Kinyitta v CKK Estates [1973] Limited & 4 others (Environment and Land Case Civil Suit E112 of 2024) [2026] KEELC 1335 (KLR)

2. 6. That injunctions to be issued against the Director of Survey and Chief Land Registrar to stop them from processing any deed plans, transfers, or leases regarding Petitioner's LR. No. 134/8 and LR. No. 245/4 or any portion of it described as LR No. 134/ 14, 13 and 12 or any other description until further orders of this Honourable Court. 7. That this suit be merged with Thika ELC Case No. E004 of 2025 (Njunu Farmers’ Cooperative Society v CKK Estates). 8. The Court to join the Attorney General and Kifaru Properties Limited as the 4th and 5th Defendants to this suit. 9. Costs of this application be provided for. The grounds of the application are on the face of the application and supported by the Afidavit sworn by Samuel Karuga Koinange a Director of the 1st Defendant who argues that the Court's impartiality has been compromised based on the following issues among others: a. The Applicant claims Justice Mogeni sat on appeal of her colleagues' Justice Eboso and Justice Kemei earlier orders. By striking out a previous Petition E016 of 2022, she efiectively vacated injunctions that had previously protected the Applicant’s land. b. In so doing she violated the doctrine of stare decisis. The Applicant contends the Judge ignored binding Court of Appeal precedents specifically Mwai Kibaki Vs Daniel Toroitich Arap Moi [1999] eKLR asserting that a Judge of coordinate jurisdiction cannot overrule another Judge's decision. c. The Applicant argues that the Judge's prior Ruling which suggested the Applicant had no enforceable rights shows she has already made up her mind on the ownership of the 305-acre tea and cofiee farm. d. The Applicant maintains that the Plaintifi’s title documents were disowned by the Chief Land Registrar as fraudulent on January 23, 2023, yet the Court is currently favoring the Plaintifi. e. The application invokes Article 50 which provides for the right to a Fair Hearing and Article 40 on protection of property, claiming these are being violated by the current Court proceedings. 3. In his Afidavit, Mr. Koinange reinforces the legal arguments and asserts that Justice Mogeni declined an application to commit the Plaintifi and Directors of Kifaru Properties to jail for disobeying previous Court orders. 4. He notes that the Applicant has already moved to the Court of Appeal (Civil Application No. E162 of 2025) to seek restoration of the orders discharged by Justice Mogeni. 5. He asserts that without the injunctions, there is nothing to stop the Plaintifi from selling or subdividing the Applicant’s land (LR. No. 134/8 and LR. No. 245/4) to third parties like Kifaru Properties Ltd for sums as high as Kshs 210 million. 6. He maintains that the Company has a strong case, as previously recognized by Lady Justice Kemei, and that the current legal chaos on the suit property requires immediate intervention. 7. Apart from the Plaintifi no other party filed a response. The application is opposed, the Plaintifi filed a Replying Afidavit sworn by the Plaintifi, David Gichia Kinyitta, on 11/07/2025 in response to the 1st Defendant’s application for recusal and injunctive orders. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1335/eng@2026-03-05 2

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8. The Plaintifi’s core argument is that the 1st Defendant’s application is frivolous, vexatious, and an abuse of the Court process. He maintains that he is the legitimate, registered owner of the property and that the 1st Defendant is attempting to relitigate issues from a Petition that has already been legally struck out. 9. The Plaintifi asserts he purchased LR. No. 134/8 measuring 242 acres and LR. No. 245/5 measuring 63 acres on 18/09/1973, from Emma Krag and others for Kshs 1,209,969/=. 10. He relies on Section 26(1) of the Land Registration Act, arguing that his title is prima facie evidence of absolute ownership and is protected by Article 40 of the Constitution until declared a nullity by a Court. 11. He has attached oficial Search results as annexure ‘DK-4’ from the Ministry of Lands confirming him as the registered owner. 12. The Plaintifi describes the allegations of bias against Lady Justice Mogeni as far-fetched and preposterous. 13. He argues that Justice Kemei only dealt with temporary injunctions, whereas Justice Mogeni dealt with the competence of the Petition itself. Striking out the Petition automatically vacated any prior interim orders. 14. Since the 1st Defendant has already appealed Justice Mogeni’s Ruling to the Court of Appeal, the Plaintifi argues that is the proper forum for their grievances, not a recusal application in the lower Court. 15. The Plaintifi turns the accusation of fraud back onto the 1st Defendant CKK 1973 Estate Ltd, citing that the suit property was not listed as an asset in the Confirmed Grant of the late Charles Karuga Koinange Succession Cause No. 998 of 2006 or in his Written Will which is annexure ‘DK-3’. 16. He claims that the Applicant’s documents are of dubious origin and lack evidence of a Sale Agreement or a proper Grant. He alleges the Applicant conspired with land oficials to interfere with his records, which forced him to apply for a reconstruction of the register. 17. The Plaintifi argues that the Applicant cannot legally rely on pleadings from Petition No. E016 of 2022, as that suit was struck out and its contents are now nullified. 18. The Plaintifi notably has no objection to consolidating this suit with Thika ELC No. E004 of 2025 (Njunu Farmers' Cooperative Society case). 19. In conclusion, the Plaintifi prays that the Court denies the disqualification of Lady Justice Mogeni, denies the restraining orders against the Land Registrar and Director of Survey and dismisses the entire application with costs to the Plaintifi. 20. The application was canvassed by way of written submissions the 1st Defendant/Applicant filed their submissions dated 14/07/2025 and the Plaintifi/Respondent filed theirs dated 10/11/2025. Applicant’s Submissions 21. The primary goal of the 1st Defendant’s submissions is to secure the recusal of Hon. Lady Justice Mogeni from the suit and to obtain restraining orders to protect the disputed land parcels, LR. No. 134/8 and LR. No. 245/4. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1335/eng@2026-03-05 3

