Aniket Property & Investments Limited v Mwakibibo & 10 others (As Trustees of the Ahfat Trust) (Environment and Land Case Civil Suit 134 of 2012) [2023] KEELC 954 (KLR)
The bottom line
#A Kenyan court dismissed a landowner's request for the judge to step aside, confirming judges must stay on cases unless real bias is proven.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What are the basic legal grounds and/or parameters required for a Judge and/or a Presiding Officer to disqualify and/or recuse himself/herself from a matter he or she is presiding over
- 2.Whether the application by the Plaintiff/Applicant has any merit and/or meets the established threshold for a Judge and/or Presiding Officer to recuse himself/herself from adjudicating proceedings before him in Court
- 3.Whether the parties are entitled to the orders sought
- 4.What are the plausible directions this Court should render in the given circumstances
Key legal issues
#Threshold for judicial recusal
Recusal requires a reasonable ground for assuming the possibility of bias, tested objectively from the standpoint of a fair-minded and informed observer; mere suspicion or unsubstantiated allegation is insufficient.
The court traced the jurisprudence from Jan Bonde Nielsen, Porter v Magill as adopted in Tunoi v JSC, and Jasbir Singh Rai in the Supreme Court, alongside Regulations 5, 9 and 21 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020 and Articles 25(c) and 50(1) of the Constitution. It held that the facts constituting bias must be specifically alleged and established, and that a litigant cannot manufacture a ground of bias out of adverse interlocutory rulings.
Whether the Plaintiff established a reasonable apprehension of bias against the trial judge
No. The complaints about the site visit report, delay in releasing the report and ruling, change of the order of witnesses, and eagerness to proceed did not meet the objective test; the plaintiff's availed remedy was appeal or review, not recusal.
The judge reasoned that the site visit merely recorded visible facts on the ground which remained subject to proof at trial; the report was released after the court recess; the witness sequence was a case-management direction that was not cast in stone; the court itself facilitated joinder of parties found on site with leave for substituted service; and no complaint had been raised during the proceedings until the application, filed nearly three months later, was dismissed as an afterthought made in bad faith.
Duty of a judge to sit
A judge who has taken the oath of office has a duty to sit absent a direct conflict of interest or established bias, to protect the courts against manipulation by parties seeking a favourable forum.
Relying on Gladys Boss Shollei v JSC citing Simonson v General Motor Corporation and Munir v Commissioner of Inland Revenue, the court held that the independence and impartiality requirements must be counterbalanced by the duty to sit where no ground of disqualification exists, which guards against parties manoeuvring to secure a judge of their choice through delay and forum shopping.
Costs
Costs follow the event under Section 27(1) of the Civil Procedure Act; the unsuccessful plaintiff to pay the defendants' costs.
Applying the general rule as stated by the House of Lords in Myres v Defries and by the Supreme Court in Jasbir Singh Rai, the court held that since the plaintiff had not succeeded in establishing its case, costs of the application were awarded to the 1st, 2nd and 4th Defendants.
Legal principles established
#- The test for recusal is objective: whether a fair-minded and informed observer, having considered the facts, would conclude there is a real possibility that the tribunal is biased
- A judge has a duty to sit and recusal should not be used to cripple a judge from hearing a matter; the facts constituting bias must be specifically alleged and established
- Aggrievement with a judge's interlocutory rulings is a matter for appeal or review, not a ground for recusal
Court orders
#- 1.The Judge categorically refused to recuse himself from the matter
- 2.The Notice of Motion Application dated 18th March 2022 by the Plaintiff be and is hereby dismissed for being unmeritorious
- 3.The part-heard matter to proceed for hearing of the Defendant's case irrespective of whichever sequence of witnesses, as scheduled on 7th and 8th March 2023 and other days thereafter, to be concluded within the next one hundred and eighty (180) days from that date
- 4.The costs of the application awarded to the 1st, 2nd and 4th Defendants/Respondents as against the Plaintiff/Applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 25(c), 47, 48 and 50(1) of the Constitution of Kenya, 2010 (recusal application under the court's inherent jurisdiction; Civil Procedure Rules, Order 18 Rule 11 and Order 40 Rule 10 invoked for site visit)
Relief refused
#Recusal of Hon. Justice L.L. Naikuni from further hearing the suit
No plausible, reasonable or justifiable cause established; the objective test of bias from the perspective of a fair-minded and informed observer was not met, and judges have a duty to sit absent a real likelihood of bias
Costs
Costs of the application awarded to the 1st, 2nd and 4th Defendants/Respondents as against the Plaintiff/Applicant
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.
That I categorically refuse to recuse myself from the matter particularly on the reasoning raised and advanced by the Plaintifi/Applicant.
That the Notice of Motion Application dated 18th March, 2022 by the Plaintifi be and is hereby dismissed for being unmeritorious with Costs to the Respondents in the instant application.
That for expediency sake, and unless other stated, the part heard matter to proceed on for hearing of the Defendant's case irrespective of whichever sequence of the Witnesses, as scheduled on 7th and 8th March, 2023
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.
Every Judge has a duty to sit in a matter which he duly should sit. Recusal should not be used to cripple a Judge from hearing and determining a matter.
it is necessary to consider whether there is a reasonable ground for assuming 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.
Issues in the judgment
#Inconsistency in the identity of the counsel cited for the authorities: the judgment attributes the Jasbir Singh Rai test both to Ibrahim J (as the defendants' submissions state) and elsewhere to Justices P.K. Tunoi, J.B. Ojwang, N.S. Ndungu, M.K. Ibrahim and S. Wanjala (JJSC), which is internally inconsistent.
The application is dated 18th March 2022 but the submissions section and directions describe it inconsistently as dated '18th March, 2021'.
The Grounds of Opposition filing dates conflict: the narrative says the 2nd and 4th Defendants' Grounds of Opposition were filed on 14th May 2022 but then states both sets 'dated 28th April, 2022 were filed on 4th May 2022'.
The supporting affidavit of Irene Njagi is variously dated: the notice of motion says it was sworn on the date of the application (18th March 2022) but the 2nd and 4th Defendants' Grounds of Opposition refer to an affidavit 'sworn by Irene Njagi on 18th March, 2018'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aniket Property & Investments Limited v Mwakibibo & 10 others (As Trustees of the Ahfat Trust) (Environment and Land Case Civil Suit 134 of 2012) [2023] KEELC 954 (KLR)", Case Analysis (2023). ELC Civil Suit No. 134 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/954/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.