https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5205

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELC PETITION NO. E001 OF 2025** **LAWRENCE KARAYA MATHENGE ………………..1ST APPLICANT** **JOHN MWANGI GACHURU………………………... 2ND APPLICANT** **PENINAH WACHERA MATHENGE…………………3RDAPPLICANT** **SAMUEL GIKUNJU MWANGI…………………… ..4TH APPLICANT** **CAROLYNE NYARUAI MATHENGE ………………5THAPPLICANT** **-VERSUS-** **ROHIM CITY OF THE LORD CHURCН THROUGH ITS REGISTERED TRUSTEES… ………………………1ST RESPONDENT** **PASTOR BETTY WAVINYA KIAMA ……………2ND RESPONDENT** **JOSEPH MWANGI MACHIRA…………………..3RD RESPONDENT** **COUNTY GOVERNMENT OF NYERI. …………..4TH RESPONDENT** **NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY.................................................................5TH RESPONDENT** **RULING** 1. In the Notice of Motion dated 15th April 2026, the Applicants seek that this Court recuse itself from further handling this matter. 2. The Motion is supported by the annexed affidavit sworn on the same date by the 1st Applicant, Lawrence Karaya Mathenge. 3. The application was largely uncontested, with only the 2nd Respondent submitting a replying affidavit sworn on the 21st of July, 2026. As the application was directed to this Court, it was consequently left to the Court to deliver its verdict. 4. The issue I frame for this Court's determination is whether, based on the Applicant's deposition, the Court should recuse itself from further handling this matter. 5. The Applicants state that they filed this Petition concurrently with the Notice of Motion Application on 1st November, 2025, seeking enforcement of their constitutional rights, which they argue have been violated or are at risk of being violated by the respondents herein. The Notice of Motion Application was scheduled for an *inter partes* hearing on 2nd December, 2025, before Kimani J, with instructions to serve all Respondents. On that date, the judge issued further directives, including a court order to uphold the *status quo* concerning the suit premises and to prevent any construction on the suit property pending the resolution of this Petition. Subsequently, the judge placed the matter on 10th February, 2026, when this Court took over. 6. According to the Applicants, this Court already exhibited overt bias against the Petitioners and made side comments during its initial handling of the case on February 10, 2026. This behavior indicates a preconceived mindset or verdict against the Petitioners and their Petition. 7. This Court did not, despite an oral application by the Petitioners' Advocate, reiterate the content of the interim orders issued by its predecessor, Kimani J., which emboldened the 1st and 2nd Respondents to act in contempt of the said interim orders. 8. The 1st and 2nd Respondents engaged in the construction of a toilet in clear violation of the interim orders issued by this Court, which expressly prohibited any construction activities on the site related to this case. This is confirmed by the annexure ‘LWK 3 ', photographic evidence of the aforementioned contemptuous construction that has been provided. 9. The Petitioners have consequently lost confidence and trust in this Court. Owing to the Judge's conduct on February 10, 2026, they harbor reasonable concerns that the Judge may exhibit partiality, prejudice, or bias in managing the case, thereby infringing upon their constitutional right to a fair hearing. 10. They submit that it is a well-established principle of law that justice must not only be administered but also perceived to be administered. This principle is frequently cited in the judgment of Lord Hewart CJ in **R v Sussex, Ex parte McCarthy [1924] 1 KB 256, [1923] All ER**. 11. The petitioners are entitled, pursuant to Article 50 of the Constitution, to a fair hearing before an independent and impartial court, a standard we sincerely believe will not be upheld by this Court in this matter. 12. It is their strong conviction that the authority vested in a Judicial Officer during judicial proceedings should serve to inspire public trust by demonstrating conduct that fosters confidence in the integrity of the office; however, this was not observed on February 10, 2026. 13. They assert that it is just, necessary, and equitable, given the circumstances of this case, for this Court to recuse itself from any further proceedings to ensure that justice has an opportunity to be manifested in this matter. 14. They assert that it would be both just and expedient for the application to be heard as a matter of priority to safeguard the petitioners' constitutional rights during the conduct of these proceedings. 15. Furthermore, this Application is genuinely submitted in good faith, without any ulterior motives, to uphold the administration of justice; therefore, it shall not be in any way prejudicial to any of the Respondents herein. 