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ELCPartially AllowedNotice of Motion in the main suit (ELC, Thika) - 1st Defendant's application for recusal, injunction, consolidation and joinder

Kinyitta v CKK Estates [1973] Limited & 4 others (Environment and Land Case Civil Suit E112 of 2024) [2026] KEELC 1335 (KLR)

Environment and Land Court
5 March 2026
3,562 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Thika court refused to disqualify the judge or block land dealings, let the farmer stay on the land, and merged two ownership disputes into one case.

What this practically means

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Executive summary

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The Environment and Land Court at Thika (Mogeni J) determined a notice of motion by the 1st Defendant, CKK 1973 Estate Ltd, seeking the recusal of the trial judge, preservation orders locking the land registers for LR 134/8 and LR 245/4, injunctions against the Director of Survey and Chief Land Registrar, consolidation with Thika ELC Case No. E004 of 2025, and joinder of the Attorney General and Kifaru Properties Limited. The Applicant argued the judge had prejudged ownership of the tea and coffee farm by striking out its earlier Petition E016 of 2022, thereby vacating interim orders granted by Eboso J and Kemei J, and relied on Article 50 and Article 40. The Plaintiff, David Gichia Kinyitta, asserted registered ownership since a 1973 purchase, invoking Section 26(1) of the Land Registration Act and Article 40, and contended the application was frivolous judge-shopping. The court held that recusal requires a reasonable apprehension of bias assessed objectively by a fair-minded and informed observer; striking out an incompetent petition is a legitimate exercise of judicial discretion, and the Applicant's remedy lies in its pending appeal to the Court of Appeal. The injunction failed under Giella v Cassman Brown because the suit property was absent from the Confirmed Grant and Will of Charles Karuga Koinange and the Plaintiff has possessed the land since 1973. The court declined recusal and the injunction, but consolidated the suit with Thika ELC E004 of 2025, joined the Attorney General and Kifaru Properties as 4th and 5th Defendants, directed maintenance of the Plaintiff's possession as status quo, set timetables for amended pleadings, fixed a pre-trial conference for 18/05/2026, and ordered costs in the cause.

Questions the Court framed

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

  1. 1.Whether the application has met the threshold for judicial recusal
  2. 2.Whether the Applicant has met the standard for grant of temporary injunction
  3. 3.Whether the prayer for joinder is merited
  4. 4.Who bears the cost of this application

Key legal issues

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01

Judicial recusal

Holding

Recusal declined; the apprehension of bias was unreasonable

Reasoning

The court applied the objective test of a reasonable, fair-minded and informed observer drawing on President of Republic of South Africa v SARFU and Jasbir Singh Rai. Striking out an incompetent petition is a legitimate exercise of discretion, not bias. The proper remedy against an allegedly wrong ruling is appeal, already filed, not recusal, which would otherwise encourage judge-shopping.

p. 7
02

Temporary injunction

Holding

Declined under the Giella v Cassman Brown test

Reasoning

The Applicant failed to establish a prima facie case with a probability of success because the suit property was not listed in the Confirmed Grant or Will of Charles Karuga Koinange. The Plaintiff has demonstrated continuous possession and farming since 1973, and an injunction would displace the party in possession, contradicting maintenance of the status quo.

p. 7
03

Consolidation and joinder

Holding

Granted

Reasoning

Both parties agreed the issues in this suit are identical to those in Thika ELC No. E004 of 2025. Consolidation avoids multiplicity of suits and conflicting judgments over the same land parcels and serves judicial economy. The Attorney General and Kifaru Properties Limited were joined to ensure all necessary parties are present for a conclusive determination of ownership.

p. 7

Legal principles established

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  • The threshold for recusal is a reasonable apprehension of bias held by a fair-minded and informed observer; dissatisfaction with a ruling does not constitute bias
  • A Judge has a duty to sit and striking out an incompetent suit is a legitimate exercise of judicial discretion, not evidence of bias
  • A Judge has inherent power to strike out a suit at any stage as an abuse of process, and interim orders collapse with the suit

Court orders

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  1. 1.Prayer for recusal of Hon. Lady Justice Mogeni dismissed as unmerited
  2. 2.Prayer for temporary injunction and orders to keep the land registers under lock and key declined; the Plaintiff's title remains protected under Section 26 of the Land Registration Act pending full trial
  3. 3.Suit consolidated with Thika ELC Case No. E004 of 2025; the lead file to be the older of the two suits
  4. 4.Attorney General and Kifaru Properties Limited joined as 4th and 5th Defendants respectively, with 21 days to regularize their appearance
  5. 5.Status quo to be maintained as the current possession and occupation by the Plaintiff until determination of the consolidated suit
  6. 6.Plaintiffs in the older file to amend their Plaint and serve all parties within 14 days; Respondents granted 14 days to amend and file Statements of Defence and other documents
  7. 7.Pre-trial Conference before the Deputy Registrar on 18/05/2026
  8. 8.Costs of the application to be in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court; Article 50 and Article 40 of the Constitution invoked by the parties
Consolidated with
Thika ELC Case No. E004 of 2025 (Njunu Farmers' Cooperative Society v CKK Estates)

Relief refused

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Recusal of Hon. Lady Justice Mogeni

Apprehension of bias did not meet the objective test of a reasonable, fair-minded and informed observer; dissatisfaction with a ruling is not bias

p. 7

Temporary injunction and orders to keep land registers under lock and key

Applicant failed to prove a prima facie case; the suit property was not listed in the Confirmed Grant or Will of Charles Karuga Koinange, and the Plaintiff has been in possession since 1973

p. 7

Costs

Costs of this application shall be in the cause

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.

I find that the 1st Defendant’s apprehension of bias or partiality on the part of the Court does not meet the objective test of a reasonable, fair minded and informed observer.
p. 7Recusal standard
The Prayer for Recusal of Hon. Lady Justice Mogeni is unmerited.
p. 7Final orders - recusal
The Prayer for Temporary Injunction and orders to keep the land registers under "lock and key" is declined. The Plaintifi’s title remains protected under Section 26 of the Land Registration Act pending the full trial.
p. 8Final orders - injunction
This suit is hereby consolidated with Thika ELC Case No. E004 of 2025. The lead file shall be the older of the two suits.
p. 8Final orders - consolidation
the status quo to be maintained is the current possession and occupation by the Plaintifi (David Gichia Kinyitta) until the determination of the consolidated suit.
p. 8Final orders - status quo
For the recusal to succeed, the Applicant must prove more than just a wrong Ruling and they must show that Judge Mogeni has a closed mind.
p. 7Recusal threshold

Issues in the judgment

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minor

The judgment refers inconsistently to the second suit property as LR No. 245/4 and LR No. 245/5 in different passages

minor

The judgment recites the Justice Kemei order as a temporary injunction in one place and describes it as an 'appeal of her colleagues' orders' in another, without clarity

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, "Kinyitta v CKK Estates [1973] Limited & 4 others (Environment and Land Case Civil Suit E112 of 2024) [2026] KEELC 1335 (KLR)", Case Analysis (2026). Notice of Motion in the main suit (ELC, Thika) - 1st Defendant's application for recusal, injunction, consolidation and joinder. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1335/eng@2026-03-05

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