Sunland Roses Limited v Eunice Mukwanyaga Nduati & 4 others

16.07.2026 on the preliminary objection and any further substantive proceedings in the suit be stayed. iv. That Honourable justice Oguttu Mboya be pleased to recuse himself from the further conduct, hearing and determination of the this suit. v. That upon recusal, the Deputy Registrar be directed to place the file before the Honourable Principal Judge of the Environment and Land Court for re-assignment to another judge. vi. That the Costs of the application be in the cause. 2. The instant application is premised on various/diverse grounds. The grounds are: The applicants have a genuine apprehension that same may not receive a fair hearing; the applicants apprehend that their right to fair hearing in terms of Article 50 [1] of the Constitution, 2010, is bound to be infringed upon; that the judge granted exparte orders without proof of a prima facie case; the exparte orders were issued without proof of any eviction notice; and the issuance of the exparte orders constituted improper exercise of discretion. 3. Additionally, it has been asserted thus: The judge issued the exparte orders yet there was another matter, namely; Nanyuki ELC No. E002 of 2022; that the Judge issued the exparte orders on the basis of the concealment of material facts by the respondent; the judge extended the interim orders despite opposition by the applicants; the extension of the interim orders was undertaken in vacuum; and in any event, the interim orders had lapsed and thus ceased to exist. Page 2 of 22

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4. Furthermore, the applicants have asserted thus: The extension of the interim orders was done suo moto ; the extension of the interim orders constitute assumption of authority which the judge did not have; the judge acted ultra vires; and the actions of the judge including the extension of the interim orders, despite of opposition by the Applicants’ Counsel, denotes that the judge is biased. 5. Moreover, the applicants have continued and stated thus: The applicants filed a preliminary objection; the preliminary objection raised pure points of law; the preliminary objection ought to have been heard in limine; the judge directed that the preliminary objection be heard alongside other pending applications; the judge has continued to entertain substantive application[s] despite lacking the requisite jurisdiction; and the manner in which the matter has proceeded demonstrates bias. 6. Further, and in addition, the applicants have asserted thus: The current proceedings are res judicata; there exist proceedings vide Nanyuki ELC No. E002 of 2022; the plaintiff herein was a party thereto; the plaintiff failed to disclose the existence of the said suit; and that there is reasonable basis and ground[s] to warrant recusal/ Disqualification of the Judge. 7. The instant application is supported by the affidavit of one Joshua Kembero Ogega. The affidavit is sworn on even date. The deponent to the replying affidavit has regurgitated the grounds contained in the body of the application. There is no need to rehash the averments contained in the body of the affidavit, insofar as same replicates the grounds. Page 3 of 22

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8. The plaintiffs/respondents opposed the application and raised various issues. The issues include: The application before the court does not disclose a reasonable basis for recusal; the applicants are merely shopping around for a favourable judge; the judge has a duty to sit; the question of recusal can only be resorted to where reasonable apprehension is demonstrated; and that the fact that a party is disgruntled with the decision of a particular judge does not found basis for recusal. 9. The instant application came up for directions on the 22.07.2026, whereupon the parties agreed to canvass the application vide written submissions. Thereafter the court issued directions thus: The applicants shall file and serve their written submissions within 14 days; the respondent shall file and serve written submissions within 14 days; the proceedings, including applications and the preliminary objection shall be held in abeyance, pending the determination of the Motion for Recusal; and the matter shall be mentioned on the 19.09.2026, to discern compliance and to issue a date for ruling. 10.On the 17.09.2026, the matter came up mention/directions. Learned counsel for the applicants informed the court that same had not filed his written submissions. Counsel thereafter, sought leave to file and serve submissions within one day. The request by learned counsel for the applicants was indeed granted, notwithstanding that a duration of more than Two [2] Months lapsed from the date of direction[s]. 11.On the other hand, learned counsel for the plaintiff/respondent asserted that same had waited for the submissions by the applicants in vain. Page 4 of 22

