1. Before this Court for determination is the Notice of Motion dated 17th May 2025 brought by the Appellants seeking principally that this Court recuses itself from further conduct of this appeal and that the matter be placed before another Judge for hearing and determination. The application is brought under Section 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, and all other enabling provisions of the law.
2. The application is supported by the affidavit of Andrew Mwangi and is opposed by the Respondents through Grounds of Opposition dated 27th June 2025 as well as written submissions filed on their behalf.
3. I have considered the application, the affidavit in support thereof, the Grounds of Opposition and the rival submissions filed by the parties.
4. The dispute between the parties arises from tenancy arrangements relating to premises owned by the 1st Respondent. The Appellants contend that they had moved the Rent Restriction Tribunal for assessment of standard rent and that the Tribunal assessed rent payable in respect of the premises occupied by them. Subsequently, disputes arose concerning distress for rent levied by the Respondents, culminating in RMCC No. E545 of 2023 and eventually the present appeal.
5. The Appellants' complaint is that in the course of dealing with interlocutory applications in this appeal, this Court made findings touching on the jurisdiction of the Rent Restriction Tribunal and the legal effect of the Rent Control Certificate issued by the Tribunal. The Appellants contend that those findings demonstrate bias, lack of impartiality and predisposition in favour of the Respondents.
6. The Appellants contend that the Court has exhibited open bias in favour of the Respondents; lacks impartiality; improperly interfered with findings of the Rent Restriction Tribunal; misinterpreted the provisions of the Rent Restriction Act; and effectively determined substantive issues in the appeal before hearing the appeal itself. They further contend that the Court's conduct gives rise to a reasonable apprehension that they will not receive a fair hearing.
7. The Respondents, on the other hand, maintain that the application is merely a reaction to adverse judicial determinations and that no factual or legal basis exists to warrant recusal.
8. The Respondents oppose the application on the grounds that the allegations of bias are unsupported by evidence and are founded solely on dissatisfaction with judicial decisions. They contend that no conflict of interest, personal interest, relationship or extraneous factor has been demonstrated and that the application amounts to forum shopping and an abuse of the court process.
9. The sole issue for determination is whether the Appellants have established sufficient grounds to warrant the recusal of this Court from further conduct of this appeal.
Analysis and Determination
10. The principles governing judicial recusal are now well settled. In Rai & 3 others v Rai & 4 others [2013] KESC 20 (KLR) , the Supreme Court observed that;
“Recusal, as a general principle, has been much practised in the history of the East African judiciaries, even though its ethical dimensions have not always been taken into account. The term is thus defined in Black’s Law Dictionary, 8th ed. (2004) [p.1303]:
“ Removal of oneself as judge or policymaker in a particular matter, [especially] because of a conflict of interest.”
From this definition, it is evident that the circumstances calling for recusal, for a Judge, are by no means cast in stone. Perception of fairness, of conviction, of moral authority to hear the matter, is the proper test of whether or not the non-participation of the judicial officer is called for. The object in view, in the recusal of a judicial officer, is that justice as between the parties be uncompromised; that the due process of law be realized, and be seen to have had its role; that the profile of the rule of law in the matter in question be seen to have remained uncompromised.”
11. Recusal is intended to uphold public confidence in the administration of justice and becomes necessary where circumstances exist that would lead a reasonable observer to conclude that a Judge may not bring an impartial mind to the matter.
12. In Republic v Mwalulu & 8 Others [2005] KECA 344 (KLR) , the Court set the principles on which a judge would disqualify himself from a matter and stated as follows:
13. Further, in Porter v Magill [2002] 2 AC 357, it was held that:
“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.”
14. Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 similarly provides circumstances in which recusal may be warranted, including where a Judge has a personal interest in the matter, personal knowledge of disputed facts, actual bias, or any other circumstance capable of impairing impartial adjudication.
