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ELCDismissedNot stated in judgment· [2026] KEELC 2133 (KLR)

Gachungu & 23 others v Nganga & another (Enviromental and Land Originating Summons E007 of 2021) [2026] KEELC 2133 (KLR)

High Court of Kenya (trial court, judge-led; exact division not stated)
16 April 2026
LMLucy N. Mbugua
617 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nyahururu judge refused to step aside from a case, ruling that vague accusations of bias without evidence are not enough to force recusal.

What this practically means

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Executive summary

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The plaintiffs brought a notice of motion dated 16.7.2025 seeking the recusal of the trial judge on the strength of the 1st applicant's supporting affidavit. He alleged that the judge had conducted the matter unfairly, that the plaintiffs and their advocate were treated with hostility on 26.5.2025, that the judge was harsh during cross-examination, and that the judge 'acts like one who is under a bribe'. The 1st defendant opposed through a replying affidavit dated 29.7.2025, contending that the allegations were blanket and unspecified and that the application was an attempt to forum shop, and urged dismissal. The court framed a single issue: whether it should recuse itself. It applied the objective test for recusal laid down by the Court of Appeal in R v David Makali and reinforced in R v Jackson Mwalulu, as cited in Lawrence Kinyua Mwvai, requiring reasonable ground for assuming a possibility of bias and specifically alleged and established facts, together with the reasonable fair-minded observer test from National Oil Corporation of Kenya v Real Energy Limited. Reviewing the record, the judge noted that he took over the matter on 24.2.2025, granted last adjournments to both defence and plaintiffs' counsel, and conducted case management and partial trial, with no contemporaneous objection or affidavit from plaintiffs' counsel substantiating the complaints. Holding that the applicants made blanket, unsubstantiated allegations, the court dismissed the application with costs to the respondent. The main suit continues before the same judge.

Key legal issues

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Whether the trial judge should recuse himself on allegations of bias

Holding

Application dismissed; the allegations were blanket and unsubstantiated and did not meet the objective test for recusal

Reasoning

The court applied the objective test from R v David Makali as reinforced in R v Jackson Mwalulu, requiring specific allegations and establishment of facts constituting bias, and the reasonable fair-minded observer test from National Oil Corporation v Real Energy. Reviewing the record, the judge had granted adjournments to both sides and no affidavit or contemporaneous objection by plaintiffs' counsel substantiated the claims of hostility or bias.

p. 2

Legal principles established

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  • The test for recusal is objective: there must be reasonable ground for assuming a possibility of bias likely to create a reasonable doubt in the minds of the public about the fairness of the administration of justice, and facts constituting bias must be specifically alleged and established.

Court orders

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  1. 1.The application dated 26.5.2025 (the recusal notice of motion dated 16.7.2025) is dismissed with costs to the respondent
Jurisdiction invoked
Original trial jurisdiction (no constitutional or statutory provision expressly invoked)

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, "Gachungu & 23 others v Nganga & another (Enviromental and Land Originating Summons E007 of 2021) [2026] KEELC 2133 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2133/eng@2026-04-16

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