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ELCDismissedNotice of Motion dated 13/03/2026 (suit number not stated in judgment)· [2026] KEELC 4423 (KLR)

Nyaga & another v Njeru & another (Enviromental and Land Originating Summons E020 of 2024) [2026] KEELC 4423 (KLR)

Environment and Land Court
9 July 2026
2,440 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Embu dismissed a bid to have the judge step aside, confirming that unhappiness with a procedural ruling is not evidence of bias.

What this practically means

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Executive summary

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The Plaintiffs, by a Notice of Motion dated 13/03/2026 supported by an affidavit of their advocate John Mwariri, sought the recusal of the Judge from further conduct of an ELC suit at Embu and reallocation to another Judge, contending that the Court displayed predisposition in handling the Defendants' late introduction of a sale agreement dated 16/06/2016. The Plaintiffs complained that on 04/02/2026 the Court appeared inclined to admit the document despite a procedural objection, encouraged compromise, and made extraneous and intimidating remarks; that on 24/02/2026 it appeared reluctant to grant leave to respond to the Defendants' formal application; and that the cumulative effect created a genuine apprehension of bias. The 1st Defendant, Alfred Munene Njeru, opposed, asserting the document was promptly filed and served after discovery, that the objection was properly accommodated by directing a formal application, and that no biased remarks were made. Only the Defendants filed submissions, relying on Masters Kenya Limited v Desert Runners Services and Jasbir Singh Rai, and on Regulation 47 of the Judicial Service (Code of Conduct and Ethics) Regulations requiring specific and reasonable grounds for recusal. The Court framed a single issue: whether sufficient grounds for recusal had been established. Reviewing authorities including Charity Muthoni Gitabi, Philip K. Tunoi v JSC, Kaplana H. Rawal v JSC and Isatu v Dalacha, it adopted the fair-minded and informed observer test. It found the record showed the objection was sustained and the document not admitted outright, so no actual or reasonable apprehension of bias arose, and that dissatisfaction with procedural handling lies in review or appeal. The application was dismissed with costs to the Defendants on 09/07/2026.

Key legal issues

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01

Whether the Court's handling of the Defendants' late-filed sale agreement and the remarks attributed to it created a reasonable apprehension of bias

Holding

No. The Court sustained the objection and directed a formal application, ensuring determination through proper procedure after hearing both parties; the complaints disclosed no actual or apparent bias.

Reasoning

The Court reviewed the record: on 04/02/2026 the objection to the late sale agreement was sustained and the Defendants were directed to regularize by formal application; on 24/02/2026 the Plaintiffs' counsel indicated non-opposition and sought time to file a further affidavit, which was accommodated. The Court relied on the fair-minded and informed observer test (Porter v Magill as adopted in Kenyan authority) and on Regulation 47 of the Judicial Service (Code of Conduct and Ethics) Regulations requiring specific, reasonable grounds. Dissatisfaction with procedural handling is remediable by review or appeal, not recusal.

p. 11
02

The applicable test and grounds for recusal of a judicial officer

Holding

The test is the impression given to reasonable people - the fair-minded and informed observer standard - and actual bias requires automatic disqualification, while apparent bias depends on conduct giving rise to a real possibility of bias.

Reasoning

Drawing on Charity Muthoni Gitabi v Joseph Gichangi Gitabi, Philip K. Tunoi v JSC, Kaplana H. Rawal v JSC and Isatu v Dalacha, the Court restated the recusal framework: Regulation 21 grounds (personal interest, actual bias, prior counsel, etc.), the Tunoi/Rawal exposition that actual bias mandates recusal whereas apparent-bias cases turn on the objective impression, and Regulation 47 requiring specific and reasonable grounds rather than generalized complaints.

p. 6

Legal principles established

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  • The test for apparent bias is whether the fair-minded and informed observer, having considered the facts, would conclude there is a real possibility that the tribunal was biased
  • Recusal requires specific and reasonable grounds; mere dissatisfaction with a court's procedural rulings or misunderstanding of the law is insufficient

Court orders

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  1. 1.The Notice of Motion application dated 13/03/2026 seeking recusal is dismissed
  2. 2.Costs of the application are awarded to the Defendants
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to determine recusal applications in proceedings before it (Judicial Service (Code of Conduct and Ethics) Regulations, Regulation 47, cited)

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, "Nyaga & another v Njeru & another (Enviromental and Land Originating Summons E020 of 2024) [2026] KEELC 4423 (KLR)", Case Analysis (2026). Notice of Motion dated 13/03/2026 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4423/eng@2026-07-09

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