BOS Shipping (East Africa) Limited v Rehman & another (Environment & Land Case 121 of 2019) [2024] KEELC 6352 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to recuse itself, struck out a late appeal extension, and ordered the losing party to pay both applications' costs.
What this practically means
#Executive summary
#Key legal issues
#Threshold for recusal of a judge
The 2nd defendant failed to demonstrate actual or perceived bias; declining to certify urgency, granting a conditional stay and clarifying orders were proper exercises of discretion, not bias.
The court applied the objective test from Jasbir Singh Rai and Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020. It found that a judge's exercise of discretion against a party's expectation cannot found recusal; the aggrieved party's remedy is appeal. The 2nd defendant merely alleged dissatisfaction with interlocutory outcomes without evidence of deep-rooted prejudice, so the recusal application was an intimidation tactic and was dismissed.
Jurisdiction to extend time where a strike-out application on the same notice of appeal is pending in the Court of Appeal
The court declined jurisdiction, agreeing the matter should be left to the Court of Appeal, and struck out the extension-of-time application.
Although section 7 of the Appellate Jurisdiction Act confers power to extend time, the plaintiff had already moved the Court of Appeal (Civil Application No. E015 of 2024) to strike out the notice of appeal filed out of time. Out of deference to a superior court whose decisions bind it, the ELC held it should not determine the same question and struck out the application dated 18th April 2024.
Stay of execution conditions and the 2nd defendant's own delay
The conditional stay (deposit of taxed costs within three days) was a lawful exercise of discretion; the 2nd defendant's predicament was self-inflicted by failing to seek informal stay under Order 42 Rule 6(5) at judgment delivery.
Order 42 Rule 6(2) makes security for due performance of the decree mandatory and its terms are for the court. The court noted counsel for the 2nd defendant was present at judgment delivery but neither requested a copy of the judgment nor an informal stay under Order 42 Rule 6(5). The failure to file a timely notice of appeal and to seek stay was the 2nd defendant's own doing, not evidence of judicial bias.
Legal principles established
#- Dissatisfaction with a judge's exercise of discretion is not prima facie evidence of bias and is not a ground for recusal; the proper remedy is appeal or review.
- Where an application on the same notice of appeal is pending before the Court of Appeal, the subordinate court should decline to determine that question and leave it to the Court of Appeal.
- The deposit of security under Order 42 Rule 6(2) of the Civil Procedure Rules is mandatory and the terms of a stay of execution are for the court, not the applicant, to determine.
Court orders
#- 1.The 2nd defendant's application dated 18th April 2024 to extend time to file the notice of appeal is struck out because the same notice of appeal is the subject of Civil Application No. E015 of 2024 pending before the Court of Appeal.
- 2.The 2nd defendant's application dated 12th July 2024 for recusal of the judge is dismissed for lack of merit.
- 3.The 2nd defendant to meet the plaintiff's costs in both applications.
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 27 of the Civil Procedure Act; Section 7 of the Appellate Jurisdiction Act; Articles 22, 50 and 159 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BOS Shipping (East Africa) Limited v Rehman & another (Environment & Land Case 121 of 2019) [2024] KEELC 6352 (KLR)", Case Analysis (2024). ELC Mombasa (undisclosed case number in extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6352/eng@2024-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.