John Kigoi Nduati v Hellen Achieng Olima

suit property, are the same as those involved in ELC No. 364 of 2017. 3. She averred that this court presided over ELC No. 364 of 2017 and delivered judgment on 8 th April 2025 and that given that the present suit concerns the same parties and the same suit property, the interests of substantive justice dictate that the matter be heard by a different Judge who would be better placed to determine the issues herein without being influenced by the findings or issues that arose in ELC No. 364 of 2017. 4. It is her position that this court's impartiality may reasonably be perceived to be compromised if it continues to hear the matter. Consequently, she urged the court to allow the application for recusal, contending that doing so would serve the interests of fairness and the proper administration of justice by dispelling any perception or apprehension of bias and reinforcing public confidence in the judicial process. 5. In response to the Motion, the Plaintiff/Respondent swore a replying affidavit dated 29th April, 2026. He acknowledged that this court had presided over ELC No. 364 of 2017, in which both he and the Defendant were parties. 6. He explained that the previous suit concerned the ownership and title to the suit property, where he had alleged that the property belonged to one Dennis Oluoch. He averred that, upon hearing the matter, the court ELCLC NO. E302 OF 2025 RULING 2

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determined that the property belonged to the Defendant and himself. 7. According to Mr. Nduati, the present suit is distinct from the earlier proceedings as it concerns the specific performance of a sale agreement entered into between the Defendant and himself and that the issues for determination include whether the Defendant is obligated to complete the sale transaction and whether she can lawfully decline completion on the grounds of lapse of time or demand a higher purchase price. 8. The Plaintiff maintained that the earlier judgment neither addressed nor expressed any opinion on the enforceability of the sale agreement, whether the contract was timebarred, or whether the Defendant was obligated to complete the transaction. 9. Further, he averred, that as advised by counsel, the applicable test for recusal is whether a fair-minded and informed observer would reasonably apprehend bias on the part of the court. He asserted that the mere fact that the court had previously handled a related matter involving the same parties and property could not, without more, give rise to a reasonable apprehension of bias. It is speculative, unsubstantiated and amounts to a tactical attempt to avoid a court familiar with the background. 10. According to Mr. Nduati, the Defendant has failed to demonstrate any personal interest, extrajudicial conduct, or prior expression of opinion by the court that would ELCLC NO. E302 OF 2025 RULING 3

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justify a finding of bias or prejudice. The Defendant had participated fully in the earlier proceedings without raising any objection to the court's jurisdiction or impartiality. 11. He opined that the court is already conversant with the history of the dispute, the parties, the suit property, and the surrounding circumstances. As such, transferring the matter or requiring the Judge to recuse himself at this stage will occasion unnecessary delay, increase costs to the parties, and result in a waste of judicial time and resources further prejudicing him. 12. In a further affidavit sworn on 8th June 2026, the Defendant/ Applicant maintained that the present application is neither frivolous nor vexatious and had not been brought to delay the determination of the suit. Rather, she reiterated, her apprehension stems from the fact that this court had previously rendered judgment in ELC No. 364 of 2017, raising the possibility of conflicting findings in the present proceedings. 13. She further contended that the Plaintiff had misrepresented the findings made in ELC No. 364 of 2017 by alleging that the court had determined that the suit property belonged to the Plaintiff. According to her, the court had instead declared that she was the absolute proprietor of L.R. No. 7785/716, Runda, Nairobi. 14. According to Ms Olima, her apprehension is not founded on allegations of bias, as asserted by the Plaintiff but on the possibility that this court's determination in the ELCLC NO. E302 OF 2025 RULING 4

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present matter might conflict with its earlier judgment in ELC No. 364 of 2017. Although ELC No. 364 of 2017 took eight years to conclude, the sale agreement between herself and the Plaintiff was not the subject of those proceedings. 15. Consequently, nothing prevented the Plaintiff from complying with the terms of that agreement during the pendency of the earlier suit. She asserted that it was the Plaintiff’s failure to pay the agreed purchase price within the stipulated timeframe that occasioned her prejudice. She therefore urged the court to allow the application in the interests of justice. Submissions 16. The Defendant/Applicant filed written submissions dated 8th June, 2026. Counsel submitted that the guiding principles on recusal were set out by the three-Judge bench in HE Rigathi Gachagua & 40 Others vs Speaker, National Assembly & 15 Others; Law Society of Kenya & 7 Others (Interested Parties) [2024] KEHC 13654 (KLR), where the court observed that recusal is founded upon the fundamental principle of judicial impartiality, which is a cornerstone of a fair and just legal system. 17. The court, he explained, stated that judges must consider whether, even in the absence of actual bias, their participation in a matter might reasonably cause parties or the public to question their impartiality, thereby undermining confidence in the judiciary. ELCLC NO. E302 OF 2025 RULING 5