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22. The Applicant submits that Justice Mogeni disqualifies herself from trying the suit due to apprehended bias. That the Land Registrar, 3rd Defendant and Director of Survey being the 2nd Defendant be ordered to keep all registers and records for the suit property under lock and key and be restrained from processing any transfers or deed plans. 23. Further that this suit be merged with Thika ELC Case No. E004 of 2025, Njunu Farmers' Cooperative Society v. CKK Estates Ltd & Others. Also, that the Attorney General and Kifaru Properties Limited be added as the 4th and 5th Defendants. 24. The Applicant argues that Justice Mogeni’s prior conduct in a related matter, Thika ELC Petition No. E016 of 2022 proves she has already pre-Judged the ownership of the land thus there is reasonable apprehension of bias that would support grounds for recusal. 25. Further, the Applicant claims Justice Mogeni acted without jurisdiction by striking out their Petition on 27/02/2025, efiectively vacating injunctions previously granted by Justice Eboso and Lady Justice Kemei and this is violation of Jurisdictional Boundaries. 26. Citing Mwai Kibaki v. Daniel Arap Moi, [supra] the Applicant argues that a Judge of coordinate jurisdiction cannot overrule or fiout the principles established by their peers or Superior Courts. 27. Additionally, the Applicant cites Supreme Court Petition No. 16 of 2020; Kenya Hotel Properties Ltd Vs Attorney General And 5 Others to argue that Superior Courts cannot arrogate to themselves jurisdiction to reopen or review decisions made by their peers. 28. They contend that by striking out the Petition, the Judge efiectively decided the merits of the case favouring David Gichia Kinyitta before a full trial could occur. That Article 50(1) the Applicant asserts grants their right to an independent and impartial Tribunal. 29. The "Fair-Minded Observer" Test: Citing Porter v Magill [2001] UKHL 67 and Philip K. Tunoi & another v Judicial Service Commission & Another [2016] KECA 715 (KLR, the Applicant argues that a reasonable member of the public, knowing these facts, would conclude there is a real possibility of bias. 30. The Applicant relies on several landmark cases to support the standard for judicial recusal. In his conclusion, the Applicant submits that to ensure "justice is not only done but seen to be done," Justice Mogeni should refer the application specifically prayers 4–12 and the main suit to the Presiding Judge for reallocation to a difierent Court. Plaintifi/Respondent’s Submissions 31. In their submissions dated 10/11/2025, the Plaintifi submits that the application for an injunction and recusal is a meritless attempt to Judge-shop after losing a previous Petition. 32. The Plaintifi maintains he purchased the suit properties LR. No. 134/8 and LR. No. 245/5 in September 1973 for Kshs. 1,209,969/=. He relies on an Indenture annexure ‘DK-1’ and a Memorandum of Registration of Transfer annexure ‘DK-2’ dated 19/09/1973. That after the purchase he has been in actual possession since 1973, using the land for tea and cofiee farming, which is his primary livelihood. 33. He invokes Section 26(1) of the Land Registration Act and Article 40 of the Constitution, stating his title is prima facie evidence of absolute ownership until a Court declares otherwise. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1335/eng@2026-03-05 4