15. Having considered the material before Court, I find that the Appellants have not demonstrated any of the recognized grounds for recusal. Secondly, the complaints advanced by the Appellants relate almost entirely to conclusions reached by the Court in previous rulings. The Appellants fault the Court's interpretation of the Rent Restriction Act, its findings regarding the jurisdiction of the Rent Restriction Tribunal and its treatment of the Rent Control Certificate issued by the Tribunal. These are quintessential judicial determinations.
16. A party's disagreement with a Court's interpretation of the law or findings of fact cannot, without more, constitute evidence of bias. As was observed by the Court of Appeal in Republic v Mwalulu & 8 Others (supra), litigants who are dissatisfied with judicial decisions often mistake adverse findings for bias. Such dissatisfaction, however genuine, does not establish a basis for recusal.
17. Thirdly, I agree with the Respondents that the proper avenue for challenging an allegedly erroneous ruling is through the appellate process and not through an application for recusal. To hold otherwise would permit parties to seek the removal of Judges whenever unfavourable decisions are rendered against them, thereby undermining judicial independence and encouraging forum shopping.
18. I have carefully examined the allegations made against the Court. They consist largely of assertions that the Court "bent the law", "misguided itself", "showed bias" and "favoured the Respondents." However, beyond those assertions, no objective facts have been presented from which a fair-minded and informed observer would conclude that there exists a real possibility of bias.
19. The Court is unable to discern any conduct, statement, relationship or circumstance that would reasonably give rise to apprehension of partiality. On the contrary, the application appears to stem from dissatisfaction with previous rulings and the legal conclusions reached therein. Such dissatisfaction, however strongly held, is not a ground for recusal.
20. Accordingly, I find that the Appellants have failed to satisfy the legal threshold for recusal. The Notice of Motion dated 17th May 2025 is devoid of merit, and the same is hereby dismissed with costs.
Dated and delivered virtually at Mombasa this 6th day of August 2026.
In the presence of: -
Mr. Mummin Advocate h/b for Mr. Maulidi Advocate for the Appllicant
Ms. Maiga Advocate h/b for Ms. Mwakizozo Advocate for the Respondent
Ms. Salwa, Court Assistant
2. The application is supported by the affidavit of Andrew Mwangi and is opposed by the Respondents through Grounds of Opposition dated 27th June 2025 as well as written submissions filed on their behalf.
3. I have considered the application, the affidavit in support thereof, the Grounds of Opposition and the rival submissions filed by the parties.
4. The dispute between the parties arises from tenancy arrangements relating to premises owned by the 1st Respondent. The Appellants contend that they had moved the Rent Restriction Tribunal for assessment of standard rent and that the Tribunal assessed rent payable in respect of the premises occupied by them. Subsequently, disputes arose concerning distress for rent levied by the Respondents, culminating in RMCC No. E545 of 2023 and eventually the present appeal.
5. The Appellants' complaint is that in the course of dealing with interlocutory applications in this appeal, this Court made findings touching on the jurisdiction of the Rent Restriction Tribunal and the legal effect of the Rent Control Certificate issued by the Tribunal. The Appellants contend that those findings demonstrate bias, lack of impartiality and predisposition in favour of the Respondents.
6. The Appellants contend that the Court has exhibited open bias in favour of the Respondents; lacks impartiality; improperly interfered with findings of the Rent Restriction Tribunal; misinterpreted the provisions of the Rent Restriction Act; and effectively determined substantive issues in the appeal before hearing the appeal itself. They further contend that the Court's conduct gives rise to a reasonable apprehension that they will not receive a fair hearing.
7. The Respondents, on the other hand, maintain that the application is merely a reaction to adverse judicial determinations and that no factual or legal basis exists to warrant recusal.
8. The Respondents oppose the application on the grounds that the allegations of bias are unsupported by evidence and are founded solely on dissatisfaction with judicial decisions. They contend that no conflict of interest, personal interest, relationship or extraneous factor has been demonstrated and that the application amounts to forum shopping and an abuse of the court process.