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Counsel intimated that upon the lapse of the timeline[s] that was given to the applicants to file and serve submissions, same proceeded to and filed his submissions. To this end, learned counsel for the respondent referenced the submissions dated the 10.08.2026. 12.On the 22.09.2026, the matter came up again for directions and learned counsel for the applicants intimated to the court that same had filed his submissions. Suffice it to state that the submissions dated the 16.09.2026, were indeed on record. 13.Learned counsel for the applicants has raised three [3] key issues. The issues are: The applicants have established and proven the existence of reasonable apprehension of bias; the judge mishandled the issuance of status quo order and the interlocutory applications; the respondent herein is divested of the requisite locus standi to mount the suit; and the respondent is guilty of suppression /concealment of material facts, including the existence of Nanyuki ELC No. E002 of 2022. 14.Learned counsel for the applicants has thereafter cited various decisions. The decisions include: Jasbir Singh Rai and 3 others versus Tarlochan Singh Rai and 4 others [2013] eKLR; Alliance Media Kenya Limited Monier 2000 limited and another [2007] eKLR; REX versus Sussex Justices -exparte Mc Carthy [1924] 1 KB 256; and Cindy Cynthia Orwa T/a Cytle Cindy versus SugarLand Estate Limited – ELC Appeal No.29 of 2019, respectively. Page 5 of 22

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15.Thereafter learned counsel for the applicants has concluded his submissions thus: a. The application for recusal dated 13.07.2026 be allowed. b. The court proceeds to hear and determine the preliminary objection dated 05.06.2026 16.The respondent filed written submissions and wherein same has highlighted one key issue. The issue is: Whether the Judge should recuse himself from the matter. Learned counsel for the respondent has thereafter proceeded and discussed the applicable standard to be applied in matters pertaining to recusal; and proof of bias. 17.Furthermore, learned counsel for the respondent has cited assorted decisions. The decisions include: Shollei versus Judicial Service Commission and another [2018] KESC 42; Galaxy Paints Company Limited versus Falcon Guards Limited [1999] KECA 136; and Republic versus David Makali and 3 others [1994] KECA 100, respectively. 18.In a nutshell, learned counsel for the respondent has contended that the subject application does not meet the threshold for recusal. Moreover, it has been asserted that where a party perceives that the discretion of the Court, has been improperly exercised, the recourse available is either to seek review; or appeal. 19.Having reviewed the application; the supporting affidavit thereto; and upon taking into account the written submissions filed by /on behalf of the respective parties, one [1] key issue emerge for determination. The Page 6 of 22

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issue: Whether the applicants have established a reasonable basis to warrant recusal on the ground of bias or otherwise. 20.Before venturing to interrogate whether or not a reasonable basis for recusal has been established, it is imperative to ascertain/discern the meaning of bias. The question is what does the term bias denote? 21.In the case of Standard Chartered Financial Services Ltd & another v Manchester Outfitters (Suiting Division) Ltd (Now known as King Woollen Mills Ltd) & 2 others [2016] KECA 671 (KLR), the Court of Appeal highlighted the meaning and tenor of bias in the following terms.: “61. What then amounts to bias? The Oxford English Dictionary defines bias “as an inclination or prejudice for or against one thing or person” while Black’s Law Dictionary defines the word bias as follows: “Inclination, bent, prepossession, a preconceived opinion, a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. To incline to one side. Condition of mind, which sways judgment and renders a judge unable to exercise his functions impartially in particular case. As used in law regarding disqualification of judge, refers to mental attitude or disposition of the judge towards a party to the litigation, and not to any views that he may entertain regarding the subject matter involved.” Page 7 of 22

