https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3374

Shabeel Project Services Limited v Shabeel Project Services Limited & another (Enviromental and Land Originating Summons E068 of 2025) [2026] KEELC 3374 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3374 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Enviromental and Land Originating Summons E068 of 2025 MN Kullow, J June 4, 2026 Between Shabeel Project Services Limited Plaintiff and Mahadi Energy Limited 1st Defendant Ibrahim Hussein Mahadi 2nd Defendant Ruling Introduction 1.There is an application dated 6th December 2025 which seeks the recusal of Hon. Justice Mohammed Kullow from any further conduct and proceedings in this matter, that the file be placed before the Presiding Judge for re-allocation to another judge. 2.The application is supported on grounds raised in the supporting affidavit of the 2nd defendant as follows;a.That the judge issued ex parte orders which orders he allowed to last for more than 14 days but contrary to the legal provisions.b.That the judge failed to vacate the said orders despite the applicants bringing to his attention the subsistence of orders issued by the high court at Mombasa in HCCRHR petition E066 of 2024 which orders prohibited interference of the applicant’s property.c.That the actions of the judge create a reasonable apprehension of bias and partiality against the defendants/applicants hence this application seeking to have the matter presided by a different judge. 3.The Plaintiff/Respondent opposed the application through a replying affidavit sworn by Suleiman Abdullahi Omar where he deponed that the application was not founded on any objective or verifiable facts to meet the threshold for recusal. 4.That the interim orders issued on the 23rd October 2025 were lawfully issued within the jurisdiction of the court and that the applicants had not demonstrated how the existence of the orders and the existence of the orders in HCCCR petition E066 of 2024 created a conflict and that this court acted in disregard to the said orders.The Respondent averred that the mere filing of a complaint to the judicial service commission is not a ground to bring forth to have the Judge recuse himself. The court directed for the application to be canvassed by way of written submissions with the applicant being the complying party. Applicant’s submissions. 5.The applicant submitted on one issue which is whether the criteria for recusal had been met. Counsel relied on the provisions of Rule 21(1) of the Judicial Service (code of conduct & Ethics) Regulations 2020 that a judge may recuse himself where there is the issue of bias or prejudice against a party, personal interest in the matter or on any other sufficient reason. Counsel also relied on the case of Kamau & another -Vs- Kingdom Bank Limited (Civil Suit E001 of 2022) [2025] KEHC 2545 (KLR) (27 February 2025) (Ruling), Where the court indicated it is not necessary to prove bias but whether a fair minded and informed observer having considered the facts will conclude there is biasness. Analysis and Determination 6.Having looked at the application, the replying affidavit and the submissions, the sole issue for determination is issue whether I should recuse myself from dealing with the present matter and other references involving the parties herein.The principles governing recusal in this jurisdiction are not well settled. In Jan Bonde Nielson -Vs- Herman Philipus Steyn & 2 others HCC COMM 332 of 2010 [2014] eklr the court observed that: The appropriate test to be applied in determining an application for disqualification of a Judge from presiding over a suit was laid down by the Court of Appeal in R -Vs- David Makali and others C.A criminal application No Nai 4 and 5 of 1995 (unreported), and reinforced in subsequent cases. In R -Vs- Jackson Mwalulu & Others C.A. Civil Application NO Nai 310 of 2004 (Unreported) where the Court of Appeal stated that:“…When courts are faced with such proceedings for disqualification of a judge, it is necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the public at large a reasonable doubt about the fairness of the administration of justice. The test is objective and the facts constituting bias must be specifically alleged and established…’’In Philip K. Tunoi & another -Vs- Judicial Service Commission & Another CA Civil Application NAI No. 6 of 2016 [2016] eKLR the Court of Appeal adopted the test for recusal propounded by the House of Lords in Porter -Vs- Magill [2002] 1 All ER 465, where it stated that, “The question is whether the fair minded and informed observer, having considered the facts, would conclude that was a real possibility that the tribunal was biased.” The same position was taken by the Supreme Court (per Ibrahim J.) in Jasbir Rai and 3 Others -Vs- Tarlochan Singh Rai and 4 Others SCK Petition No. 4 of 2012 [2013] eKLR where he observed that, “The Court has to address its mind to the question as to whether a reasonable and fair-minded man sitting in Court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the applicant was not possible. If the answer is in the affirmative, disqualification will be inevitable.”The principles in the cases cited buttress the standards of conduct enacted in the Judicial Service (Code of Conduct and Ethics) Regulations 2020 dated 26th May 2020. Under Regulation 21 Part II of the said Code of Conduct, a Judge can recuse himself or herself in any of the proceedings in which his or her impartiality might reasonably be questioned where the Judge;a.Is a party to the proceedings;b.Was, or is a material witness in the matter in controversy;c.Has personal knowledge of disputed evidentiary facts concerning the proceedings;d.Has actual bias or prejudice concerning a party;e.Has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter;f.Had previously acted as a counsel for a party in the same matter;g.Is precluded from hearing the matter on account of any other sufficient reason; orh.Or a member of the Judge’s family has economic or other interest in the outcome of the matter in question.Regulation 9 of the Judiciary Code of Conduct emphasizes the importance of impartiality of a Judge. Regulation 9(1) provides: A Judge shall, at all times, carry out the duties of the office with impartiality and objectively in accordance with Articles 10, 27, 73(2) (b) and 232 of the Constitution and shall not practice favouritism, nepotism, tribalism, cronyism, religious and cultural bias, or engage in corrupt or unethical practices. 