Farah & 2 others v Abdi (Environment and Land Appeal E131 of 2021 & Environment and Land Case 136 of 2011 (Consolidated)) [2025] KEELC 6369 (KLR)

75% of the property allege that the Defendant has locked them from the use of the property and has failed to render any accounts or share any rental income from the property. They sought for special damages of the rental proceeds and the audited accounts. And in the alternative that the property be sold and proceeds shared taking into account the amounts collected by the Defendant. 2. The Defendant filed a Defence in which he denied that he purchased the property with the three Plaintiffs. It is his case that he purchased the suit property together with one Noor Maalim Adan and it was only registered jointly in the names of the Plaintiffs and himself due to the good business relationship they enjoyed in Blue Bird Aviation Company. The Plaintiff averred that there is still an ongoing tussle regarding the fair valuation of his shares in Blue Bird Aviation. 3. This court differently constituted heard the application dated 19th April 2021 and issued orders that status quo ante be restored at the suit property with possession, control and management of the suit property being retained by both the Plaintiffs and Defendants. On the 25 th June 2021 the Plaintiffs were before the court seeking that the Defendant be committed to Civil Jail as he had failed to comply with the RULING ELC E 131 OF 2021 2 of 13

page 2 of 13

court order. The court dismissed this application on the grounds that the ingredients for contempt had not been proved. 4. On the 26th April 2022 the court after noting that the Defendant had failed to comply with court orders gave an order that the proceeds from the contested premises be deposited in a joint interest earning account with effect from 1st June 2022. On the 18th October 2022 the Plaintiffs were before this court with yet another contempt application. In the interest of expedition and considering that the orders in respect of which the contempt application was being brought were based on an oral application, the court gave directions that the parties proceed for hearing of the main suit so that the issues could be determined with finality. 5. After both parties complied, the matter was set for hearing on the 13th February 2023. On this date the Defendant applied for an adjournment on the grounds that counsel was attending application. a board On the function. 27th The February, court 2023 allowed the this matter proceeded for the hearing of the Plaintiffs case. The matter was then scheduled for further hearing on the 17 th July 2023 during which one witness testified. On the 30 th January 2024 the last Plaintiffs witness testified and closed the Plaintiffs RULING ELC E 131 OF 2021 3 of 13

page 3 of 13

case. The Defendant applied for an adjournment to call the Defendant who was said to be out of the country. In spite of protestations by the Plaintiffs, the court allowed the adjournment. 6. On the 13th May 2024, four months later, the court was informed that the Defendant was unwell. The court allowed a last adjournment and gave a hearing date of 11 th June, 2024. On this date, yet another adjournment was sought on the basis of illness. The Defendant did not produce any document to confirm illness of the Defendant even after the court placed the file aside to noon. In the absence of this documentation, the court gave directions on filing of submissions. 7. Before the date of filing of submissions, the Defendant filed two applications which this court dealt with in a Ruling dated 18th December 2024. The Defendant was on one hand seeking that he be allowed to reopen his case so as to tender evidence but in the same breath stating that after being allowed to reopen his case the proceedings should be stayed to await the court of appeal decision in COA 690 of 2023. This court gave a decision on both applications on the 18th December 2024. The Ruling speaks for itself so I will say no more on the subject. RULING ELC E 131 OF 2021 4 of 13

page 4 of 13

8. The matter then came up for highlighting of submissions on 24th March 2025 which date the counsel for the Defendant informed the court they had filed an application to amend the Defence. In spite of checking the system while parties were in court, the court could not view the application on the portal. As such the highlighting of the submissions proceeded and Judgement was scheduled for 5th June, 2025. 9. Before Judgement could be delivered the Defendant in addition to the application for amendment of defence dated 14th March 2025 filed an application for this courts recusal dated 9th May 2025. This application prays for the following orders; a. That the Honourable trial Judge in the above matter be obligated to disqualify and/or recuse herself from further hearing the above matter. b. That any other order which the Honourable court may deem fit and just to grant in the circumstances. 10.The Defendants grounds for recusal are premised on three main grounds namely that the court refused to grant him an adjournment notwithstanding his age. Secondly that the Plaintiffs wrote to the tenants a strongly worded letter which appears to be an indication that they know the outcome of RULING ELC E 131 OF 2021 5 of 13

page 5 of 13

the case. And lastly that the court has previously failed to act on applications filed by the Defendants timeously showing open bias against the Defendant. 11.The courts have grappled with the question of recusal and the principles that ought to guide a court in determining such an application. The Court of Appeal in the case of Philip K. Tunoi & another versus Judicial Service Commission & another [2016] eKLR held that: The test in R v. Gough was subsequently adjusted by the House of Lords in Porter v. Magill [2002] 1 All ER 465 when the House of Lords opined that the words “a real danger” in the test served no useful purpose and accordingly held that – “[T]he question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” In determining the existence or otherwise of bias, the test to be applied is that of a fairminded and informed observer who will adopt a balanced approach and will neither be complacent nor be unduly sensitive or suspicious RULING ELC E 131 OF 2021 6 of 13

page 6 of 13

in determining whether or not there is a real possibility of bias. In Taylor v. Lawrence [2003] QB 528 at page 548, in which an application was made to reopen an appeal on the ground that the Judge was biased, the Judge having instructed the plaintiffs’ solicitors many years previously the House of Lords in the judgment of Lord Woolf CJ reiterated: “... we believe the modest adjustment in R V. Gough is called for which makes it plain that it is, in effect, no different from the test applied in most of the commonwealth and in Scotland.” “The Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.” RULING ELC E 131 OF 2021 7 of 13

