[2021] KEELC 3719 (KLR)
The court found that the applicants failed to establish any actual bias or interest on the part of the presiding judge, relying only on apprehension that justice would not be served. The court applied the objective test, considering what a reasonable and fair-minded member of the public would perceive, and concluded...
Source-derived case information.
- Citation
- [2021] KEELC 3719 (KLR)
- Parties
- Plaintiff: Fatuma Mohamed Ege; Defendant: Amina Abdi Haji; Defendant: County Government of Narok; Interested Party: Patel Mukundhai Parsota Atttambhai
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 54 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Recusal and Transfer of Suit
- Outcome
- application dismissed; suit transferred to Magistrate Court
- Judges
- MN Kullow
- Legal Topics
- Judicial Recusal, Transfer of Suit, Jurisdiction of Courts, Objective Test for Bias
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fatuma Mohamed Ege
Plaintiff
Amina Abdi Haji
Defendant
County Government of Narok
Defendant
Patel Mukundhai Parsota Atttambhai
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application for Recusal and Transfer of Suit
Legal Issues
- 1 Whether the application for recusal of the presiding judge meets the legal threshold for judicial bias.
- 2 Whether the Environment and Land Court has jurisdiction over the subject matter or if it should be transferred to the Magistrate Court.
Ratio Decidendi
The court found that the applicants failed to establish any actual bias or interest on the part of the presiding judge, relying only on apprehension that justice would not be served. The court applied the objective test, considering what a reasonable and fair-minded member of the public would perceive, and concluded that the threshold for recusal was not met. Additionally, the court noted that the subject matter of the suit falls within the jurisdiction of the Magistrate Court, not the Environment and Land Court, and therefore ordered the transfer of the suit to the Narok Chief Magistrate Court for hearing and determination.
Court Disposition
application dismissed; suit transferred to Magistrate Court
Orders
- The application for recusal is dismissed.
- The suit is transferred to Narok Chief Magistrate Court for hearing and determination.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CASE NO. 54 OF 2018
FATUMA MOHAMED EGE.........................................................PLAINTIFF
-VERSUS-
AMINA ABDI HAJI..............................................................1ST DEFENDANT
COUNTY GOVERNMENT OF NAROK..........................2ND DEFENDANT
AND
PATEL MUKUNDHAI PARSOTA ATTTAMBHAI..INTERESTED PARTY
RULING
That by a Notice of Motion dated 6th May, 2019 the Defendants/Applicants had sought for the recusal of the court from the hearing of the matter herein on the grounds that the continued hearing of the matter herein by the court will undermine the administration of Justice and that Justice may not be served. The application was opposed by the Plaintiff/ Respondent who contended that the applicant has met the threshold for the recusal of a Judge from the conduct of the matter.
I have considered the application before me and the replying affidavit in opposition to the same and the submissions filed by the parties.
The grounds for recusal are now well settled and a party seeking recusal of a judicial officer from the conduct of the matter must establish that and manifest a clear and distinct interest that the said officer has an interest in the matter and clear bias has been shown by the presiding Judicial Officer. In the instant application the applicant has not established any bias that the court has displayed is just a mere apprehensive that justice will not be served. Where a party exhibits such perception the court must envisage what would be the reasonable perception a member of the public who is reasonable and fair minded will think of the circumstances of the case which has been variously referred to as the objective test and it is my view that the instant application does not meet the objective as stated herein above.
From the above I find that the instant application is not merited and I therefore dismiss the same.
Whilst writing this ruling I have noted that the subject matter herein falls within the jurisdiction of the Magistrate Court and I accordingly order that the suit herein be transferred to Narok Chief Magistrate
Court for hearing and determination.
DATED, SIGNED AND DELIVERED ONLINE AT NAROK ON THIS 11TH DAY MARCH, 2021.
MOHAMMED N. KULLOW
JUDGE
11/3/2021
In the presence of: -
CA:Chuma
Mr Kilele for the plaintiff
Amina in person
N/A for the interested party