https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4423

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC (OS) CASE NO. E020 OF 2024** **TINA WANGUI NYAGA....................................................1ST PLAINTIFF** **FLORENCE MUTHONI NDII..........................................2ND PLAINTIFF** **VERSUS** **ALFRED MUNENE NJERU….........……....................…..1ST DEFENDANT** **STEPHEN NAMU GATUGI..........................................2ND DEFENDANT** **RULING** 1. Vide the Notice of Motion application dated 13/03/2026, the Plaintiffs are seeking interalia: 2. That the Honourable Judge presently seized of this matter be pleased to recuse himself from further conduct of the proceedings. 3. That this matter be referred to the Presiding Judge for reallocation to another Judge of competent jurisdiction. 4. That this Honourable Court be pleased to take judicial notice of and/or call for, the record and or transcript of proceedings conducted on 04/02/2026 and 24/02/2026 for purposes of confirming the matters raised herein if deemed necessary. 5. That the costs of this application be in the cause and, that such further orders be made as the Court may deem fit in the interest of justice. 6. The application is based on grounds on the face of the application supported by the affidavit of the Plaintiff’s advocate, John Mwariri, dated 13/03/2026. He deposed that on 04/02/2026 when the suit came up for hearing, counsel for the Defendants sought to introduce a sale agreement after the Plaintiffs had already testified in chief. That he raised a procedural objection on grounds of lateness, ambush, and the prejudice it would occasion the Plaintiffs, but the Court expressed inclination to admit the document and encouraged parties to compromise on its admission. The Court is said to have made remarks that it does not ordinarily decline documents suggesting that the objection would not be considered on its merits. The Court is also said to have made generalized remarks to the effect that some advocates deliberately avoid court during delivery of judgements when they know they have losing cases, which the deponent viewed as extraneous and prejudicial. 7. It was stated further, that instead of ruling on the objection, the Court directed the Defendants to file a formal application for admission of the document, thereby giving them an opportunity to cure a procedural defect to his clients’ prejudice. It was said that when the matter came up again on 24/02/2026, the deponent felt constrained and under pressure not to appear obstructive to the Court process, and in an effort not to offend the Court and maintain professional decorum, indicated that they would not oppose the application for admission of the document. It was said that counsel however sought leave to respond to the application but the Court appeared inclined to decline to grant leave to file a response which would have allowed the document into evidence without affording the Plaintiffs an opportunity to challenge it. 8. The deponent believes this conduct was procedurally unfair, prejudicial and indicative of a predisposition on the part of the Court. The Court is further accused of making remarks to the effect that the deponent “seems to know very much” which were perceived as dismissive and intimidating. It was averred that the cumulative effect of the Court’s conduct and remarks created a genuine apprehension of bias and lack of impartiality. That consequently, the deponent made an oral application to cease acting, but upon reflection concluded that recusal of the Honourable Judge would better serve the interests of justice. 9. The 1st Defendant, Alfred Munene Njeru, in opposition to the application filed a replying affidavit dated 24/03/2026. He stated that during pre-trial preparations on 03/02/2026, it was discovered that a sale agreement dated 16/06/2016 between the 1st Plaintiff and 2nd Defendant had not been filed earlier. Their advocate immediately filed and served the document the same day, and informed the Plaintiffs’ advocate, who did not object at that time. On 04/02/2026, when the agreement was referred to in court during trial, the Plaintiffs advocate raised an objection on grounds that it was filed out of time without the leave of the Court and that it would occasion prejudice to his clients whom he needed to consult on the issue. The court directed the Defendants to file a formal application seeking leave to file the agreement out of time which they did on 07/02/2026. 10. On 24/02/2026 when the matter came up for directions on the Defendant’s application dated 07/02/2026, the Plaintiffs’ advocate indicated he was not opposed to the application but intended to file documents challenging the 1st Plaintiff’s mental capacity to execute the agreement. The court directed that if further documents were to be filed by the Plaintiffs, a formal application should also be made. At that point, the Plaintiffs’ advocate orally applied to cease acting, claiming no personal interest in the matter, but later shifted to opposing the Defendants’ application. 