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ELCDismissedNakuru ELC E033 of 2023 (with related recusal application consolidated by consent)· [2025] KEELC 5164 (KLR)

Omar & another v Kulei & 2 others (Environment and Land Case E033 of 2023) [2025] KEELC 5164 (KLR)

Environment and Land Court
10 July 2025
5,460 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 Kenyan land court dismissed a bid to have a judge step aside, confirming that losing a ruling is an appeal matter, not proof of bias.

What this practically means

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Executive summary

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Before the Environment and Land Court at Nakuru were two applications dated 12th March 2025 by Juma Okumu seeking (i) to be enjoined in Nakuru ELC E033 of 2023 as 6th defendant and (ii) the recusal of Justice Antony O. Ombwayo from hearing the matters, which by consent were consolidated only for purposes of the recusal applications. The applicant, describing himself as a Kenyan interested in good governance, alleged that the suit parcel LR No. 13287/99 was public land illegally acquired, that the 5th defendant had failed to protect it, and that the judge was biased on account of his ruling of 6th February 2025 in Nakuru ELC Petition No. E011 of 2024, which declined viva voce evidence and the joinder of the EACC. The applicant further alleged, through a letter to the Deputy Registrar, that the judge had received money from litigants via M-Pesa transactions and that a complaint was pending before the Judicial Service Commission. The 1st and 4th defendants characterised the applications as an appeal disguised as a recusal application, brought by a busybody at the tail end of a concluded hearing; the 5th defendant termed them baseless and an attack on judicial independence. The court restated the reasonable-person and fair-minded and informed observer tests for bias, the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, the Bangalore Principles and the doctrine of the duty to sit. It found the alleged M-Pesa transactions predated the filing of the petition, that there was no scintilla of evidence of bribery or bias, and that dissatisfaction with a ruling is a matter for appeal, not recusal. The recusal applications were dismissed; the joinder applications were to be heard subsequently.

Key legal issues

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01

Whether dissatisfaction with a prior ruling of the same judge constitutes a ground for recusal

Holding

No - a judge has no power to review his own decision on merit; the remedy is appeal, and an adverse ruling cannot found a recusal application

Reasoning

The court held that Article 163(7) binds courts to Supreme Court decisions, but that complaint can only be pursued on appeal, not before the same judge who has no power to review his own decision based on merit. Mere dissatisfaction with the 6th February 2025 ruling in ELC Petition No. E011 of 2024 is an appealable grievance, not evidence of bias, and cannot ground recusal in the present suits.

p. 5
02

Whether the M-Pesa bribery allegations and the pending JSC petition established a reasonable apprehension of bias

Holding

No - there was no scintilla of evidence; the alleged transactions predated the filing of the petition and the relationship between the persons named was not demonstrated

Reasoning

The court found the alleged M-Pesa transactions of 26th June 2023 preceded the filing of Petition No. E011 of 2024 on 18th September 2024, making the bribery allegation illogical. No evidence connected the persons in the transactions to the litigants, and the court flatly denied receiving any money. The allegations were characterised as intended to scare the court into recusing itself.

p. 6
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The applicable test and doctrine for recusal

Holding

The test is that of a fair-minded and informed observer; recusal is discretionary, balanced against the judge's duty to sit absent compelling reasons

Reasoning

Relying on the Supreme Court in Robert Tom Martins Kibisu v Republic, the Privy Council in Lesage, and the Court of Appeal in Charity Muthoni Gitabi and Kalpana Rawal, the court restated that bias must be proved through the reasonable-person test, guided by the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 and the Bangalore Principles, and tempered by the doctrine of the duty to sit per Gladys Boss Shollei v JSC.

p. 6

Legal principles established

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  • An applicant seeking recusal on allegations of bias must demonstrate with factual proof a reasonable apprehension of bias perceived by a reasonable, right-minded person possessed of all relevant information
  • Judicial officers have a duty to sit and should not readily succumb to bullying or intimidation to recuse themselves
  • A judge cannot be asked to review his own decision on the merits as a ground for recusal; a dissatisfied party must go on appeal

Court orders

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  1. 1.The applications for recusal are dismissed
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; applications under Order 1 Rule 10(2) of the Civil Procedure Rules and the court's inherent powers on recusal; Article 50(1) of the Constitution

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, "Omar & another v Kulei & 2 others (Environment and Land Case E033 of 2023) [2025] KEELC 5164 (KLR)", Case Analysis (2025). Nakuru ELC E033 of 2023 (with related recusal application consolidated by consent). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5164/eng@2025-07-10

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