Gitau v Kingorani Investment Limited (Environment and Land Case E015 of 2025) [2026] KEELC 3152 (KLR) (25 May 2026) (Ruling)

Gitau v Kingorani Investment Limited (Environment and Land Case E015 of 2025) [2026] KEELC 3152 (KLR) (25 May 2026) (Ruling) Neutral citation: [2026] KEELC 3152 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E015 of 2025 MN Kullow, J May 25, 2026 Between James Singh Gitau Applicant and Kingorani Investment Limited Respondent Ruling The Application 1.By a Notice of Motion application dated 24th February 2026, brought under Articles 10(2)(b), 48, 50 and 159 of the Constitution of Kenya, Sections 1A, 1B and 3A of the Civil Procedure Act, the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, and all other enabling provisions of the law, the Plaintiff/Applicant sought, inter alia, orders for stay of all further proceedings in the matter, including the delivery of the ruling scheduled for 25th March 2026, pending the hearing and determination of the application. The Applicant further sought orders that this Court recuse itself from the conduct of the matter and that, upon such recusal, the file be placed before the Presiding Judge of the Environment and Land Court for re-allocation to another Judge. 2.The application was premised on the grounds set out on the face thereof and the Supporting Affidavit sworn by James Gitau Singh. The Applicant averred that he is the registered proprietor of L.R No. 214/293 Orchard Close, Off Muthaiga Road, Muthaiga, Nairobi, having purchased the suit property at a public auction and obtained transfer thereof from Middle East Bank Kenya Limited as chargee. 3.He deponed that the Defendant had remained in occupation of the suit property despite being served with a statutory eviction notice and had continued collecting rental income amounting to approximately Kshs. 1,500,000/= per month from the premises to the Applicant’s detriment. 4.The Applicant further deponed that the High Court in HCCOMM E034 of 2024; Transfleet Limited Vs Middle East Bank Kenya Limited had already determined that he was an innocent purchaser for value at a public auction and that the suit property had been lawfully transferred to him. 5.He contended that despite the Defendant failing to challenge the statutory eviction notice under Section 152E of the Land Act, the Defendant had continued in unlawful occupation of the property while allegedly delaying the eviction proceedings for purposes of continuing to benefit from the rental income accruing from the premises. The Applicant maintained that the Defendant’s conduct had occasioned him substantial financial prejudice and continued infringement of his proprietary rights over the suit property. 6.It was further the Applicant’s case that the conduct of this Court since taking over the matter on 10th June 2025 demonstrated bias and lack of impartiality in favour of the Defendant. The Applicant complained that the Court departed from earlier directions issued by Lady Justice Theresia Mwirigi by directing that the Defendant’s Preliminary Objection be heard before the Applicant’s Notice of Motion Application and thereafter repeatedly delayed delivery of the ruling on the Preliminary Objection. 7.The Applicant also alleged that the cumulative effect of the said conduct created a reasonable apprehension of bias and undermined his constitutional rights to fair hearing, access to justice and expeditious determination of the dispute before an impartial court. The Response 8.In response to the Notice of Motion application, the Defendant/Respondent filed a Replying Affidavit sworn on 21st March 2026 by James Abiam Mugoya Isabirye, a Director of the Defendant company. The Respondent deponed that the application was misconceived, incompetent and an abuse of the court process, intended to delay the determination of the suit and circumvent the hearing of the Defendant’s Preliminary Objection dated 16th February 2025. He averred that the Preliminary Objection raised substantive jurisdictional issues touching on the doctrine of sub judice owing to the pending proceedings in HCCOMM E034 of 2024, Transfleet Limited vs Middle East Bank Kenya Limited & Others. 9.On the issue of recusal, the Respondent averred that the allegations of bias, incompetence and delay made against this Court were unsubstantiated, speculative and scandalous. The Respondent contended that the Court properly directed that the Preliminary Objection be heard first in accordance with established legal principles requiring jurisdictional issues to be determined in limine before consideration of substantive applications. The Respondent therefore asserted that the Plaintiff’s application for recusal was merely an attempt at forum shopping intended to avoid the imminent determination of the Preliminary Objection and delay the expeditious disposal of the suit. 10.The Plaintiff/Applicant thereafter filed a Further Affidavit sworn by James Gitau Singh in further support of the Notice of Motion application dated 24th February 2026 seeking the recusal of this Court from the conduct of the matter. The Applicant deponed that he is an Advocate of the High Court of Kenya with over thirty (30) years post-admission experience and was therefore fully conversant with the facts giving rise to the present application. He stated that the Further Affidavit was sworn for purposes of placing before the Court additional material relevant to the application for recusal. 11.The Applicant further deponed that on 29th September 2025, the Defendant’s advocate on record, Ms. Anne Wanja Wamithi, telephoned him from mobile number 0722832109 to his number 0722511730 and proposed that the dispute be settled on terms that he foregoes costs together with the rental income allegedly collected by the Defendant from the suit property since its transfer to him. 12.The Applicant averred that upon rejecting the said proposal, Ms. Wamithi allegedly informed him that the Defendant would use the judiciary to stall the hearing and determination of the matter. According to the Applicant, although he initially considered the statement to be mere posturing by counsel for the Defendant, the subsequent conduct of the proceedings before this Court led him to believe that the Court was biased and was being used by the Defendant to delay the matter. 