[2014] KEELC 588 (KLR)
The court found that, given the plaintiff's apprehension regarding the likelihood of a similar outcome due to the judge's prior involvement in a closely related matter, and in the interest of maintaining public confidence in the impartiality of the judiciary, it was appropriate to grant the application for recusal....
Source-derived case information.
- Citation
- [2014] KEELC 588 (KLR)
- Parties
- Plaintiff: Lawrence Mukiri Mungai; Defendant: Attorney General; Defendant: David Mwaura Karanja; Defendant: Benjamin Kanyingi Ndungu; Defendant: Simon Kiruthi Ndung’u; Defendant: Michael Mwaura Ndung’u; Defendant: Ruth Wanjiku Ihururu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 170 of 2008
- Procedural Posture
- Notice of Motion / Ruling on Application for Recusal of Judge
- Outcome
- Application for recusal allowed.
- Judges
- MM Gitumbi
- Legal Topics
- Judicial Recusal, Perception of Bias, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence Mukiri Mungai
Plaintiff
Attorney General
Defendant
David Mwaura Karanja
Defendant
Benjamin Kanyingi Ndungu
Defendant
Simon Kiruthi Ndung’u
Defendant
Michael Mwaura Ndung’u
Defendant
Ruth Wanjiku Ihururu
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Recusal of Judge
Legal Issues
- 1 Whether the presiding judge should recuse herself from hearing the present suit due to prior involvement in a similar matter involving the same plaintiff and similar facts.
- 2 Whether the interests of justice and the appearance of impartiality require the matter to be heard by a different judge.
Ratio Decidendi
The court found that, given the plaintiff's apprehension regarding the likelihood of a similar outcome due to the judge's prior involvement in a closely related matter, and in the interest of maintaining public confidence in the impartiality of the judiciary, it was appropriate to grant the application for recusal. The court emphasized that justice must be seen to be done and that the perception of bias or predetermination, even if unfounded, can undermine confidence in the judicial process. Accordingly, the judge allowed the application and directed that the matter be placed before another judge for further directions.
Court Disposition
Application for recusal allowed.
Orders
- The application for recusal is allowed.
- The file is to be placed before Nyamweya, J. on 14th July 2014 for reallocation to another judge.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
ENVIRONMENT AND LAND DIVISION
ELC. CASE NO. 170 OF 2008
LAWRENCE MUKIRI MUNGAI……………...…………..PLAINTIFF
VERSUS
ATTORNEY GENERAL……............................. 1ST DEFENDANT
DAVID MWAURA KARANJA…….....................2ND DEFENDANT
BENJAMIN KANYINGI NDUNGU……............. 3RD DEFENDANT
SIMON KIRUTHI NDUNG’U……..................... 4TH DEFENDANT
MICHAEL MWAURA NDUNG’U……................ 5TH DEFENDANT
RUTH WANJIKU IHURURU……...................... 6TH DEFENDANT
RULING
Coming up before me for determination is the Notice of Motion dated 27th March 2014 in which the Plaintiff/Applicant seeks for the following orders:
That the Hon. Lady Justice Mary Gitumbi be pleased to recuse herself from hearing this suit.
That this Honourable court be pleased to direct that the matter be placed before the presiding judge in the Environment and Land Division for directions in respect of its hearing.
That costs of this application be in the cause.
The Application is premised on the grounds appearing on the face of it together with the Supporting Affidavit of the Plaintiff, Lawrence Mukiri Mungai, sworn on 27th March 2014 in which he averred that he is the Plaintiff in this suit (hereinafter referred to as the “Second Suit”) as well as the Plaintiff in ELC No. 169 of 2008 in which he filed suit as the attorney of one Francis Muroki Mwaura (hereinafter referred to as the “First Suit”). He further averred that the suit property in the First Suit is Ruiru/Ruiru East Block 7/13 while the suit property in the Second Suit is Ruiru/Ruiru East Block 7/11 which has now been subdivided into several subdivisions. He further averred that the facts of the two aforesaid suits are very similar in that Mr. Francis Muroki and he are aggrieved by irregular transfer of their land parcels to the defendants despite the fact that the original titles are in their possession and they have never been cancelled. He further averred that on 10th May 2013, Her Honour Justice Mary Gitumbi delivered her judgment in the First Suit and found that despite the fact that the 2nd Defendant in that suit had acquired the Plaintiff’s title fraudulently, the third parties who bought the land from him were innocent purchasers and had a valid title. He further stated that he was apprehensive that in view of the similarity of the facts and circumstances in the First Suit and the Second Suit, it is unlikely that the court will arrive at a different decision while deciding the Second Suit. He further stated that it was his wish that another judge who has not dealt with this matter do hear the Second Suit so that he does not feel like his case is already predetermined.
The Application is unopposed.
It is true that I rendered a judgment in the First Suit on 10th May 2013. It is evident that the Plaintiff is convinced that he is likely to get a judgment in the Second Suit which is similar to the one I delivered in the First Suit if I proceed to hear and determine the Second Suit. It is on that basis that the Plaintiff seeks for my recusal from hearing and determining the Second Suit.
Indeed, it is a well-established principle that justice must not only be done but should always be seen to be done. In the case of Alliance Media Kenya Limited –vs- Monier 2000 Limited & Njoroge Regeru HCCC No. 370 of 2007 (eKLR), Warsame J did state as follows;
“In my understanding, the issue of disqualification is a very intricate and delicate matter. It is intricate because the attack is made against a person who is supposed to be the pillar and fountain of justice……justice is deeply rooted in the public having confidence and trust in the determination of disputes before the court. It is of paramount importance to ensure that the confidence of the public is not eroded by the refusal of judges to disqualify themselves when an application has been made.”
On my part, I see nothing to prevent me from granting the Plaintiff the orders he seeks. It is on that basis that I hereby allow this Application. Costs shall be in the cause. I therefore direct that this file be placed before Nyamweya, J. on 14th July 2014 for reallocation to another judge.
It is so ordered.
SIGNED AND DELIVERED AT NAIROBI THE 11TH DAY OF JULY 2014.
MARY M. GITUMBI
JUDGE