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61.From the above definition, it is clear that the issue of bias negates the twin virtues of impartiality and independence of the Court of the Judge hearing and determining a matter. These two principles are the hallmark of a fair trial as espoused in section 77 of the retired Constitution of Kenya and Article 50 of the current Constitution. 22.From the meaning discernable above, what comes to mind is that bias exist[s] where the judge or the judicial officer, has a pre-conceived; premeditated; or pre-determined mindset, as pertains to a particular matter. Bias must be proven on the basis of cogent and credible evidence. The standard must be that of a reasonable person, knowing of the facts and the circumstances of the matter; and thereafter forming a fair -minded position that the does exist bias. 23.Put differently, bias cannot be assessed on the basis of subjective notion[s]; perception[s]; or opinion of a Party/ Learned Counsel based on perversion/ distortion, or better still, misrepresentation of the facts of the case. There is need for objectivity and reasonableness, while appreciating the guiding principles. 24.In the case of Gachagua & 5 others v Maingi & 80 others [2025] KECA 790 (KLR), the Court of Appeal reviewed a number of decision[s] on the standard applicable in matters pertaining to bias and the manner of proving same. 25.The court stated thus: Page 8 of 22

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“In Republic v Mwalulu & 8 Others [2005] KECA 344 (KLR), this Court set the principles on which a judge would disqualify himself from a matter and stated as follows: “1. When the courts are faced with such proceedings for the disqualification of a 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 alleged and established. 2.In such cases the Court must carefully scrutinize the affidavits on either side, remembering that when some litigants lose their case, 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. 3.The Court dealing with the issue of disqualification is not, indeed it cannot, go into the question of whether the officer is or will be actually biased. All the Court can do is to carefully examine the facts which are alleged to show bias and from those facts draw an interference, as any reasonable and fairminded person would do, that the judge is biased or is likely to be biased. 4.The single fact that a judge has sat on many cases involving one party cannot be sufficient reason for that judge to disqualify himself.’’ [Emphasis added] 26.The court went further and asserted thus: Page 9 of 22

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“We are in full agreement with the established jurisprudence on the applicable test in recusal applications. The test is objective: whether a fair-minded and informed observer, having considered all the circumstances, would conclude that there exists a real possibility of bias. This standard is concerned, not with the judge’s actual state of mind, but with the appearance of partiality as perceived by a reasonable observer. Since the law is settled on this issue, we do not intend to re-invent the wheel.” 27.With the foregoing principles in mind, it is now apposite to revert to the accusations underpinning the plea for recusal. I beg to deal with them sequentially. Firstly, it has been asserted that the Judge proceeded to and granted [sic] ex-parte orders to and in favor of the respondent, when the respondent had not “established” a prima facie case. It has been posited that the order in question was granted, albeit in the absence of [sic] an eviction notice served upon the respondent. 28.I wish to reiterate that the mandate or authority to grant or not to grant an exparte order inheres/vests in the judge handling the matter in question. It is the judge to appraise the facts as presented by the applicant and thereafter, juxtapose same against the applicable principles and discern whether or not, a basis has been established for the grant of an exparte order. Moreover, the import of granting an exparte order, is to avert the occurrence of a threatened harm or injury. In addition, an exparte order often and does issue, to preserve the substratum of the dispute. It enables the crux of the dispute to be preserved pending further litigation. In deciding whether or not to grant the Ex-parte Orders, the Judge applies Page 10 of 22

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the Lower threshold and same is not called upon to determine with [sic] finality any assertion[s] made by the Applicant. 29.It is imperative to underscore that the determination of whether or not an exparte order shall issue, is a discretion that belongs to the judge. That discretion is not shared with the advocates for the adverse party, or better still, the adverse party. In determining whether or not to grant an exparte order, a judge is not under duty consult the advocates for the adverse party, or better still, to prophesy on the Defence[s], if any, that the adverse may/ shall be raising. 30.Be that as it may, reading the grounds that have been highlighted, one forms the impression that learned counsel for the applicants’, imagines that he is [sic] “wiser” to interrogate the exercise of discretion; and same ventures further and assumes “the mandate of the court of appeal”, in concluding for himself, that the Discretion was improperly exercised. I hasten to state that it does not lie in the mouth of an advocate for the adverse; or on any Suitor, to examine the decision of a judge and then state “the decision is issued in vacuum”. 31.In the case of Hadkinson versus Hadkinson [1952] 2 ALL ER 567, the House of Lords [Per Romer LJ] held thus: ‘A party who knows of an Order, whether null or valid, regular, or irregular, cannot be permitted to disobey it. It would be most dangerous to hold that the Suitors, or their Solicitors could themselves judge whether an order was null, or valid- whether it was regular or irregular. That he should come to court; and not take upon themselves to determine such a question. That the course of a party knowing of an order, which is null, or irregular; and who Page 11 of 22

