Soipei Ole Samperu (Suing as the Legal Personal Representative of Samperu Ole Masarie) v The District Commissioner, Transmara District & 2 Others

Commissioner Transmara, and that Justice must always be seen to be done. 2. The application was supported by the affidavit of Soipei Ole Samperu who reiterated the grounds in support of the application and annexed a copy of the judgement. 3. The application was opposed by grounds of opposition filed by the Respondent which included interalia (i) That no factual or legal basis had been established so as warrant recusal of the court. (ii) That the Application does not meet the threshold to warrant recusal as stated in Rule 21(1) of the Judicial Service Commission (Code of Conduct and Ethics) 2020 as well as the test for recusal in the case of Philip Tunoi and Another Vs. Judicial Service Commission and Another 2016(eKLR). 4. The Applicant failed to demonstrate any actual bias, apparent bias, conflict of interest, personal interest or other circumstances that would lead a far minded and informed observer to reasonably apprehend that the court would not determine the matter impartially. 5. That any dissatisfaction with the court’s direction, observations or case management cannot, without more constitute a valid ground for recusal; hence the application is meant to delay the hearing and determination of the substantive application. 6. The 1st Interested party filed grounds of opposition in respect to the Notice of Motion dated 12th of June 2026 now under consideration, and stated that; (i) The application was misconceived incompetent, frivolous vexatious and an abuse of the court process. (ii) That the application fails to meet the test whether a fairminded and informed observer, having considered all the circumstances would reasonably apprehend that the court would be impartial. Page 2|6

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(iii) No actual bias, nor apparent bias has, person interest, conflict of interest, relationship with any party or any extraneous circumstances capable of disqualifying the court from hearing the matter, and the fact that the judge previously heard and determined Kilgoris ELC Appeal No. E038/2024 involving substantially the same parties and subject matter does not constitute a ground for recusal, the remarks compared of were made in the course of delivering a judicial decision after consideration of evidence and submissions by parties and cannot be reasonably be construed as evidence of bias. (iv) That the Applicant is seeking to forum shop. 7. The court has considered the submissions filed by the Applicant in respect and support of the recusal application as well as the Respondent and 1st Interested party. In opposition to the Recusal application and frames the following issues for determination; (i) Whether or not the application is merited and in deciding this the court shall have regard to whether the application meets the threshold for Recusal. (ii) What reliefs ought to issue. (iii) Who bears the costs of this application? Analysis and Determination 8. So as to give context to the matter it is true that the matter had been listed for directions on 16.06.2026 when the matter came up for directions at the ex-parte stage. 9. However, the court was not sitting on 16.06.2026 having issued a notice to that effect, actually from 13th to 16th of June 2026 and hence all the matters; scheduled for those dates were brought forward and spread, before the said dates, so that directions could be issued and to avoid inconveniences. That therefore cannot be a ground for recusal as indicated in the application before court. Page 3|6

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10. On 10.06.2026, the record reveals that Mr. Shira Advocate for Interested Party raised an issue that the court had recently delivered a judgment in an Appeal touching on the properties in issue herein, to which Mr. Koome Advocate for the Applicant conceded that there was a previous Appeal that had been determined, but that this matter sought to quash an illegal decision of the DCC and the court directed service of the substantive application upon the AG’s office in Kisii as well as directed filing of the formal application for recusal. This also cannot be valid ground for recusal. 11. It is also true that this court handled an Appeal between the same parties and it is now contended that in the course of delivery of the judgment in the said Appeal the court made the remarks that “the deceased shortchanged his brothers” thus inviting a claim of apparent bias from the Applicants perspective. 12. The Respondents contends that the said remarks do not impute bias on the part of the court as the said remarks were made in the course of judgment after hearing and consideration of evidence. 13. Remarks made in the course of proceedings, ought not to impute bias on the part of the presiding Judicial officer as was held by Onguto J. in Kenya Properties Limited Vs. A.G and 4 Others 2016 eKLR whereat paragraph 7 the court observed interalia as follows; “7. Observations made by presiding judicial officers if they reveal a particular mindset officers will create justifiable perceptions of bias, if such observations are limited to basic routine inquiries or touch on the ordinary case management strategies adopted or to be adopted or even on the merit of the applicant’s case then, bias ought not to be imputed. I do not subscribe to the faculty that a judicial officer ought to be a mute listener. He should not maintain a story a silence out of fear of an application for his recusal. However, such inquiries or observations made in the course Page 4|6

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of or before commencement of the hearing should not leave behind an air of predetermination or prejudgment of the pending or continuing dispute.” 14. I wholly associate myself with the holding of the learned judge (as he then was) and as rightly submitted by counsel for the interested party, the remarks made in the preceding matter were made in the course of judgment after hearing of the evidence presented to court and the same cannot impute bias or a predetermination of this current matter. 15. Should I be wrong, on the above test, which I am not, I shall now subject the application to the general test for an application for recusal on grounds of bias and/or prejudice being the objective test, as was stated by the Supreme Court in Jasbir Sing Rai Vs. Tarclochan Singh Rai (2013) eKLR where the court held interalia; - “the test for establishing a judges impartiality is the perception of a reasonable person this being a well-informed, thoughtful observer “who understands all the facts” and who had examined the record and the law” and thus unsubstantiated suspicion of personal bias or prejudice” will not suffice”. 16. The Applicant herein has not demonstrated personal interest or possible conflict of interest, actual or perceived bias, so as to seek the recusal of the court, as it is evident that his application is grounded on unsubstantiated suspicion, hence the court finds that the application is not merited and the application is thus destined to fail as it hereby does. 17. The upshot is that the application dated 12 th of June 2026, having been found to lack merit is hereby dismissed with costs. Dated at Kilgoris 1st day of October, 2026 Hon. M.N. Mwanyale Judge Page 5|6

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In the presence of CA – Sylvia/ Victor Mr. Koome for Applicant Mr. Shira for Interested Party Mr. Ranah for Respondents Page 6|6

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