11. The Defendants averred that the court did not conduct itself in the manner alleged in the Plaintiffs’ application. They asserted that the Plaintiffs’ advocate had thanked the court for its directions, and that his repeated claims of lacking personal interest in the matter suggested malice. They denied that the court made remarks indicating bias or predisposition, and argued that the application was ill-motivated unmerited and should be dismissed with costs. 12. When the application came up for directions, the court directed that the application would be canvassed by affidavit evidence and written submissions. Only the Defendants filed their submissions which are dated 12/05/2026 and filed through the firm of Agnes Wanjiku Maina & Company Advocates. They submitted that the application is premised on reasonable and objective apprehension of biasness, but the court record of 24/02/2026 contradicts the averments made. They argued that the judge showed no bias as alleged, and that what the Plaintiffs’ advocate construed as bias was simply a failure to understand the Civil Procedure Rules on seeking leave to file documents out of time. 13. They relied on the case of Masters Kenya Limited & Another v Desert Runners Services Limited (ELC 916 of 2013) (2023) KEELC 162729 (KLR) where an application for recusal was dismissed as being based on counsel’s dissatisfaction with the court’s conduct. They also cited the case of Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others (2013) eKLR*,* which held that the test is whether there is a real likelihood or reasonable apprehension of bias, and that mere dissatisfaction or misunderstanding of the law is insufficient. They further referred to Regulation 47 of the Judicial Service (Code of Conduct and Ethics) Regulations, which requires specific and reasonable grounds for recusal, not generalized complaints. They urged that the application lacked merit and should be dismissed with costs. 14. Having considered the application, the affidavits filed by the parties, the Defendants submissions and the applicable law. The issue for determination is whether the Plaintiffs have established sufficient grounds to warrant the recusal of this Court from further conduct of these proceedings. 15. In the case of [Charity Muthoni Gitabi v Joseph Gichangi Gitabi (Substituted By) Michael Wachira Gitabi [2017] KEHC 1502 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/1502/eng%402017-11-09) the Court observed as follows: “Recusal is a matter of discretion by the Judge concerned and the practice in our courts has seen judges recusing themselves from hearing matters where they feel they may not appear to be fair or where they feel their impartiality would be called into question. The court went on to say... In **Philip K. Tunoi & another v Judicial Service Commission & another [2016]eKLR** the Court of Appeal in considering an application for recusal stated: In **Tumaini v. R. (supra)** Mwakasendo J held, rightly in our view, that “in considering the possibility of bias, it is not the mind of the judge which is considered but the impression given to reasonable people.…… The House of Lords held in R v. Gough [1993] AC 646 that the test to be applied in all cases of apparent bias was the same, whether being applied by the Judge during the trial or by the Court of Appeal when considering the matter on appeal, namely whether in all the circumstances of the case, there appeared to be a real danger of bias, concerning the member of the tribunal in question so that justice required that the decision should not stand. The test in R v. Gough was subsequently adjusted by the House of Lords in Porter v Magill [2002] 1 All ER 465 when the House of Lords opined that the words “a real danger” in the test served no useful purpose and accordingly 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.” In determining the existence or otherwise of bias, the test to be applied is that of a fair-minded and informed observer who will adopt a balanced approach and will neither be complacent nor be unduly sensitive or suspicious in determining whether or not there is a real possibility of bias. Kaplana H. Rawal **Judicial Service Commission & 2 others [2016] eKLR**the Court of Appeal in considering an application for recusal stated: “An application for recusal of a judge is a necessary evil. On the one hand it calls into question the fairness of a judge who has sworn to do justice impartially, in accordance with the Constitution without any fear, favour, bias, affection, ill-will, prejudice, political, religious, or other influence. In such applications, the impartiality of the judge is called into question and his independence is impugned. On the other hand, the oath of office notwithstanding, the judge is all too human and above all the Constitution does guarantee all litigants the right to a fair hearing by an independent and impartial judge. When reasonable basis for requesting a judge to recuse himself or herself exists, the application has to be made, unpleasant as it may be. That is