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might be affected by it was plain. He should apply to the Court that it might be discharged. 32. The import and tenor of the dicta is self-explanatory. No advocate, or party can by himself/ herself, assume the authority of the Court. It is plain and claer that if one is disgruntled with the exercise of discretion, the impacted Party, should apply in the conventional manner for its discharge. The judge would then take the arguments and consider the relevant principle[s]; and thereafter, make a determination. 33.It bears repeating that i is settled law that where a party, or the advocate of a party, like the one beforehand, is disgruntled with the decision of a judge, the obvious recourse is to seek review or to appeal. Until and unless the order is impeached; reviewed, in accordance with the law, it does not lie in the mouth of a suitor to say that this order is “invalid” and “a nullity”. Adopting such a course, in my humble view, would put the Rule of Law into peril. 34. Furthermore, I beg to state that there is an application that was filed by the applicants herein and wherein same [Applicants] sought review of the orders granted. The application is pending. The application under reference is one of those captured at the foot of the comprehensive direction[s] issued on the 08/06/2026. However, Applicants do not appear keen to prosecute their own application. The reason for such reluctance is only known to the applicants; and their Counsel. 35.The next ground that has been highlighted to underpin recusal relates to the extension of the interim orders. It has been contended that the interim Page 12 of 22

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orders were extended, even though same has lapsed. What the applicants are not being honest about is to the effect that the extension of the said interim orders, arose after extensive arguments by the Advocates for the Parties; and followed by a comprehensive ruling. Suffice it to state that the court determined inter alia, that the respondent herein had met the condition for interim orders. The respondent had deposited the sum of Kshs. 500,000/= only in court. 36. Instructively, the money [Undertaking as to Damages] is still being held by the court and its fate will be determined upon the disposal of the application for injunction; or upon the decision to be rendered once the pending issues, including, the preliminary objection are dealt with. 37.The decision which was made on the 14.05.2026 was quite elaborate. The decision can very well be the subject for review, by a Party, who is [sic] offended. However, instead of deploying the established procedures, the applicants through their counsel, who often sounds rude, have taken it to make unfounded assertions. The imagination is to the effect that by doing so, same would have the file moved to “a friendly Judge”. 38.I am afraid that the question of the extension of the interim orders, cannot found a basis for [sic] bias. It is not lost on me that the court is also vested with inherent /intrinsic powers. In addition, there is also the doctrine of Lis Pendence, which commands the Courts to do certain acts, with the intent of preserving the substratum of the Dispute. [ See the decision in the case of Naftali Ruthi Kinyua versus Thuita Gechure [2015] eklr]. Page 13 of 22

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39.The third ground for recusal touches on the allegation that the plaintiff herein was a party to a previous suit, namely; Nanyuki ELC Number E002 of 2022. Moreover, it has been posited that the information to that effect, was not known to the judge and yet same [judge], has closed his eyes to the facts. It is suggested that the judge has closed his eyes to this fact [sic] on account of bias. 40.The applicants and Learned Counsel are being dishonest. To start with, the assertion that there exist[s] another matter, in which the plaintiff is said to be a party, was only captured in the body of the application filed by the applicants herein. This is the application for review of the Interim Order[s] and which is pending hearing and which the applicants, do not [sic] appear keen to prosecute. 41.Be that as it may, what transpires from the totality of the documentation before the court and subject to further interrogation is to the effect that the plaintiff [respondent] sought joinder in the matter before the Nanyuki court, but which application for joinder was declined. These facts are within the knowledge of the applicants, but in a slanted manner, the applicants want to suggest that the judge made the orders while knowing of an existing matter. 42.I am afraid that recusal, which is a cardinal pillar in the administration of justice, cannot be sought or procured on the basis of what appears to be gross misrepresentation and distortion of facts. Quite clearly, parties need to be candid with themselves; and the court and thereafter discharge Page 14 of 22