page 7 of 13

12.The Court too in the case of Republic versus Hon. Jackson Mwalulu & others Civil Application No.310/2004, (unreported), held that; “That being the position as l see it when the Courts in this country are faced with such proceedings as this (i.e. proceedings for the disqualification of the judge) it is necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the public at large a reasonable doubt about the fairness of the administration of justice. The test is objective and the facts constituting bias must be specifically established. It is my view that where any such allegation is made, the Court must carefully scrutinize the affidavits on either side, remembering that when some litigants lose their cases before a Court or quasijudicial tribunal they are unable or unwilling to see the correctness of the verdict and are apt to attribute that verdict to a bias in the mind of the judge, magistrate or Tribunal". RULING ELC E 131 OF 2021 8 of 13

page 8 of 13

13. The same Court in the Kaplana Rawal vs JSC & 2 others (2016) eKLR cited with approval the holding of the East African Court of Justice in Attorney General of Kenya vs Anyang’ Ny’ongo, App No. 5 Ref. No. 1 of 2006 (EACJ) which set out the test of bias in the following words; “We think that the objective test of ‘reasonable apprehension of bias is good law. The test is stated variously, but amounts to this, do the circumstances give rise to a reasonable apprehension, in the mind of the reasonable, fairminded and informed member of the public that the Judge did not (will not) apply his mind to the case impartially. Needless to say, a litigant who seeks disqualification of a Judge comes to court because of his own perception that there is appearance of bias on the part of the Judge. The court, however, has to envisage what would be the perception of the public who is not only reasonable but also fair minded and informed about all the circumstances of the case.” 14. The Supreme Court of Kenya in the case of Gladys Boss Shollei versus Judicial Service Commission & another [2018] eKLR, stated that a Judge in deciding an application for recusal must do a ‘balancing act’ between the ‘duty to sit’ and ‘the aims of maintaining the appearance of RULING ELC E 131 OF 2021 9 of 13

page 9 of 13

impartiality and instilling public confidence in the administration of justice’. The Court stated that; “In respect of this doctrine of a judge’s duty to sit, Justice Rolston F. Nelson; of the Caribbean Court of Justice in his treatise – “Judicial Continuing Recusal, Contempt Education of Court Workshop: and Judicial Ethics; May 4, 2012; observed: “A judge who has to decide an issue of selfrecusal has to do a balancing exercise. On the one hand, the judge must consider recusal aims at maintaining the that self- appearance of impartiality and instilling public confidence in the administration of justice. On the other hand, a judge has a duty to sit in the cases assigned to him or her and may only refuse to hear a case for an extremely good reason”. 15.The Court cited with approval the holding in the case of Simonson –vs- General Motors Corporation U.S.D.C. p.425 R. Supp, 574, 578 (1978), where the United States District Court, Eastern District of Pennsylvania, had this to say:- RULING ELC E 131 OF 2021 10 of 13

page 10 of 13

“Recusal and reassignment is not a matter to be lightly undertaken by a district judge, While, in proper cases, we have a duty to recuse ourselves, in cases such as the one before us, we have concomitant obligation not to recuse ourselves; absent valid reasons for recusal, there remains what has been termed a “duty to sit” . . .” 16. The general consensus appears to be that a court faced with such an application should carefully evaluate the reasons for the application and while striving to ensure the independence of the Judiciary should interrogate whether any reasonable fair minded person faced with the circumstances alleged by the applicant would infer that a court is biased. 17.My task is to assess the reasons cited by the Defendant herein, in light of the clear principles that have been set out in the above authorities. On the question of the adjournment it is a matter of record that the court gave the Defendant every opportunity to be heard and he squandered it. Even when the court was ready to allow the Defendant reopen his case he told the court that after the case is reopened, the court should stay its proceedings. It was clear to this court RULING ELC E 131 OF 2021 11 of 13

page 11 of 13

that he had no intention of proceeding with the matter. The court’s Ruling dated 18th October 2024 is self- explanatory and is based on clearly documented reasons. 18.On the question of the letter written by the Plaintiffs, this is an issue which was not within the control of the court. The issue has been satisfactorily explained by the Plaintiff in their Replying Affidavit. And given that this is an issue which both sides have at different times made allegations and counter allegations on, it is not an issue that can be blamed on the court. 19.The last issue is on the allegation that the court has not acted on certificates filed by the Defendant. The record bears witness court that save for this latest application all the applications filed by the Defendant were addressed timeously. In the latest application there was an error in updating the outcome as there were two applications which were pending. The other applications were dealt with in good time. 20.In the end I find that the application has no merit and is dismissed with costs to the Plaintiffs. However it was brought to my attention that there are other proceedings which have been filed against by the Defendant. As a matter of principle RULING ELC E 131 OF 2021 12 of 13

page 12 of 13

I find it only fair to release this file for reallocation before another Court. The proceedings should be typed and matter placed before the Presiding Judge Land Division for allocation to another court. Ruling Signed, Dated and Delivered via Microsoft Teams on 18th of June, 2025 JUDY OMANGE JUDGE In the presence of: Court Assistant Catherine Mr Maosa for Applicant Mr. Biriq for Respondent COURT: Mention on 10.7.2025 before Justice Ochieng JUDY OMANGE JUDGE RULING ELC E 131 OF 2021 13 of 13

page 13 of 13