Sunland Roses Limited v Eunice Mukwanyaga Nduati & 4 others
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants have established a reasonable basis to warrant recusal on the ground of bias or otherwise
Key legal issues
#Whether a reasonable basis for recusal on the ground of bias was established
No; the test is objective and the applicants' assertions were unproven and based on misrepresentation of facts
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.
Whether grant and extension of ex-parte/interim orders without notice evidenced bias
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
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.
Whether failure to hear the preliminary objection in limine demonstrated bias
No; a preliminary objection may be canvassed in limine or at the earliest opportunity, and case management is the court's mandate
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.
Whether alleged concealment of Nanyuki ELC No. E002 of 2022 warranted recusal
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
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.
Legal principles established
#- 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
#- 1.The application dated 13.07.2026 be and is hereby Dismissed
- 2.Costs of the Application be and are hereby awarded to the Plaintiff/Respondent
- 3.The costs shall be agreed upon and in default be taxed in the conventional manner
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#Stay of the ruling scheduled for 16.07.2026 on the preliminary objection and further substantive proceedings
Application for recusal dismissed in its entirety
Recusal of Honourable Justice Oguttu Mboya from further conduct of the suit
No reasonable basis for recusal established; no scintilla of bias discerned
Re-assignment of the file to another judge via the Principal Judge
Follows from refusal of recusal
Costs
Costs of the Application awarded to the Plaintiff/Respondent, to be agreed upon and in default taxed in the conventional manner
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.
The application dated 13.07.2026 be and is hereby Dismissed.
Costs of the Application be and are hereby awarded to the Plaintiff/Respondent.
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.
I have undertaken painstaking soul- searching, to ascertain any glimpse; iota; or scintilla of bias. Sadly, I have not discerned any.
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.
this practice is nothing but an attempt to shop around for Judges favourable to their cause. It is strongly deprecated.
Issues in the judgment
#Hadkinson attributed to House of Lords per Romer LJ, but Romer LJ decided it in the Court of Appeal
Application dated 13.07.2026 described as 'Spent' reliefs i and ii, yet the motion is the live recusal application dismissed
Duplicate paragraph numbering '61' appears twice in the quoted Standard Chartered extract
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.