13.The Applicant consequently maintained that the Further Affidavit reinforced the grounds already advanced in support of the application and demonstrated the existence of a reasonable apprehension of bias against this Court. Submissions 14.The Application was canvassed by way of written submissions. In submissions dated 7th April 2026, the Plaintiff/Applicant submitted that the sole issue for determination was whether, in the circumstances of the case, a reasonable and informed observer would apprehend a likelihood of bias on the part of this Court so as to warrant its recusal from the conduct of the matter. 15.Counsel argued that the applicable legal test was laid down in Porter Vs. Magill [2002] 1 All ER 465, as adopted by the Court of Appeal in Philip Tunoi Vs Judicial Service Commission & another [2016] eKLR, where the Court stated that the question is whether a fair-minded and informed observer, having considered the facts, would conclude that there existed a real possibility of bias. 16.The Applicant submitted that the circumstances surrounding the matter, including the alleged departure from directions earlier issued by Lady Justice Theresia Mwirigi, the delay in delivery of the ruling on the Preliminary Objection, and the alleged remarks attributed to the Defendant’s advocate that the judiciary would be used to stall the proceedings, cumulatively created a reasonable apprehension of bias against this Court. Counsel further relied on Rhoda Tipis (suing as the legal representative of the estate of Justus Kantet Ole Tipis) Vs Lemaria Ole Karia & 2 others [2019] KEELC 4306 (KLR) in which this Court recused itself in circumstances where there existed a pending complaint before the Judicial Service Commission. 17.Reliance was also placed on South African President of the Republic of South Africa & Others Vs South African Rugby Football Union & Others CCT/16/98, Millar Vs Procurator Fiscal Elgin [2001] ScotHC 171, Sabatasso Vs Hogan 91 Conn. App. 808, 825 (2005) and Zakhem International Construction Limited & another Vs Oilfelds Engineering and [2023] KEHC 21842 (KLR) for the proposition that justice must not only be done, but must also be seen to be done, and that recusal is warranted where circumstances give rise to a reasonable apprehension of bias or undermine public confidence in the impartiality of the Court. Counsel therefore urged the Court to allow the Application and direct that the matter be re-allocated to another Judge. 18.In opposition thereto, the Defendant/Respondent filed written submissions dated 24th April 2026 contending that the Application was premature, misconceived and legally untenable, having been brought with the intention of derailing the hearing and determination of the Defendant’s Preliminary Objection dated 16th February 2025, which raised threshold issues of jurisdiction and the doctrine of sub judice. 19.Counsel identified the issues for determination as whether the Motion was prematurely before the Court in light of the pending Preliminary Objection, whether the Applicant had satisfied the legal threshold for recusal, whether the Applicant was entitled to the orders of stay sought, whether the allegation that the Defendant intended to delay the proceedings was sustainable, and whether the Further Affidavit dated 7th April 2026 ought to be struck out for having been filed without leave of the Court. 20.The Respondent submitted that jurisdictional objections must be determined at the earliest opportunity and before the Court can proceed to consider substantive issues, reliance being placed on Section 6 of the Civil Procedure Act, Owners of the Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Ltd, and Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd. Counsel maintained that the Court properly directed that the Preliminary Objection be heard first since jurisdiction is foundational and once challenged, the Court must determine the issue before taking any further step in the proceedings. 21.On the question of recusal, counsel submitted that the Applicant had failed to place before the Court any cogent material capable of leading a fair-minded and informed observer to conclude that there existed a real possibility of bias on the part of this Court. 22.Reliance was placed on Phillip K. Tunoi & another Vs Judicial Service Commission & another [2016] eKLR, Matipe Vs Murunya & 6 others [2025] KEELC 8664 (KLR), Farah & 2 others v Abdi [2025] KEELC 6369 (KLR), Kalpana H. Rawal Vs Judicial Service Commission & 2 others [2016] eKLR, Isaac Aluoch Polo Aluochier Vs Independent Electoral and Boundaries Commission & 17 others [2023] eKLR, and National Water Conservation & Pipeline Corporation Vs Runji & Partners Consulting Engineers and Planners Ltd [2021] eKLR for the proposition that dissatisfaction with judicial directions, adverse rulings or the filing of complaints before the Judicial Service Commission could not, without more, constitute sufficient grounds for recusal. 23.The Respondent further urged the Court to strike out the Applicant’s Further Affidavit dated 7th April 2026 for want of leave pursuant to Order 51 Rule 14(3) of the Civil Procedure Rules, while relying on Kiru Tea Factory Company Ltd Vs Stephen Maina Githiga & 13 others [2019] eKLR, Mango Villas Ltd Vs Mumford Richard John [2013] KEHC 1757 (KLR) and Amal Abdul through next friend Aziz Abdul Vs Nderu [2025] KEHC 15826 (KLR). Analysis and Determination 24.The Court has considered the instant Application for recusal, the affidavits filed both in support and in opposition thereto, the rival submissions by counsel, the applicable law and the authorities cited by the parties. The Application invites this Court to recuse itself from the further conduct of these proceedings on allegations that the Court’s handling of the matter has created a reasonable apprehension of bias in favour of the Defendant. 