https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7402

Gathaiya t/a Gathaiya & Associates v Bank of Baroda (Kenya) Limited (Miscellaneous Application E558 of 2024) [2026] KEHC 7402 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7402 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Miscellaneous Application E558 of 2024 MO Ado, J May 28, 2026 Between James Ngugi Gathaiya t/a Gathaiya & Associates Applicant and Bank Of Baroda (Kenya) Limited Respondent Ruling Introduction 1.By a Notice of Motion dated 11th July 2025, the Applicant, James Ngugi Gathaiya trading as Gathaiya & Associates, moved this Court, principally seeking the recusal of the presiding Judge, the Honourable Justice Moses Ado, from the further hearing and determination of this matter. 2.The specific prayers sought in the application are as follows:i.That the Honourable Judge presently seized of this matter be pleased to recuse himself/herself from further hearing and determination of this suit.ii.That this matter be placed before the Honourable Principal Judge for directions on reassignment to another judge.iii.That costs of this application be in the cause. 3.The application is supported by the affidavit of James Ngugi Gathaiya, sworn on even date, and is premised on the ground that this Court has previously presided over and determined six (6) matters, being Nairobi High Court Miscellaneous Causes Nos. E549, E554, E556, E557, E559, and E560 – all of 2024), involving the same parties and in each instance rendered decisions adverse to the Applicant, thereby giving rise to a reasonable apprehension of bias. 4.The Advocate/Applicant depones that in each of those matters, the court failed to enhance the advocate-client costs by 50% as allegedly required under Schedule 6 Part B of the Advocates Remuneration Order, 2014, and further disregarded findings allegedly made by the trial court regarding the value of the subject matter. 5.According to the Applicant, “the pattern of unfavorable decisions, though possibly well-intentioned,” has created in his mind “a reasonable apprehension of bias, or at minimum, an appearance of lack of impartiality.” 6.Accordingly, he prays that this Court recuse itself from dealing with the pending matter – Miscellaneous Cause No. E558 of 2024, which he asserts arises from a similar set of facts. 7.The Respondent, Bank of Baroda (Kenya) Limited, opposed the application through a Replying Affidavit sworn by Alfred Arunga, its Legal Officer, on 6th February 2026. According to the Respondent, the application is misconceived, frivolous, and an abuse of the court process. 8.Mr. Arunga deposed that the Applicant, by the present application for recusal, seeks to challenge previous rulings of the court through the back door. He maintained that dissatisfaction with judicial decisions is a matter best handled on appeal and cannot, in law, form a proper basis for recusal. 9.The Respondent maintained that the present application is a classic instance of forum shopping by the Applicant, born out of subjective dissatisfaction with the quantum of fees awarded in the parallel files. They asserted that the correct legal recourse for any perceived judicial error is the appellate process, not the tactical disqualification of a judge from remaining files. 10.Mr. Arunga pointed out that both the Applicant and the Respondent have, in fact, already lodged Notices of Appeal at the Court of Appeal against the impugned (six) rulings delivered by this Court in the related matters. 11.The Application was canvassed by way of written submissions. The Advocate/Applicant filed submissions dated 4th November 2025, whilst the Client/Respondent’s submissions are dated 6th February 2026. Analysis and Determination 12.The Court has duly considered the application, the replying affidavit, the rival submissions, and the law. 13.The Applicant’s case for recusal rests entirely on one historical fact: that this Court has previously heard and determined six (6) related miscellaneous matters between the same parties—namely, Miscellaneous Cause Numbers E549, E554, E556, E557, E559, and E560 of 2024—and in all six matters, the Court ruled against the Applicant. 14.The Applicant contends that, given the fact that the said six matters arose from similar valuation metrics and legal points as the pending matter (Miscellaneous Cause Numbers E558), he is now reasonably apprehensive that any further proceedings before this Court, on the pending matters, create a reasonable apprehension of bias. 15.The Court has anxiously considered this argument, as well as those advanced by the Respondent. 16.The Court finds it critical to first set out the factual background of the Bill of Costs (Misc. E588/2024) giving rise to the present application. 17.It is common ground that the dispute emanates from an Advocate–Client Bill of Costs in relation to legal services rendered by the Applicant to the Respondent in Nairobi High Court Commercial and Tax Division Case No. E106 of 2022, BD Vasisht Hospital Limited v Ponangipalli Venkata Ramana Rao (PVR Rao), Swaroop Rao Ponangipalli and Bank of Baroda (K) Limited. 