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ELCDismissedMombasa ELC Suit No. 168 of 2019 (KACC v Bernsoft Limited & 2 Others)· [2025] KEELC 7850 (KLR)

Ethics and Anti Corruption Commission (EACC) Formerly (Kenya Anti Corruption Commission) v Bernsoft Limited & 2 others (Environment and Land Case 168 of 2009) [2025] KEELC 7850 (KLR)

Environment and Land Court
13 November 2025
1,751 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to disqualify a judge over his old job at the plaintiff, ruling that past employment alone doesn't prove bias.

What this practically means

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Executive summary

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By a Notice of Motion dated 12th May 2023, the 1st and 2nd Defendants, Bernsoft Limited and Equitronics Limited, sought the recusal of Hon. Justice Olola James Otieno from hearing Mombasa ELC Suit No. 168 of 2019 (KACC v Bernsoft Limited & 2 Others), contending that the judge had previously been employed by the Kenya Anti-Corruption Commission, the plaintiff, in senior legal services and asset recovery roles during which the suit's investigations allegedly occurred, creating an apprehension of bias contrary to Article 50 of the Constitution. The plaintiff opposed, arguing the application was a delaying tactic, that the key annexure was not addressed to the judge, and that the judge never participated in the investigations or prosecution, nor served in Mombasa. The court presumed judicial impartiality, holding that the applicant bears the onus of rebutting it with cogent evidence under the real danger of bias test, drawing on the Judicial Service (Code of Conduct and Ethics) Regulations 2020, the Court of Appeal's decision in Gachagua, and Uhuru Highway Development Ltd v Central Bank of Kenya. It was not disputed that the judge served with the plaintiff between 2006 and 2013, but the judge found no evidence of involvement in the investigations or pleadings, noted he never served in Mombasa where the investigations occurred, and held that disengagement from such a public body more than 13 years earlier posed no real danger of bias. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether prior employment of the presiding judge with the plaintiff creates a legitimate apprehension of bias

Holding

No. Prior service with the plaintiff, a public body, which ended more than 13 years earlier and involved no evidence of involvement in the suit's investigations or pleadings, does not raise a real danger of bias

Reasoning

The court accepted that it had served with the plaintiff between 2006 and 2013 but noted the suit arose from investigations conducted in Mombasa where the judge never served. There was no evidence of involvement in the investigations, drafting or approval of pleadings. Disengagement from such a public organization more than 13 years earlier did not constitute a real danger of bias. The applicant bore the burden of rebutting the presumption of impartiality with cogent evidence.

p. 4
02

Applicable test for recusal

Holding

The real danger of bias test applies; a judge may recuse where his impartiality might reasonably be questioned per Rule 21 of the Judicial Service Regulations, but the presumption of impartiality is not easily dislodged

Reasoning

The court applied Rule 21 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020 listing instances for recusal, and adopted the real danger of bias test from Mativo J. and the Court of Appeal in Gachagua and Uhuru Highway Development. General allegations of bias are insufficient; the apprehension must be reasonable and not based on mere suspicion or conjecture.

p. 3

Legal principles established

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  • The applicant for recusal bears the onus of rebutting the presumption of judicial impartiality and must satisfy the real danger of bias test with cogent or convincing evidence
  • The test for bias is whether a fair minded and informed observer, having considered the facts, would conclude there was a real possibility that the tribunal was biased
  • Judicial officers should not accede too readily to suggestions of apparent bias so as to encourage parties to shop for judges

Court orders

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  1. 1.The Notice of Motion dated 12th May, 2023 is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Article 50 of the Constitution; 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, "Ethics and Anti Corruption Commission (EACC) Formerly (Kenya Anti Corruption Commission) v Bernsoft Limited & 2 others (Environment and Land Case 168 of 2009) [2025] KEELC 7850 (KLR)", Case Analysis (2025). Mombasa ELC Suit No. 168 of 2019 (KACC v Bernsoft Limited & 2 Others). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7850/eng@2025-11-13

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