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their obligations in terms of Section 1A of the Civil Procedure Act, Chapter 21 laws of Kenya. 43.The provisions of section 1A of the Civil procedure Act states thus: 1A. Objective of Act (1)The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. (2)The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1). (3)A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court. [emphasis supplied]. 44.I need to say no more on this issue. 45.The last ground that has been hyped to found recusal is the alleged failure by the judge to hear the preliminary objection dated the 05.06.2026 in limine. It has been contended that the preliminary objection ought to be heard in limine and if I hear learned counsel for the applicant correctly, same seems to be suggesting that the court has no power to give directions as pertains to the hearing and disposal of pending matters, for as long as a Preliminary Objection has been Filed. 46. Learned counsel has misapprehended the trite position of the law. Simply put, the court has a mandate to guide and control the proceedings Page 15 of 22

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before it; and where a preliminary objection has been raised, same can either be canvassed in limine or at the earliest. The cardinal point is to the effect that the Jurisdictional question must be determined at the earliest, before venturing to deal with [sic] the merits. To this end, if the Court finds in favour of the Preliminary objection, then the Court must down its tools. 47.In the case of Judicial Service Commission & another v LMN [2025] KESC 53 (KLR), the supreme court of Kenya [the apex court] highlighted the position thus: “In the case of Aviation & Allied Workers Union Kenya vs Kenya Airways Limited & 3 others [2015] KESC 23 (KLR), this court stressed that where an objection to the jurisdiction of the Court is raised, the objection must be addressed in limine or at the earliest opportunity, before any consideration of the merits of the case.” 48.This court after hearing the advocates for the parties on the 08.06.2026 issued elaborate directions. It is appropriate to reproduce the directions. The same are reproduced as hereunder: i. The defendants be and are hereby granted liberty to file and serve written submissions in respect of the applications dated 18.03.2026; and 20.04.2026, respectively, within 3 days from the date hereof. ii. The plaintiff shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service by the defendant. Page 16 of 22

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iii. The defendant shall also file written submissions in respect of the preliminary objection within 3 days from the date hereof. iv. The plaintiff shall be at liberty to file and serve written submissions in respect of the preliminary submissions and the same to be filed and served within 7 days from the date of service. v. Furthermore, the plaintiff shall also file and serve written submissions in respect of the application dated the 25.05.2026 within 3 days from the date hereof. vi. The defendants shall file and serve written submissions to the application dated 25.05.2026 within 7 days from the date of service by the plaintiff. vii. The matter shall be mentioned on the 18.06.2026 to confirm compliance and to fix a date for ruling. viii. Costs shall be in the cause. 49.On the 18.06.2026, the matter again came up for directions to discern whether the parties had filed their composite submissions including submissions on the preliminary objection. It transpired that the parties had not complied. The court was obliged to and made further directions. The directions are: i. The defendants are at liberty to prosecute their case the way they want. ii. Nevertheless, the mandate to direct and guide the court proceedings does not fall within the docket of any litigant or the advocate for any litigant, irrespective of status. iii. The guidance of the proceedings before a court of law belong to and fall within the mandate of the court; and the Page 17 of 22

