Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment as provided

P.J Dave Flowers & another v Limuru Hills Limited & 3 others Equity Bank Limited(Interested Party) [2019] KEELC 92 (KLR)

Environment and Land Court
19 December 2019
2,023 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court dismissed a judge's recusal application, confirming that bare allegations and pending JSC complaints are not proof of bias.

What this practically means

#

Executive summary

#
The Defendant/Applicants moved the Court by Notice of Motion dated 16th May 2019 seeking the recusal of the trial Judge from hearing the matter. They premised the application on an earlier, unrelated suit (Maisha Investment Ltd v Mohamed Hassanali & Farhana Hassanali) in which their Advocate was involved before the same Judge and in which, they contended, the Court recognised a non-existent sale agreement contrary to Section 3(3) of the Law of Contract Act and Section 44 of the Land Registration Act; and on a pending complaint the Advocate lodged against the Judge at the Judicial Service Commission. They argued a reasonable likelihood the Judge would not act impartially. The Plaintiffs/Respondents objected, contending no bias was disclosed, that the alleged bias was against counsel and not the parties, that a pending JSC complaint is not proof of wrongdoing, and that a party cannot oust a judge at the whims of a disgruntled advocate. The Court applied the fair-minded and informed observer test from Porter v Magill as adopted in Philip K. Tunoi and Kaplana H. Rawal, and the duty-to-sit doctrine from Gladys Boss Shollei. It held the Applicants bore the burden of proving facts from which bias could be inferred and produced no evidence of vindictiveness; the Judge was unaware of the JSC complaint and had no reason to be biased. Recusal on these grounds would allow counsel to disqualify the Court from all his clients' matters. The application was found unmerited, dismissed entirely with costs.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court should recuse itself from hearing and determining the matter on the ground of alleged bias arising from a past decision in an unrelated suit and a pending complaint against the trial Judge at the Judicial Service Commission
  2. 2.Whether the Applicants established a real possibility of bias on the test of the fair-minded and informed observer

Key legal issues

#
01

Test for recusal on grounds of apparent bias

Holding

The governing test is whether the fair-minded and informed observer, having considered the facts, would conclude there is a real possibility that the tribunal was biased; the applicant must adduce evidence, not mere apprehension

Reasoning

The Court traced the test from R v Gough (real danger of bias) as adjusted in Porter v Magill to the fair-minded and informed observer standard, as adopted in Kenyan authority including Philip K. Tunoi and Kaplana H. Rawal. It held the judicial officer must first evaluate whether he/she would likely be biased, and second whether an informed mind would perceive bias. The Applicants produced no evidence of vindictiveness, only a past unrelated ruling and a pending JSC complaint.

p. 2
02

Duty of a judge to sit and effect of a JSC complaint

Holding

Every judge has a duty to sit; recusal cannot be engineered by counsel's dissatisfaction with past rulings or by a pending, undetermined complaint to the Judicial Service Commission

Reasoning

Applying Gladys Boss Shollei v JSC, the Court held that a judge who took the oath to serve impartially is capable of rising above prejudices, save in rare cases. A complaint yet to be determined cannot amount to a guilty verdict, and permitting recusal on such grounds would allow counsel to disqualify a court from all their clients' matters, subverting the parties' right to a hearing.

p. 3

Legal principles established

#
  • Recusal should not be used to cripple a Judge from sitting; every Judge has a duty to sit having taken the oath of office
  • The applicant for recusal bears the burden of establishing facts from which a fair-minded and informed observer would infer bias; bare allegations are insufficient
  • A judicial officer's dissatisfaction with a prior ruling by counsel, or a pending JSC complaint, does not establish bias

Court orders

#
  1. 1.The Notice of Motion Application dated 16th May 2019 is found not merited and the same is dismissed entirely with costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit; recusal application decided by the trial judge herself

Relief refused

#

Recusal of the Court (L. Gacheru J) from hearing and determining the Application

No reasonable grounds or evidence of bias were established; the test of the fair-minded and informed observer was not met

p. 3

Costs

Application dismissed entirely with costs to the Plaintiffs/Respondents

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 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.
p. 2Test for apparent bias on recusal applications
It is not enough to just make a bare allegation. Reasonable grounds must be presented from which an inference of bias may be drawn.
p. 3Burden of proof on a recusal applicant
Therefore the Court finds that no reasonable ground has been presented to warrant its recusal in this instant suit and consequently, the Court finds the instant Application is not merited and proceeds to disallow the same.
p. 3Court's finding on the recusal application
The Upshot of the foregoing is that the Notice of Motion Application dated 16th May 2019, is found not merited and the same is dismissed entirely with costs.
p. 3Final orders - dismissal with costs

Issues in the judgment

#
minor

Coram listing in the delivery section refers to multiple Respondents/Applicants and an Interested Party whose roles are inconsistent with the two-party recusal application described in the body

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "P.J Dave Flowers & another v Limuru Hills Limited & 3 others Equity Bank Limited(Interested Party) [2019] KEELC 92 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/92/eng@2019-12-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.