https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12061

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI** **FAMILY DIVISION** **SUCCESSION CAUSE NO. E200 OF 2022** ***IN THE MATTER OF THE ESTATE OF JOHN NJENGA WAGACHA (DECEASED)*** **PHILIP MWANGI WAGACHA ……….…… 1ST APPLICANT** **ANN WAMBUI WAGACHA ................... 2ND APPLICANT** **-VERSUS-** **CLEMENT GITHUKU WAGACHA ….. PROTESTOR/RESPONDENT** **RULING** 1. Before this Court is a Notice of Motion dated 15 December 2025, which seeks, centrally, the recusal of the Hon. Lady Justice Helene R. Namisi from further presiding over, hearing, or determining any matters arising in this Succession Cause. The Applicants also pray that upon recusal, the matter be referred to the Presiding Judge of the Family Division for re-allocation to another Court, and that a stay of all further proceedings be granted pending this determination. 2. The Application is strenuously opposed by the Protestor/Respondent through a Replying Affidavit sworn on 30 March 2026. 3. On 27 April 2026, the Court noted that the Applicants had failed to file their submissions despite being given ample time since 24 February 2026, and consequently reserved the matter for this Ruling. **The Applicants’ Case** 1. The genesis of the Applicants' grievance is the Court’s handling of their Application for Stay dated 4 November 2025. The Applicants assert that they sought to stay the implementation of an earlier Ruling delivered on 8 April 2025—which had directed the Administrators to open a joint bank account for estate rental income—arguing that joint administration had become impractical and unsafe due to a complete breakdown of trust. 2. To support this, the 1st Applicant deposes that the Protestor/Respondent has exhibited extreme hostility and criminal conduct, citing Occurrence Book (OB) Nos. 21/07/04/2021 and 36/13/04/2022. Furthermore, the Applicants allege financial misconduct, claiming the Protestor failed to settle Kenya Power bills amounting to Kshs 75,789/-. The Applicants also claim the Protestor has been financially dependent on the 1st Applicant, receiving a monthly stipend of Kshs. 31,000/- for over 60 months (totaling approximately Kshs. 1,860,000/-). 3. The Applicants contend that I, as the presiding Judge, failed to consider, hear, or deliver a written ruling on their stay Application. Instead, they argue that the Court's insistence on compliance before hearing the substantive merits of their protest demonstrates a prejudicial stance that favours the Protestor. Consequently, they have developed a reasonable apprehension of bias and submit that they cannot receive an impartial determination of their grievances. **The Protestor/Respondent's Case** 1. The Protestor vehemently opposes the application for recusal, terming it an afterthought, frivolous, and a waste of judicial time. He deposes that following his initial application on 4 October 2024, the Court delivered a Ruling on 8 April 2025 directing the Administrators to open a joint rental income account to preserve the estate. When the Applicants refused to comply, the Protestor filed an Application for Contempt of Court on 21 July 2025. 2. The Protestor states that on 11 November 2025, when both the contempt application and the Applicants' stay application came up, the Court directed the parties to negotiate. When negotiations failed, the Court compromised the two Applications by ordering that the rental income from the specific estate properties be deposited in Court. He argues that this action was not biased but rather a pragmatic step by the Court to ensure the preservation of the estate pending the hearing of the Summons for Confirmation of Grant. 3. Legally, the Protestor submits that recusal requires specific, substantiated grounds and that mere apprehension or dissatisfaction with a court's orders does not meet the legal threshold. He relies on the Supreme Court's pronouncement in ***Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4******others*** and ***Republic v Independent Electoral & Boundaries Commission ex parte CORD***, arguing that seeking a Judge's recusal simply because they determined a matter adversely is an implication that the party is forum-shopping for a sympathetic Judge. **Analysis & Determination** 1. The foundational premise of judicial recusal is anchored in the constitutional imperative that a judicial officer shall exercise judicial authority impartially and independently, as commanded by Article 159(2) of the Constitution. This is further operationalized by Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, which provides the parameters upon which a judicial officer may recuse themselves from adjudicating any matter. 2. The test for bias in Kenya is an objective one. It is not based on the subjective fears, paranoia, or bruised egos of the litigants. The Supreme Court in ***Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others* (Petition No. 4 of 2012**) comprehensively espoused that the perception of fairness is the proper test of whether non-participation is called for. The overarching question is whether a fair-minded and informed observer, having considered all the facts, would conclude that there is a real possibility that the tribunal was biased. This formulation mirrors the universally recognized ***Porter v Magill*** test, which has firmly taken root in our jurisprudence. 