the lesser of two evils. The alternative is to risk violating a cardinal guarantee of the Constitution, namely the right to fair trial, upon which the entire judicial edifice is built. Allowing a judge who is reasonably suspected of bias to sit in a matter would be in violation of the constitutional guarantee of a trial y an independent and impartial court……… An application for recusal of a judge in which actual bias is established on the part of the judge hardly poses any difficulties: the judge must, without more, recuse himself. Such is the situation where a judge is a party to the suit or has a direct financial or proprietary interest in the outcome of the case. In that scenario bias is presumed to exist and the judge is automatically disqualified. The challenge however, arises where, like in the present case, the application is founded on appearance of bias attributable to behavior or conduct of a judge…….” 1. Further, in [Isatu v Dalacha [2025] KEELC 8311 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8311/eng%402025-11-19) the Court held that: “Notwithstanding the foregoing, it is common ground that there are instances where a judicial officer or judge may be called to recuse or disqualify self from entertaining or hearing a particular matter. The [Judicial Service Act](https://new.kenyalaw.org/akn/ke/act/2011/1) and the [Judicial Service (Code of Conduct) Regulations 2021](https://new.kenyalaw.org/akn/ke/act/ln/2020/102/eng%402022-12-31) highlight instances where recusal/disqualification may arise. In particular, Regulation 21 of the [Judicial Service [code of standards and ethics] Regulations 2020](https://new.kenyalaw.org/akn/ke/act/ln/2020/102/eng%402022-12-31) states as hereunder; “21 (1) A judge may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned where the judge— 1. is a party to the proceedings; 2. was or is a material witness in the matter in controversy; 3. has personal knowledge of disputed evidentiary facts concerning the proceedings; 4. has actual bias or prejudice concerning a party; 5. has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter; 6. had previously acted as counsel for a party in the same matter; 7. is precluded from hearing the matter on account of any other sufficient reason; or 8. a member of the judge’s family has economic or other interest in the outcome of the matter in question.” 9. Applying the foregoing principles to the present application, the record shows that on 04/02/2026, when the Plaintiffs' witness was stood down during cross examination, counsel for the Plaintiffs objected to reference being made to a sale agreement filed by the Defendants without leave. The Court sustained the objection and directed the Defendants to file a formal application to regularize the position. The matter was thereafter rescheduled to allow the parties to peruse the contested document and file any necessary applications. Subsequently, the Defendants filed their application dated 07/02/2026 and, when it came up for directions on 24/02/2026, counsel for the Plaintiffs indicated that he was not opposed to the application but sought time to file a further affidavit. By consent, the application was taken out of the day's cause list and rescheduled to 19/03/2026 for directions. On the same day, the Plaintiffs advocate indicated to the court that he had filed the present application seeking the Court's recusal. 10. The Plaintiffs complaint mainly arises from the manner in which the Court handled the Defendants' attempt to introduce the sale agreement. The Applicants contend that the Court appeared inclined to admit the document, encouraged the parties to compromise on its admission, directed the Defendants to regularize the position by filing a formal application, and subsequently appeared reluctant to grant the Plaintiffs leave to respond to that application. They further complain of remarks allegedly made by the Court, which they perceived as dismissive, intimidating and indicative of a predetermined mind. 11. Having considered the record, I am not persuaded that the circumstances complained of disclose actual bias or a reasonable apprehension of bias. It is evident that, upon objection being raised to the late production of the document, the Court did not admit it outright. Instead, the Court directed the Defendants to file a formal application seeking leave to introduce the document out of time. In doing so, the Court merely ensured that the issue would be determined through the proper procedural process after hearing both parties. It is also settled that if a party considers that the Court has misapplied the law or exercised its discretion improperly, the law provides appropriate remedies through review or appeal. 12. Consequently I find no merit in the application dated 13/03/2026. It is hereby dismissed with costs to the Defendants. **DATED, DELIVERED AND SIGNED AT EMBU THIS 09TH DAY OF JULY, 2026.** **HON. E.C. CHERONO** **ELC JUDGE, EMBU** **In the presence of;** 1. M/S Maina for the Defendant/Respondent 2. Plaintiff/Advocate-absent 3. Ruth – Court Assistant