1. What is before this Court is a Notice of Motion application dated 27th March 2025 filed by Mr. Japheth Omboko Makoba, vide which he seeks the following orders:-
(1) That the honourable Mr Justice Gregory Mutai recuse himself from handling this matter, having exhibited a lot of bias in handling the matter;
(2) That this honourable Court do issue an order reallocating this matter to another judge, other than the honourable Mr Justice Gregory Mutai;
(3) That any other orders in the interest of justice; and
(4) That the cost of this application be provided for.
2. The application is based on the grounds in the body of the motion and also in the supporting affidavit. In both the grounds in support of the application and the supporting affidavit, the applicant averred that this Court delivered a ruling on 5th November 2024, vide which it ordered him to deposit Kes.6,300,000/- into the estate collection account within 30 days thereof, failing which the said amount would be recovered from his entitlement to the remainder of the estate. He stated that his application, dated 15th November 2025, sought specific orders, to wit, that the executors of the deceased's estate distribute the estate fully to the four beneficiaries within 30 days and render a complete account. He further stated that the Court's ruling was extremely biased, as it rendered a decision that included orders not sought by any party.
3. He further deposed that he attempted to withdraw the application dated 15th November 2023, but that the Court declined to allow the said application. He thereafter filed a complaint with the Judicial Service Commission against the Honourable Mr Justice Gregory Mutai.
4. He accused the Court of creating confusion by referring to an application he had withdrawn and of fixing a non-existent application date, 13th February 2025, for hearing on 7th April 2025. He averred that he was condemned unheard. He therefore prayed that the application be allowed as prayed in the interest of justice.
5. The application was opposed. Ms Janepher Nyapela Makoba filed a replying affidavit sworn on 5th May 2025. Vide the said affidavit, she denied that the Court had been biased. She stated that, contrary to what was stated, the Court had heard the applicant before delivering the impugned ruling. Ms Makoba urged the Court to dismiss the application.
6. The firm of Kakai Mugallo & Co. Advocates did not file any affidavit or submissions. They left the matter to the court, for it to render its decision as it saw fit.
7. The application was canvassed by way of written submissions.
8. The written submissions of the applicant are dated 23rd May 2025. The applicant denied that the application was filed to delay or disrupt the administration of the deceased’s estate. He averred that the grant was confirmed on 26th October 2022, but that the executors had yet to distribute the estate. The applicant stated that Ms Makoba had not denied that the judge was biased and that there is an ongoing petition before the Judicial Service Commission against the Judge filed by him.
9. The applicant gave particulars of bias on the part of the judge, including being given biased directions, not allowing the notice of withdrawals of the application, and insisting on proceeding with it and also the fact that there was a pending petition at the Judicial Service Commission, being Petition No. 39 of 2025. The applicant argued that, since an ongoing petition was pending, the judge needed to recuse himself.
10. He urged, based on the decision of the Court in Tunoi & another v Judicial Service Commission & another [2016] KECA 530 (KLR), that the Court recuse itself.
11. The 1st Respondent filed written submissions dated 5th May 2025 in which she averred that the applicant, while asserting his rights, was “forgetting the rights of others.” She submitted that the Court had been lenient with the applicant and hence his continued intermeddling with the execution, running and administration of the estate. She stated that the application was an abuse of the Court process and intended to “harm both the Court and the 1st Respondents/Executor’s integrity.”
12. She stated that the applicant was facing criminal charges at Mpeketoni PMC Criminal case Nos MCCR/E107 of 2024; MCCR No. E106 of 2024, MCCR No E105 of 2024, and MCCR No E104 of 2024; Republic vs Japheth Omboko Makoba, for illegally disposing of part of the unadministered assets of the estate, and that on 28th April 2025, he was sentenced to serve a jail period of 4 years for fraud.
13. Ms. Makoba prayed that the application be dismissed.
14. I have read the application, the affidavits in support thereof, the documents attached thereto, and the 1st respondent’s response. I have also considered the written submissions of the parties. I must now determine if the application has merit.
15. What is the duty of a judge when handling matters before him? What principles guide him? Judges are bound by the Constitution of Kenya. I shall briefly set this out below.