9. The sole issue for determination is whether the Appellants have established sufficient grounds to warrant the recusal of this Court from further conduct of this appeal.
Analysis and Determination
10. The principles governing judicial recusal are now well settled. In Rai & 3 others v Rai & 4 others [2013] KESC 20 (KLR) , the Supreme Court observed that;
“Recusal, as a general principle, has been much practised in the history of the East African judiciaries, even though its ethical dimensions have not always been taken into account. The term is thus defined in Black’s Law Dictionary, 8th ed. (2004) [p.1303]:
“ Removal of oneself as judge or policymaker in a particular matter, [especially] because of a conflict of interest.”
From this definition, it is evident that the circumstances calling for recusal, for a Judge, are by no means cast in stone. Perception of fairness, of conviction, of moral authority to hear the matter, is the proper test of whether or not the non-participation of the judicial officer is called for. The object in view, in the recusal of a judicial officer, is that justice as between the parties be uncompromised; that the due process of law be realized, and be seen to have had its role; that the profile of the rule of law in the matter in question be seen to have remained uncompromised.”
11. Recusal is intended to uphold public confidence in the administration of justice and becomes necessary where circumstances exist that would lead a reasonable observer to conclude that a Judge may not bring an impartial mind to the matter.
12. In Republic v Mwalulu & 8 Others [2005] KECA 344 (KLR) , the Court set the principles on which a judge would disqualify himself from a matter and stated as follows:
13. Further, in Porter v Magill [2002] 2 AC 357, it was held that:
“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.”
14. Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 similarly provides circumstances in which recusal may be warranted, including where a Judge has a personal interest in the matter, personal knowledge of disputed facts, actual bias, or any other circumstance capable of impairing impartial adjudication.
15. Having considered the material before Court, I find that the Appellants have not demonstrated any of the recognized grounds for recusal. Secondly, the complaints advanced by the Appellants relate almost entirely to conclusions reached by the Court in previous rulings. The Appellants fault the Court's interpretation of the Rent Restriction Act, its findings regarding the jurisdiction of the Rent Restriction Tribunal and its treatment of the Rent Control Certificate issued by the Tribunal. These are quintessential judicial determinations.
16. A party's disagreement with a Court's interpretation of the law or findings of fact cannot, without more, constitute evidence of bias. As was observed by the Court of Appeal in Republic v Mwalulu & 8 Others (supra), litigants who are dissatisfied with judicial decisions often mistake adverse findings for bias. Such dissatisfaction, however genuine, does not establish a basis for recusal.
17. Thirdly, I agree with the Respondents that the proper avenue for challenging an allegedly erroneous ruling is through the appellate process and not through an application for recusal. To hold otherwise would permit parties to seek the removal of Judges whenever unfavourable decisions are rendered against them, thereby undermining judicial independence and encouraging forum shopping.
18. I have carefully examined the allegations made against the Court. They consist largely of assertions that the Court "bent the law", "misguided itself", "showed bias" and "favoured the Respondents." However, beyond those assertions, no objective facts have been presented from which a fair-minded and informed observer would conclude that there exists a real possibility of bias.
19. The Court is unable to discern any conduct, statement, relationship or circumstance that would reasonably give rise to apprehension of partiality. On the contrary, the application appears to stem from dissatisfaction with previous rulings and the legal conclusions reached therein. Such dissatisfaction, however strongly held, is not a ground for recusal.
20. Accordingly, I find that the Appellants have failed to satisfy the legal threshold for recusal. The Notice of Motion dated 17th May 2025 is devoid of merit, and the same is hereby dismissed with costs.
Dated and delivered virtually at Mombasa this 6th day of August 2026.
In the presence of: -
Mr. Mummin Advocate h/b for Mr. Maulidi Advocate for the Appllicant
Ms. Maiga Advocate h/b for Ms. Mwakizozo Advocate for the Respondent
Ms. Salwa, Court Assistant