18.The pending Bill (Misc E558/2024) formed part of several related Advocate–Client Bills filed between the same parties in Miscellaneous Causes Nos. E549, E554, E556, E557, E559, and E560 of 2024. 19.The Bills were taxed by the Deputy Registrar, and thereafter references were filed before this court challenging the taxation. The court delivered rulings on 15th May 2025 in the related matters. 20.The Applicant, by the present application, now contends that because the Judge ruled against him in all six previous matters, there is a reasonable, objective apprehension of bias and that the court had closed its mind, and therefore ought to recuse himself from considering and deciding of the pending reference (Misc E588/24). 21.He contends that an independent observer would conclude that the Court has already formed a closed mind. 22.The Respondent takes a different view. It states that the six previous matters were separate references arising from distinct Bills of Costs. It characterizes this application as a tactical maneuver and an attempt at forum shopping by a litigant dissatisfied with judicial outcomes. 23.With the above background, the Court now turns to consider whether the Applicant has established sufficient grounds to warrant the recusal of this Court. 24.The principles governing judicial recusal are well-settled. Under Article 50(1) of the Constitution, every person has the right to have any dispute resolved before an independent and impartial tribunal. Impartiality is the lifeblood of the judicial function. 25.However, the law does not act on the subjective fears or whims of a litigant. The test for apparent bias is objective. As the Court of Appeal stated in Hon. Kalpana H. Rawal v Judicial Service Commission & 2 Others [2016] eKLR, the question is what an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude. A mere suspicion of bias is not enough. The apprehension must be reasonable and grounded on solid facts. 26.Furthermore, a judge has a “duty to sit." A judge is under as much of an obligation to hear a case assigned to them as they are to refuse to hear it if a true disqualifying interest exists. Courts must guard against applications that are intended to choose a preferred judge or escape an exacting legal analysis. 27.Turning to the facts of this case, the Applicant’s grievance is simple: the Court’s decision on six similar applications did not go his way. He asks this Court to conclude that because he lost yesterday, he must automatically lose today due to bias. 28.I do not agree. It is the nature of litigation that courts must make decisions, and those decisions will inevitably favor one side over the other. The mere fact that a judicial officer has decided a series of cases in a particular way does not demonstrate bias, nor does it disqualify the judge from hearing a remaining, distinct matter involving the same parties. Each case is driven by its own record, its own evidence, and the law. 29.If a judge errs in law or fact—whether in one case or six—the Constitution provides an elegant and structured remedy: the right of appeal. The Applicant has already invoked this remedy by moving to the Court of Appeal in the previous six cases already determined by this Court. The appellate process is the proper forum to correct judicial errors, not a recusal application at the trial level. 30.To allow a party to disqualify a judge simply because they are unhappy with past rulings would paralyze the administration of justice and encourage the vice of forum shopping. It would allow litigants to veto the assignment of judges whenever a ruling goes against them. That is an invitation this Court must decline. 31.In Kalpana H. Rawal v Judicial Service Commission & 2 Others [supra], the Court of Appeal cautioned against recusal applications founded on dissatisfaction with judicial decisions. The court observed that judges should not recuse themselves on flimsy and baseless allegations, as doing so would encourage forum shopping. 32.In the present case, the Applicant has failed to place any objective material before this Court to suggest personal animus, extra-judicial knowledge, or a corrupting interest on the part of the Court. The apprehension of bias expressed by the Applicant is subjective, legally fragile, and fails the objective test. 33.Accordingly, the application for recusal of the presiding judge cannot succeed on the facts of this case. 34.However, before I conclude, it is necessary to address the Applicant’s apprehension directly. This Court wishes to reiterate that it remains wholly impartial and guided solely by the law and the evidence placed before it, and the judge’s understanding of the law and applicable judicial principles. The outcome of that analysis may, in the view of a party, be erroneous. However, as has already been pointed out above, the appropriate forum for correcting judicial error is through the appellate process. 35.From the foregoing analysis, the Court finds the Notice of Motion application dated 11th July 2025 is without merit, and is hereby dismissed with costs. 36.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 28TH DAY OF MAY 2026HON. MR. JUSTICE MOSES ADO JUDGE OF THE HIGH COURTIn the Presence of:Moses C/AN/A………………for the Advocate/ApplicantOndati……………for the Client/Respondent