Ngaine v Mwanirua (Sued as the Personal Representative of Charles Mwanirua - Deceased) (Environment and Land Appeal E037 of 2024) [2025] KEELC 7875 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a judge's recusal bid, confirming that unsubstantiated suspicion of bias is not enough to disqualify a judge.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the criteria for recusal of a judge on the ground of bias has been met
Key legal issues
#Whether the criteria for recusal of a judge on the ground of bias was met
The application failed; no reasonable apprehension of bias was established. The interim stay order of 7/7/2025 was granted on objective grounds - the applicant was delaying substitution while pursuing execution, the stay was formally sought as prayer 4 of a pending application, and the personal representative was the automatic respondent under the Law of Succession Act.
The court reviewed the tests from Jasbir Singh Rai, R v S (R.D), Kalpana Rawal and R v Jackson Mwalulu: the test is objective, the apprehension must be reasonable and held by an informed reasonable person, mere suspicion is insufficient, and the threshold is high with the onus on the applicant. The applicant made only casual, unsupported allegations of bias tied to the orders of 7/7/2025. The court found it acted objectively and fairly to prevent abuse of process, so recusal was unwarranted.
Legal principles established
#- The test for recusal on grounds of bias is the perception of a reasonable, well-informed observer; unsubstantiated suspicion of personal bias or prejudice will not suffice
- The threshold for a finding of bias is high; a real likelihood or probability of bias must be demonstrated and the onus lies on the person alleging it
- Facts constituting bias must be specifically alleged and established
Court orders
#- 1.The application dated 30/7/2025 is rejected and dismissed for lack of merit
- 2.Costs of the application shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Nkubu Senior Principal Magistrate's Court (SPMC E & L Case No. E055 of 2021)
- Nkubu SPMC E & L Case No. E055 of 2021
- Jurisdiction invoked
- Appellate/recusal jurisdiction of the Environment and Land Court (provision not stated in the judgment)
Relief refused
#Recusal of the Honourable Court (Justice B M Eboso) and placement of the matter before the next nearest ELC Judge for hearing and final determination
No proper basis was laid to warrant recusal; the applicant tendered no evidence supporting the allegation of bias and the court found it acted objectively and fairly
Costs
Costs of the application shall be in the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, the application dated 30/7/2025 is rejected and dismissed for lack of merit. Costs of the application shall be in the appeal.
The test for establishing a judge's impartiality is the perception of a reasonable person, this being a well-informed, thoughtful observer who understands all the facts and who has examined the record and the law and thus, unsubstantiated suspicion of personal bias or prejudice will not sufice.
The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence.
The test is objective and the facts constituting bias must be specifically alleged and established.
An application for recusal of a judge in a case in which actual bias is established on the part of the judge hardly poses any dificulties; the judge must, without more, recuse himself.
The court has no doubt in its mind that it acted objectively and fairly in granting the interim stay order to prevent abuse of the court process.
Issues in the judgment
#The judgment does not state the case number, neutral citation or parties' full names of the appeal in which the recusal application was made; the applicant is described as moving 'For Nahashon Karuti, Advocate' although the supporting affidavit is sworn by John Kinoti Mwanirua
Citation of R v S (R.D) appears in the judgment as '(1977)3 SCR 484' whereas 3 SCR 484 corresponds to [1997]; the judgment itself uses 1977
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngaine v Mwanirua (Sued as the Personal Representative of Charles Mwanirua - Deceased) (Environment and Land Appeal E037 of 2024) [2025] KEELC 7875 (KLR)", Case Analysis (2025). Not stated in the judgment (appeal from Nkubu SPMC E & L Case No. E055 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7875/eng@2025-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.