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parties are obligated to abide by the provisions of Section 1B of the Civil Procedure Act, Chapter 21 Laws of Kenya. iv. The direction of the court issued on the 08.06.2026 remain in situ. v. All the parties are bound by the said directions of the court, until and unless same are lawfully set aside. vi. The plaintiff be and is hereby granted the liberty to file and serve written submissions in respect of the preliminary objection filed by the defendants. The submissions shall be filed and served within 7 days from the date hereof. vii. The matter shall be mentioned on the 30.06.2026 to confirm compliance and to fix a date for ruling in respect of all the pending applications and the preliminary objection. viii. Costs shall abide the cause. 50.It is apparent that I have endeavored to discharge my mandate with the requisite diligence and in compliance with Section 1B of the Civil Procedure Act. However, there appears to be some interests being propagated by learned counsel for the applicants, whom I must confess deploys and uses undiplomatic words. Learned counsel for the applicant is fond of stating thus: “ I insist”. 51.This court has often reminded learned counsel that despite serving the partisan interests of the applicants, it is still incumbent upon counsel to help the court to dispose of the matter and to adhere to the dictates of Article 159 [2] [b] of the Constitution. However, the manner in which Learned Counsel chooses to address the Court and remarks that are often Page 18 of 22

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made after the deliberations, is something that fall[s] with the inner conscience of each individual advocate. I wish to add that we also embrace etiquette differently. 52.Before concluding on this issue, it is appropriate to reproduce section 1B of the Civil procedure Act, chapter 21 laws of Kenya. The section stipulate thus: 1B. Duty of Court For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims— (a)the just determination of the proceedings; (b)the efficient disposal of the business of the Court; (c)the efficient use of the available judicial and administrative resources; (d)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and (e)the use of suitable technology. 53.I have undertaken painstaking soul- searching, to ascertain any glimpse; iota; or scintilla of bias. Sadly, I have not discerned any. On the contrary, what comes to my mind is the oath of office, which I took to administer justice without Fear ; Favour ; or Ill-will. I reiterate that even on the face of [sic] threats or usage of “unlawyerly words”, I shall still discharge my mandate. I am bound by the provisions of Article 159 [2] [a] of the Constitution, 2010. Page 19 of 22

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54.Finally, I wish to re-echo the words of the court of appeal in the case of Galaxy Paints Company Limited Vs Falcon Guards Limited [1999] KECA 136 (KLR). 55. The court stated thus: “As a result of the failure on the part of counsel to observe the Rules, many like Mrs Dias, have turned to scurrilous abuse and unfounded allegations against the learned Judges and applications to disqualify them, which were formerly very rare, are now a common feature. As we have said elsewhere this practice is nothing but an attempt to shop around for Judges favourable to their cause. It is strongly deprecated.” 56. In respect of the subject matter, the court has issued various directions, but counsel for the applicants does not appear to be keen to comply. On the contrary, learned counsel for the applicants imagines that same can usurp the mandate of the court and dictate the terms of the proceedings. Time is ripe to remind counsel that every player in the justice sector has a role. Let each party execute his/her role, subject to the established protocols. Conclusion: 57.The applicants herein sought to persuade this court to recuse himself from hearing the subject matter. Various assertions were made. However, it is one thing to make assertions and another, to prove same. The assertions that were adverted to and which appear to make applicants and their counsel an “appellate court” were not proven. Page 20 of 22

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58.It is not apposite for a judge to throw in the towel merely because a party, or the advocate of the party, is disgruntled with exercise of discretion. I repeat that if there be basis for impugning exercise of discretion, then a proper avenue ought to be invoked. 59.In a nutshell, and after reviewing the various assertion[s], the application for recusal, has not met the threshold. The application is bereft of merits. It is a sure candidate for dismissal. Final orders: 60.Pulling the strings together, the final orders that commend themselves to the court are: i. The application dated 13.07.2026 be and is hereby Dismissed. ii. Costs of the Application be and are hereby awarded to the Plaintiff/Respondent. iii. The costs shall be agreed upon and in default be taxed in the conventional manner. 61.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON THIS 24TH DAY OF SEPTEMBER, 2026 OGUTTU MBOYA; FCIArb; CPM [MTI-EA]. JUDGE. In the presence of Court Assistant: Zakayo Mr. Kichwen for the Plaintiff/Respondent Page 21 of 22

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Mr. Joshua Kembero Ogega and Ms. Cherono for the Defendants/Applicants Page 22 of 22

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