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ELCDismissednot indicated in the judgment· [2025] KEELC 4050 (KLR)

Rick v Chebet & another (Environment & Land Case E232 of 2023) [2025] KEELC 4050 (KLR)

Environment and Land Court
28 May 2025
OMOguttu Mboya
5,061 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to disqualify a judge, ruling that losing past applications is not proof of bias and unsupported accusations carry real costs.

What this practically means

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Executive summary

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The Defendants/Applicants moved the Environment and Land Court at Nairobi by a notice of motion dated 22nd May 2025 seeking certification as urgent, a stay of proceedings, and the recusal of Hon. Justice Oguttu Mboya, with the file to be placed before the Principal Judge. They contended that the judge's orders, notably declining an adjournment on 5th November 2024 and proceeding with the hearing, demonstrated bias, and alleged a close association between the judge and the Respondent's counsel, Mr. Ojiambo. The Respondent, through a replying affidavit sworn by his counsel, opposed the application as a thinly veiled attack designed to delay the suit and to forum-shop, stressing that the allegations were unsubstantiated. The court framed two issues: whether the complained-of rulings create a reasonable basis for recusal, and whether the Applicants met the threshold for recusal. Relying on the Supreme Court's decision in Shollei v Judicial Service Commission on the duty of a judge to sit, and on the Court of Appeal's decision in Gachagua v Maingi on the objective test of a fair-minded and informed observer perceiving a real possibility of bias, the court held that adverse rulings do not ground recusal, that allegations of bias must be pleaded with particularity and proven on a balance of probability, and that counsel for the Applicants conceded he had no evidence of the alleged association. The court further noted that a previous judge had referred the file to it for crafting the judgment under orders of 26th March 2025, which remain in place. The application was dismissed as premature, misconceived and a gross abuse of process, with costs awarded to the Respondent.

Key legal issues

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01

Whether adverse rulings and orders against a party establish a reasonable basis for recusal

Holding

Adverse decisions founded on the facts and law do not found recusal; losing an application is not grounds for disqualification

Reasoning

The court reviewed the history of adjournment applications and found the complained-of decisions were well reasoned. It held that courts exist to administer justice, not to please parties, and that recourse to applications filed on the eve of hearings, followed by withdrawals, evidenced a scheme to obstruct and delay the suit.

p. 5
02

Whether the Applicants met the threshold for recusal

Holding

They did not; bias allegations were not pleaded with particularity nor substantiated, and counsel admitted having no evidence of the alleged association

Reasoning

Allegations of a close association between counsel for the Respondent and the judge were omnibus and unverified. On being examined, counsel for the Applicants conceded he had no knowledge of any such association and could not substantiate the averments. The burden lay on the Applicants on a balance of probability.

p. 6
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The applicable test for recusal on grounds of bias

Holding

The objective test applies: whether a fair-minded and informed observer, considering all the circumstances, would conclude there is a real possibility of bias

Reasoning

Adopting the Supreme Court and Court of Appeal jurisprudence (Shollei; Gachagua v Maingi), the court held the test is not subjective and does not examine the judge's actual state of mind, but the appearance of partiality as perceived by a reasonable observer, with facts specifically alleged and established.

p. 8

Legal principles established

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  • Every judge has a duty to sit; recusal should not be used to cripple a judge from hearing a matter
  • The mere fact that a party has lost an application does not found a basis for recusal
  • Allegations of bias must be pleaded with particularity and proven by the applicant on a balance of probability
  • The test for recusal is objective: whether a fair-minded and informed observer, having considered all the circumstances, would conclude there is a real possibility of bias
  • Advocates are officers of the court and must not propagate scurrilous allegations as mere mouthpieces

Court orders

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  1. 1.The Application dated the May 22, 2025, be and is hereby dismissed
  2. 2.Costs of the application be and are hereby awarded to the Respondent
  3. 3.Costs in terms of clause (ii) shall be agreed upon and in default be taxed in the conventional manner
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; the court additionally invoked Article 159(1) of the Constitution in relation to its obligation to proceed in line with orders of 26th March 2025

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, "Rick v Chebet & another (Environment & Land Case E232 of 2023) [2025] KEELC 4050 (KLR)", Case Analysis (2025). not indicated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4050/eng@2025-05-28

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