16. In discharging their duties, judges are bound by Articles 73,160 and 232 of the Constitution of Kenya. I will briefly set out their provisions below:-
17. Article 73 states that:-
“(1) Authority assigned to a State officer—
(a) is a public trust to be exercised in a manner that—
(i) is consistent with the purposes and objects of this Constitution;
(ii) demonstrates respect for the people;
(iii) brings honour to the nation and dignity to the office; and
(iv) promotes public confidence in the integrity of the office; and
(b) vests in the State officer the responsibility to serve the people, rather than the power to rule them.
(2) The guiding principles of leadership and integrity include—
(a) selection on the basis of personal integrity, competence and suitability, or election in free and fair elections;
(b) objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices;
(c) selfless service based solely on the public interest, demonstrated by —
(i) honesty in the execution of public duties; and
(ii) the declaration of any personal interest that may conflict with public duties;
(d) accountability to the public for decisions and actions; and (e) discipline and commitment in service to the people.
18. Article 160 (1) of the Constitution of Kenya states that:-
“(1) In the exercise of judicial authority, the Judiciary, as constituted by Article 161, shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority.”
19. The values and principles of public service are set out in Article 232 of the Constitution of Kenya, which provides as follows:-
“(1) The values and principles of public service include—
(a) high standards of professional ethics;
(b) efficient, effective and economic use of resources;
(c) responsive, prompt, effective, impartial and equitable provision of services; (d) involvement of the people in the process of policy making;
(e) accountability for administrative acts;
(f) transparency and provision to the public of timely, accurate information;
(g) subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions;
(h) representation of Kenya’s diverse communities; and
(i) affording adequate and equal opportunities for appointment, training and advancement at all levels of the public service, of—
(i) men and women;
(ii) the members of all ethnic groups; and
(iii) persons with disabilities.
(2) The values and principles of public service apply to public service in—
(a) all State organs in both levels of government; and
(b) all State corporations.
(3) Parliament shall enact legislation to give full effect to this Article.”
20. To ensure that these principles are reflected in the conduct of judges and judicial officers, the Judicial Service Commission has a code of conduct for Judges. The code outlines the situations in which a judge may recuse himself. These are set out in Regulation 21, which states that:-
“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 -
(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 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”
21. Conditions under which a judge or a judicial officer may recuse himself/herself has been the subject of several decisions. I will set out a few below.
22. In the Attorney General of Kenya vs Prof Peer Anyang’ Nyong’o & 10 others EACJ Application No 5 of 2017, it was decided as follows:-
“We think that the objective test of “reasonable apprehension of bias” is good law. The test is stated variously, but amounts to this: do the circumstances give rise to a reasonable apprehension, in the view of a reasonable, fair-minded and informed member of the public, that the judge did not (will not) apply his mind to the case impartially. Needless to say, a litigant who seeks disqualification of a judge comes to court because of his own perception that there is an 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 and informed about all the circumstances of the case.”
23. In the case of R v Jackson Mwalulu & others CA 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…’’
24. In Philip K. Tunoi & another v Judicial Service Commission & another [2016] eKLR, a five-judge bench of the Court of Appeal held as follows:-
41. 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.
42. In Taylor v. Lawrence [2003] QB 528 at page 548, in which an application was made to reopen an appeal on the ground that the Judge was biased, the Judge having instructed the plaintiffs’ solicitors many years previously, the House of Lords in the judgment of Lord Woolf CJ reiterated:
“... we believe the modest adjustment in R V. Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the commonwealth and in Scotland.”
“The Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”
25. In the Philip Tunoi case, the Court of Appeal held that the fact that Justice Tunoi had previously convicted the lead Judge would not create an apprehension that the Judge would be biased. The Court of Appeal rendered itself as follows:-
“43. In the instant case, is bias discernible from the material before the Court in the eyes of a right thinking or reasonable person or fair-minded and informed person or observer? In the instant case, would a fair minded and informed observer think that the presiding judge would, 22 years after the conviction in the People case, be biased against the 1st applicant when the facts reveal that the issue for determination in the appeal rests squarely on the interpretation of the law and the Constitution as regards retirement age of all judges of the Superior Courts who were appointed prior to the date of promulgation? Quite plainly, the decision on retirement age of Judges will not be personal to the 1st applicant.