16. The 2nd Respondent avers that the Applicant is engaging in forum shopping before the Court. 17. The Respondents state that the Applicants refer to certain remarks made by the Court on February 10, 2026, but have not explicitly identified the exact statements made by the Court. 18. This indicates that the Applicants are referencing the prosecution of an application that was not formally heard in this Court, thereby permitting the Respondents to provide substantive responses and enabling the Court to render a ruling, even though the Applicants could have readily appealed the decision if dissatisfied with the ruling. 19. The principal reason for the applicants' submission of this application is their outrage upon discovering that the 1st Respondent constructed a sanitary block or toilet on the suit property. 20. That the sanitary block and toilets were constructed pursuant to the directive of the 4th Respondent, who, by letter marked PBK 1, ordered that a sanitary block be erected within seven days from 5th February 2026. 21. The Court did not prohibit the 1st Respondent from continuing its services. The ongoing services, without access to a sanitary block or toilet for members, posed a public health concern, as highlighted by the 4th Respondent in their letter attached as PBK 1, following a routine sanitary inspection on 5 February 2026. 22. There are no reasonable grounds for the Applicants to lose confidence in the Court as constituted. The construction was intended solely for sanitation purposes and not for expanding or refurbishing the church; therefore, the Applicants should not feel threatened. The Applicants' right to a fair hearing remains unaffected. It is only fair and just that the Application be dismissed with costs. 23. Under Kenyan law, a court or judicial officer must recuse themselves from proceedings if their impartiality could reasonably be questioned or if there is a clear conflict of interest. Judicial recusal protects the right to a fair trial and maintains public trust in the justice system. 24. The legal foundation of judicial recusal in Kenya is derived from a blend of constitutional mandates, subsidiary legislation, and common law principles: Article 50(1) of the 2010 Constitution of Kenya enshrines the fundamental right to a fair and public hearing before an independent and impartial court or tribunal. Article 160(1) of the Constitution assures the independence of the judiciary, providing that judges must exercise judicial authority subject only to the Constitution and the law, free from external influence. 25. Regulation 21(1) of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020: Outlines the definitive statutory criteria under which a judge may or should step down from a matter. According to Regulation 21(1) of the Judicial Service Code of Conduct and Ethics, a judicial officer must recuse themselves in the following circumstances: 26. If the judge harbors genuine animosity or favouritism toward a litigant or the litigant's legal representative. 27. If the judge is a party to the lawsuits, serves as a material witness, or has out-of-court knowledge of disputed evidentiary facts. 28. If the judge previously served as an advocate or legal counsel for any of the parties involved in the same matter. 29. If the judicial officer, their spouse, or a close family member has a monetary stake or personal interest that is significantly affected by the case's outcome. 30. If the judge is related to or has a close relationship with a party, witness, or advocate involved in the litigation. 31. Kenyan courts consistently apply an objective standard when assessing requests for recusal to prevent allegations of "forum-shopping." The principal authority underpinning this approach is the English Court of Appeal's decision in Porter v Magill [2002] 2 AC 357, which has been widely adopted by Kenya's Superior Courts, for example, in the case of **Philip K. Tunoi & another v Judicial Service Commission & another [2016] KECA 715 (KLR).** This test inquires: ***"Whether a reasonable, objective, and informed observer, having considered the facts, would conclude that there was a real possibility or a reasonable apprehension that the court would be biased."*** 1. Litigants bear a high burden of proof in recusal applications, seeing that judges take a constitutional oath of office to dispense justice without fear or favor. **See Kamau & another v Kingdom Bank Limited [2025] KEHC 2545 (KLR).