Omar & another v Kulei & 2 others (Environment and Land Case E033 of 2023) [2025] KEELC 5164 (KLR)
The bottom line
#A Kenyan land court dismissed a bid to have a judge step aside, confirming that losing a ruling is an appeal matter, not proof of bias.
What this practically means
#Executive summary
#Key legal issues
#Whether dissatisfaction with a prior ruling of the same judge constitutes a ground for recusal
No - a judge has no power to review his own decision on merit; the remedy is appeal, and an adverse ruling cannot found a recusal application
The court held that Article 163(7) binds courts to Supreme Court decisions, but that complaint can only be pursued on appeal, not before the same judge who has no power to review his own decision based on merit. Mere dissatisfaction with the 6th February 2025 ruling in ELC Petition No. E011 of 2024 is an appealable grievance, not evidence of bias, and cannot ground recusal in the present suits.
Whether the M-Pesa bribery allegations and the pending JSC petition established a reasonable apprehension of bias
No - there was no scintilla of evidence; the alleged transactions predated the filing of the petition and the relationship between the persons named was not demonstrated
The court found the alleged M-Pesa transactions of 26th June 2023 preceded the filing of Petition No. E011 of 2024 on 18th September 2024, making the bribery allegation illogical. No evidence connected the persons in the transactions to the litigants, and the court flatly denied receiving any money. The allegations were characterised as intended to scare the court into recusing itself.
The applicable test and doctrine for recusal
The test is that of a fair-minded and informed observer; recusal is discretionary, balanced against the judge's duty to sit absent compelling reasons
Relying on the Supreme Court in Robert Tom Martins Kibisu v Republic, the Privy Council in Lesage, and the Court of Appeal in Charity Muthoni Gitabi and Kalpana Rawal, the court restated that bias must be proved through the reasonable-person test, guided by the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 and the Bangalore Principles, and tempered by the doctrine of the duty to sit per Gladys Boss Shollei v JSC.
Legal principles established
#- An applicant seeking recusal on allegations of bias must demonstrate with factual proof a reasonable apprehension of bias perceived by a reasonable, right-minded person possessed of all relevant information
- Judicial officers have a duty to sit and should not readily succumb to bullying or intimidation to recuse themselves
- A judge cannot be asked to review his own decision on the merits as a ground for recusal; a dissatisfied party must go on appeal
Court orders
#- 1.The applications for recusal are dismissed
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; applications under Order 1 Rule 10(2) of the Civil Procedure Rules and the court's inherent powers on recusal; Article 50(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar & another v Kulei & 2 others (Environment and Land Case E033 of 2023) [2025] KEELC 5164 (KLR)", Case Analysis (2025). Nakuru ELC E033 of 2023 (with related recusal application consolidated by consent). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5164/eng@2025-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.