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18. Counsel further relied on Philip & 22 Others vs National Housing Corporation & Another (Environment and Land Petition E006 of 2023) [2024] KEELC 3370 (KLR), in which the court reaffirmed that the applicable test for recusal is whether there exists a reasonable ground for assuming the possibility of bias that would create in the mind of a reasonable member of the public a doubt as to the fairness of the administration of justice. 19. Also cited was Jan Bonde Nielsen vs Herman Philipus Steyn & 2 Others [2014] eKLR, for the proposition that the test is objective and that the facts constituting bias must be specifically alleged and established. Also referenced was Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020. 20. Applying those principles to the present case, counsel submitted that by virtue of this court’s determination in ELC No. 364 of 2017, it had acquired personal knowledge of disputed evidentiary facts relating to the present proceedings. Counsel therefore argued that there existed a reasonable apprehension that the learned Judge's prior involvement could influence his determination of the present suit and urged the Court to allow the application for recusal. 21. The Plaintiff/Respondent filed his written submissions on 20th May, 2026. Counsel submitted that the applicable test for recusal is the objective test of reasonable apprehension ELCLC NO. E302 OF 2025 RULING 6

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of bias, namely whether the circumstances would lead a fair-minded, informed and reasonable observer to conclude that the Judge would not determine the matter impartially. 22. In support of this proposition, reliance was placed on Rawal vs Judicial Service Commission & another; Okoiti (Interested Party); International Commission of Jurists & another (Amicus Curiae) [2016] KECA 717 (KLR), Paragon Electronics Limited vs Chief Land Registrar & 2 Others; Ngum & 2 Others (Interested Parties) [2022] KEELC 2943 (KLR), and Republic vs Mwalulu & Others [2015] 1 KLR as cited in National Corporation Water vs Conservation Runji & Partners & Pipeline Consulting Engineers & Planners Limited [2021] eKLR. 23. According to counsel, the application is a dilatory tactic unsupported by any evidence of actual bias, extrajudicial conduct, personal or pecuniary interest, or prior expression of opinion capable of justifying recusal. 24. It was argued that the Defendant had equally failed to satisfy any of the grounds for recusal under Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations which were reiterated in Matipe v Murunya & 6 Others, ELC Petition No. E001 of 2024, Athi Paper Mills Limited vs Dakawou Transport Limited [2023] KEELC 17854 (KLR), and Macharia & 13 Others vs Gichana & Another [2022] KEELRC 12809 (KLR). ELCLC NO. E302 OF 2025 RULING 7

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25. It was urged that as expressed by the courts in Kaplan & Stratton vs L.Z. Engineering Construction Ltd & 2 Others [2000] eKLR and Prayosha Ventures Limited vs NIC Bank Ltd & Another; Beatrice Jeruto Kipketer & Another (Interested Parties) [2020] Eklr, judges should not readily accede to unsubstantiated applications for recusal, lest litigants be encouraged to engage in forum shopping. Analysis and Determination 26. Having considered the motion, responses and submissions, the sole issue for determination is whether this court should recuse itself from hearing and determining this suit. Recusal is defined by the Black’s Law Dictionary 8th ed. (2004) [p.1303] as: “Removal of oneself as judge or policy maker in a particular matter, [especially] because of a conflict of interest.” 27. As a concept, judicial recusal safeguards one of the cornerstones of constitutional democracy, the right to a fair hearing enshrined in Article 50(1) of the Constitution. 28. Tied to this is Article 160 of the Constitution which mandates courts to uphold independence and be free from influence by any party, and Article 159(2)(a) which mandates courts to ensure that justice is dispensed to all individuals, regardless of their social status. Read together with Article 25(c), which entrenches the right to a fair ELCLC NO. E302 OF 2025 RULING 8

