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ELCDismissedELCLOS/E006/2024 (recusal application; Notice of Motion dated 2nd November 2025)· [2026] KEELC 2826 (KLR)
Matara v Meroka & 2 others (Enviromental and Land Originating Summons E006 of 2024) [2026] KEELC 2826 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#A Kenyan court has confirmed that losing an interim ruling isn't grounds to have a judge removed - appeal instead.
What this practically means
#Executive summary
#The plaintiff in ELCLOS/E006/2024, a land dispute concerning Manga Settlement Scheme/1347 and a claim of adverse possession, applied by Notice of Motion dated 2nd November 2025 for Justice D. O. Ohungo to recuse himself from the suit on grounds of apparent bias, procedural unfairness and loss of public confidence. The complaint centred on a ruling of 3rd April 2025 dismissing the plaintiff's application for an interlocutory injunction: he alleged the judge adopted the defendants' position despite their lack of evidence, misstated the registered owner of the parcel, conflated his claim with an unrelated petition, and thereby denied him interim relief contrary to Article 50(1) of the Constitution. The First and Second Defendants opposed, characterising the application as an abuse of process and a vehicle for forum shopping; the Third Defendant took no part. The plaintiff's submissions were filed out of time and stood struck out. The court framed a single issue: whether recusal should be ordered. Adopting the reasonable and objective apprehension of bias test from the South African Surf case as applied by the Court of Appeal in the Salaries & Remuneration Commission case, and the Zambian Supreme Court's affirmation that the burden is high and lies on the applicant, the court held that an adverse interlocutory ruling, even if erroneous, does not ground recusal; the plaintiff's remedy was the appeal he had already filed, and until its determination no error could be said to exist. The application was dismissed with costs to the First and Second Defendants.
Key legal issues
#01
Whether the dismissal of the plaintiff's application for an interlocutory injunction created a reasonable apprehension of bias warranting recusal
Holding
No. An adverse interlocutory ruling, even if based on errors of law or fact, does not establish apparent bias; the plaintiff's remedy was the appeal he had already filed
Reasoning
The court applied the South African reasonable-apprehension test as adopted by the Court of Appeal and the Zambian Supreme Court's standard that the burden is high and lies on the applicant. An injunction application is decided on whether a prima facie case exists; disagreement with such an assessment cannot ground recusal. Recusal cannot be used for forum shopping, and until the pending appeal is determined no error can be said to exist.
p. 4
Legal principles established
#- The test for recusal is whether a reasonable, objective and informed person, on the correct facts, would reasonably apprehend that the judge will not bring an impartial mind to bear on the case
- The standard of proof for recusal is high and the burden lies on the applicant; mere suspicion or apprehension of bias is insufficient and the factual foundation must be correct
- A judicial ruling said to contain errors of fact or law does not, without more, ground recusal; such grievances lie on appeal, and allowing recusal on that basis would encourage forum shopping
Court orders
#- 1.Notice of Motion dated 2nd November 2025 dismissed
- 2.Costs of the application to the First and Second Defendants
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court to determine an application for recusal of the trial judge; applicant invoked Article 50(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matara v Meroka & 2 others (Enviromental and Land Originating Summons E006 of 2024) [2026] KEELC 2826 (KLR)", Case Analysis (2026). ELCLOS/E006/2024 (recusal application; Notice of Motion dated 2nd November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2826/eng@2026-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.