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ELCDismissedNakuru ELC E033 of 2023 (with consolidated recusal applications dated 12th March 2025)· [2025] KEELC 5147 (KLR)

Okumu v Agricultural Development Corporation (Environment and Land Petition E011 of 2024) [2025] KEELC 5147 (KLR)

Environment and Land Court
10 July 2025
5,462 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Nakuru land court refused to step aside from a case, ruling that unproven bias claims and unhappiness with an earlier ruling are not grounds for a judge's recusal.

What this practically means

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Executive summary

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Two applications dated 12th March 2025 by Juma Okumu sought (i) joinder as 6th defendant in Nakuru ELC E033 of 2023, a dispute over L.R No. 13287/99 allegedly public land, and (ii) the recusal of Ombwayo J. The recusal was sought on the basis that the judge's ruling of 6th February 2025 in Nakuru ELC Petition No. E011 of 2024 (declining viva voce evidence and EACC joinder) disregarded the Supreme Court's Fanikiwa decision, and on allegations that the judge had received money from litigants, including M-Pesa transactions and a claim that Joshua Kulei had paid the judge Ksh 30 million. By consent, the applications for recusal were heard first. The 1st and 4th defendants argued the application was an abuse of process and a disguised appeal; the 5th defendant termed the allegations baseless. The court held that the objective test of the reasonable, fair-minded and informed observer applies, that the applicant adduced no factual proof of bias, that the alleged transactions predated the filing of the petition, and that dissatisfaction with a prior ruling is a matter for appeal, not recusal. Applying the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, the Bangalore Principles and the doctrine of the duty to sit, the court found no discernable ground for recusal and dismissed both recusal applications. The joinder applications were to be heard subsequently. No costs order was recorded.

Key legal issues

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01

Whether allegations of bribery against the judge established bias

Holding

The court found no scintilla of evidence of bribery; the alleged M-Pesa transactions predated the filing of the petition and no nexus to the litigants was demonstrated

Reasoning

The applicant alleged the judge received money from litigants through relatives and via one Joshua Kulei. The court found the alleged M-Pesa transactions dated 26th June 2023 preceded the filing of Petition E011 of 2024 (filed 18th September 2024), rendering the allegations incoherent, and that the relationship between the persons in the transactions and the litigants was not established. The transactions were intended to intimidate the court into recusing itself.

p. 5
02

Whether the prior ruling of 6th February 2025 in ELC Petition E011 of 2024 disclosed bias

Holding

A ruling declining viva voce evidence cannot ground recusal; the remedy lies on appeal, not before the same judge

Reasoning

The applicant attacked the ruling denying cross-examination and joinder of the EACC as outrageous and in violation of the Supreme Court's Fanikiwa decision. The court held that Article 163(7) binds lower courts to Supreme Court decisions but the complaint about its own ruling can only be pursued in the Court of Appeal, as the judge has no power to review his own decision on merit; such grievance cannot found recusal.

p. 5
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The applicable legal framework for recusal

Holding

Recusal is governed by Article 50(1), the Judicial Service (Code of Conduct and Ethics) Regulations 2020, the Bangalore Principles, and the doctrine of the duty to sit; none of the regulatory grounds were made out

Reasoning

The court restated the test from Robert Tom Martins Kibisu v Republic, Lesage v Mauritius Commercial Bank, and Tunoi v JSC, holding the allegations fell outside the grounds in Regulation 21 and amounted to conditions for removal of a judge rather than recusal. It invoked the duty to sit to resist bullying and intimidation and warned that recusal without proper grounds encourages forum shopping.

p. 6

Legal principles established

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  • The test for bias on a recusal application is objective - that of a reasonable, fair-minded and informed observer, and the applicant must demonstrate with factual proof a reasonable apprehension of bias
  • Judicial officers have a duty to sit and should not recuse themselves absent compelling reasons; dissatisfaction with a prior ruling is not a ground for recusal
  • A judge has no power to review his own decision on the merits; a party aggrieved by an interlocutory ruling must pursue appellate remedies, not recusal

Court orders

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  1. 1.The applications for recusal are dismissed
  2. 2.The judge shall continue to hear the matters which are pending judgment
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over recusal applications; Article 50(1) of the Constitution of Kenya, 2010 (right to a fair hearing before an independent and impartial tribunal)

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, "Okumu v Agricultural Development Corporation (Environment and Land Petition E011 of 2024) [2025] KEELC 5147 (KLR)", Case Analysis (2025). Nakuru ELC E033 of 2023 (with consolidated recusal applications dated 12th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5147/eng@2025-07-10

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