Mathenge & 4 others v Rohim City of the Lord Churcн through tts Registered Trustees & 4 others (Environment and Land Petition E001 of 2025) [2026] KEELC 5205 (KLR)
The bottom line
#The Nyeri Environment and Land Court refused to step aside from a land dispute, ruling that unhappiness with rulings is a ground for appeal, not recusal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether, based on the Applicant's deposition, the Court should recuse itself from further handling this matter
Key legal issues
#Whether the Court should recuse itself on the ground of alleged bias and failure to reiterate interim orders
The application fails; no biased words were identified and the proper remedy for breach of interim orders is contempt proceedings against the Respondents
The Applicants alleged bias from remarks on 10 February 2026 and the Court's failure to reiterate Kimani J's status quo orders, which allegedly emboldened the Respondents to construct a toilet. The Court found the Applicants did not cite the specific words complained of, so no reasonable bystander could apprehend bias. The Court is not a party and any order violation should be pursued by contempt citation. Recusal without grounds would be dereliction of duty.
The legal framework and criteria for judicial recusal in Kenya
Recusal is governed by Article 50(1) and 160(1) of the Constitution, Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020, and the objective Porter v Magill test as adopted in Kenyan superior courts
The Court surveyed the statutory and common law criteria: genuine animosity, personal interest, prior advocacy for a party, family relationships, and pecuniary stakes compel recusal. Kenyan courts apply the objective 'real possibility of bias' test. Exceptions exist where recusal would paralyse the administration of justice or defeat quorum requirements. Recusal applications must be made to the judge handling the case.
Legal principles established
#- The objective test for recusal is whether a reasonable, objective and informed observer would conclude there is a real possibility of bias
- Litigants bear a high burden of proof in recusal applications
- Dissatisfaction with interlocutory rulings is not a ground for recusal; the remedy is appeal
- A judge cannot recuse himself out of fear of handling a matter or of the parties; such recusal is dereliction of duty
Court orders
#- 1.The Application dated April 15, 2026 is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the Petition; application made to the judge seized of the matter, grounded on Article 50(1) and Article 160(1) of the Constitution and the Judicial Service (Code of Conduct and Ethics) Regulations, 2020
Relief refused
#Recusal of the Court from further handling the matter
Applicants failed to identify any biased statements; the objective test for reasonable apprehension of bias was not met and recusal would amount to dereliction of duty
Costs
Dismissed with no order as to costs
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.
Consequently, the Application dated April 15, 2026, is hereby dismissed with no order as to costs.
Holistically, the application does not meet the criteria for this Court to recuse itself. Doing so would amount to dereliction of duty in sitting and hearing cases.
If there are orders in place that have been violated, the best that the Applicants could do is to cite the Respondents for contempt.
The appropriate course of action in the event of an unfavorable ruling is to pursue an appeal rather than file a recusal application.
Issues in the judgment
#Judgment states only the 2nd Respondent filed a response, yet the coram records counsel for the 1st, 4th and 5th Respondents and the reasons canvass the 1st and 4th Respondents' positions
Application dated 15th April 2026 described as filed concurrently with the Petition of 1st November 2025, an apparent internal inconsistency in dates
Typographical error in the judgment: 'the words spoken ot uttered'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mathenge & 4 others v Rohim City of the Lord Churcн through tts Registered Trustees & 4 others (Environment and Land Petition E001 of 2025) [2026] KEELC 5205 (KLR)", Case Analysis (2026). ELC Petition No. E001 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5205/eng@2026-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.