Review Case 1 of 2023) [2024] KEELC 4764 (KLR)", Case Analysis (2024). Kapsabet Judicial Review (Notice of Motion dated 12th January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4764/eng@2024-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.