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ELCDismissedPetition dated 25th April, 2023 (recusal Notice of Motion dated 17th March, 2025)· [2025] KEELC 7248 (KLR)

Doshі & 2 others v Director of Public Prosecution & 6 others (Environment and Land Petition E017 of 2023) [2025] KEELC 7248 (KLR)

Environment and Land Court
23 October 2025
4,516 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to step aside from a land dispute case, ruling that two differing rulings showed judicial discretion, not bias.

What this practically means

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Executive summary

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This is a ruling on a recusal application in a petition filed by Ashok Doshi and another on 25th April, 2023 before the Environment and Land Court in Nairobi, challenging their criminal prosecution in MCCR E257 of 2023 as an abuse of process, their eviction from and cancellation of title to a suit property, and seeking prerogative orders. By a Notice of Motion dated 17th March, 2025 under Articles 48 and 50(1) of the Constitution and the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, the petitioners sought the recusal of Hon. Justice O. A. Angote and the reassignment of the petition. They argued that the court's ruling of 31st July, 2024, dismissing their application for conservatory orders, was a complete reversal of its ruling of 5th October, 2023, which had dismissed preliminary objections on res judicata and abuse of process, giving rise to a reasonable apprehension of bias. The 2nd to 6th Respondents filed grounds of opposition, urging that the applicants should have appealed or sought review, and characterising the motion as forum shopping and an abuse of process. The 7th Respondent, through a replying affidavit of its Director Jennifer Nthenya Wambua, similarly opposed the motion, noting the pending appeal. The court framed a sole issue: whether it should recuse itself. Relying on the objective reasonable-apprehension-of-bias test from Supreme Court authority and Regulation 21 of the Code of Conduct, the court held that the two impugned rulings addressed distinct legal inquiries - a jurisdictional res judicata inquiry versus discretionary conservatory relief - so a fair-minded observer would not perceive bias, and the impugned ruling was properly the subject of the appeal already lodged. The motion was dismissed with costs to abide the petition.

Key legal issues

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Whether the court should recuse itself on account of alleged bias arising from its two allegedly contradictory rulings of 5th October, 2023 and 31st July, 2024

Holding

Recusal refused; the rulings arose in distinct contexts (preliminary objections on res judicata versus an application for conservatory orders) and the divergence was a lawful exercise of judicial discretion

Reasoning

The court distinguished the two impugned rulings: the first addressed res judicata as a jurisdictional inquiry; the second concerned discretionary equitable relief governed by its own principles. Each application invited distinct legal inquiries. Applying the objective test from the authorities, a fair-minded and informed observer would not perceive bias, and the right to a fair hearing under Article 50 remains safeguarded. The impugned ruling is properly a subject of appeal, which the petitioners had already lodged.

p. 9
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The legal framework governing judicial recusal

Holding

Recusal is governed by Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 and the objective reasonable-apprehension-of-bias test; allegations of bias must be factual and proved

Reasoning

The court set out Articles 50(1), 159(2)(a), 160 and 25(c) of the Constitution and Regulations 9 and 21 of the Code of Conduct, and relied on Supreme Court authority (Rai, Kibisu, Shollei) establishing that the perception-of-fairness test is objective, that mere apprehension is insufficient and bias must be specifically alleged and established, and that every judge has a duty to sit.

p. 7

Legal principles established

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  • The test for recusal is objective: whether a fair-minded and informed observer, apprised of the circumstances, would perceive a reasonable apprehension of bias; mere divergence in judicial outcomes between rulings is not bias
  • A judge has a duty to sit and recusal should not be used to cripple a judge from hearing a matter
  • A party aggrieved by an interlocutory ruling should appeal rather than seek recusal premised on the judge's exercise of discretion (argued by respondents, endorsed in outcome)

Court orders

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  1. 1.The Motion dated 17th March, 2025 is found to be unmerited and is hereby dismissed.
  2. 2.Costs shall abide the Petition.
Jurisdiction invoked
Articles 48 and 50(1) of the Constitution, 2010; Rules 4, 9, 11 and 21(1)(d) 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, "Doshі & 2 others v Director of Public Prosecution & 6 others (Environment and Land Petition E017 of 2023) [2025] KEELC 7248 (KLR)", Case Analysis (2025). Petition dated 25th April, 2023 (recusal Notice of Motion dated 17th March, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7248/eng@2025-10-23

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