Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
The bottom line
#A Supreme Court judge won't be forced to step down just because he once recused himself in a lower court.
What this practically means
#The Supreme Court ruled that a judge does not have to recuse himself from a case simply because he stepped aside from the same matter while serving on the Court of Appeal. The court found no clear reason for the earlier recusal. It also stressed that recusal rules are stricter for the Supreme Court because it has only seven judges. If too many step down, the court could lose the minimum five judges needed to hear cases, which would harm the public interest.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.In what circumstances should the recusal of a Judge be sought by a party?
- 2.When ought a Judge, as a matter of personal conviction, or of ethical considerations, to recuse himself or herself from decision-making by the collegiate Bench?
- 3.Should the grounds for single-Judge-Bench recusal apply in an identical manner to the case of the collegiate-Bench Judge?
- 4.Should the principles of recusal for other superior Courts, such as the High Court and the Court of Appeal, apply in an identical manner to the Supreme Court, the membership of which is limited to seven, under the Constitution?
- 5.Should the principles of recusal for other superior Courts apply unexceptionably to the Supreme Court, even where this Court requires a full Bench, as for instance, where it is sitting to reconsider its earlier precedent rendered by a majority of the Judges?
- 6.How ought the Supreme Court to guide itself on the issue of recusal by its members, in the light of its unique position in relation to the integrity of the Constitution?
Key legal issues
#Whether a Supreme Court judge should recuse himself solely because he had previously recused himself from the same matter while serving on the Court of Appeal, where the grounds for that earlier recusal are unknown.
The mere fact that a judge recused himself at the Court of Appeal, without any discernible legal or factual grounds for that recusal, does not constitute good cause for recusal at the Supreme Court.
The Court found that the legal or factual grounds for the judge's earlier recusal at the Court of Appeal were not discernible from the court records, nor had collegiate consultations yielded any results. The Court therefore had to begin from broad principle. It held that the recusal principle for the Supreme Court must not be invoked but for good cause, and must be weighed against the Court's constitutional burdens and the public interest. Since no good cause was shown, the application for recusal was disallowed.
Whether the principles of recusal for other superior courts apply in an identical manner to the Supreme Court, given its limited numerical strength of seven judges.
The Supreme Court concept imports a varying set of rules of recusal in relation to the practice in other superior Courts, and recusal must be sparingly granted to avoid incapacitating the Court.
The Court noted that the Supreme Court has only seven judges, with a quorum of five, and that recusal could create a quorum-deficit rendering it impossible for the Court to perform its constitutional functions. The Court held that such a possibility would be contrary to public policy and detrimental to the public interest. Therefore, the recusal principle for the Supreme Court must not be invoked but for good cause, and must be weighed against the constitutional burdens of the Court and the public interest.
Whether the doctrine of necessity applies to allow a Supreme Court judge to sit despite a potential ground for recusal, in order to maintain the quorum of the Court.
The doctrine of necessity may operate to allow a judge to sit where recusal would incapacitate the Court, but only in very exceptional circumstances.
Justice Ibrahim, in his concurring opinion, extensively discussed the doctrine of necessity, citing Laird v. Tatum as persuasive precedent. He noted that the Constitution allows only seven judges, with a minimum of five required to sit, and that recusal of one judge could leave the Court without quorum. He held that in such circumstances, the doctrine of necessity must operate to allow the judge to sit to ensure the Court can perform its constitutional functions.
Legal principles established
#- Recusal of a Supreme Court judge is first decided by the full bench, not the individual judge.
- The Supreme Court has its own unique recusal rules, different from lower courts.
- A judge's earlier recusal in a lower court does not automatically require recusal in the Supreme Court.
- Recusal must be based on good cause, balanced against the court's constitutional duties and public interest.
- The doctrine of necessity may allow a judge to sit if recusal would leave the court without a quorum.
Court orders
#- 1.The applicant's preliminary objection which sought the recusal of the Honourable Mr. Justice Tunoi is disallowed.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Justice Ibrahim concurred with the majority but added separate observations on the doctrine of necessity and the unique quorum constraints of the Supreme Court, emphasising that the limited numerical strength of the Court requires that recusal be sparingly granted to avoid incapacitating the Court.
I wholly concur with the reasons and decision of my Brothers and Sister. But in view of the importance of this case and its wider ramifications I would like to add the following observations:p. 8
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No. 63 of 2001
- Jurisdiction invoked
- Section 14 of the Supreme Court Act, 2011 (Act No. 7 of 2011)
Relief refused
#Recusal of Justice P.K. Tunoi from the Supreme Court bench hearing the matter
The recusal principle must not be invoked but for good cause, and the applicant provided no legal or factual grounds for the earlier recusal at the Court of Appeal; the Supreme Court's limited numerical strength and constitutional obligations require that recusal be sparingly granted.
Costs
We will make no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The recusal principle, therefore, with regard to the Supreme Court, must not be invoked but for good cause; and neither is it to be invoked without weighing the merits of such invocation against the constitutional burdens of the Court, and the public interest.
