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ELCDismissedELC Number E013 of 2025

Sunland Roses Limited v Eunice Mukwanyaga Nduati & 4 others

Environment and Land Court
24 September 2026
5,187 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a bid to have a judge step aside for bias, confirming that suspicion alone is not enough—bias must be proven with solid evidence.

What this practically means

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Executive summary

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The defendants in a land dispute before the Environment and Land Court at Meru filed a Notice of Motion dated 13.07.2026 seeking the recusal of Oguttu Mboya J from further hearing of the suit, a stay of the ruling on their preliminary objection and of further proceedings, and re-assignment of the file by the Principal Judge. They alleged bias arising from the grant and extension of ex-parte interim orders without proof of a prima facie case or eviction notice, the judge's refusal to hear their preliminary objection in limine, and the plaintiff's alleged concealment of the existence of Nanyuki ELC No. E002 of 2022. The plaintiff opposed, contending the application disclosed no reasonable basis for recusal and amounted to judge-shopping. The court framed a single issue: whether the applicants had established a reasonable basis warranting recusal on the ground of bias. Applying the objective test from Republic v Mwalulu and Gachagua - whether a fair-minded and informed observer would perceive a real possibility of bias - the court found no bias. It held that the grant of ex-parte orders is a discretion vested in the trial judge; that a disgruntled party's remedy is review or appeal, not unilateral declarations of nullity (Hadkinson); that a preliminary objection may be heard in limine or at the earliest opportunity, case management being the court's mandate; and that the joinder application in the Nanyuki matter had in fact been declined. The application was dismissed with costs to the plaintiff/respondent, to be agreed or taxed.

Questions the Court framed

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

  1. 1.Whether the applicants have established a reasonable basis to warrant recusal on the ground of bias or otherwise

Key legal issues

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01

Whether a reasonable basis for recusal on the ground of bias was established

Holding

No; the test is objective and the applicants' assertions were unproven and based on misrepresentation of facts

Reasoning

The court adopted the objective test from Mwalulu and Gachagua: whether a fair-minded and informed observer would perceive a real possibility of bias. It examined each ground - grant of ex-parte orders, extension of interim orders, alleged concealment of Nanyuki ELC No. E002 of 2022, and failure to hear the preliminary objection in limine - and found each either a matter properly within judicial discretion or a misrepresentation. Counsel's proper remedy for grievances was review or appeal.

p. 21
02

Whether grant and extension of ex-parte/interim orders without notice evidenced bias

Holding

No; the grant of ex-parte orders is a discretion vested in the trial judge, applying a lower threshold, and is not shared with the adverse party

Reasoning

The court held that the mandate to grant ex-parte orders inheres in the judge handling the matter, who appraises the facts against applicable principles; ex-parte orders avert threatened harm and preserve the substratum of the dispute. A judge need not consult the adverse party or prophesy defences. An advocate who thinks discretion was improperly exercised should apply for discharge, review or appeal, not declare the order a nullity.

p. 11
03

Whether failure to hear the preliminary objection in limine demonstrated bias

Holding

No; a preliminary objection may be canvassed in limine or at the earliest opportunity, and case management is the court's mandate

Reasoning

The court held that counsel misapprehended the law: the court has mandate to guide and control proceedings, and a jurisdictional question must simply be determined at the earliest opportunity before the merits. The court had issued elaborate directions on 08.06.2026 and 18.06.2026 for submissions on the preliminary objection, which the applicants had not complied with.

p. 15
04

Whether alleged concealment of Nanyuki ELC No. E002 of 2022 warranted recusal

Holding

No; the assertion was captured only in the applicants' own pending review application, and the plaintiff's joinder in that matter was in fact declined

Reasoning

The court found the applicants dishonest: the existence of the Nanyuki matter was raised only in their own pending review application which they were not prosecuting. Further, the documentation suggested the plaintiff sought joinder before the Nanyuki court but the application was declined, undermining the concealment allegation.

p. 14

Legal principles established

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  • The test for recusal is objective: whether a fair-minded and informed observer, having considered all the circumstances, would conclude there is a real possibility of bias
  • Bias must be proven on cogent and credible evidence, not on subjective perceptions of a party or counsel
  • A party who considers a judge's discretion improperly exercised must seek review or appeal, not unilaterally declare the order a nullity
  • An objection to jurisdiction must be addressed in limine or at the earliest opportunity, but the court retains mandate to direct and control its proceedings

Court orders

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  1. 1.The application dated 13.07.2026 be and is hereby Dismissed
  2. 2.Costs of the Application be and are hereby awarded to the Plaintiff/Respondent
  3. 3.The costs shall be agreed upon and in default be taxed in the conventional manner

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 50(1) and 159(2)(a) of the Constitution, 2010; sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules, 2010

Relief refused

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Stay of the ruling scheduled for 16.07.2026 on the preliminary objection and further substantive proceedings

Application for recusal dismissed in its entirety

p. 21

Recusal of Honourable Justice Oguttu Mboya from further conduct of the suit

No reasonable basis for recusal established; no scintilla of bias discerned

p. 19

Re-assignment of the file to another judge via the Principal Judge

Follows from refusal of recusal

p. 21

Costs

Costs of the Application awarded to the Plaintiff/Respondent, to be agreed upon and in default taxed in the conventional manner

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.

The application dated 13.07.2026 be and is hereby Dismissed.
p. 21disposition - dismissal of recusal application
Costs of the Application be and are hereby awarded to the Plaintiff/Respondent.
p. 21costs order
The test is objective: whether a fair-minded and informed observer, having considered all the circumstances, would conclude that there exists a real possibility of bias.
p. 10objective test for recusal
I have undertaken painstaking soul- searching, to ascertain any glimpse; iota; or scintilla of bias. Sadly, I have not discerned any.
p. 19finding of no bias
It is not apposite for a judge to throw in the towel merely because a party, or the advocate of the party, is disgruntled with exercise of discretion.
p. 21judicial duty to sit
this practice is nothing but an attempt to shop around for Judges favourable to their cause. It is strongly deprecated.
p. 20judge-shopping deprecated

Issues in the judgment

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minor

Hadkinson attributed to House of Lords per Romer LJ, but Romer LJ decided it in the Court of Appeal

minor

Application dated 13.07.2026 described as 'Spent' reliefs i and ii, yet the motion is the live recusal application dismissed

minor

Duplicate paragraph numbering '61' appears twice in the quoted Standard Chartered extract

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, "Sunland Roses Limited v Eunice Mukwanyaga Nduati & 4 others", Case Analysis (2026). ELC Number E013 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6099/eng@2026-09-24

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