Achola & another (Both Suing as the Legal Representatives of the Estate of the Late Jeckonia Oliver Achola Ndinya) v Otachi & 3 others (Environment & Land Case 361 of 2017) [2024] KEELC 7260 (KLR)
The bottom line
#A Kenyan court refused to disqualify a judge and blocked a defendant from reopening his case, ruling both applications lacked evidence and appeared aimed at causing delay.
What this practically means
#Executive summary
#Key legal issues
#Recusal for reasonable apprehension of bias
Application dismissed; apprehension of bias not objectively established on the facts
The court applied the test of reasonable apprehension of bias adopted by Kenyan superior courts from R v S (R D). The 2nd defendant relied only on a 2018 WhatsApp message alleging a past advocate-client relationship, raised over five years into the trial. Despite a court direction, no affidavits detailing the alleged brief were filed, so there was no evidence of the alleged relationship. The court inferred the application was intended to delay finalization of the case.
Leave to amend pleadings, adduce additional evidence and re-open a closed case
Application dismissed for lack of merit
A party seeking discretionary indulgences at the tail-end of trial must lay a proper basis. The 2nd defendant failed to exhibit the draft amended pleadings and neither exhibited nor disclosed the new evidence he wished to introduce. Without knowing the substance of the proposed amendments and evidence, the court could not exercise its discretionary jurisdiction; the application therefore failed.
Legal principles established
#- The threshold for a finding of reasonable apprehension of bias is high; the onus lies on the applicant and a mere suspicion is not enough
- An application for leave to amend and to re-open a case must be supported by the draft amendments and the evidence sought to be introduced
Court orders
#- 1.The application for recusal dated 6/3/2024 dismissed
- 2.The application for leave to amend pleadings, file additional documents and re-open the 2nd defendant's case dismissed
- 3.Both applications dated 6/3/2024 dismissed for lack of merit
- 4.The 2nd defendant to bear costs of the two applications
- Jurisdiction invoked
- Original civil jurisdiction over a land dispute; recusal application grounded on Article 50 of the Constitution (fair hearing)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Achola & another (Both Suing as the Legal Representatives of the Estate of the Late Jeckonia Oliver Achola Ndinya) v Otachi & 3 others (Environment & Land Case 361 of 2017) [2024] KEELC 7260 (KLR)", Case Analysis (2024). Not stated in the extract (suit over Nairobi/Block 103/431 filed by plaint dated 31/5/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7260/eng@2024-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.