Maisha Mabati Mills Limited v Farm Auto Spares Ltd & 2 others

other than Justice Oscar Angote for further directions and disposition. c) THAT the costs of this application be in the cause. 2. The Motion is supported by the affidavit of Kaushik Pandit, the Managing Director of the Plaintiff/Applicant, of an even date, who deponed that on 13th February 2025, this court delivered a ruling in these proceedings in which the court addressed the Applicant’s proposed remedy of reparcellation. 3. It was deposed that in particular, at paragraph 50 of the ruling, the court observed that where one party is unwilling to undertake reparcellation, the court should be slow to order that remedy unless exceptional circumstances were demonstrated, which the court found had not been shown in that instance. 4. According to Mr Pandit, as advised by counsel, the foregoing amounts to a conclusive finding on the Applicant’s case at an interlocutory stage and that the Applicant is therefore apprehensive that it will not receive a fair hearing at the substantive hearing of the suit in view of the predetermined views referenced. 5. He further stated that the Applicant has appealed against the ruling in Civil Appeal No. E442 of 2025; that ground 6 of the Memorandum of Appeal challenges the finding on reparcellation and that fairness and the appearance of impartiality require the suit to be heard by a different ELC LC NO. E192 OF 2023 RULING 2

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Judge. He therefore urged the court to allow the application. 6. In response to the motion, Kiran M. Patel, the Managing Director of the 1st Defendant/Respondent, swore a replying affidavit on 27th May 2026. He stated that the application is misconceived, unmerited and an abuse of the court process, contending that it is intended to delay the hearing and determination of the suit. 7. He stated that shortly before the hearing scheduled for 28th April 2026, the Applicant’s advocates contacted the 1 st Respondent’s advocates seeking an adjournment; that the request was declined, following which the 1 st Respondent was served with the present application for recusal and that the timing of the application demonstrated that it was intended to achieve indirectly the adjournment that had been declined. 8. On the substance of the application, he deponed that the Applicant has not demonstrated any bias, prejudice, conflict of interest, personal interest or other conduct on the part of the court capable of giving rise to a reasonable apprehension of bias. Rather, the application arises from the Applicant’s dissatisfaction with observations made by the court in its ruling concerning the remedy of reparcellation. 9. Mr Patel disputed the Applicant’s contention that the court had conclusively determined the question of reparcellation at an interlocutory stage. According to him, the Applicant ELC LC NO. E192 OF 2023 RULING 3

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has isolated part of the court’s reasoning while overlooking the ruling as a whole. 10. He stated that the court had merely observed that, in the absence of the 1st Respondent’s consent as contemplated under Section 23 of the Land Registration Act, caution was required before ordering reparcellation and that such relief could still be considered upon the substantive determination of the suit where the circumstances justified it. He therefore maintained that the impugned observations, which were in essence, obiter dicta did not amount to a predetermined position on the Applicant’s case. 11. The deponent further stated, on the advice of counsel, that judicial observations or findings made in the course of proceedings do not, without more, establish bias warranting recusal. He pointed out that the Applicant has already challenged the ruling on appeal and contended that no personal interest, extraneous consideration, relationship, prejudice or improper conduct had been attributed to the Judge. In his view, the material relied upon did not satisfy the test of whether a reasonable, fairminded and informed observer would apprehend a real possibility of bias. 12. He further averred that the application ought to be considered against the procedural history of the matter. According to him, the Applicant has previously obtained several extensions of time to file its documents and subsequently sought to join receivers of a person who was ELC LC NO. E192 OF 2023 RULING 4

