Farah & another v Adan & another (Environment and Land Case E229 of 2022) [2026] KEELC 1760 (KLR)
The bottom line
#A Kenyan High Court dismissed a bid to have a judge step aside for bias, ruling that disagreeing with court directions is not bias.
What this practically means
#Executive summary
#Key legal issues
#Whether the orders of 27th January 2026 and 5th February 2026 established a reasonable apprehension of bias warranting recusal
No. The impugned directions were ordinary case management: the reimbursement order followed the 1st Defendant's own adjournment and left quantification to the parties, and the ruling that the verification application was premature was a lawful allocation of the burden of proof.
The Court applied the objective test from Jasbir Singh Rai and Kibisu v Republic. The reimbursement order arose from an adjournment sought by the 1st Defendant himself and did not fix any amount. The refusal to assist in verifying the plaintiffs' travel documents reflected the rule that the burden of proof lies on the parties and the Court cannot become an investigator. A fair-minded observer would not perceive a real possibility of bias.
Whether recusal may substitute for appellate or review remedies
No. A litigant aggrieved by procedural directions must pursue review or appeal; recusal cannot be used as a substitute remedy.
The Court held that even if the Applicant was aggrieved by the directions regarding his application, the law provides remedies of review and appeal. The totality of the complaints revealed a pattern of dissatisfaction with rulings rather than objective demonstration of bias, and recusal is not a mechanism for challenging judicial decisions one dislikes.
Whether the Judge nonetheless recused herself despite dismissing the application
Yes, for personal reasons only, expressly not on the merits.
Notwithstanding finding the application unsubstantiated and dismissing it with costs, the Judge stated she would recuse herself from further handling the matter due to personal reasons, clarifying that this decision was not based on the merits of the recusal application.
Legal principles established
#- The test for recusal is objective: whether a fair-minded and informed observer, having considered all the relevant facts, would conclude there is a real possibility of bias; unsubstantiated suspicion will not suffice.
- Dissatisfaction with case management directions or judicial decisions does not constitute evidence of bias; review and appeal are the proper remedies, recusal is not a substitute.
- Allegations of bias must be reasonable, objective and based on cogent evidence, not mere suspicion.
Court orders
#- 1.The 1st Defendant's Notice of Motion dated 16th February 2026 seeking recusal of the trial Judge is dismissed
- 2.The application is dismissed with costs
- 3.Notwithstanding the dismissal, the Judge will recuse herself from further handling the matter due to personal reasons, not on the merits
- Jurisdiction invoked
- Articles 47(1), 50(1), 159(2) and 160(1) of the Constitution; Sections 1 and 3 of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules; Sections 3 and 12 of the Fair Administrative Action Act 2015; Section 3 of the Judicature Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Farah & another v Adan & another (Environment and Land Case E229 of 2022) [2026] KEELC 1760 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1760/eng@2026-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.