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34. The Plaintifi argues the 1st Defendant fails the three-fold test established in Giella v. Cassman Brown & Co. Ltd [1973] EA. He submits that the 1st Defendant’s claim is vanity and lacks evidence of a Sale Agreement or a Grant. 35. Further, that the Applicant has not demonstrated harm that cannot be compensated by damages and that the Plaintifi argues the balance tilts in his favor because he has lived on and worked the land for over 50 years since 1973, and an injunction would violate his established rights. 36. On the issue of recusal, the Plaintifi strongly opposes the recusal of Lady Justice Mogeni, raising issues that the 1st Defendant is given to speculation and paranoia. Citing Tufi Bitumen Limited v SBM Bank (Kenya) Limited & Another [2023] KEHC 3198 the Plaintifi argues that recusal cannot be based on sheer paranoia or a party's dissatisfaction with a Ruling. 37. He further submits that the Judge struck out the previous Petition (E016 of 2022) based on legal principles. This was a judicial act, not a sign of bias. That a Judge has a duty to hear a case unless there is a real confiict of interest. The Plaintifi argues the Applicant is trying to shop around for a more favorable Judge, a practice condemned in Uhuru Highway Development Limited v Central Bank of Kenya & 2 Others [1996] KECA 102 (KLR). 38. The Plaintifi clarifies that when the previous Petition was struck out, any temporary injunctions like the one from Justice Kemei were automatically vacated. The Plaintifi identifies several fatal fiaws in the 1st Defendant's claim to the land such that the fact that crucially, the suit property was not listed in the Will or the Confirmed Grant of the Estate of Charles Karuga Koinange (Succession Cause No. 998 of 2006). 39. The Plaintifi alleges that it is the Applicant who conspired to interfere with land records, which forced the Plaintifi to apply for a reconstruction of the register. The Plaintifi argues that the Applicant cannot rely on pleadings from a struck-out suit, as those documents are nullified. Analysis and Determination 40. Based on the pleadings, Afidavits, and submissions provided the Court is of the view that the key issues for determination are as follows: i. Whether the application has met the threshold for judicial recusal? ii. Whether the Applicant has met the standard for grant of temporary injunction. iii. Whether the prayer for joinder is merited. iv. Who bears the cost of this application? 41. The legal threshold for recusal is a reasonable apprehension of bias by a fair-minded observer or as is commonly known, a reasonable person. Dissatisfaction with a previous Ruling where the Court struck out Petition E016 of 2022 does not constitute bias. 42. The Court in the case of Uhuru Highway Development Ltd v. CBK [supra] decided that a Judge has a duty to sit. Striking out an incompetent Petition is a legitimate exercise of judicial discretion. The Applicant’s remedy lies in the already-filed Appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1335/eng@2026-03-05 5

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43. The Black’s Law Dictionary 8th Edition defines recusal as: “ Removal of oneself as Judge or policy-maker in a particular matter, especially because of a confiict of interest.” 44. It is not in doubt that there are various issues that needs to be considered in a matter calling for the recusal of a Judge. It is further not in doubt that the Applicant has a right to call for the recusal of a Judicial Oficer, this Court or myself included, on apprehension of bias. However, that apprehension must be a reasonable one. See the case of President of Republic of South Africa …Vs… The South African Rugby Football Union & Others CASE CCT16/98, where the Court relied on the case of Committee for Justice and Liberty et al ….Vs… National Energy Board and held that; “ … the apprehension of bias must be reasonable one held by a reasonable and rightminded persons applying themselves to the question and obtaining thereon the required on formation … The test is what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude.’’ It was further stated; “ An unfounded and an unreasonable apprehension concerning a Judicial oficer is not a justifiable basis for such application. The apprehension of the reasonable person must be assessed in the light of the true facts as they emerge at the hearing of the Application.” 45. 46. The principles and grounds upon which a Judicial Oficer may recuse himself or herself have been set out in many decisions. In Re Estate of Gitere Kahura (Deceased) Succession Cause No. 265 OF 2009 [2019] eKLR Justice Onguto outlined grounds for recusal of a Judge as follows: 1. In matters of confiict of interest. 2. If a Judge is biased or seen to favor one party. 3. If a Judge handled the matter previously as a Lawyer in private practice. 4. If there is ex parte communication between the Judge and one of the parties. 5. When a Judge predicts that he or she may be impartial in a matter. In Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others (2013) eKLR, the Supreme Court pronounced itself on recusal of a Judicial Oficer in the following words:“ (7) 47. From this definition, it is evident that the circumstances calling for recusal, for a Judge, are by no means cast in stone. Perception of fairness, of conviction, of moral authority to hear the matter, is the proper test of whether or not the nonparticipation of the judicial oficer is called for. The object in view, in the recusal of a judicial oficer, is that justice as between the parties be uncompromised; that the due process of law be realized, and be seen to have had its role; that the profile of the rule of law in the matter in question, be seen to have remained uncompromised.” A Judge has the inherent power to strike out a suit at any stage if they find it is an abuse of process. Injunctions are interlocutory. They do not decide the case; they only hold the fort. A Judge always https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1335/eng@2026-03-05 6