44. The facts of this case would not in our view, on the authority of Porter v. Magill (supra) lead a fair-minded and informed observer to conclude that there is real possibility that the Presiding Judge will be biased. It was not shown that circumstances exist that are likely to show that a real possibility exists that the Presiding Judge’s integrity or impartiality might reasonably be questioned.
26. The United Nations Office on Drugs and Crime, in its Commentary on Bangalore Principles of Judicial Conduct, stated as follows:-
“81. The generally accepted criterion for disqualification is the reasonable apprehension of bias. Different formulas have been applied to determine whether there is an apprehension of bias or prejudgment. These have ranged from “a high probability” of bias to “a real likelihood”, “a substantial possibility”, and “a reasonable suspicion” of bias. The apprehension of bias must be a reasonable one, held by reasonable, fair-minded and informed persons who apply themselves to the question and obtain the required information. The test is “what would such a person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would such person think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly”.41 The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasize that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by other judges of the capacity or performance of a colleague.
27. Applying the above test, has a case for refusal been made in this matter? To do so, I will briefly set out the history of the matter.
28. The grant in respect of the estate of the deceased person was confirmed on 26th October 2022. Each of the four beneficiaries, identified as Janepher Nyapela Makoba, Anthony Francis Makoba, Japhet Omboko Makoba, and Margaret Musyawa, received 25% of the estate. The estate of the deceased comprised properties which were owned jointly by the deceased and her ex-husband (also deceased), Mr Leo Brandenberg.
29. Vide an application dated 15th November 2023, the applicant herein sought to have the estate distributed. This Court issued directions regarding the said application on 30th January 2024. When the matter came up for mention on 29th February 2024, a dispute arose as to the true extent of the estate and what proportion, if any, had been sold by the applicant herein. To aid in the distribution of the estate, the Court issued directions on the said date, to wit that the executors were to prepare and file a comprehensive list of the assets of the estate, the assets to be valued by the government valuer and for accounting of funds made available by the firm of Kakas Mugallo Advocates LLP and the Court and of any other funds in their possession. The Court ordered that the valuation be done in the presence of the executors and the beneficiaries.
30. There was a delay in compliance with the directions issued by this Court on 29th February 2024. When the matter was mentioned on 29th June 2024, Mr. Akanga, then acting for the applicant, informed the Court that Mr. Mugallo shared a statement unofficially with the 1st Executor, Ms. Janepher Makoba. He sought to have it filed officially. After hearing the parties, the Court summoned Peter Mugallo to attend Court on 10th July 2024 so that he could produce his firm’s statement. After the said firm produced a statement of account, I granted the parties leave to file replying affidavits in response to the said statement. The parties made submissions regarding the said statement on the 22nd day of July 2024. Upon hearing, the parties' ruling was slated for 20th September 2024.
31. The ruling was delivered on 5th November 2024. I must state that the ruling/directions were in regard to the statement of account filed by the firm of Kakai Mugallo & Co, Advocate, and intended to address preliminary issues before the devolution of the estate of the deceased to the four beneficiaries. It is for that reason that the Court addressed itself to the question of liability said to be owed by the applicant to the estate at paragraphs 4 and 5, and the claims made in respect of the estate by the firm of Kakai Mugallo Advocates LLP in paragraphs 6 and 7 of the ruling. The ruling was not in respect of the application dated 15th November 2025.
32. It was my view that determining the said matters would enable the executors to distribute the estate of the deceased, as the true extent of the estate, and each party’s share (after deduction of what they had each received before distribution) would be taken into account.
33. In light of the foregoing, this Court had not dealt with the application dated 15th November 2023, and the same is pending before the Court to date.
34. The applicant objects to the refusal by the Court to allow his notice of withdrawal of the application dated 7th February 2025. In my view, the mere fact that the applicant filed the notice does not mean his application stood withdrawn. The application could only be said to be withdrawn once the notice was accepted by the Court. It is noteworthy that the 1st Executor is opposed to the notice of withdrawal and desires to have the application dated 15th November 2023 heard on the merits. It was for this reason that on 3rd March 2025 I ordered that parties file written submissions in respect of the intention by the applicant to withdraw the application dated 15th November 2023 and also in respect of an application dated “13th February 2025” (which doesn’t exist, but which should have been in reference to the application for review dated 28th November 2024 in respect of which directions were issued on 2nd December 2024, 28th January and 26th February 2025).
