Ameli v Ong’ondo (Environment and Land Case E025 of 2025) [2025] KEELC 7253 (KLR)
The bottom line
#A Homa Bay court refused to recuse itself, ruling that an unpaid Notice of Withdrawal is invalid and that claims of judicial bias need solid evidence, not just feelings.
What this practically means
#Executive summary
#Key legal issues
#Validity of an unpaid Notice of Withdrawal
The Notice of Withdrawal of ELC Misc. E044/2025 was never paid for, was wrongly uploaded and assessed, and was therefore invalid; the suit it sought to withdraw remains alive
The court found on the testimony of the registry staff that the Notice was uploaded at about 6:00 PM on 1st September 2025, was never paid the KShs 100/= required, and was wrongly assessed as a Certificate of Urgency. Without payment the document does not become an official record document on which the court may act. Consequently the directions issued in E044/2025 remain in force and this later suit risks being stayed under Section 6 of the Civil Procedure Act for similarity.
Recusal of the judge for apparent bias
The application for recusal failed; the presumption of judicial impartiality was not displaced by cogent, objective evidence
The court reviewed Kenyan, English, South African, Canadian and New Zealand authority and the Judicial Service (Code of Conduct and Ethics) Regulations, holding that the test for recusal is objective, that a mere adverse decision is not evidence of bias, and that judges have a duty to sit. The applicant's complaints stemmed from lost interim orders and unfounded allegations of registry tampering. The court found the registry staff credible and the applicant's son's testimony insincere and misleading.
Admissibility of uncommissioned annexures
The annexures attached to the application and affidavit were not commissioned before a Commissioner for Oaths and were inadmissible, rendering the supporting depositions inadmissible hearsay
Rule 9 of the Oaths and Statutory Declarations Rules requires all exhibits to affidavits to be securely sealed under the commissioner's seal and marked with serial letters of identification. None of the applicant's five documents were so commissioned, so they formed no part of the affidavit and could not be relied upon evidentially. This defect was held fatal and not curable by Article 159(2)(d).
Procedural impropriety of lumping recusal with substantive prayers
It is procedurally wrong to combine a recusal prayer with substantive prayers in one application
The court reasoned that if a recusal prayer succeeded, the remaining substantive prayers could not logically be determined by the recused judge, creating a half-heard application. Parties moving for recusal should confine their applications to that prayer alone.
Legal principles established
#- There is a rebuttable presumption that a judge is fair and impartial, and the party alleging bias bears the onus of producing cogent evidence to displace it
- A Notice of Withdrawal that has not been paid for is not an official document on which the court can act, and the suit concerned is not withdrawn
- Exhibits to affidavits not commissioned before a Commissioner for Oaths are inadmissible and must be disregarded
- A judge has a duty to sit, and recusal applications should not be used to intimidate or cripple a judge from hearing a matter
Court orders
#- 1.Prayers 2, 3, 4, 5 and 6 of the Notice of Motion dated 9th September 2025 declined
- 2.The Judge declines to recuse himself from the matter
- 3.The applicant should file the Notice of Withdrawal (duly paid for) immediately, failing which this suit stands stayed in terms of Section 6 of the Civil Procedure Act pending determination of Misc. No. E044 of 2025 or clarification of similarity
- 4.No order as to costs
- 5.The matter to be mentioned after the Court considers that Homa Bay ELC Misc. No. E044 of 2025 has been withdrawn or determined
- Jurisdiction invoked
- Articles 25(c), 40, 47, 48, 50(1) and 159 of the Constitution; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 50 Rule 4 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ameli v Ong’ondo (Environment and Land Case E025 of 2025) [2025] KEELC 7253 (KLR)", Case Analysis (2025). ELC No. E025 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7253/eng@2025-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.