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not a party to the suit. He stated that on 4th February 2026, the court declined the proposed joinder and indicated that the adjournment granted to the Applicant would be the last. He urged the court to dismiss the motion. Submissions. 13. The parties submitted orally and vide written submissions. The Applicant filed submissions on 22nd June 2026. Counsel argued that, although the court was determining an interlocutory application, it made a conclusive finding on reparcellation. Counsel pointed to paragraph 50 of the ruling, where the court identified consent or exceptional circumstances as the basis for ordering reparcellation and found that the Respondent was unwilling to consent and that the Applicant had not demonstrated exceptional circumstances. 14. In counsel’s view, those findings effectively determined the claim before the evidence could be tested at trial. Relying on Lucy Wangui Gachara vs Minudi Okemba Lore [2015] eKLR, counsel submitted that disputed issues should not be resolved with finality on affidavit evidence at an interlocutory stage. 15. Counsel further submitted that a fair-minded and informed observer would read paragraph 50 as showing that the court had already formed the view that the Applicant’s claim could not succeed. Relying on Jasbir Singh Rai & 3 others vs Tarlochan Singh Rai & 4 others [2013] ELC LC NO. E192 OF 2023 RULING 5

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eKLR and Philip K. Tunoi & another vs Judicial Service Commission & another [2016] eKLR, counsel argued that apparent bias is assessed by the impression the Judge’s conduct would create in the mind of a reasonable observer, rather than by an inquiry into the Judge’s actual state of mind. Counsel maintained that recusal was necessary to preserve confidence in the court’s impartiality. 16. Also referenced was the decision in Esevwe vs University of Nairobi [2023] KEELRC 413 (KLR) as an instance where wording in an earlier ruling was considered capable of suggesting a predetermined mind. Counsel therefore urged the court to recuse itself from further hearing of the matter. 17. The 1st Defendant, through counsel, made oral submissions in opposition to the application, relying on the replying affidavit as well as the bundle of authorities dated 18th May 2026. Counsel submitted that the applicable test for recusal is an objective one, namely, whether the circumstances give rise to a reasonable perception of bias. In that regard, he relied on Gachagua & 5 Others vs Maingi & 80 Others [2025] KECA 790 (KLR), Mburu t/a JM Mburu & Company Advocates vs Malombo p/a OM Robinson & Company Advocates [2023] KEHC 23658 (KLR) and Tuff Bitumen Limited vs SBM Bank (Kenya) Limited & Another [2023] KEHC 3198 (KLR). ELC LC NO. E192 OF 2023 RULING 6

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18. Counsel submitted that the Applicant has not placed before the court any facts capable of giving rise to a reasonable apprehension of bias. In his view, the Applicant’s grievance concerns the correctness of the court’s findings on matters of fact and law, which have already been challenged on appeal and cannot, without more, constitute a basis for recusal. 19. He further submitted that the court has conducted the proceedings fairly and had, on several occasions, accommodated the Applicant, including by granting it time to file its documents. The present application, he urged, constitutes another attempt to delay the hearing of a dispute that has been pending for several years. Counsel also referred to correspondence in which the Applicant had previously approached the 1st Respondent with a view to settling the dispute, which he contended was inconsistent with the subsequent allegation that the court cannot impartially determine the matter. Analysis and Determination 20. Having considered the Motion, responses and submissions, the sole issue for determination is whether this court should recuse itself from hearing and determining this suit. Recusal is defined by the Black’s Law Dictionary 8th ed. (2004) [p.1303] as: “Removal of oneself as judge or policy maker in a particular matter, [especially] because of a conflict of interest.” ELC LC NO. E192 OF 2023 RULING 7

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21. Judicial recusal safeguards one of the cornerstones of constitutional democracy, the right to a fair hearing enshrined in Article 50(1) of the Constitution. Tied to this is Article 160 of the Constitution which mandates the courts to uphold independence and be free from influence by any party, and Article 159(2)(a) which mandates courts to ensure that justice is dispensed to all individuals, regardless of their social status. 22. Read together with Article 25(c), which entrenches the right to a fair trial as a non-derogable right, it becomes clear that impartial adjudication is not merely a procedural concern but a substantive Regulation 9 of the constitutional Judiciary Code imperative. of Conduct emphasizes the importance of impartiality of a Judge. Regulation 9(1) provides as follows: “A Judge shall at all times, carry out the duties of the office with impartiality and objectively in accordance with Articles 10, 27, 73(2)(b) and 232 of the Constitution and shall not practice favoritism, religious nepotism, and cultural tribalism, bias, or cronyism, engage in corrupt or unethical practices.” 23. The said Rule mandates that in so doing, the Judge shall uphold and apply the law; observe fairness and impartiality; cooperate with other judges in the discharge of judicial duties by ensuring unity of purpose and collegiality; and perform all duties of the judicial office, ELC LC NO. E192 OF 2023 RULING 8

