1. The applicant herein filed the notice of motion dated 12th November, 2025 seeking the recusal of this court from hearing and determination of this suit and that the file be placed before a different judge of this honourable court for determination.
2. As can be discerned from the grounds on the face of the application and the affidavit sworn in support thereof, the application is premised on the grounds that the applicant was aggrieved by two decisions/rulings of this court which decisions/rulings were not favourable to him. The applicant accuses this court of having shown open favourism to the appellant and open bias to the applicant making the applicant believe that this court is unable to handle the case in a dispassionate manner.
3. It is the applicant’s case that the impugned decisions/rulings of this court have the effect of rendering his appeal an academic exercise. In particular, the applicant faults this court for determining that the transfer of the suit property during the pendency of the appeal does not vitiate the appeal. It is the applicant’s case, that such a determination amounts to implicitly accepting that the suit property is no longer within the court’s jurisdiction.
4. The applicant also faults this court decision/ ruling delivered on 6th October, 2025 dismissing the applicant’s application for joinder of the persons to whom the suit property is said to have been transfer to during the pendency of the appeal. The applicant acknowledges/points out that this court gave reasons for refusing to join the persons he wanted joined to the appeal but claims that the ruling raises apprehension of bias or appearance of bias on the party of this court.
5. Terming the failure of this court to join the intended third parties to the appeal prejudicial to him, the applicant states that, subject to the outcome of the appeal, he may have to re-litigate the matter/case.
6. According to the applicant, a reasonable and fair-minded man sitting in court and knowing all the relevant facts would have a reasonable suspicion that fair trial for him (applicant) is not possible.
7. It is the applicant’s further case that the effect of the impugned rulings of this court is to leave him without the power to realize the fruits of his judgment in the event he wins the appeal.
8. The applicant also faults the decision of this court to reschedule delivery of judgment in a related matter namely ELC Civil Appeal No. E002 of 2023 to 26th February, 2026 when judgment will be delivered in this matter when the two cases are not consolidated another reason for his apprehension that this court may have drawn conclusions on both matters thereby raising a real risk of bias or appearance of bias against him.
9. Claiming that this court has no ground whether moral, legal or constitutional to continue presiding over the case, the applicant urges this court to grant him the orders sought.
In reply and opposition to the application, the 2nd respondent filed a notice of preliminary objection dated, 21st November 2025, grounds of opposition of even date and a replying affidavit sworn on 24th November, 2025.
10. Through the preliminary objection, the 2nd respondent contends that the application is inept, incompetent, bad in law and made in bad faith.
11. Through the grounds of opposition and the replying affidavit, the 2nd respondent opposes the application on the grounds that the accusation of favouritism is baseless, inept, incompetent and incapable of making the basis of recusal of the judge; that the applicant has not demonstrated reasonable apprehension that the judge will not handle the matter in dispassionate manner; that the rescheduling of the delivery of judgment was consented to by the applicant’s counsel; that judicial decision is not a basis to request recusal and/or a basis to allege that there will not be fair administration of justice; that asking a court on the basis of its decisions amounts to intimidation of the court; that the alleged bias is not based on any provable facts and that the issue is being raised very late in the proceedings. Further, that the assertion that the suit property is unavailable and has been transferred to third parties is no basis of branding the adjudication of the suit an academic exercise.
12. The 2nd respondent reiterates his contention that requiring a judge to recuse himself/herself based on his/her decision is tantamount to intimidating the judge and is an affront to fair administration of justice.
13. According to the 2nd respondent, the applicant’s application is speculative, not anchored in any law, reason, objective and merely aims to bring the court to disrepute.
14. Terming the application frivolous, vexatious and devoid of any merit, the 2nd respondent urges this court to dismiss it with costs.
15. In a rejoinder, the applicant filed a response to the 1st respondent’s preliminary objection and grounds of opposition, dated 24th November, 2025 in which he contends that the preliminary objection does not raise any pure point of law and to that extent, it does not meet the threshold set out in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696.
16. With regard to the grounds of opposition, the applicant contends that they amount to nothing other than sanctimonious, self-seeking and self-serving arguments with no iota of substance and that they have failed to address “the pink elephant in the room” which is the recusal application.
17. According to the application, the recusal application needs to be addressed and not sidestepped.
18. The applicant asserts that this court has demonstrated favouratism/bias and denies the 2nd respondent’s contention that the court is being intimidated. The applicant further asserts that the appeal herein is an academic exercise, the suit property having been transferred to third parties by the 2nd Appellant in the pending of the appeal.
19. Concerning the presence of the applicant’s counsel in court when the date of delivery of judgment was rescheduled, the applicant states that the 2nd respondent has totally misconceived the recusal application as mere presence of a counsel in court does not constitute acquiescing to the proceedings in which one party feels sufficiently prejudiced and aggrieved.
20. Pursuant to directions given on 2nd December, 2025 the application and the preliminary objection were disposed of together by way of written submissions.