35. Upon the issuance of the directions of 3rd March 2025, the applicant wrote to the Judicial Service Commission on 5th March 2025 and, for good measure, copied the Ethics and Anti-Corruption Commission and the office of the Judiciary Ombudsman. The firm of Kakai Mugallo Advocates LLP wrote to the judge in a discourteous and unprocedural manner, without copying the other parties, and purported to advise the Court on the facts.
36. Based on the foregoing, as the applicant has shown that a fair-minded person reading the Court proceedings would conclude that the judge is biased? I am afraid not. I say so for several reasons.
37. Firstly, this Court has the jurisdiction under section 47 of the Law of Succession Act to pronounce such degrees and to make such orders therein as may be expedient. Rule 73 of the Probate and Administration Rules, 1980 states that “nothing in these rules shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.” In my view, the Court acted within its jurisdiction and properly exercised its inherent powers to meet what, in fact, was the ends of justice.
38. In exercising its inherent powers, the Court was scrupulously impartial. It made directions on the provisions of the account after hearing the parties. The submissions parties made were in respect of an account made by the firm of Kakai Mugallo Advocates LLP. The firm of Akanga Alera & Co. Advocates represented the applicant. It is not, therefore, correct to say that the Court condemned him without being heard as alleged.
39. Parties aggrieved by the ruling delivered on 5th November 2024 had the option of appealing or applying for review, as Kakai Mugallo Advocates LLP did vide their application dated 28th November 2024.
40. This Court does not know the parties involved in the matter, nor has it ever met any of them. No evidence of any contacts made by the Court with any party was made. There would absolutely be no reason for this court to be biased against any party.
41. In Tumaini vs Republic [1972]EALR 441, the Court stated as follows:-
“In considering the possibility of bias, it is not the mind of the judge which is considered but the impression given to reason.”
42. Which reasonable person would, upon reading the proceedings, conclude that the judge is biased?
43. The foregoing test has not been met. The application is without merit and is for dismissal.
44. I must comment on the unfortunate conduct of the applicant. The applicant first made a complaint to the Judicial Service Commission against the judge on 5th March 2025 and thereafter filed an application for recusal dated 27th March 2025. Upon reading his application, it is clear that the complaint is, in fact, the linchpin of his recusal application; put another way, he filed the complaint, in all likelihood, so as to force the Court to recuse itself. This conduct is reprehensible. It is clear to me that the applicant, having apprehended that the Court would be firm, seeks to engage in forum shopping, but required a good excuse to do so.
45. I am reminded of what H. Omondi, J, as she then was, stated in Prayosha Ventures Limited v NIC Bank Ltd & another; Beartice Jeruto Kipketer & another (Interested Parties) [2020] eKLR, to wit that:-
“ I have no lien over the matter, and would be more than willing to have this matter taken over by another judicial officer, EXCEPT that the manner in which the recusal is sought reeks of mala fides clothed with sharp practice, outright bullying and intimidation. That where a litigant does not call the tune and play the piper, then the bias flag is waved all over. Indeed, for good measure, Dr Kiprono reminded this court that his client would be considering presenting a complaint to the Judicial Service Commission over my conduct in this matter. If that was not intended to scare the daylights out of me, then I do not know why the name of my employer was being invoked at that point..”
46. In my view, the applicant has bullied and intimidated the Court. If this Court gives in to this kind of conduct, it would be betraying its oath of office to do justice to all without fear or ill will. It would also be a dereliction of the judge’s duties. That would encourage this kind of disreputable conduct, and our system of justice would be unable to function. I will not aid forum shopping nor encourage sharp practice, calumny or the chicanery that the applicant has engaged in.
47. I note that the trigger of this application is the direction this Court gave, requiring accounting and giving a timeline for compliance. This betrays what this is all about: the applicant is unhappy that he was required to account for his actions.
