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ELCDismissedNot stated in the judgment· [2020] KEELC 93 (KLR)

Nazmudin Habib Kassam Kurji v Frank Logistics Limited & 9 others [2020] KEELC 93 (KLR)

Environment and Land Court
30 September 2020
KBK. Bor
4,592 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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By an application dated 21/2/2020, the 2nd Respondent sought a stay of proceedings and the recusal of the trial judge, alleging bias arising from the court's refusal of adjournments on 28/3/2019 (when his advocate was reportedly unwell) and 20/2/2020 (when his new advocate was said to have had a medical emergency), the alleged failure to record his statements in court, and the earlier refusal to expunge the proceedings of 28/3/2019. The Petitioner opposed the application through a preliminary objection and replying affidavit, showing that the court had indulged the 2nd Respondent with numerous adjournments, that the 28/3/2019 issue had been decided in a ruling of 27/9/2019 against which no appeal was lodged, that no notice of intention to act in person had been filed under Order 9 Rule 8 of the Civil Procedure Rules, and that no evidence of the alleged medical emergency existed. The Attorney General likewise filed grounds of opposition, contending the application was an abuse of process driven by a desire to delay the hearing. The court agreed that the 2nd Respondent, with an advocate on record, should have filed a notice of intention to act in person and that he was attempting to re-litigate issues already decided, but declined to strike out the application in the interests of justice, instead directing him to file the notice within 7 days. Applying the objective test for bias, the court found no facts established that would lead a reasonable, fair minded and informed observer to conclude there was a real possibility of bias, and dismissed the application, with costs in the cause.

Key legal issues

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01

Judicial recusal and apprehension of bias

Holding

The application for recusal was dismissed; the grounds raised did not meet the objective test for a reasonable apprehension of bias

Reasoning

The court applied the objective test requiring a reasonable, fair minded and informed member of the public to perceive a real possibility of bias. The court found the record showed it had indulged the 2nd Respondent with multiple adjournments, there was no evidence of the advocate's medical emergency on 20/2/2020, no specifics of the alleged omissions in the record, and concluded the application was driven by a desire to delay the hearing.

p. 5
02

Striking out the application for non-compliance with Order 9 Rule 8 and abuse of process

Holding

The court agreed the notice of intention to act in person should have been filed, but declined to strike out the application, instead directing the 2nd Respondent to file the notice within 7 days

Reasoning

The court agreed with the Petitioner that a party with an advocate on record must comply with Order 9 Rule 8. It also agreed the application sought to re-litigate issues decided in the 27/9/2019 ruling. However, in the interests of justice the court declined to strike out the application and issued a directions order instead.

p. 4

Legal principles established

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  • An objective test applies in determining alleged judicial bias; the facts alleged to constitute bias must be specifically pleaded and established
  • A party with an advocate on record who wishes to act in person must comply with Order 9 Rule 8 of the Civil Procedure Rules by filing and serving a notice of intention to act in person
  • A party cannot re-litigate issues already decided by the same court in the absence of an appeal

Court orders

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  1. 1.The court declined to grant the orders sought in the application dated 21/2/2020 (stay of proceedings and recusal)
  2. 2.The 2nd Respondent is directed to file and serve a notice of intention to act in person within 7 days of the date of the ruling
  3. 3.Costs of the application shall be in the cause
Jurisdiction invoked
Articles 22 and 25 of the Constitution (fair hearing rights invoked); Civil Procedure Act and Civil Procedure Rules (Order 9 Rule 8)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nazmudin Habib Kassam Kurji v Frank Logistics Limited & 9 others [2020] KEELC 93 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/93/eng@2020-09-30

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