Before this Court is the Notice of Motion dated 5th November 2025, brought by the Plaintiffs/Applicants, principally seeking the recusal of the presiding Judge, a stay of proceedings, and ancillary orders.
The application is premised on allegations of bias, prejudice, partiality, and conflict of interest, said to arise from prior rulings, conduct during proceedings, and alleged personal interest by the Court in land forming part of the estate of the late Reuben Wanyonyi.
The application is opposed through a Replying Affidavit sworn on 7th November 2025 by the 1st Defendant, together with detailed grounds of opposition and written submissions.
The Applicants and Respondents filed and relied on extensive submissions citing Kenyan constitutional and statutory law, as well as comparative jurisprudence from the United Kingdom, Canada, New Zealand, and the East African Court of Justice.
Issues for Determination
Having considered the pleadings, affidavits, and submissions, the Court is of the view that the following issues arise for determination:
a) Whether the Applicants have met the legal threshold for recusal of the presiding Judge.
b) Whether a stay of proceedings is warranted.
c) What orders should be made as to costs.
The Law on Judicial Recusal
Judicial recusal is anchored in the right to a fair hearing under Article 50(1) of the Constitution, read together with Articles 10, 27, 73, 159, and 160.
The applicable test in Kenya is settled. In Philip K. Tunoi & Another v Judicial Service Commission & Another [2016] eKLR, the Supreme Court affirmed that the governing standard is whether a reasonable and informed observer, having considered the facts, would apprehend a real possibility of bias.
This standard mirrors comparative jurisprudence, including Porter v Magill [2002] 1 All ER 465 (HL), where the House of Lords 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.”
Importantly, mere dissatisfaction with judicial rulings, or perception of hostility arising from adverse decisions, does not constitute bias. This principle has been reiterated in Gladys Boss Shollei v Judicial Service Commission & 2 Others [2018] eKLR, and earlier in R v David Makali & Others (1995) and R v Jackson Mwalulu & Others (2004).
Analysis of the Allegations of Bias
The Applicants’ allegations fall into three broad categories:
a. Disagreement with prior rulings and procedural directions;
b. Alleged conduct during proceedings, including raising issues suo motu;
c. Alleged personal interest by the Court in land belonging to the estate of Reuben Wanyonyi.
On the first category, it is trite law that adverse rulings, even if numerous, do not amount to proof of bias. A judicial officer is under a constitutional duty to interpret and apply the law as they understand it. An error, if any, lies in appeal—not recusal.
On the second category, the Court is enjoined under Sections 1A and 1B of the Civil Procedure Act and Article 159(2) of the Constitution to actively manage proceedings to ensure the just, expeditious, and proportionate resolution of disputes. Limited judicial intervention to clarify procedure or compliance does not, without more, evidence partiality.
On the third and most serious allegation—that the Court purchased land from the estate of Reuben Wanyonyi—no evidence whatsoever has been placed before the Court. No title, agreement, search, or affidavit evidence has been tendered. Allegations of this gravity must be proved by cogent material, not conjecture or hearsay.
As observed by the East African Court of Justice in Attorney General v Prof. Anyang’ Nyong’o & Others (EACJ Appl. No. 5 of 2007), the appearance of bias must be real and founded on facts, not suspicion or speculation.
The Court further notes that portions of the Applicants’ case rely on letters and assertions by persons who are strangers to the proceedings, containing allegations unrelated to the substratum of the suit. Such material cannot ground a serious constitutional application for recusal.
Recusal and Abuse of Process
Judicial recusal is a grave and exceptional remedy, not to be invoked as a tactical device whenever proceedings take an unfavourable turn. Courts have repeatedly cautioned that indiscriminate recusal undermines judicial independence under Article 160(5).
In Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495, the New Zealand Court of Appeal warned that recusal applications must not become instruments of forum shopping or delay.
Viewed holistically, this Court is not satisfied that a fair-minded and informed observer, apprised of all the circumstances, would apprehend a real possibility of bias.
Whether Proceedings Should Be Stayed
The Applicants also seek a stay of proceedings pending the determination of a purported appeal.
It is common ground that no order of stay has been issued by the Court of Appeal, and no evidence has been tendered to demonstrate that an appeal has been properly instituted beyond a Notice of Appeal.
In Global Tours & Travels Ltd; HC Winding Up Cause No. 43 of 2000, Ringera J (as he then was) held that stay of proceedings is a discretionary remedy, to be exercised sparingly, and only where the interests of justice so demand.
In the present case, the suit has been pending since 2017, with multiple directions issued for its expeditious disposal. Granting a stay in the absence of appellate orders would offend the overriding objective and further delay justice.
Disposition
In the result, the Court finds that:
a. The Applicants have not established actual bias or reasonable apprehension of bias warranting recusal;
b. No legal basis has been laid for the stay of proceedings;
c. The application is devoid of merit and amounts to an abuse of the Court process.
Orders
1. Accordingly, the Notice of Motion dated 5th November 2025 is dismissed in its entirety.
2. Costs of the application shall be borne by the Plaintiffs/Applicants, payable to the Respondents.
3. The matter shall proceed to hearing on priority basis, in line with prior directions of this Court.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5TH DAY OF FEBRUARY, 2026.
……………………………………
HON. JUSTICE E. CHERONO
JUDGE
In the presence of;
1. Mr Oira for the defendant/ Respondent
2. Plaintiffs/ Advocate - Absent
3. Court Assistant – Diana Kemboi
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