48. That said, I assure the parties that the Court will continue dispensing justice, professionally, without fear or ill will and that the applicant, the firm of Kakai Mugallo Advocates LLP and the executors have nothing to fear from this Court. This Court, however, will demand and expect accountability from the parties.
49. From the foregoing, it is clear that there is no merit in the application. I dismiss the same with costs to the Respondents.
50. It is so ordered.
Dated and signed at Mombasa, this 11th day of August 2025. Delivered virtually through Microsoft TEAMS.
(1) That the honourable Mr Justice Gregory Mutai recuse himself from handling this matter, having exhibited a lot of bias in handling the matter;
(2) That this honourable Court do issue an order reallocating this matter to another judge, other than the honourable Mr Justice Gregory Mutai;
(3) That any other orders in the interest of justice; and
(4) That the cost of this application be provided for.
2. The application is based on the grounds in the body of the motion and also in the supporting affidavit. In both the grounds in support of the application and the supporting affidavit, the applicant averred that this Court delivered a ruling on 5th November 2024, vide which it ordered him to deposit Kes.6,300,000/- into the estate collection account within 30 days thereof, failing which the said amount would be recovered from his entitlement to the remainder of the estate. He stated that his application, dated 15th November 2025, sought specific orders, to wit, that the executors of the deceased's estate distribute the estate fully to the four beneficiaries within 30 days and render a complete account. He further stated that the Court's ruling was extremely biased, as it rendered a decision that included orders not sought by any party.
3. He further deposed that he attempted to withdraw the application dated 15th November 2023, but that the Court declined to allow the said application. He thereafter filed a complaint with the Judicial Service Commission against the Honourable Mr Justice Gregory Mutai.
4. He accused the Court of creating confusion by referring to an application he had withdrawn and of fixing a non-existent application date, 13th February 2025, for hearing on 7th April 2025. He averred that he was condemned unheard. He therefore prayed that the application be allowed as prayed in the interest of justice.
5. The application was opposed. Ms Janepher Nyapela Makoba filed a replying affidavit sworn on 5th May 2025. Vide the said affidavit, she denied that the Court had been biased. She stated that, contrary to what was stated, the Court had heard the applicant before delivering the impugned ruling. Ms Makoba urged the Court to dismiss the application.
6. The firm of Kakai Mugallo & Co. Advocates did not file any affidavit or submissions. They left the matter to the court, for it to render its decision as it saw fit.
7. The application was canvassed by way of written submissions.
8. The written submissions of the applicant are dated 23rd May 2025. The applicant denied that the application was filed to delay or disrupt the administration of the deceased’s estate. He averred that the grant was confirmed on 26th October 2022, but that the executors had yet to distribute the estate. The applicant stated that Ms Makoba had not denied that the judge was biased and that there is an ongoing petition before the Judicial Service Commission against the Judge filed by him.
9. The applicant gave particulars of bias on the part of the judge, including being given biased directions, not allowing the notice of withdrawals of the application, and insisting on proceeding with it and also the fact that there was a pending petition at the Judicial Service Commission, being Petition No. 39 of 2025. The applicant argued that, since an ongoing petition was pending, the judge needed to recuse himself.
10. He urged, based on the decision of the Court in Tunoi & another v Judicial Service Commission & another [2016] KECA 530 (KLR), that the Court recuse itself.
11. The 1st Respondent filed written submissions dated 5th May 2025 in which she averred that the applicant, while asserting his rights, was “forgetting the rights of others.” She submitted that the Court had been lenient with the applicant and hence his continued intermeddling with the execution, running and administration of the estate. She stated that the application was an abuse of the Court process and intended to “harm both the Court and the 1st Respondents/Executor’s integrity.”
12. She stated that the applicant was facing criminal charges at Mpeketoni PMC Criminal case Nos MCCR/E107 of 2024; MCCR No. E106 of 2024, MCCR No E105 of 2024, and MCCR No E104 of 2024; Republic vs Japheth Omboko Makoba, for illegally disposing of part of the unadministered assets of the estate, and that on 28th April 2025, he was sentenced to serve a jail period of 4 years for fraud.
13. Ms. Makoba prayed that the application be dismissed.
14. I have read the application, the affidavits in support thereof, the documents attached thereto, and the 1st respondent’s response. I have also considered the written submissions of the parties. I must now determine if the application has merit.
