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ELCDismissedELC Petition No. E001 of 2025

Mathenge & 4 others v Rohim City of the Lord Churcн through tts Registered Trustees & 4 others (Environment and Land Petition E001 of 2025) [2026] KEELC 5205 (KLR)

Environment and Land Court
22 July 2026
2,372 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Nyeri Environment and Land Court refused to step aside from a land dispute, ruling that unhappiness with rulings is a ground for appeal, not recusal.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 15th April 2026 by which the Applicants (Petitioners in ELC Petition No. E001 of 2025 before the Environment and Land Court at Nyeri) sought the recusal of the court from further handling their petition. The Petition, filed on 1st November 2025, seeks enforcement of constitutional rights relating to suit premises over which Kimani J had issued status quo orders on 2nd December 2025 restraining construction. The Applicants alleged that on 10th February 2026 the Court exhibited overt bias, made side comments and failed to reiterate the interim orders, emboldening the 1st and 2nd Respondents to construct a toilet on the suit property in contempt, thereby destroying their confidence in the Court's impartiality contrary to Article 50. Only the 2nd Respondent responded, asserting forum shopping and explaining that the sanitary block was erected pursuant to a public health directive of the 4th Respondent. The Court set out the legal framework for recusal: Articles 50(1) and 160(1) of the Constitution, Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020, and the objective Porter v Magill 'real possibility of bias' test, applying a high burden on applicants. It found the Applicants failed to identify the specific words allegedly evidencing bias, that dissatisfaction with rulings is a ground for appeal not recusal, and that a judge cannot recuse himself out of fear, which would be dereliction of duty. The proper remedy for breach of interim orders is contempt proceedings. The application was dismissed with no order as to costs on 22nd July 2026.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether, based on the Applicant's deposition, the Court should recuse itself from further handling this matter

Key legal issues

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01

Whether the Court should recuse itself on the ground of alleged bias and failure to reiterate interim orders

Holding

The application fails; no biased words were identified and the proper remedy for breach of interim orders is contempt proceedings against the Respondents

Reasoning

The Applicants alleged bias from remarks on 10 February 2026 and the Court's failure to reiterate Kimani J's status quo orders, which allegedly emboldened the Respondents to construct a toilet. The Court found the Applicants did not cite the specific words complained of, so no reasonable bystander could apprehend bias. The Court is not a party and any order violation should be pursued by contempt citation. Recusal without grounds would be dereliction of duty.

p. 14
02

The legal framework and criteria for judicial recusal in Kenya

Holding

Recusal is governed by Article 50(1) and 160(1) of the Constitution, Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020, and the objective Porter v Magill test as adopted in Kenyan superior courts

Reasoning

The Court surveyed the statutory and common law criteria: genuine animosity, personal interest, prior advocacy for a party, family relationships, and pecuniary stakes compel recusal. Kenyan courts apply the objective 'real possibility of bias' test. Exceptions exist where recusal would paralyse the administration of justice or defeat quorum requirements. Recusal applications must be made to the judge handling the case.

p. 8

Legal principles established

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  • The objective test for recusal is whether a reasonable, objective and informed observer would conclude there is a real possibility of bias
  • Litigants bear a high burden of proof in recusal applications
  • Dissatisfaction with interlocutory rulings is not a ground for recusal; the remedy is appeal
  • A judge cannot recuse himself out of fear of handling a matter or of the parties; such recusal is dereliction of duty

Court orders

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  1. 1.The Application dated April 15, 2026 is dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the Petition; application made to the judge seized of the matter, grounded on Article 50(1) and Article 160(1) of the Constitution and the Judicial Service (Code of Conduct and Ethics) Regulations, 2020

Relief refused

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Recusal of the Court from further handling the matter

Applicants failed to identify any biased statements; the objective test for reasonable apprehension of bias was not met and recusal would amount to dereliction of duty

p. 14

Costs

Dismissed with no order as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, the Application dated April 15, 2026, is hereby dismissed with no order as to costs.
p. 14Final orders - dismissal of recusal application
Holistically, the application does not meet the criteria for this Court to recuse itself. Doing so would amount to dereliction of duty in sitting and hearing cases.
p. 14Conclusion on recusal criteria
If there are orders in place that have been violated, the best that the Applicants could do is to cite the Respondents for contempt.
p. 14Proper remedy for breach of interim orders
The appropriate course of action in the event of an unfavorable ruling is to pursue an appeal rather than file a recusal application.
p. 12Appeal, not recusal, for unfavourable rulings

Issues in the judgment

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minor

Judgment states only the 2nd Respondent filed a response, yet the coram records counsel for the 1st, 4th and 5th Respondents and the reasons canvass the 1st and 4th Respondents' positions

minor

Application dated 15th April 2026 described as filed concurrently with the Petition of 1st November 2025, an apparent internal inconsistency in dates

minor

Typographical error in the judgment: 'the words spoken ot uttered'

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, "Mathenge & 4 others v Rohim City of the Lord Churcн through tts Registered Trustees & 4 others (Environment and Land Petition E001 of 2025) [2026] KEELC 5205 (KLR)", Case Analysis (2026). ELC Petition No. E001 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5205/eng@2026-07-22

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