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ELCDismissedELCEPJR E001 of 2026· [2026] KEELC 6017 (KLR)

Soipei Ole Samperu (Suing as the Legal Personal Representative of Samperu Ole Masarie) v The District Commissioner, Transmara District & 2 Others

High Court of Kenya
1 October 2026
1,390 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The High Court at Kilgoris dismissed a request to disqualify the judge, ruling that a judge's remarks in an earlier judgment do not show bias.

What this practically means

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Executive summary

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This ruling of the High Court at Kilgoris (M.N. Mwanyale J) determines a Notice of Motion dated 12th June 2026 in a judicial review suit brought by Soipei Ole Samperu, as legal personal representative of Samperu Ole Masarie, against the District Commissioner, Transmara District, with two interested parties. The motion sought the recusal of the court and transfer of the suit to the Environment and Land Court at Migori, on grounds that the court listed the matter for directions contrary to earlier directions and had, in a prior appeal (Kilgoris ELC Appeal No. E038/2024) between substantially the same parties, remarked that 'the deceased had shortchanged his brothers'. The Respondent and the 1st Interested Party opposed, contending that no factual or legal basis for recusal was established, that the application failed the Rule 21(1) JSC Code of Conduct threshold and the Tunoi test, and that the Applicant was forum shopping. The court framed three issues: merit of the application, reliefs, and costs. It found the rescheduling was administrative (the court was not sitting from 13th to 16th June 2026) and no ground for recusal. Following Onguto J in Kenya Properties Limited, it held that remarks made in the course of a judgment after hearing evidence cannot impute bias, and applying the Supreme Court's objective test in Jasbir Sing Rai, found no actual or perceived bias demonstrated. The application was dismissed with costs on 1st October 2026.

Key legal issues

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01

Whether the court's prior remarks in Kilgoris ELC Appeal No. E038/2024 that 'the deceased had shortchanged his brothers' created apparent bias

Holding

No bias arose; the remarks were made in the course of delivering a judgment after consideration of evidence and submissions, and cannot impute bias or predetermination

Reasoning

The court adopted Onguto J's holding in Kenya Properties Limited that observations limited to case management or the merits of a case do not create justifiable perceptions of bias, and that a judicial officer need not be a mute listener for fear of recusal applications. Since the impugned remarks were made in a judgment after hearing evidence, they fall outside the category of observations that leave an air of predetermination.

p. 5
02

Whether the application met the objective test for recusal on grounds of bias

Holding

It did not; the Applicant demonstrated no actual or perceived bias, personal interest or conflict of interest, and the application rested on unsubstantiated suspicion

Reasoning

Applying the Supreme Court's test in Jasbir Sing Rai, impartiality is measured by the perception of a reasonable, well-informed observer who has examined the record and the law. The Applicant's dissatisfaction with the rescheduling of directions and the prior appeal judgment amounted only to unsubstantiated suspicion, which cannot suffice to disqualify the court.

p. 5

Legal principles established

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  • Remarks made by a judicial officer in the course of delivering a judgment after hearing evidence do not impute bias or predetermination
  • Dissatisfaction with case management directions cannot, without more, constitute a valid ground for recusal
  • The objective test for recusal on grounds of bias is the perception of a reasonable, well-informed and thoughtful observer who understands all the facts; unsubstantiated suspicion will not suffice

Court orders

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  1. 1.The Notice of Motion dated 12th of June 2026 seeking recusal of the court and transfer of the suit to the Environment and Land Court at Migori is dismissed
  2. 2.Costs of the application awarded to the respondents/interested parties
Jurisdiction invoked
High Court's original jurisdiction over judicial review matters (ELCEPJR cause); recusal application under Rule 21(1) of the Judicial Service Commission (Code of Conduct and Ethics) 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, "Soipei Ole Samperu (Suing as the Legal Personal Representative of Samperu Ole Masarie) v The District Commissioner, Transmara District & 2 Others", Case Analysis (2026). ELCEPJR E001 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6017/eng@2026-10-01

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