15. What is the duty of a judge when handling matters before him? What principles guide him? Judges are bound by the Constitution of Kenya. I shall briefly set this out below.
16. In discharging their duties, judges are bound by Articles 73,160 and 232 of the Constitution of Kenya. I will briefly set out their provisions below:-
17. Article 73 states that:-
“(1) Authority assigned to a State officer—
(a) is a public trust to be exercised in a manner that—
(i) is consistent with the purposes and objects of this Constitution;
(ii) demonstrates respect for the people;
(iii) brings honour to the nation and dignity to the office; and
(iv) promotes public confidence in the integrity of the office; and
(b) vests in the State officer the responsibility to serve the people, rather than the power to rule them.
(2) The guiding principles of leadership and integrity include—
(a) selection on the basis of personal integrity, competence and suitability, or election in free and fair elections;
(b) objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices;
(c) selfless service based solely on the public interest, demonstrated by —
(i) honesty in the execution of public duties; and
(ii) the declaration of any personal interest that may conflict with public duties;
(d) accountability to the public for decisions and actions; and (e) discipline and commitment in service to the people.
18. Article 160 (1) of the Constitution of Kenya states that:-
“(1) In the exercise of judicial authority, the Judiciary, as constituted by Article 161, shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority.”
19. The values and principles of public service are set out in Article 232 of the Constitution of Kenya, which provides as follows:-
“(1) The values and principles of public service include—
(a) high standards of professional ethics;
(b) efficient, effective and economic use of resources;
(c) responsive, prompt, effective, impartial and equitable provision of services; (d) involvement of the people in the process of policy making;
(e) accountability for administrative acts;
(f) transparency and provision to the public of timely, accurate information;
(g) subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions;
(h) representation of Kenya’s diverse communities; and
(i) affording adequate and equal opportunities for appointment, training and advancement at all levels of the public service, of—
(i) men and women;
(ii) the members of all ethnic groups; and
(iii) persons with disabilities.
(2) The values and principles of public service apply to public service in—
(a) all State organs in both levels of government; and
(b) all State corporations.
(3) Parliament shall enact legislation to give full effect to this Article.”
20. To ensure that these principles are reflected in the conduct of judges and judicial officers, the Judicial Service Commission has a code of conduct for Judges. The code outlines the situations in which a judge may recuse himself. These are set out in Regulation 21, which states that:-
“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 -
(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 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”
21. Conditions under which a judge or a judicial officer may recuse himself/herself has been the subject of several decisions. I will set out a few below.
22. In the Attorney General of Kenya vs Prof Peer Anyang’ Nyong’o & 10 others EACJ Application No 5 of 2017, it was decided as follows:-
“We think that the objective test of “reasonable apprehension of bias” is good law. The test is stated variously, but amounts to this: do the circumstances give rise to a reasonable apprehension, in the view of a reasonable, fair-minded and informed member of the public, that the judge did not (will not) apply his mind to the case impartially. Needless to say, a litigant who seeks disqualification of a judge comes to court because of his own perception that there is an 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 and informed about all the circumstances of the case.”
23. In the case of R v Jackson Mwalulu & others CA 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…’’
24. In Philip K. Tunoi & another v Judicial Service Commission & another [2016] eKLR, a five-judge bench of the Court of Appeal held as follows:-
41. 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.
42. In Taylor v. Lawrence [2003] QB 528 at page 548, in which an application was made to reopen an appeal on the ground that the Judge was biased, the Judge having instructed the plaintiffs’ solicitors many years previously, the House of Lords in the judgment of Lord Woolf CJ reiterated:
“... we believe the modest adjustment in R V. Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the commonwealth and in Scotland.”
“The Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”
25. In the Philip Tunoi case, the Court of Appeal held that the fact that Justice Tunoi had previously convicted the lead Judge would not create an apprehension that the Judge would be biased. The Court of Appeal rendered itself as follows:-
“43. In the instant case, is bias discernible from the material before the Court in the eyes of a right thinking or reasonable person or fair-minded and informed person or observer? In the instant case, would a fair minded and informed observer think that the presiding judge would, 22 years after the conviction in the People case, be biased against the 1st applicant when the facts reveal that the issue for determination in the appeal rests squarely on the interpretation of the law and the Constitution as regards retirement age of all judges of the Superior Courts who were appointed prior to the date of promulgation? Quite plainly, the decision on retirement age of Judges will not be personal to the 1st applicant.
