[2024] KEELC 1611 (KLR)
The court found that the application for recusal was based on mere apprehension rather than actual bias. Judicial recusal requires a real likelihood of bias, not just a litigant's subjective perception. Furthermore, the court noted that the application had become moot because the presiding judge was being...
Source-derived case information.
- Citation
- [2024] KEELC 1611 (KLR)
- Parties
- Applicant: Winchester Ventures Kenya Co. Ltd; Respondent: Pearl of Riverside Garden Limited; Respondent: Bhavesh Harilal Gohl; Respondent: National Environment Management Authority
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E006 of 2023
- Procedural Posture
- Environment and Land Appeal / Ruling on Recusal Application
- Outcome
- Application for recusal rendered moot; appeal to be heard by another court.
- Judges
- EK Wabwoto
- Legal Topics
- Judicial Recusal, Judicial Bias, Court Discretion on Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Winchester Ventures Kenya Co. Ltd
Applicant
Pearl of Riverside Garden Limited
Respondent
Bhavesh Harilal Gohl
Respondent
National Environment Management Authority
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Recusal Application
Legal Issues
- 1 Whether the court should recuse itself from hearing the appeal due to alleged bias or apprehension of bias.
- 2 Whether the previous handling of costs by the court demonstrates inconsistency or bias.
Ratio Decidendi
The court found that the application for recusal was based on mere apprehension rather than actual bias. Judicial recusal requires a real likelihood of bias, not just a litigant's subjective perception. Furthermore, the court noted that the application had become moot because the presiding judge was being transferred and would not be able to proceed with the appeal. Therefore, regardless of the merits of the recusal application, the matter would have to be heard by another judge. The court thus directed that the appeal be heard by a different court and set a mention date for further directions before the Presiding Judge of the Environment and Planning Division.
Court Disposition
Application for recusal rendered moot; appeal to be heard by another court.
Orders
- This Appeal shall be heard by another court.
- This matter shall be mentioned before the Presiding Judge, Environment and Planning Division on 15th April, 2024 for further directions.
Full Case Text
Judgment text and source record
24 paragraphs
Winchester Ventures Kenya Co. Ltd v Pearl of Riverside Garden Limited & 2 others (Environment and Land Appeal E006 of 2023) [2024] KEELC 1611 (KLR) (20 March 2024) (Ruling)
Neutral citation: [2024] KEELC 1611 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment and Land Appeal E006 of 2023
EK Wabwoto, J
March 20, 2024
Between
Winchester Ventures Kenya Co. Ltd
Applicant
and
Pearl of Riverside Garden Limited
1st Respondent
Bhavesh Harilal Gohl
2nd Respondent
National Environment Management Authority
3rd Respondent
Ruling
1. This ruling is made pursuant to an oral application made by the 2nd Respondent herein seeking the recusal of this court from hearing this Appeal. Learned Counsel Mr. Muchiri for the 2nd Respondent referred to the affidavit dated 17th February, 2024 and submitted that this court delivered a judgement in Milimani ECLA No. E071 of 2022 Pearl of Riverside Garden Limited versus Winchester Ventures Co. (K) Ltd and Another where this court dismissed the Appeal with cost. Winchester Ventures Kenya Co. Limited the Applicant herein filed an appeal in Milimani ELCA No. E071 of 2022 upon which an objection was raised and the court instead of striking out the appeal directed the Deputy Registrar to open a new file number ELC EPA No. E006 of 2023 and further directed each party to bear own cost. It was argued that the exercise to grant cost to Winchester Ventures Kenya Limited in the matter that they had won and to decline an award of cost where they had lost showed a lack of consistency.The 2nd Respondent also urged the court to recuse itself from the matter for the reasons that the Judge previously worked at the 3rd Respondent -NEMA before joining the bench and was likely to be biased in matters filed against it.
2. The application was opposed by the Appellant. Learned Counsel Mr. Mango argued that the application was based on mere apprehension and that the same did not meet the threshold for recusal. On issue of costs as previously dealt with, it was argued that the same is always awarded based on the discretion of the court. It was also argued that if the 2nd Respondent was aggrieved by any decision made by the court he had a right to appeal and in the instant matter the 2nd Respondent had not exercised its right of appeal.
3. The 2nd Respondent has sought the recusal of this court from hearing the pending Appeal filed herein. Judicial recusal is the withdrawal of a judicial officer from ongoing proceeding. It cannot be on the basis of a litigant’s mere apprehension rather than actual bias.
4. Be it as it may, the application herein is considered moot in new of the fact that this court is on transfer and whichever way the court rules on the application it will not be able to proceed with this Appeal to its logical conclusion.
5. In view of the foregoing this court issues the following orders: -i.This Appeal shall be heard by another court.ii.This matter shall be mentioned before the Presiding Judge, Environment and Planning Division on 15th April, 2024 for further directions.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20THDAY OF MARCH, 2024. E.K. WABWOTOJUDGEIn the presence of:-Ms. Jeruto h/b for Mr. Otieno for Appellant.Mr. Muchiri for the 2nd Respondent.N/A for the other parties.