P.J Dave Flowers & another v Limuru Hills Limited & 3 others Equity Bank Limited(Interested Party) [2019] KEELC 92 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the Applicants established a real possibility of bias on the test of the fair-minded and informed observer
Key legal issues
#Test for recusal on grounds of apparent bias
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
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.
Duty of a judge to sit and effect of a JSC complaint
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
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.
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.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.
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
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.
It is not enough to just make a bare allegation. Reasonable grounds must be presented from which an inference of bias may be drawn.
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.
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.
Issues in the judgment
#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.