25.The Applicant’s complaint against this Court principally arises from the directions issued requiring the Defendant’s Preliminary Objection to be heard before the Plaintiff’s substantive application, the delay in delivery of the ruling thereon, and the Applicant’s perception that the conduct of the proceedings has favoured the Defendant. The Applicant further relied on the alleged remarks attributed to counsel for the Defendant as well as the complaint lodged before the Judicial Service Commission against this Court. 26.The law governing recusal is now settled. In Philip K. Tunoi & another Vs Judicial Service Commission & another [2016] eKLR, the Court of Appeal, while adopting the test in Porter Vs Magill [2002] 1 All ER 465, held that: “The question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” 27.Similarly, in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2013] eKLR, the Supreme Court observed that: “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...” 28.The Court is also guided by Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, which provides that a Judge may recuse himself or herself where his or her impartiality might reasonably be questioned. However, the law equally recognizes that Judges have a duty to sit and hear matters allocated to them unless compelling and objective reasons are demonstrated. 29.The background giving rise to the present Application is the manner in which this Court handled the proceedings herein, including the direction that the Defendant’s Preliminary Objection be heard first, the delay in delivery of the ruling thereon, and the Applicant’s perception that the Court’s conduct favoured the Defendant. The Applicant also relied on the alleged remarks made by counsel for the Defendant and the complaint lodged before the Judicial Service Commission. 30.Having carefully considered the said complaints, this Court is not persuaded that the Applicant has established cogent or objective grounds demonstrating actual bias or a real possibility of bias on the part of this Court. The direction that the Preliminary Objection be heard first was a judicial determination grounded on the settled principle that issues touching on jurisdiction ought to be determined at the earliest opportunity. Likewise, the allegations relating to delay in delivery of the ruling, though unfortunate from the Applicant’s perspective, have not been linked to any improper motive, prejudice or favour directed at any party. 31.Further, no material has been placed before this Court demonstrating any nexus between the alleged remarks by counsel for the Defendant and the conduct of the Court itself. The Court has throughout discharged its mandate guided solely by the law, the pleadings filed and the material placed before it by the parties. The Applicant’s apprehension therefore remains largely subjective and founded on dissatisfaction with the Court’s procedural directions and handling of the matter. 32.This Court is alive to the doctrine of the duty to sit as emphasized by the Supreme Court in Gladys Boss Shollei Vs Judicial Service Commission & Another [2018] eKLR, where the Court observed that recusal should not be used to cripple Judges from discharging their constitutional mandate. The Court is equally mindful that allegations aimed at dislodging a judicial officer from hearing a matter should not be entertained lightly or at the whims of a dissatisfied litigant. 33.However, this Court is equally conscious of the broader principle that justice must not only be done, but must also be seen to be done. In Republic Vs Speaker of the Senate & another Ex parte Afrison Export Import Limited & another [2018] eKLR, the Court observed that public confidence in the administration of justice is sustained not only by actual impartiality, but also by the appearance of impartiality. 34.The Court has also considered the holding in Saxmere Company Ltd Vs Wool Board Disestablishment Company Ltd [2009] NZSC 72, where it was stated that the Court must determine whether there exists a “logical and sufficient connection” between the circumstances complained of and the apprehension alleged. While this Court finds that no cogent evidence of bias or partiality has been established, the Court cannot ignore the fact that the Applicant has expressed deep apprehension regarding this Court’s continued conduct of the matter. 35.The Court appreciates that justice is ultimately for the parties, and that the confidence of litigants in the adjudicative process is an important component in the administration of justice. Although this Court is satisfied that it has at all times discharged its mandate impartially, independently and in accordance with the law, the Court is of the considered view that, in the peculiar circumstances of this matter, the interests of justice would be better served if the matter proceeds before another Court. 36.Consequently, and in order to safeguard the perception and appearance of impartial justice, this Court finds it prudent to recuse itself from the further conduct of this matter, notwithstanding that the Applicant has not established cogent grounds of actual bias or prejudice against the Court. 37.Accordingly, this Court hereby recuses itself from this matter. The file shall forthwith be placed before the Presiding Judge of the Environment and Land Court at Milimani for re-allocation to another Judge for further directions and disposal. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 25TH DAY OF MAY, 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Ms. Ndigu for the PlaintiffMr. Gattu for the DefendantPhilomena W. Court Assistant