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ELCOtherNot stated in judgment

Jepkemboi v Chirchir & 2 others (Environment & Land Case E013 of 2024) [2025] KEELC 654 (KLR)

Environment and Land Court
18 February 2025
674 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 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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The suit, filed by way of a plaint dated 3rd July (year partially illegible in the judgment) through Momanyi Gichana and Company Advocates, claims fraud, trespass and nuisance in respect of land parcel NANDI/KAMOBO/498 and NANDI/KAMOBO/7792. The plaintiff sought, among other reliefs, a declaration of beneficial and legal ownership of a portion of the land and an order compelling the Land Registrar, Nandi County, to transfer and register NANDI/KAMOBO/7792 in the plaintiff's name. The matter came up for pre-trial directions. At the outset, the judge disclosed a close familial relationship - first cousins - with Mr David Momanyi Gichana, learned counsel for the plaintiff, in the spirit of Articles 10(a), 10(c), 35(1)(b) and 50(1) of the Constitution. Counsel for the plaintiff affirmed the relationship and indicated an intention to hand over the file to another counsel. Counsel for the 1st and 2nd defendants endorsed the disclosure as proper and proposed that, given the value of the suit land measuring approximately one acre, the suit be transferred to the Kapsabet Chief Magistrate's Court. Counsel for the 3rd defendant (the Attorney General) left directions to the court's discretion. Relying on Galaxy Paints v Falcon Guards, Metropolitan Properties (Fg-C) Ltd v Lennon and Jasbir Rai, the court found a real danger of bias and recused itself, holding that justice must be seen to be done. Noting that sections 9(a) of the Magistrates' Courts Act, 2015 and 26 of the Environment and Land Court Act empower Magistrates' Courts to determine land disputes, the court transferred the suit to the Kapsabet Chief Magistrate's Court for hearing and determination. No costs order was made.

Questions the Court framed

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

  1. 1.Whether the judge should recuse himself from hearing the suit, having disclosed a close familial relationship with the plaintiff's counsel
  2. 2.Whether the suit should be transferred to another court of competent jurisdiction, namely the Chief Magistrate's Court at Kapsabet

Key legal issues

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01

Judicial recusal due to familial relationship with counsel

Holding

The court recused itself because the judge's first-cousin relationship with the plaintiff's counsel created a real danger of bias

Reasoning

The judge disclosed, under Articles 10(a), 10(c), 35(1)(b) and 50(1) of the Constitution, that he was first cousin to Mr David Momanyi Gichana, counsel for the plaintiff. Counsel affirmed the relationship and indicated an intention to hand over the file to another counsel. Relying on Galaxy Paints, Metropolitan Properties (Fg-C) Ltd v Lennon and Jasbir Rai, the court found a real danger of bias and held that justice must be seen to be done, warranting recusal.

p. 2
02

Transfer of the suit to a court of competent jurisdiction

Holding

The suit was transferred to the Chief Magistrate's Court at Kapsabet, which has jurisdiction over land disputes under section 9(a) of the Magistrates' Courts Act, 2015 and section 26 of the Environment and Land Court Act, 2015

Reasoning

The suit concerns fraud, trespass and nuisance in respect of land, and seeks a declaration of beneficial and legal ownership and an order compelling the Land Registrar to transfer and register the parcel NANDI/KAMOBO/7792. Section 9(a) of the Magistrates' Courts Act and section 26 of the Environment and Land Court Act empower Magistrates' Courts to hear and determine disputes relating to title to land. The subject matter falls within the Kapsabet Chief Magistrate's Court's jurisdiction, and counsel for the parties did not oppose the transfer.

p. 2

Legal principles established

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  • Justice must not only be done but be seen to be done; a real danger of bias requires recusal
  • Recusal applies where a reasonable person would reasonably suspect bias, or where there is reasonable suspicion that a fair trial was not possible

Court orders

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  1. 1.The judge recused himself from the suit
  2. 2.The suit was transferred to the Chief Magistrate's Court at Kapsabet for hearing and determination

The bench

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

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 5, 11, 15, 18 of the Civil Procedure Act (Cap 21) and the Environment and Land Court Act, 2015; Section 9(a) of the Magistrates' Courts Act, 2015

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A fortiori, I recuse myself from this suit and transfer it to Kapsabet Chief Magistrate’s court for hearing and determination.
p. 2Recusal and transfer of suit
It is noted that there is real danger of bias or impartiality if this suit proceeds before me. It is important that justice must be seen to be done
p. 2Threshold for recusal - real danger of bias
Section 9 (a) of the Magistrates’ Courts Act, 2015 and section 26 of the Environment and Land Court Act 2015 (2011) empower Magistrates’ Courts to hear and determine disputes relating to environment and the use and occupation of, and title to land.
p. 2Jurisdiction of Magistrates' Courts over land disputes

Issues in the judgment

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minor

Case number and neutral citation are not indicated in the judgment

minor

The plaintiff's case title is not clearly stated; the parties are not named in the judgment text

minor

The plaint date is incomplete in the judgment (appears to be a typographical omission of the final digit of the year)

minor

Repetition of citation year of the Environment and Land Court Act as '2015 (2011)', an apparent typographical error

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, "Jepkemboi v Chirchir & 2 others (Environment & Land Case E013 of 2024) [2025] KEELC 654 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/654/eng@2025-02-18

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