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ELCDismissedELC Petition No. E053 of 2022· [2025] KEELC 7228 (KLR)

Tom Brown Limited & another v County Executive Committee Member in Charge of Planning & 2 others; Attorney General & 4 others (Interested Parties) (Environment and Land Petition E053 of 2022) [2025] KEELC 7228 (KLR)

Environment and Land Court
23 October 2025
5,001 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to step aside from a case, ruling that an unresolved complaint against a judge is not grounds for recusal.

What this practically means

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Executive summary

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The 3rd Respondent, Nova Realty Group Limited, moved the Court by Notice of Motion dated 23rd May 2025 seeking the recusal of the Honourable Justice Oscar Angote from hearing ELC Petition No. E053 of 2022. The application was premised on JSC Petition No. 35 of 2025 lodged before the Judicial Service Commission by the Trusted Society of Human Rights Alliance, alleging that the presiding Judge was a personal friend of the 2nd Petitioner and had favoured him in earlier matters, including the present suit. The Attorney-General, for the 1st, 2nd and 4th Interested Parties, and the Petitioners opposed the motion, contending that an untested JSC complaint cannot ground recusal, that no nexus or bias was demonstrated, and that the motion was a disguised appeal designed to forum shop for a favourable bench. Framing the single overarching issue as whether a sufficient and reasonable basis for recusal had been established, the Court applied the objective test of the reasonable, fair-minded and informed observer. It held that a complaint before the JSC remains an untested allegation incapable of founding judicial disqualification until appraised and, if merited, referred to a tribunal; that mere allegations without facts cannot sustain recusal; that a previous judicial decision cannot by itself disqualify a judge, the remedy being appeal or review; and that every judge has a constitutional duty to sit. Finding the application calculated to delay and interfere with the administration of justice, the Court declined to recuse itself and dismissed the Notice of Motion dated 23rd May 2025 with costs, remaining seized of the substantive Petition.

Key legal issues

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01

Whether the existence of a JSC complaint constitutes a valid ground for recusal

Holding

A complaint before the JSC is an untested allegation which must first undergo appraisal and, if merited, lead to formation of a Tribunal; until then it is incapable of forming a basis for judicial disqualification.

Reasoning

The court held that a complaint under Article 168 must undergo appraisal and only if merited lead to a Tribunal. Until such determination it remains an untested allegation. The court relied on National Water Conservation & Pipeline Corporation vs Runji & Partners, warning that allowing complaints to force recusal would let a vexatious litigant manipulate the system by threatening every jurist assigned until a preferred judge is obtained.

p. 8
02

Whether the allegations met the threshold of reasonable apprehension of bias

Holding

The 3rd Respondent failed to demonstrate any cogent or reasonable basis upon which the Court's impartiality could be questioned; mere allegations unaccompanied by facts cannot sustain recusal.

Reasoning

Applying the objective test of the reasonable, fair-minded and informed observer from Jasbir Singh Rai and Kalpana H. Rawal, the court found the facts constituting bias must be specifically alleged and established. The applicant bore the duty of establishing facts from which an inference of bias could be drawn and offered only bare allegations and apprehension from an untested complaint.

p. 8
03

Whether recusal can be founded on a Judge's previous rulings

Holding

A previous judicial decision cannot by itself be a basis for disqualification; an aggrieved party ought to appeal or seek review, not apply for recusal.

Reasoning

Relying on Saad Yusuf Saad vs IEBC and Locabail (UK) Ltd vs Bayfield Properties, the court noted that previous judicial decisions are among the factors on which an objection to a judge may not be raised. Seeking recusal merely because a judge determined a similar matter invites forum shopping, conflicting decisions of concurrent jurisdiction, and erodes public confidence in the impartiality of the judiciary.

p. 9
04

Whether the application amounts to an abuse of court process

Holding

The application lacks merit and appears calculated to delay or interfere with the orderly administration of justice.

Reasoning

The court found the motion, premised on unsubstantiated fears arising from the JSC Petition and dissatisfaction with an earlier ruling, was a procedural subterfuge aimed at forum shopping for a favourable bench. The court held that recusal without lawful cause would amount to an abdication of judicial duty and that public confidence is preserved by judges discharging their mandate faithfully.

p. 10

Legal principles established

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  • A complaint lodged before the Judicial Service Commission, by itself, does not constitute a valid ground for recusal.
  • A previous judicial decision cannot by itself be a basis for disqualification of a judge; the remedy of the aggrieved party is appeal or review.
  • Every Judge has a constitutional duty to sit in matters duly allocated to them, and recusal should not be used to cripple a judge from sitting.
  • The test for establishing a Judge's impartiality is the perception of a reasonable person; unsubstantiated suspicion of personal bias will not suffice.

Court orders

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  1. 1.The Notice of Motion dated 23rd May 2025 is dismissed with costs
  2. 2.The Court remains seized of the matter and shall proceed to hear and determine it on its merits
Jurisdiction invoked
Articles 27, 50 and 159 of the Constitution of Kenya; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules

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, "Tom Brown Limited & another v County Executive Committee Member in Charge of Planning & 2 others; Attorney General & 4 others (Interested Parties) (Environment and Land Petition E053 of 2022) [2025] KEELC 7228 (KLR)", Case Analysis (2025). ELC Petition No. E053 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7228/eng@2025-10-23

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