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including administrative duties impartially, competently, diligently, and without bias. 24. As regards recusal, Rule 21 of the Judicial Code Service (Code of Conduct) 2020 is instructive. It provides: “(1) A judge may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned where the judge— (a) is a party to the proceedings; (b) was, or is a material witness in the matter in controversy; (c) has personal knowledge of disputed evidentiary facts concerning the proceedings; (d) has concerning a actual bias or prejudice party (e) has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter; (f) had previously acted as a counsel for a party in the same matter; (g) is precluded from hearing the matter on account of any other sufficient reason; or (h) or a member of the judge’s family has economic or other interest in the outcome of the matter in question.” ELC LC NO. E192 OF 2023 RULING 9

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25. Speaking to this, the Supreme Court in Rai & 3 others vs Rai & 4 others [2013] KESC 20 (KLR) (Petition 4 of 2012) (6 February 2013) (Ruling) (with dissent - MK Ibrahim, SCJ) noted: “(6) Recusal, as a general principle, has been much practised in the history of the East African judiciaries, even though its ethical dimensions have not always been taken into account. The term is thus defined in Black’s Law Dictionary, 8, h ed. (2004) [p.1303]: “Removal of oneself as judge or policy maker in a particular matter, [especially] because of a conflict of interest.” (7) 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 non-participation of the judicial officer is called for. The object in view, in the recusal of a judicial officer, 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. (8) It is an insightful perception in the common law tradition, that the justice of a case does not ELC LC NO. E192 OF 2023 RULING 10

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always rest statutory on the straight prescriptions, and lines cut by the judicial discretion in its delicate process, is critical to equitable outcomes. This is what Sir David Maxwell Fyfe meant when he attributed to Lord Atkin a “constructive intuition which operates after learning and analysis are exhausted” [in G. Lewis, Lord Atkin (London: Butterworths, 1983), p. 166]. It is precisely such delicate elements of judicial fairness that will also feature in the judgment as to whether or not the recusal of a Judge, particularly in the case of a collegiate Bench, is of any materiality, in a given case.” 26. In Kibisu vs Republic (Petition 3 of 2014) [2018] KESC 34 (KLR) (28 February 2018) (Ruling), the Supreme Court quoted with approval the decision in Nathan Obwana v. Robert Bisakaya Wanyera & 2 others [2013] eKLR where the court had stated thus: “In Kenya the Court of Appeal in the case of Republic v. Mwalulu & 8 Others: [2005] 1 KLR the court did set up 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 ELC LC NO. E192 OF 2023 RULING 11

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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 constituting objective bias and the be specifically must facts 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 fair-minded 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. The fact that Tunoi, JA ELC LC NO. E192 OF 2023 RULING 12

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had sat on many cases involving the Goldenberg Affair, without anything more, was absolutely no good reason for him to disqualify himself.” 27. The court in that case proceeded to hold that more apprehension of bias cannot be a ground for recusal. That the allegations of bias must be factual and proved. 28. It cannot be gainsaid that a plea for recusal is a serious matter as it goes against the very core of a judge’s duty to sit. Speaking to this, Justice Ibrahim SCJ in Shollei & another v Judicial Service Commission & another (Petition 34 of 2014) [2018] KESC 42 (KLR) (3 July 2018) (Ruling) noted: “The doctrine of the duty of a judge to sit, though not profound in our jurisdiction, every judge has a duty to sit, in a matter which he duly should sit. So that recusal should not be used to cripple a judge from sitting to hear a matter. This duty to sit is buttressed by the fact that every judge takes an oath of office: "to serve impartially; and to protect, administer and defend the Constitution.” It is a doctrine that recognizes that having taken the oath of office, a judge is capable of rising above any prejudices, save for those rare cases when he has to recuse ELC LC NO. E192 OF 2023 himself. The doctrine RULING also 13