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trial as a non-derogable right, it becomes clear that impartial adjudication is a substantive constitutional imperative. 29. Regulation 9 of the Judiciary Code of Conduct emphasizes the importance of impartiality of a Judge. Regulation 9(1) provides as follows: “A Judge shall at all times, carry out the duties of the office with impartiality and objectively in accordance with Articles 10, 27, 73(2)(b) and 232 of the Constitution and shall not practice favouritism, religious nepotism, and cultural tribalism, bias, or cronyism, engage in corrupt or unethical practices.” 30. The said Rule mandates that in so doing, the Judge shall uphold and apply the law; observe fairness and impartiality; cooperate with other judges in the discharge of judicial duties by ensuring unity of purpose and collegiality; and perform all duties of the judicial office, including administrative duties impartially, competently, diligently, and without bias. 31. As regards recusal, Rule 21 of the Judicial Code Service (Code of Conduct) 2020 is instructive. It provides: “(1) A judge may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned where the judge— (a) is a party to the proceedings; ELCLC NO. E302 OF 2025 RULING 9

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(b) was, or is a material witness in the matter in controversy; (c) has personal knowledge of disputed evidentiary facts concerning the proceedings; (d) has actual bias or prejudice concerning a party (e) has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter; (f) had previously acted as a counsel for a party in the same matter; (g) is precluded from hearing the matter on account of any other sufficient reason; or (h) or a member of the judge’s family has economic or other interest in the outcome of the matter in question.” 32. Speaking to this, the Supreme Court in Rai & 3 others vs Rai & 4 others [2013] KESC 20 (KLR) (Petition 4 of 2012) (6 February 2013) (Ruling) (with dissent - MK Ibrahim, SCJ) noted: “(6) Recusal, as a general principle, has been much practised in the history of the East African judiciaries, even though its ethical dimensions have not always been taken into account. The term is thus defined in Black’s ELCLC NO. E302 OF 2025 RULING 10

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Law Dictionary, 8, h ed. (2004) [p.1303]: “Removal of oneself as judge or policy maker in a particular matter, [especially] because of a conflict of interest.” (7) From this definition, it is evident that the circumstances calling for recusal, for a Judge, are by no means cast in stone. Perception of fairness, of conviction, of moral authority to hear the matter, is the proper test of whether or not the non-participation of the judicial officer is called for. The object in view, in the recusal of a judicial officer, is that justice as between the parties be uncompromised; that the due process of law be realized, and be seen to have had its role; that the profile of the rule of law in the matter in question, be seen to have remained uncompromised. (8) It is an insightful perception in the common law tradition, that the justice of a case does not always rest statutory on the straight prescriptions, and lines cut by the judicial discretion in its delicate process, is critical to equitable outcomes. This is what Sir David Maxwell Fyfe meant when he attributed to Lord Atkin a “constructive intuition which operates after learning and analysis are exhausted” [in G. Lewis, Lord Atkin (London: Butterworths, 1983), p. 166]. It is precisely such delicate ELCLC NO. E302 OF 2025 RULING 11

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elements of judicial fairness that will also feature in the judgment as to whether or not the recusal of a Judge, particularly in the case of a collegiate Bench, is of any materiality, in a given case.” 33. In Kibisu vs Republic (Petition 3 of 2014) [2018] KESC 34 (KLR) (28 February 2018) (Ruling), the Supreme Court quoted with approval the decision in Nathan Obwana vs Robert Bisakaya Wanyera & 2 others [2013] eKLR where the court had stated thus: “In Kenya the Court of Appeal in the case of Republic v. Mwalulu & 8 Others: [2005] 1 KLR the court did set up the principles on which a judge would disqualify himself from a matter and stated as follows: 1. When the courts are faced with such proceedings for the disqualification of a judge, it is necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the public at large a reasonable doubt about the fairness of the administration of justice. The test is objective and the facts constituting bias must be specifically alleged and established. 2. In such cases the Court must carefully scrutinize the affidavits on either side, remembering that when some litigants lose ELCLC NO. E302 OF 2025 RULING 12

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their case they are unable or unwilling to see the correctness of the verdict and are apt to attribute that verdict to a bias in the mind of the Judge, Magistrate or Tribunal. 3. The Court dealing with the issue of disqualification is not, indeed it cannot, go into the question of whether the officer is or will be actually biased. All the Court can do is to carefully examine the facts which are alleged to show bias and from those facts draw an interference, as any reasonable and fair-minded person would do, that the judge is biased or is likely to be biased. 4. The single fact that a judge has sat on many cases involving one party cannot be sufficient reason for that judge to disqualify himself. The fact that Tunoi, JA had sat on many cases involving the Goldenberg Affair, without anything more, was absolutely no good reason for him to disqualify himself.” 34. The court in that case proceeded to hold that more apprehension of bias cannot be a ground for recusal. That the allegations of bias must be factual and proved. 35. It cannot be gainsaid that a plea for recusal is a serious matter as it goes against the very core of a judge’s duty to sit. Speaking to this, Justice Ibrahim SCJ in Shollei & another vs Judicial Service Commission & another ELCLC NO. E302 OF 2025 RULING 13

