Doshі & 2 others v Director of Public Prosecution & 6 others (Environment and Land Petition E017 of 2023) [2025] KEELC 7248 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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
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.
The legal framework governing judicial recusal
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
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.
Legal principles established
#- 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
#- 1.The Motion dated 17th March, 2025 is found to be unmerited and is hereby dismissed.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.