21. At the time of writing this ruling, the applicant had not filed his submissions despite having been granted ample time to do so.
22. The law on recusal of judicial officers was aptly discussed by Kizito Magare J. in the case of Kamau & Another vs. Kingdom Bank Ltd (Civil suit E001 of 2022)(2025) KEHC 2545 (KLR) (27 February 2025) (Ruling) thus:-
“On recusal of Judges and Judicial Officers, the Judicial Service Commission made the Judicial Service (Code of Conduct and Ethics) Regulations 2020 pursuant to Section 47(2)(a) of the Judicial Service Act, Section 37 of the Leadership and Integrity Act, 2012 and section 5(1) of the Public Officer Ethics Act, 2003.
8. Under regulation 21(1), a judge may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned where the judge is:
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; or
h) or a member of the judge’s family has economic or other interest in the outcome of the matter in question.
9. Regulation 21(2) requires that recusal by a judge shall be based on specific grounds to be recorded in writing as part of the proceeding. This is supplemented by regulation 21 (3) which forbids a judge from recusing himself or herself if in the circumstances set out therein.
10. The effect of the said regulations is that the court must guard against its independence and not to recuse itself in circumstances that do not merit. However, in circumstances where there is merit either due to the surrounding facts or appearance of bias, a judge should recuse himself. If for example a family member is involved, the court should not wait for an application for recusal.
11. This even occurs in cases where, the judge’s conscious points to discomfort due to relationship, either legal or clandestine. However, where there is no merit and the same is based on unfounded speculations, the court should and must not recuse itself.
Under Regulation Rule 7 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020, a judge shall exercise judicial authority independently and shall: -
a) Uphold the independence and integrity of the judiciary and the authority of the courts;
b) Maintain an independence of mind in the performance of judicial duties;
c) Take all reasonable steps to ensure that no person, forum, or organ of state, interferes with the functioning of the courts;
d) Exercise judicial function on the basis of the judge’s own assessment of the facts of the case, in accordance with a conscientious understanding of the law, and without reference to any extraneous influences; and
e) Exercise judicial function without being influenced by personal feelings, prejudice, or bias.
12. Independent exercise of judicial authority is affected by bias or ill will against a party. It is also compromised if the court succumbs to machinations and intimidation by parties.
13. However, where a party wants to waste the court’s time or otherwise forum shop, the court should be firm and clearly indicate so to parties. Unnecessary application for recusal is an affront to the independence of the judiciary and decisional independence of the judges. On the other hand, a biased court is anathema to the independence of the court and the image of the judiciary.
14. In this matter, there is no allegation of actual or perceived bias arising from the relation between parties. The court is accused of entertaining contempt and noncompliance of the directions by the court on the part of the Defendant. The same has not been said of the manner in which the court prejudicially assists the Defendant to the disadvantage of the Plaintiff on the beam balance of justice.
15. There is no contempt of court application that the court has declined to determine. A reasonable, objective, and informed person would, on the correct facts, reasonably find no apprehension that the Court has not or will not bring an impartial mind to bear on the adjudication of this case based on a mind open to persuasion by the evidence and by the Plaintiffs herein.
In the case of National Water Conservation and Pipeline Corporation v. Runji & Partners Consulting Engineers and Planners Limited (2021) eKLR the Court stated as follows: -30.I cannot think of a more eloquent exposition of the law on recusal of judicial officers than the succinct exposition proffered by the Constitutional Court of South Africa in President of the Republic of South Africa and Others v South African Rugby Football Union and Others which indisputably articulated the proper approach as follows:-
“... The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”
31. Because of the relevancy of the above elucidation to the issues at hand, some of the salient facets of the judgment merit some emphasis in the present context. In articulating the test in the terms quoted above, the court observed that two considerations are built into the test itself. First, in considering the application for recusal, the court as a starting point presumes that judicial officers are impartial in adjudicating disputes. This in-built aspect entails two further consequences. One, it is the applicant for recusal who bears the onus of rebutting the presumption of judicial impartiality. Two, the presumption is not easily dislodged. It requires “cogent” or “convincing” evidence to be rebutted b.32.Second, the other in-built aspect of the test is that “absolute neutrality” is something of a chimera in the judicial context.[12] This is because judges are human. They are unavoidably the product of their own life experiences, and the perspective thus derived inevitably and distinctively informs each judge’s performance of his or her judicial duties. But colourless neutrality stands in contrast to judicial impartiality; a distinction the above cited decision vividly illustrates. Impartiality is that quality of open-minded readiness to persuasion - without unfitting adherence to either party, or to the judge’s own predilections, preconceptions and personal views - that is the keystone of a civilized system of adjudication. Impartiality requires in short “a mind open to persuasion by the evidence and the submissions of counsel” and, in contrast to neutrality, this is an absolute requirement in every judicial proceeding. This is because: -“A cornerstone of any fair and just legal system is the impartial adjudication of disputes which come before courts and other tribunals. . . Nothing is more likely to impair confidence in such proceedings, whether on the part of litigants or the general public, than actual bias or the appearance of bias in the official or officials who have the power to adjudicate on disputes.”