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retains the power to look at the competence of the suit. From the decisions made I struck out the Petition as being an abuse of the Court process, in so deciding, the temporary orders collapsed. 48. From the above, it is the Court’s considered view that even while trying to make a determination on whether or not to recuse myself, I am still forced to explain and defend the Judicial decision. It is evident that the reasons for the said decisions had been indicated in the Ruling. In this decision, I should only be called to respond to the question of whether there is evidence of apprehension of bias. 49. It is my view the 1st Defendant's remedy is in the Court of Appeal, where they can argue that Justice Mogeni erred in law by ignoring the findings of Justices Eboso and Kemei. 50. In Kenyan Law, a Judge striking out a suit after other Judges granted temporary orders is generally not considered bias. It is considered an exercise of legal discretion rather than evidence of bias. Bias requires a personal interest or an extra-judicial reason for the decision. If a Judge believes a Petition is legally dead on arrival, they are duty-bound to strike it out to save the Court's time, regardless of what interim orders were previously made. This is what I did for the instant Petition. 51. For the recusal to succeed, the Applicant must prove more than just a wrong Ruling and they must show that Judge Mogeni has a closed mind. This is because if every Judge who made a Ruling against a party was forced to recuse themselves, litigants would keep asking for new Judges until they found one who agreed with them a process known as Judge-Shopping. 52. As cited in Uhuru Highway Development Ltd v. CBK, (supra) if Judge Mogeni's Ruling was wrong, as already stated above the correct path is the Appeal (which the Applicant has already filed), not asking the Judge to step down from a new, consolidated suit. 53. The authorities above buttress the position that recusal must be based on sound principles and on an objective test of reasonable bias. I have carefully examined all the grounds raised by the 1st Defendant against the facts, applicable principles and law in this matter. I find that the 1st Defendant’s apprehension of bias or partiality on the part of the Court does not meet the objective test of a reasonable, fair minded and informed observer. 54. On the prayer for temporary injunction, under the Giella v. Cassman Brown [supra] test, the Applicant failed to prove a prima facie case with a probability of success. The fact that the suit property was not listed in the Confirmed Grant or the Will of Charles Karuga Koinange (Succession Cause 998 of 2006) creates a significant gap in the Applicant's claim. 55. The Plaintifi has demonstrated continuous possession and farming since 1973. An injunction would displace the person currently in possession, which contradicts the principle of maintaining the status quo. 56. On the issue of joinder, both parties agree that the issues in this suit are identical to those in Thika ELC No. E004 of 2025. To avoid a multiplicity of suits and the risk of confiicting Judgments, the cases must be heard together since both suits involve the same land parcels and overlapping parties, consolidation serves the interest of judicial economy and prevents confiicting Rulings. Consequently, the Attorney General and Kifaru Properties Limited are joined to ensure all necessary parties are present for a final, conclusive determination of ownership. Final Orders and Disposition 57. Given the foregoing the orders commending themselves for issuance are as follows: a. The Prayer for Recusal of Hon. Lady Justice Mogeni is unmerited. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1335/eng@2026-03-05 7

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b. The Prayer for Temporary Injunction and orders to keep the land registers under "lock and key" is declined. The Plaintifi’s title remains protected under Section 26 of the Land Registration Act pending the full trial. c. This suit is hereby consolidated with Thika ELC Case No. E004 of 2025. The lead file shall be the older of the two suits. d. The Attorney General and Kifaru Properties Limited are hereby joined as the 4th and 5th Defendants respectively. Thus, they are granted 21 days from today to regularize their appearance. e. For the avoidance of doubt, the status quo to be maintained is the current possession and occupation by the Plaintifi (David Gichia Kinyitta) until the determination of the consolidated suit. f. The Plaintifis in the older file to amend their Plaint and serve all parties within 14 days from today and the Respondents are similarly granted 14 days to amend and file their Statements of Defence and any other documents they will rely on at trial. g. Pre-trial Conference before the Deputy Registrar will be on 18/05/2026. h. Costs of this application shall be in the cause. It is so ordered DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 5TH DAY OF MARCH, 2026. ………………………… MOGENI J JUDGE In the presence of: ……………………………………… for the 1st Defendant/Applicant ……………………………………… for the Plaintifi /Respondent …………………………………… for the 2nd Defendant ……………………………………… for the 3rd Defendant ……………………………………… for Intended 4th Defendant ………………………………………for Intended 5th Defendant Melita……………………………………… Court Assistant MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1335/eng@2026-03-05 8

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