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(Petition 34 of 2014) [2018] KESC 42 (KLR) (3 July 2018) (Ruling) noted: “The doctrine of the duty of a judge to sit, though not profound in our jurisdiction, every judge has a duty to sit, in a matter which he duly should sit. So that recusal should not be used to cripple a judge from sitting to hear a matter. This duty to sit is buttressed by the fact that every judge takes an oath of office: "to serve impartially; and to protect, administer and defend the Constitution.” It is a doctrine that recognizes that having taken the oath of office, a judge is capable of rising above any prejudices, save for those rare cases when he has to recuse himself. The doctrine also safeguards the parties' right to have their cases heard and determined before a court of law.” 36. The court is so guided. By way of a brief background, the Plaintiff instituted the present suit seeking, inter alia, a permanent injunction restraining the Defendant from dealing with Land Reference No. 7785/716, Runda, Nairobi, and an order compelling the Defendant to specifically perform the sale agreement dated 4 th April 2017, by transferring the property upon payment of the balance of the purchase price, and costs. 37. The Plaintiff's case is that the parties entered into a sale agreement dated 4th April 2017, for the purchase of the ELCLC NO. E302 OF 2025 RULING 14

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suit property at a consideration of Kshs. 11,000,000. It is his case that he paid a deposit of Kshs. 1,000,000, subsequently remitted a further Kshs. 400,000, and was granted possession of the property. 38. He avers that shortly thereafter, a dispute arose over the ownership of the property following claims by third parties, resulting in ELC No. 364 of 2017 and ELC No. 325 of 2011, which were consolidated and determined by this court on 8th April 2025. According to the Plaintiff, the judgment declared that the property should revert to the Defendant. 39. The Plaintiff contends that upon resolution of the ownership dispute, the Defendant declined to complete the sale and instead sought to dispose of the property to third parties. It is his case that the completion period under the sale agreement was suspended during the pendency of the ownership litigation and only resumed upon delivery of the judgment on 8th April 2025, with the result that the Defendant remains bound to complete the transaction. 40. The Defendant asks this court to recuse itself. It is her contention that this court heard and determined ELC No. 364 of 2017, a matter involving the same parties and the same suit property. It is her argument that, having rendered judgment in those proceedings, this court may reach findings in the present suit that conflict with its earlier determination. ELCLC NO. E302 OF 2025 RULING 15

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41. The Plaintiff, while acknowledging that this court determined ELC No. 364 of 2017 maintains that the issues arising in the present suit are entirely distinct. It is therefore contended that the previous judgment neither determined nor expressed any opinion on the contractual issues now before the court. 42. The court has carefully considered the rival positions against the relevant constitutional provisions, Rule 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, and the applicable precedents. Notably, the Defendant does not allege actual bias, prejudice, personal interest or impropriety on the part of the court. 43. Her apprehension rests solely on the possibility that the determination of the present suit may conflict with the court’s earlier judgment in ELC No. 364 of 2017, which involved the same parties and suit property. The mere fact that this court previously determined a dispute involving the same parties and property does not, without more, establish any of the grounds for recusal contemplated under Rule 21. 44. Moreover, while the earlier proceedings determined the issue of ownership of the suit property, the present suit concerns the parties' contractual rights and obligations under the agreement for sale. Although the two matters involve the same parties and property, they raise distinct causes of action founded on different legal issues. ELCLC NO. E302 OF 2025 RULING 16

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45. In any event, a court’s prior knowledge of the parties, the suit property and the surrounding circumstances does not, without more, impair its impartiality. On the contrary, such familiarity may place the court in a better position to efficiently and effectively determine a related dispute. 46. Accordingly, a fair-minded and informed observer, apprised of the relevant facts, would not reasonably apprehend bias on the part of this court. The Defendant has therefore failed to establish any basis for recusal or to displace the presumption of judicial impartiality. 47. In the end, the court finds the motion to be unmerited. The same is dismissed with costs. Dated, signed and delivered virtually in Nairobi this 1st day of October, 2026 O. A. Angote Judge In the presence of; Ms Mwai for Respondents/Plaintiff Mr. Ochendo for Defendant/Applicant Court Assistant: Tracy ELCLC NO. E302 OF 2025 RULING 17

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