7.It is trite that a litigant who seeks disqualification of a Judge comes to Court because of his own perception, that there is appearance of bias on the part of the Judge, the Court however, has to envisage what would be the perception of a member of the public who is not only reasonable but also fair minded about the circumstances of the case. I find there has to be a reasonable ground for assuming possibility of bias and whether it is likely to induce in mind of the right thinking, well informed and reasonable member of the public reasonable doubt about the fairness of the administration of justice. 8.This court while dealing with similar issue considered what was stated in Oloololo Game Ranch Ltd -Vs- National land Commission & 2 others; Chief Land Registrar & 2 (Interested Parties) (2020) eKLR and stated :-“Recusal and reassignment is not a matter to be lightly undertaken by a distinct Judge, while in proper cases, we have a duty to recuse ourselves, in case such as the one before us, we have concomitant obligation not to recuse ourselves; absent valid reasons for recusal their remains what has been termed as a “duty to sit”. From the above it is clear that the requirement of independence and impartiality of judge must be counterbalanced by the judge’s duty to sit where no grounds of disqualification exists in fact or in law as the duty in itself helps to protect the independence of our courts against manoeuvring by parties hoping to improve their chances of having a matter determined by a particular judge as to gain forensic and strategic advantage through delay and interpretation of proceedings as was pointed by the Supreme Court tin the holding by the New Zealand Court of Appeal in Mnir -Vs- Commissioner of Inland Revenue (2007) 3NZLR 495.”Furthermore, In the case of Gladys Boss Shollei Vs Judicial Service Commission & Another [2018] eKLR, the Court observed that recusal should not be used to cripple Judges from discharging their constitutional mandate.The Court is equally mindful that allegations aimed at dislodging a judicial officer from hearing a matter should not be entertained lightly or at the whims of a dissatisfied litigant. 9.Turning to the facts of the case, the reasons for seeking recusal is that I issued ex parte orders on the 23rd October 2025 which orders remained in force beyond 14 as applicable to ex parte orders and that I failed to vacate the same orders having been in the knowledge of existing court orders issued in HCCHR Petition E066 of 2024 that prohibited interference with the suit property .This the applicant indicates were acts of biasness. 10.Ultimately, the question for consideration is whether a person having knowledge of the fact I heard the application ex parte and gave orders against the applicant would think that I am biased in this case. I think not. The court issued interim orders dated 23rd October 2025. It is trite that the decision to grant or refuse to grant interim order by any Court of law is an issue of judicial discretion and of which is exercised depending on the particular circumstances of each case and therefore the grant of interim orders cannot be read as an evidence of bias at all. 11.In the instant Application, I find no bias evidence proven on my part with regard to the orders granted on 23rd October 2025 as alluded to by the applicant in the Notice of Motion, given that such orders are discretionary and can only subsist on a temporary basis until final determination of the application inter parties. Further to the aforesaid it is trite, that where a party to a suit is dissatisfied with the ex-parte orders or outcome, on decision made in such matter, the party has an opportunity or is at liberty to file an application to set aside such an order or decision or seek review which steps the applicants did not take in the circumstances of this suit but instead filed stay of execution orders together with this application for recusal. The applicant indicate that the court was made aware of the matter HCCCR petition E066 of 2024 in the high court in Mombasa, but failed to take into account the said application to vacate the orders. A perusal through the court records do indicate there is a ruling dated 8th December 2025 where the court indicated since there was an application for recusal the court would determine the said application before diving into the merits of the application seeking to stay execution of the orders.The argument that the judge therefore failed to consider the same are false as the judge clearly exercised discretion to extend the orders in his ruling indicating that it would be in the interest of justice to determine this application first as the interim orders remain in force. There is no proof that the Judge acted in disregard of the subsisting orders and that the orders issued were issued out of bias. 12.I further find the critical ingredients of an application for recusal are evidence of actual bias or perceived bias. These have not been demonstrated by the applicant in evidence. The applicant has mainly relied on the fact that the orders were issued ex parte and further extended and nothing else substantial to show why the Judge should recuse himself from hearing the Petition herein.Final dispositionIn view of the above I make the following orders;i.The applicant has not made out a case to necessitate my recusal in this matter and the notice of motion application dated 6th December 2025 is without merit and is hereby dismissed.ii.The costs are awarded to the Respondents.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 4TH DAY OF JUNE, 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Ms. Kirui for the Plaintiff/ApplicantMr. Origi for the DefendantPhilomena W . Court Assistant