3. Furthermore, it is trite law that an unfounded or unreasonable apprehension is not a justifiable basis for recusal. As Odunga J. astutely observed in ***Republic v Independent Electoral & Boundaries Commission ex parte CORD* (Misc. App. No. 648 of 2016)**, asking another Judge to hear a matter based on recusal because of a previous adverse determination is a manifestation of bad faith that creates the perception of forum-shopping. 4. The crux of the Applicants' apprehension is that this Court failed to render a written Ruling staying the orders of 8 April 2025, and instead, on 11 November 2025, made an order that the rental income be deposited in Court. They view this as ignoring their new evidence of criminal hostility and financial misconduct by the Protestor. 5. The record speaks for itself. On 11 November 2025, this Court was faced with two diametrically opposed applications: the Protestor’s Application for Contempt dated 21 July 2025 and the Applicants' application for Stay dated 4 November 2025. As the Court noted on that day, it was clear that the parties were unamenable to opening a joint bank account. Despite being given the opportunity to negotiate, the parties reached an impasse. 6. In succession matters, the Court sits as the ultimate custodian of the deceased's estate. The preservation of the estate is paramount. Faced with belligerent co-Administrators, this Court exercised its inherent and statutory mandate to compromise the two Applications by ordering that the rental income be deposited in Court. This was a neutral, protective measure designed to safeguard the assets from wastage or unilateral control by either faction pending the hearing of the Summons for Confirmation of Grant. 7. A decision made in the best interest of the estate cannot be conflated with bias. In ***Charles Koigi Wamwere & 2 Others v Republic* [1992] eKLR,** the Court noted that while justice must be seen to be done, adverse Rulings or case management directions made in the course of proceedings are not an automatic ground for recusal unless objective bias is proven. A Judge's duty is to the law and the facts, not to the subjective expectations of a party. If the Applicants were aggrieved by the Court's directive to deposit funds in Court rather than granting an absolute stay, their proper recourse was to invoke the appellate jurisdiction, not to lob accusations of bias at the bench. As Majanja J. stated in ***Rachuonyo & Rachuonyo v National Bank of Kenya Limited* (Misc. App. No. 263 of 2019),** "*each of the decisions complained about was made after arguments and if any party is dissatisfied, it is entitled to lodge an appeal".* 8. Regarding the allegations of criminal threats (OB extracts), unpaid KPLC bills, and stipends, these are evidentiary issues intricately tied to the substantive dispute regarding the fitness of the Administrators and the ultimate distribution of the estate. These matters are slated for determination during the substantive hearing. A Court's refusal to determine the entire substantive dispute at an interlocutory, case-management stage does not equate to ignoring evidence. It simply means the evidence will be weighed at the appropriate procedural juncture. 9. A Judge should not recuse herself merely because a litigant demands it. Recusal is not a matter of simply packing up and leaving. The Supreme Court in ***Gladys Boss Shollei v Judicial Service Commission & Another* (Petition No. 34 of 2014)** emphasized the "Duty to Sit". A Judge has a solemn constitutional duty to adjudicate matters allocated to them. Yielding too readily to frivolous applications for recusal undermines the integrity of the judicial institution and encourages litigants to manipulate the roster whenever they foresee an unfavourable outcome. 10. In the recent consolidated case of ***Gachagua & 11 others v Speaker, National Assembly of Kenya & 7 others* [2024] KEHC 13655 (KLR),** the Court boldly reaffirmed that the bench must confidently adjudicate over suits with unwavering commitment to justice, free from fear, favor, ill will, or any form of bias. This Court adopts that exact posture. The Applicants have failed to lay any factual basis for a reasonable observer to demonstrate a possibility of real bias. Their Application is grounded in double standards—praising the Court when favourable orders are granted, but alleging bias when protective, neutral orders are issued. 11. Having carefully weighed the Applicants' grievances against the established legal thresholds, I find that the Notice of Motion dated 15 December 2025 lacks merit. The Applicants have utterly failed to demonstrate any actual or perceived bias that would necessitate my recusal from this matter. 12. Accordingly, the Application is hereby dismissed. The costs of this Application shall be borne by the Applicants. 13. The Orders issued on 11 November 2025 remain in force. The Administrators are directed to comply immediately and deposit the rental income from Dagoretti/Riruta/S.369, Dagoretti/Riruta/5250, and Dagoretti/Riruta/5251 from 11 November 2025 to date in Court. **DATED AND DELIVERED AT NAIROBI THIS 30 DAY OF JULY 2026** **HELENE R. NAMISI** **JUDGE OF THE HIGH COURT** Delivered on virtual platform in the presence of: For the Applicants/Administrators: Mr Njau For the Protestor/Respondents: Ms Mumbi Court Assistant: Lucy Mwangi