[2023] KEELC 16756 (KLR)
The court determined that, due to its prior involvement in related proceedings (Thika ELC Petition No E004 of 2021) involving the same parties and subject matter, and given that the appellant's attorney prosecuted both the petition and the current appeal, it would be inappropriate for the same judge (Eboso J) to...
Source-derived case information.
- Citation
- [2023] KEELC 16756 (KLR)
- Parties
- Appellant: Veronica Ngithi Mururi; Respondent: Hannah Wangari Willy; Respondent: Gorret Wairumu Willy; Respondent: Joseph Muchiri Waigaro; Respondent: James Kinuthia Waiharo; Respondent: The Land Registrar, Thika
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E115 of 2021
- Procedural Posture
- Environment and Land Appeal / Order on Recusal and Transfer for Disposal Directions
- Outcome
- Order for recusal and transfer of appeal to another court for disposal directions.
- Judges
- BM Eboso
- Legal Topics
- Recusal of Judge, Abuse of Process, Attorney Representation, Forum Non Conveniens
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Veronica Ngithi Mururi
Appellant
Hannah Wangari Willy
Respondent
Gorret Wairumu Willy
Respondent
Joseph Muchiri Waigaro
Respondent
James Kinuthia Waiharo
Respondent
The Land Registrar, Thika
Respondent
Procedural Posture
Environment and Land Appeal / Order on Recusal and Transfer for Disposal Directions
Legal Issues
- 1 Whether the current court is the proper forum to dispose of the appeal.
- 2 Whether prior involvement of the judge in related matters creates a conflict or perception of bias.
- 3 Whether the appeal should be transferred to another court for disposal.
Ratio Decidendi
The court determined that, due to its prior involvement in related proceedings (Thika ELC Petition No E004 of 2021) involving the same parties and subject matter, and given that the appellant's attorney prosecuted both the petition and the current appeal, it would be inappropriate for the same judge (Eboso J) to preside over the appeal. To preserve the integrity of the judicial process and avoid any perception of bias or conflict, the court vacated the order reserving a judgment date and directed that the appeal be listed before a different court (Thika ELC Court 2) for disposal directions.
Court Disposition
Order for recusal and transfer of appeal to another court for disposal directions.
Orders
- The order reserving a date for Judgment in this appeal is vacated.
- This appeal is to be listed for mention before Thika ELC Court 2 for disposal directions.
Full Case Text
Judgment text and source record
29 paragraphs
Mururi v Willy & 4 others (Environment and Land Appeal E115 of 2021) [2023] KEELC 16756 (KLR) (27 March 2023) (Order)
Neutral citation: [2023] KEELC 16756 (KLR)
Republic of Kenya
In the Environment and Land Court at Thika
Environment and Land Appeal E115 of 2021
BM Eboso, J
March 27, 2023
Between
Veronica Ngithi Mururi
Appellant
and
Hannah Wangari Willy
1st Respondent
Gorret Wairumu Willy
2nd Respondent
Joseph Muchiri Waigaro
3rd Respondent
James Kinuthia Waiharo
4th Respondent
The Land Registrar, Thika
5th Respondent
Order
1. While preparing to write a Judgment in this Appeal, it has emerged that on February 16, 2022, this court (Eboso J) rendered a ruling in Thika ELC Petition No E004 of 2021 through which the court struck out the Petition on the ground that this court was not the proper forum where to ventilate the grievances that were raised in the petition. The court further found that the petition was an abuse of the due process of the court.
2. It has also emerged that one Meshack Kariuki Gichuru filed and prosecuted Thika ELC Petition No E004 of 2021 as an attorney of Veronica Ngithi Muiruri who is the appellant in this appeal. Further, it has emerged from a reading of the proceedings of the trial court that although the suit giving rise to this appeal was filed in the name of Veronica Ngithi Murirui, the witness who prosecuted the claim was Meshack Kariuki Gichuhi who testified as PW1 and as a duly appointed attorney of Veronica Ngithi Muiruri.
3. A perusal of Thika ELC Petition No E004 of 2021 reveals that after this court rendered its ruling on February 16, 2022, Meshack Kariuki Gichuru (as an attorney of Veronica Ngithi Muiruri) brought an application dated March 21, 2022, seeking a review of the said ruling. This court (Eboso J) disposed the application through a ruling dated February 1, 2023 in which the court found that the application for review lacked merit and dismissed it.
4. Given the above background, and given that this appeal was wholly canvassed through written submissions, this court (Eboso J) is of the view that this appeal which challenges the merits of the Judgment rendered in Ruiru SPMC Environment and Land Case No 103 of 2019 should be disposed by a court other than Thika ELC Court 1 (Eboso J).
5. The court regrets that the above factual background was not brought to the attention of the court at the time of admitting the appeal in July 2022 and at the time of reserving a date for Judgment.
6. Consequently, the order reserving a date for Judgment in this appeal is vacated and it is ordered that this appeal be listed for mention before Thika ELC Court 2 for disposal directions.
DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 27TH DAY OF MARCH 2023B M EBOSOJUDGEIn the Presence of: -Ms Njihia for the respondentMr. Kinyua for the appellant