Ndiga v Said & another (Environment and Land Case E018 of 2024) [2025] KEELC 6442 (KLR)
The bottom line
#A Kenyan court refused to disqualify a judge just because she had ruled against the applicant before.
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 applicant has established that there exists a likelihood of bias that would justify the court recusing itself from the hearing of this suit
- 2.Whether a decision of a court can constitute bias or be the basis for an application for recusal
Key legal issues
#Whether prior judicial adjudication involving a party justifies recusal
No. Presiding over and deciding a prior case involving a party does not constitute bias, and discomfort with a judgment is a matter for appeal
The court held that merely having sat on a prior matter involving the applicant (Kwale ELC No. 144 of 2021) cannot ground recusal. Relying on Republic vs Mwalulu & 8 Others, the fact that a judge has sat on many cases involving one party is insufficient. Discomfort with the outcome lies on appeal, not recusal.
Applicable test and threshold for recusal
The stringent objective test of a reasonable, fair-minded and informed observer applies; the threshold is high and must be discharged with cogent evidence
Adopting Jasbir Singh Rai and Accredo AG, the court noted the presumption that judges carry out their oath of office, the high threshold for perceived bias, and the requirement that facts constituting bias be specifically alleged and established.
Whether the applicant's apprehension met the test on the facts
It did not. No specific content of the Kwale judgment or specific complaint capable of creating a reasonable doubt was identified
The applicant relied only on the prior judgment and the fact that some agreements involving the plaintiff and applicant were among the materials considered. No reference was made to specific comments in the judgment that would influence the current proceedings.
Legal principles established
#- A decision of a court in a matter where the applicant was a party cannot constitute bias or be a basis for recusal
- The test for judicial bias is objective, viewed from the perspective of a reasonable, fair-minded, well-informed member of the public, and unsubstantiated suspicion will not suffice
- The burden of establishing bias lies on the applicant
Court orders
#- 1.The application for recusal is dismissed
- 2.Costs be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 50(1) of the Constitution of Kenya, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act
Relief refused
#Order that Lady Justice A.E. Dena recuse herself from further presiding over the suit
Applicant failed to demonstrate a reasonable likelihood of bias; a judge rendering a judgment in a matter where the applicant was a party cannot constitute bias
Order that the matter be heard and determined in a different and/or another court
Follows the failure of the recusal application
Costs of the application
Costs awarded only in the cause, not to the applicant
Costs
Costs be in the cause
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 application for recusal lacks merit and is hereby dismissed costs be in the course
this court rendering a judgement in a matter where the applicant was a party cannot constitute bias
Unsubstantiated suspicion of personal bias or prejudice will not sufice
The burden is upon the applicant to establish that this court is biased against it and that it will not get a fair hearing before the court in this matter
a practice that may encourage parties to 'shop' for the judges who will hear their cases in the belief that those judges will be favourable to their causes should also be avoided
Issues in the judgment
#Judgment cites the same Court of Appeal authority under two different names/citations (R v Jackson Mwalulu & Others, C.A. Civil Application No Nai 310 of 2004, and Republic vs Mwalulu & 8 Others, [2005] KECA 344 (KLR))
Delivered and dated at Siaya on 25th September 2025 but the certificate line reads 25/09/2025 while the applicant's further affidavit is sworn 2/05/2025 and submissions dated 5/05/2025 - a lengthy interval between submissions and ruling, not an internal contradiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndiga v Said & another (Environment and Land Case E018 of 2024) [2025] KEELC 6442 (KLR)", Case Analysis (2025). Ruling on Notice of Motion dated 10/02/2025 in Siaya ELC Suit (previously Ukwala MCEL No. E017/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6442/eng@2025-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.