It follows that the Supreme Court concept, as it stands in the Constitution, and as a symbol of ultimate juristic authority, imports a varying set of rules of recusal, in relation to the practice in other superior Courts.
It follows that the recusal of a Judge of the Supreme Court is a matter, in the first place, for the consideration of the collegiate Bench, whose decision is to set the matter to rest.
We will make no order as to costs.
Being guided by the comparative lesson, and by the principles drawn from Kenya's special constitutional experience, we have no trepidation in disallowing the applicant's preliminary objection which sought the recusal of the Honourable Mr. Justice Tunoi.
Key timeline
#Practical implications
#Recusal arguments need concrete grounds
When seeking recusal of a Supreme Court judge, you must present specific, documented grounds. A prior recusal in a lower court, without known reasons, is insufficient. Prepare evidence of actual bias or conflict, not just a history of stepping aside.
Supreme Court stability protects your cases
The court's ruling ensures that business disputes reaching the Supreme Court won't be derailed by recusal applications that lack solid cause. This protects the finality and predictability of high-stakes commercial litigation, as the court prioritizes its constitutional duty to sit and decide.
Your recusal request must be serious
If you ask a Supreme Court judge to step down, you need a strong reason—like proven bias or a direct personal interest. The court will weigh your request against the public's need for the court to function. A weak request will be dismissed, and you may not recover your costs.
Frequently asked questions
#Can a Supreme Court judge in Kenya be forced to recuse themselves?+
Yes, but only for good cause. The full bench decides, not the individual judge. The court balances the request against its constitutional duties and the public interest. A prior recusal in a lower court, without known reasons, is not enough.
What is the doctrine of necessity in Kenyan law?+
It is a legal principle that allows a judge to hear a case even if there is a potential conflict of interest, if recusal would leave the court without enough judges to function. The Supreme Court has only seven judges, so this doctrine is important to keep the court working.
Why are recusal rules different for the Supreme Court in Kenya?+
Because the Supreme Court has only seven judges, and at least five must sit to hear a case. If too many judges recuse themselves, the court cannot perform its constitutional role. So recusal is granted more sparingly than in lower courts with more judges.
What happens if a Supreme Court judge in Kenya recuses themselves?+
The remaining judges continue with the case. But if recusals reduce the bench below five judges, the court cannot hear the case. This ruling says the court will avoid that situation unless there is a very strong reason for recusal.
Later judgments citing this (12)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kakuzi PLC v Kituamba Kaloleni IDPs & 2 others (Environment and Land Appeal E064 of 2024) [2026] KEELC 5165 (KLR)[2026] KEELC 5165 (KLR)30 Jul 2026
- East Africa Tour Guides Drivers Association v Lazizi Mara Ltd & 12 others (Environment and Planning Petition E001 of 2026) [2026] KEELC 4071 (KLR)[2026] KEELC 4071 (KLR)2 Jul 2026applied
- Nova Realty Group Ltd v Tom Brown Ltd & 8 others; Hon & another (Interested Parties) (Civil Application E708 of 2025) [2026] KECA 1219 (KLR)[2026] KECA 1219 (KLR)26 Jun 2026
- Ochieng v Attorney General[2026] KESC 32 (KLR)15 May 2026followed
- National Land Commission v Charlise Development Company Ltd (Environment and Land Appeal E118 of 2025) [2026] KEELC 2059 (KLR)[2026] KEELC 2059 (KLR)16 Apr 2026applied
- Johana v Secretary, Teachers Service Commission & another[2026] KESC 13 (KLR)30 Jan 2026followed
- Ndovu Estates Ltd v Ntutu (Environment and Land Appeal E002 of 2023) [2026] KEELC 380 (KLR)[2026] KEELC 380 (KLR)29 Jan 2026
- Ouko & another (Suing as the Personal Representatives and Administrators of the Estate of Jason Atinda Ouko (Deceased)) v Kageni (Sued as the Personal Representative and Administrator of the Estate of Samuel Muhika Kageni (Deceased) (Civil Appeal 382 of 2019) [2025] KECA 2126 (KLR)[2025] KECA 2126 (KLR)5 Dec 2025
- Standard Chartered Financial Services Limited v Manchester Outfitters (Suiting Division) Limited Now Called King Woolen Mills Limited & 2 others[2025] KESC 68 (KLR)14 Nov 2025followed
- Sangahani & 2 others (For and on Behalf of Parklands Residents Association) v Nairobi City County Government & 5 others; 108 (Interested Party) (Petition E012 of 2025) [2025] KEELC 6985 (KLR)[2025] KEELC 6985 (KLR)14 Oct 2025
- Judicial Service Commission & another v LMN[2025] KESC 53 (KLR)15 Aug 2025followed
- Wasike & another v Eldoret Express Limited & 13 others (Enviromental and Land Originating Summons E001 of 2025) [2025] KEELC 5948 (KLR)[2025] KEELC 5948 (KLR)17 Jun 2025applied
Cite this brief
#Cite this brief
Caselaw, "Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others", Case Analysis (2013). Petition 4 of 2012. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2013/20/eng@2013-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.