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safeguards the parties' right to have their cases heard and determined before a court of law.” 29. By way of a brief background, in a Motion dated 28 th November 2023, the Applicant sought, inter alia, for an interlocutory injunction restraining the 1 st Respondent from evicting it or interfering with its occupation of L.R. No. 209/5443, together with the godowns and other developments it claimed to have purchased from Kenya Commercial Bank through the Interested Parties. 30. The Applicant’s case was that it had purchased L.R. No. 209/5443 believing that the three godowns it occupied formed part of that property, and that it risked eviction from one of them following a boundary dispute. On its part, the 1st Respondent maintained that the disputed godown stood on its property, L.R. No. 209/5650 and that it had lawfully issued eviction orders to the Applicant. 31. Further, it was the 1st Respondent’s case that the Applicant’s earlier claim to the disputed portion by adverse possession had been dismissed. The court considered those competing positions in its ruling of 13th February 2025 and dismissed the application. 32. The Applicant asks this court to recuse itself. It asserts that paragraph 50 of the ruling of 13th February 2025 conclusively determined its claim for reparcellation. It contends that, by finding that exceptional circumstances had not been proved, the court demonstrated a predetermined view of an issue that should be decided ELC LC NO. E192 OF 2023 RULING 14

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only after the evidence is tested at trial. The Applicant submits that this gives rise to a reasonable apprehension of bias. 33. On its part, the 1st Respondent contends that the observation was made solely in determining whether the Applicant had established a prima facie case for an interlocutory injunction. It maintains that the court did not finally determine the claim for reparcellation and that the Applicant’s disagreement with the ruling, which it has already challenged on appeal, provides no basis for recusal. 34. The court has carefully considered the rival positions in light of the foregoing constitutional provisions, Rule 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 and the applicable precedents. 35. The Applicant’s plea for recusal is founded on paragraph 50 of the ruling delivered on 13 th February 2025, which it considers conclusive and prejudicial to its claim for reparcellation. However, a finding perceived by a party as erroneous or premature does not, without more, establish that the court has prejudged the suit or is incapable of determining it impartially. The appellate process exists to address such grievances, and the Applicant has indeed invoked that process through Civil Appeal No. E442 of 2025. 36. Indeed, if every finding by a court perceived to be erroneous or adverse was sufficient to warrant recusal, a ELC LC NO. E192 OF 2023 RULING 15

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party dissatisfied with a judicial decision could effectively secure a change of Judge without establishing any objective basis for apprehending bias. 37. The correctness of the impugned finding is a matter for the appellate court. In the present application, the Applicant has not demonstrated, or indeed alleged any conduct or circumstance, beyond its disagreement with that finding, that would objectively call into question the court’s impartiality. 38. The Applicant relies on Esevwe vs University of Nairobi [2023] KEELRC 413 (KLR). The said case is however distinguishable. There, the court considered the wording of its earlier ruling together with an allegation concerning the Judge’s relationship with the respondent’s institution. It concluded, in the circumstances of that case, that the wording could suggest a predetermined mind. Recusal remains a fact-specific inquiry. The outcome in Esevwe does not follow merely because a party objects to a finding made in an interlocutory ruling. 39. The timing of the application is also relevant to the assessment of the alleged apprehension of bias. The ruling was delivered on 13th February 2025, yet the motion for recusal was filed on 27th April 2026, more than a year later and on the eve of the hearing scheduled for 28th April 2026. The Applicant has identified no intervening event or subsequent conduct that explains why the ruling gave rise to an apprehension of bias only at that stage. ELC LC NO. E192 OF 2023 RULING 16

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40. Having considered the facts as a whole, the court finds that a fair-minded and informed observer would not conclude that there is a real possibility of bias. The Applicant has not established a sufficient basis for recusal. 41. In the end, the Notice of Motion dated 27 th April, 2026 is found to be unmerited and is dismissed with costs. Dated, signed and delivered virtually in Nairobi this 8 th day of October, 2026. O. A. Angote Judge In the presence of: Mr. Mwangi for and Wanyoike for 1st Defendant Mr. Omino holding brief for Mr. Karunga for the Plaintiff Mr. Allan Kamau for Attorney general 2nd & 3rd Defendants Court Assistant: Tracy ELC LC NO. E192 OF 2023 RULING 17

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