** 2. This Court has gone further to assert that a judge cannot recuse himself out of fear of handling a matter or of the parties. Such recusal would amount to cowardice or dereliction of duty to sit and hear cases. This Court thus, in **Le Pleadi Investment Ltd v Athur & another [2024] KEELC 3273 (KLR)**, held as follows: ***“It was discovered (during the plenary of the Committee that formulated the***[***Judicial Service (Code of Conduct and Ethics) Regulations***](https://www.judiciary.go.ke/download/the-judicial-service-code-of-conduct-and-ethics-regulations-2020/)***2020 – I represented Magistrates*** *)* ***that some of the Judges and Judicial Officers recuse themselves from a matter for all manner of excuses and without providing reasons for recusal and electing to state verbally that ‘I recused myself due to personal reasons’ that are never recorded. It was also discovered in doing so that some of the Judges and Judicial Officers, when faced with complex matters, I will give an example of terrorism and anti-corruption related cases whenever a chance arises, recuse themselves to avoid complaints to the Judicial Service Commission to retain a ‘clean’ name when faced with recusal applications or when recusal is uttered. The Committee felt that to do so amounted to dereliction of duty and a burden to fellow Judges and Judicial Officers who were to take up a matter that had already been taken up and perhaps heard almost to finality by the recusing Judge or Judicial Officer recusing for no reasonable grounds at all. This, I will dare say, is akin (sic) to cowardice provided as an offence under Section 64 of the***[***Kenya Defence Forces Act***](https://kenyalaw.org/akn/ke/act/2012/25)***2012, for our active members of the Disciplined Forces:*** ***“(1)A person who is subject to this Act commits an offence if that person, when before an enemy, and in such a manner as to show cowardice—*** ***(a)leaves the post, position or other place where it is the person’s duty to be;*** ***(b)throws away the person’s arms, ammunition or tools;*** ***(c)otherwise behaves in such a manner as to show cowardice;*** ***(d)induces other persons subject to this Act to commit an offence of cowardice under this section;*** ***(e)runs away; or*** ***(f)shamefully abandons, surrenders or delivers up any command, unit, place, or military property which it is his or her duty to defend under this section.”*** 1. Merely expressing dissatisfaction with a judge’s legal decisions or interlocutory rulings does not constitute sufficient grounds for recusal. See **Joyce N. Simitu v Stephen O. Mallowah & 2 Others [2013] KEELRC 605 (KLR).** The appropriate course of action in the event of an unfavorable ruling is to pursue an appeal rather than file a recusal application. 2. A court cannot recuse itself if doing so would entirely paralyze the administration of justice or cause a failure of statutory quorums. This exception is grounded in Regulation 21(3) of the Judicial Service Code. In **Gladys Shollei v Judicial Service Commission & another [2018] KESC 42 (KLR)**, the Supreme Court of Kenya dismissed a recusal application against its bench. The applicant argued that certain Supreme Court judges sat on the JSC and were conflicted. The Apex Court held that because the Constitution mandates that a minimum of five judges must hear a case, allowing widespread recusals would render the court incapable of forming a quorum, thereby defeating its constitutional duties. 3. An application for recusal must be submitted to the judicial officer handling the case. In **Isatu v Dalacha [2025] KEELC 8311 (KLR**), litigants are not permitted to initiate proceedings in a different or higher court to compel a lower court judge to recuse themselves without first litigating the matter in the appropriate trial court. If the judge rejects the request, the reasons for the denial are recorded in the formal court record for potential future appeal. 4. Having set out the ecosystem and criteria for recusal, the Applicants allege that on February 10, 2026, this Court made statements perceived as biased toward them and failed to pronounce and extend the status quo orders, leading to the Respondents constructing a toilet on the suit premises. 5. Applicants allege that this act emboldened the Respondents and that they therefore have no faith in the impartiality of this Court. 6. The Applicants failed to cite the words spoken ot uttered by the Court that would lead the Court or any reasonable bystander to conclude that the Court is likely to be biased. 7. If there are orders in place that have been violated, the best that the Applicants could do is to cite the Respondents for contempt. The Court itself is not a party to the current proceedings nor *“holding brief*” for the Respondents. 8. Holistically, the application does not meet the criteria for this Court to recuse itself. Doing so would amount to dereliction of duty in sitting and hearing cases. 9. Consequently, the Application dated April 15, 2026, is hereby dismissed with no order as to costs. **Dated, signed, and delivered electronically in Nyeri on this 22nd day of July, 2026.** **E. K. MAKORI** **JUDGE** **In the presence of:** **Mr. Karanja for the Applicants** **Denis: Court Assistant** **In the absence of:** **1st and 2nd Respondents** **Mr. Ndichu for the 4th Respondent** **Mr. Gitonga for the 5th Respondent**