16. The Plaintiffs have themselves delayed their case through numerous applications and cannot turn the blame on the court. I consider it a mere inquiry upon this court to decide whether or not it should resolve the pending matter. I choose to proceed and deal with this matter for no reason that justifies my recusal, whether self-imposed or imposed by the Plaintiffs or any other party. The test used in cases for recusal of such a nature is what the house of Lords in R –vs- Gough (1993) AC 646 calls the real danger test, though not of universal application, the test is whether, there is real danger that a fair trial was likely to be denied. To me such a test is too restrictive and may not be achieved by most parties applying for recusal.
17. I prefer the test of the real likelihood of bias. In this case, it is not necessary to prove actual bias, but whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased. In paragraph 39 of the decision of Michael Obare Tago versus Fredrcik Ambrose Otieno (2020) eKLR, the court posited as follows:-In the Attorney General of Kenya vs Professor Anyang Nyong’o & 10 Others EACJ Application No. 5 Of 2007, the court stated: - “We think that the objective test of reasonable apprehension of bias is good law. The test is stated variously, but amount to this- do the circumstances give rise to a reasonable apprehension, in the mind of the reasonable, fair minded and informed member of the public that the judge did not (will not) apply his mind to the case impartially”
18. The test is not what the litigant feels. It is a member of the public, who is not only reasonable but also fair minded and informed about all the circumstances of the case. Rachuonyo and Rachuonyo Advocates v National Bank of Kenya Limited [2021] eKLR , Justice D.S. Majanja, held as follows: -“In Philip K. Tunoi & another v 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 v 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 v 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.”
19. In this matter, a fair-minded person, knowing the circumstances of this case, will not have any doubt that the case will be heard fairly. In the case of In Rachuonyo and Rachuonyo Advocates v National Bank of Kenya Limited [2021] eKLR (supra) the court proceeded as doth: -“On the test of a ‘fair minded and informed observer’ and the provisions of the Code of Conduct above, can it be said that taking into account all circumstances of this case, I am likely to be biased against the Advocates and deny them a right to a fair trial? I think not. The Advocates have not laid any factual basis for a reasonable observer appraised of the facts to demonstrate a possibility of real bias.”
24. In applying the principles and tests cited/espoused in the case of Kamau & Another vs. Kingdom Bank Ltd (supra) to the circumstances of this case/application, the respondent/applicant urges this court to recuse itself from hearing and determination of this suit and that the file be placed before a different judge of this honourable court for determination.
23. As pointed out herein above, the application is premised on alleged actual and perceived bias on the part of this court. The circumstances said to have led to the alleged perceived and actual bias are that this court delivered two ruling against the applicant. Complaining that the effect of the ruling was to render his appeal an academic exercise, the applicant asserts that the conduct of this court of delivering the two decisions against him thereby rendering his appeal nugatory when looked at objectively by a reasonable person possessed with all relevant facts of the case, would lead the inescapable conclusion that this court is biased against the respondent/applicant. The respondent also reads mischief in the fact that this court fixed the judgment in this matter in another related matter namely E002 of 2023. The respondent accuses this court of delaying deliver in that other matter despite delivery of the judgment in that matter having been postponed severally.
24. The foregoing are the grounds upon which the applicant wants this court to recuse itself. Curiously, despite basing his application on merits of the decisions of this court, which he complains have the effect of rendering his appeal an academic exercise, there is no indication in his application that the applicant filed an appeal against the impugned decisions. He also did not move this court for review of the decision, if he had any reasonable grounds for doing so.
25. In his critic of the impugned decisions of this court, the applicant has clearly pointed out that this court gave reason for making the impugned decisions. The acceptable legal channel(s) for challenging a decision of a court, is through appealing or moving the court for review, if there exists reasonable grounds for doing so. Instead of following the said avenues, the applicant has decided to apply for recusal of this court from hearing and determination of the matter. It is noteworthy that there is nothing remaining to be heard in this matter as the matter is pending for judgment.
26. Based on the fact that he lost two previous applications he filed in the matter, which applications this court dismissed based on their merits or lack of it, he is apprehensive that the outcome of the appeal may not be favourable. The question that begs for an answer is whether mere apprehension of loss of a case based on previous decisions of a court is a good ground for asking a court to recuse itself. I think not. This so because, if courts entertain such flimsy grounds as a ground for recusal, the court would lose its decisional independence thereby interfering with administration of justice.
27. I don’t need to say anything more to demonstrate that the application dated 12th November, 2025 has no merit. Consequently, I dismiss it with costs to the Respondent.
28. Orders accordingly.
Dated, signed and delivered virtually at Busia this 12th day of February, 2026
In the presence of;
Mr Sirma for the Appellants
Mr Arusei for the 1st Respondent
Mr Mureithi for the 2nd Respondent
Court Assistant; Ian