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ELCDismissedVoi ELCEP JR No. E001 of 2025· [2026] KEELC 1124 (KLR)

Saida & another v Mwafue (Environment and Land Appeal E004 of 2023) (Environment and Land) [2026] KEELC 1124 (KLR)

Environment and Land Court
26 February 2026
EWE. K. Wabwoto
1,252 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan land court ruled that losing a case before a judge is not a reason to have that judge replaced — the recusal application failed.

What this practically means

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Executive summary

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The Applicants, Benson Mlambo Mwakina and Mwanaisha Saida Sharifi, applied by notice dated 27th November 2025 for the judge to recuse himself from hearing Voi ELCEP JR No. E001 of 2025 and all Kishamba B Group Ranch matters. They alleged a lack of impartiality grounded in the court's judgment of 25th September 2025 in Voi ELCLC No. E004 of 2024 (John Kivure & Others v Kishamba 'B' Group Ranch & Others), in which the judge had remarked that the 2nd Applicant had been fraudulently allocated land without being heard, and that the court had decided on extraneous matters. The Respondent opposed, arguing she was not a party to the earlier suit, that the allegations were speculative, and that mere adverse determinations cannot ground disqualification, relying on DPP v Charles Kiprotich Tanui and Janmohamed v Chelugui; she sought dismissal with costs of Kshs. 20,000/-. The Applicants filed no submissions despite being given the opportunity. Framing the sole issue as whether the court should recuse itself, the court reviewed Articles 50(1), 159(2)(a), 160 and 25(c) of the Constitution and Regulations 5 and 9 of the Judicial Service Code of Conduct & Ethics Regulations 2020, and applied Locabail (UK) Ltd v Bayfield Properties Ltd together with local authorities holding that prior unfavourable orders are not a ground for recusal. The court held that recusal on such grounds would permit forum shopping and erode judicial independence; the threshold for bias was not met and the Applicants' Article 50 rights remained safeguarded. Noting that the 2nd Applicant had lodged an appeal against the earlier judgment, the court dismissed the application and ordered each party to bear its own costs.

Key legal issues

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Whether prior adverse findings by a judge warrant recusal

Holding

No - the mere fact that a judge made previous unfavourable orders against a party is not a ground for recusal; the threshold for bias was not met.

Reasoning

The Applicants based their recusal application solely on remarks in a prior judgment of the same court in Voi ELCLC No. E004 of 2024, in which the court found the 2nd Applicant had been fraudulently allocated land without a hearing. The court held that recusal on such grounds would enable forum shopping and undermine judicial independence, citing Locabail (UK) Ltd v Bayfield Properties Ltd and local authorities. The right to a fair hearing under Article 50 remained safeguarded, and the 2nd Applicant had an adequate remedy by way of appeal to the Court of Appeal.

p. 3

Legal principles established

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  • A previous unfavourable decision by a judge is not a ground for recusal; litigants cannot demand recusal merely because a judge previously decided an issue against their interest.
  • Judges have a duty to sit and should not accede to suggestions of appearance of bias.
  • Costs of a recusal application should not be borne by either party since such an application is made against the court.

Court orders

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  1. 1.The application dated 27th November 2025 is unmerited and is dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 160
  • Constitution of KenyaArticle 159(2)(a)
  • Constitution of KenyaArticle 25(c)
  • Judiciary Code of ConductRegulation 9(1)
  • Judicial Service Code of Conduct & Ethics Regulations 2020Rule 5

Cases cited (4)

  • DPP v Charles Kiprotich Tanui & 2 Others
    (2024) eKLR
  • Janmohamed & 2 Others v Chelugui & Another
    (2022) KECA 720 (KLR)
  • Locabail (UK) Ltd v Bayfield Properties Ltd
    (2000) 1 All ER 65
  • Doshi & 2 Others v Director of Public Prosecution & 6 Others
    (2025) KEELC 7298 (KLR)
Jurisdiction invoked
Articles 50(1), 159(2)(a), 160 and 25(c) of the Constitution; Rule 5 of the Judicial Service Code of Conduct & 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, "Saida & another v Mwafue (Environment and Land Appeal E004 of 2023)  (Environment and Land) [2026] KEELC 1124 (KLR)", Case Analysis (2026). Voi ELCEP JR No. E001 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1124/eng@2026-02-26

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