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ELCDismissedNot stated in judgment· [2025] KEELC 8311 (KLR)

Isatu v Dalacha (Miscellaneous Civil Application E002 of 2025) [2025] KEELC 8311 (KLR)

High Court of Kenya
19 November 2025
OMOguttu Mboya
2,731 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan High Court confirmed that requests to disqualify a magistrate must be made to that magistrate first, dismissing an attempt to bypass them.

What this practically means

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Executive summary

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The applicant, Paul Hirbo Isatu, filed an undated Notice of Motion dated 8th May 2025 asking the High Court at Isiolo to call for and examine the records of Marsabit ELC Case No. 6 of 2020 and ELC Case No. 14 of 2019, issue supervisory orders, stay proceedings in those suits, transfer them to another magistrate's court, and recuse or disqualify the presiding magistrate on grounds of demonstrated or apparent bias, prior prejudicial rulings and judicial delay. He complained that the suits had been pending for over seven years and that the magistrate had recently imposed costs of Kshs. 80,000 against him when he sought time to instruct new counsel. The respondent opposed, contending the application amounted to shopping for a magistrate of choice, that the applicant himself caused the delay, and that it was an abuse of process. The respondent was absent at the hearing despite due service. The court framed two issues: its jurisdiction over the recusal limb, and abuse of due process. Relying on Galaxy Paints and Gachagua v Maingi, the court held that a recusal application must be mounted before the judicial officer whose recusal is sought, and that the High Court lacked jurisdiction to entertain the limb. It found the application was forum shopping and an abuse of process, and rejected the submission that the filing defect was a curable technicality under Article 159(2)(d), holding jurisdiction to be substantive. The application was dismissed in its entirety with no orders as to costs.

Key legal issues

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01

Jurisdiction over the recusal/disqualification limb

Holding

The High Court lacks jurisdiction; the recusal application must be made before the magistrate concerned, who alone can interrogate and determine whether the allegations are proven.

Reasoning

Judicial officers take an oath to administer justice and bear a duty to sit. While recusal may arise under Regulation 21 of the Judicial Service (Code of Conduct) Regulations, an application for recusal must of necessity be mounted before the officer whose recusal is sought, who has jurisdiction to interrogate the allegations against the requisite standard. Relying on Gachagua & 5 others v Maingi, the court held it had no jurisdiction to disqualify the trial magistrate. Jurisdiction is substantive and not curable by Article 159(2)(d).

p. 4
02

Abuse of the due process of the court

Holding

The application constituted forum shopping and an abuse of process.

Reasoning

The applicant was substantially responsible for the delay in the proceedings below yet attributed the delay to the trial magistrate. The court found the depositions and surrounding circumstances demonstrated an endeavour to abuse due process, engaging the inherent jurisdiction of courts to prevent their processes being used as instruments of oppression, as elaborated in Satya Bhama Gandhi v Director of Public Prosecutions & 3 others.

p. 4

Legal principles established

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  • An application for recusal of a trial magistrate must be mounted and prosecuted before the judicial officer whose recusal is sought; the High Court lacks jurisdiction to entertain it at first instance.
  • Filing a matter before a court without jurisdiction is not a procedural technicality curable under Article 159(2)(d); jurisdiction is substantive and goes to the root of the matter.
  • Judicial officers have a fundamental duty to sit and should not accede too readily to suggestions of apparent bias.

Court orders

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  1. 1.The undated Notice of Motion Application, [albeit escorted by the certificate of urgency dated 8th May 2025] be and is hereby dismissed.
  2. 2.No orders as to costs.
Jurisdiction invoked
Supervisory jurisdiction of the High Court invoked to call for and examine records of ELC Case No. 6 of 2020 and ELC Case No. 14 of 2019 before the Senior Resident Magistrate's Court at Marsabit

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Isatu v Dalacha (Miscellaneous Civil Application E002 of 2025) [2025] KEELC 8311 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8311/eng@2025-11-19

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