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ELCDismissedNotice of motion dated 22nd November 2024 in Nakuru ELC Judicial Review Application· [2025] KEELC 838 (KLR)

Republic v Njoka & another (Environment and Land Judicial Review Case E001 of 2022) [2025] KEELC 838 (KLR)

Environment and Land Court
20 February 2025
4,627 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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A Nakuru court refused to disqualify a judge from a land dispute, ruling that asking for recusal is not enough—real evidence of bias is required.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 22nd November 2024 by Elizabeth Wanjiku Njoka, the interested party and legal representative of Alice Kahaki Njoka (deceased), seeking the recusal of Hon. Justice Antony Ombwayo from hearing a judicial review application pending before the Nakuru Environment and Land Court, and referral of the matter to the Presiding Judge for reallocation. The applicant anchored the application on alleged reasonable apprehension of bias, relying chiefly on a ruling by Lady Justice Omollo of 27th July 2023 in which the judge was said to have considered the merits of her case, and on directions issued by Justice Ombwayo on 11th November 2024 which she contended pre-judged her defence. She invoked Article 50 of the Constitution, the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, and English, Privy Council and East African Court of Justice authorities on the fair-minded observer test. The ex-parte applicant opposed, contending the application was malicious, an abuse of process, and unsupported by pleaded facts of bias. Justice Ombwayo reviewed Rule 21 of the Regulations, the Bangalore Principles, Regulation 9(1), and the doctrine of the duty to sit as articulated by the Supreme Court in Gladys Boss Shollei. He found the remarks in Justice Omollo's ruling were obiter dicta that did not bind the court, that no determination had been made in the matter, and that no actual or apparent bias was demonstrated. He emphasised that judicial officers should not succumb to bullying or intimidation into recusal, as that would encourage forum shopping. The application was dismissed with costs.

Key legal issues

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01

Whether a reasonable apprehension of bias was established against the judge

Holding

The application for recusal was dismissed; no actual or apparent bias was demonstrated. The remarks in Lady Justice Omollo's ruling were obiter dictum and did not bind this court, and the judge had made no determination in the matter.

Reasoning

The court found that the grounds relied upon - comments in a prior ruling and case management directions - did not demonstrate bias to a fair-minded and informed observer. The applicant's real grievance was the outcome of a related matter, Nakuru ELC JR No. 1 of 2024, which is not a ground for recusal. The court emphasised the duty to sit and warned against litigants bullying judges into recusal.

p. 8
02

The test and legal framework for recusal

Holding

The applicable test is that of the fair-minded and informed observer, applied alongside Rule 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, the Bangalore Principles and the doctrine of the duty to sit.

Reasoning

The court set out Rule 21's enumerated circumstances for recusal, none of which the applicant established. It cited the Court of Appeal in Philip K. Tunoi and Kalpana Rawal on the objective test, and endorsed the doctrine of the duty to sit from Gladys Boss Shollei, noting judicial officers should not succumb to intimidation.

p. 6

Legal principles established

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  • A judge has a duty to sit and should not recuse himself merely because recusal is raised or because it would be more convenient; recusal requires proper grounds and a reasonable apprehension of bias perceived by a fair-minded and informed observer.
  • A judge should not recuse simply because a party raises the issue, as this would encourage forum shopping.

Court orders

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  1. 1.The application for recusal is dismissed
  2. 2.Costs of the application are awarded against the applicant (costs in the cause was sought but the court dismissed with costs)
Jurisdiction invoked
Article 50 of the Constitution of Kenya, 2010; Rule 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Njoka & another (Environment and Land Judicial Review Case E001 of 2022) [2025] KEELC 838 (KLR)", Case Analysis (2025). Notice of motion dated 22nd November 2024 in Nakuru ELC Judicial Review Application. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/838/eng@2025-02-20

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