44. The facts of this case would not in our view, on the authority of Porter v. Magill (supra) lead a fair-minded and informed observer to conclude that there is real possibility that the Presiding Judge will be biased. It was not shown that circumstances exist that are likely to show that a real possibility exists that the Presiding Judge’s integrity or impartiality might reasonably be questioned.
26. The United Nations Office on Drugs and Crime, in its Commentary on Bangalore Principles of Judicial Conduct, stated as follows:-
“81. The generally accepted criterion for disqualification is the reasonable apprehension of bias. Different formulas have been applied to determine whether there is an apprehension of bias or prejudgment. These have ranged from “a high probability” of bias to “a real likelihood”, “a substantial possibility”, and “a reasonable suspicion” of bias. The apprehension of bias must be a reasonable one, held by reasonable, fair-minded and informed persons who apply themselves to the question and obtain the required information. The test is “what would such a person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would such person think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly”.41 The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasize that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by other judges of the capacity or performance of a colleague.
27. Applying the above test, has a case for refusal been made in this matter? To do so, I will briefly set out the history of the matter.
28. The grant in respect of the estate of the deceased person was confirmed on 26th October 2022. Each of the four beneficiaries, identified as Janepher Nyapela Makoba, Anthony Francis Makoba, Japhet Omboko Makoba, and Margaret Musyawa, received 25% of the estate. The estate of the deceased comprised properties which were owned jointly by the deceased and her ex-husband (also deceased), Mr Leo Brandenberg.
29. Vide an application dated 15th November 2023, the applicant herein sought to have the estate distributed. This Court issued directions regarding the said application on 30th January 2024. When the matter came up for mention on 29th February 2024, a dispute arose as to the true extent of the estate and what proportion, if any, had been sold by the applicant herein. To aid in the distribution of the estate, the Court issued directions on the said date, to wit that the executors were to prepare and file a comprehensive list of the assets of the estate, the assets to be valued by the government valuer and for accounting of funds made available by the firm of Kakas Mugallo Advocates LLP and the Court and of any other funds in their possession. The Court ordered that the valuation be done in the presence of the executors and the beneficiaries.
30. There was a delay in compliance with the directions issued by this Court on 29th February 2024. When the matter was mentioned on 29th June 2024, Mr. Akanga, then acting for the applicant, informed the Court that Mr. Mugallo shared a statement unofficially with the 1st Executor, Ms. Janepher Makoba. He sought to have it filed officially. After hearing the parties, the Court summoned Peter Mugallo to attend Court on 10th July 2024 so that he could produce his firm’s statement. After the said firm produced a statement of account, I granted the parties leave to file replying affidavits in response to the said statement. The parties made submissions regarding the said statement on the 22nd day of July 2024. Upon hearing, the parties' ruling was slated for 20th September 2024.
31. The ruling was delivered on 5th November 2024. I must state that the ruling/directions were in regard to the statement of account filed by the firm of Kakai Mugallo & Co, Advocate, and intended to address preliminary issues before the devolution of the estate of the deceased to the four beneficiaries. It is for that reason that the Court addressed itself to the question of liability said to be owed by the applicant to the estate at paragraphs 4 and 5, and the claims made in respect of the estate by the firm of Kakai Mugallo Advocates LLP in paragraphs 6 and 7 of the ruling. The ruling was not in respect of the application dated 15th November 2025.
32. It was my view that determining the said matters would enable the executors to distribute the estate of the deceased, as the true extent of the estate, and each party’s share (after deduction of what they had each received before distribution) would be taken into account.
33. In light of the foregoing, this Court had not dealt with the application dated 15th November 2023, and the same is pending before the Court to date.
34. The applicant objects to the refusal by the Court to allow his notice of withdrawal of the application dated 7th February 2025. In my view, the mere fact that the applicant filed the notice does not mean his application stood withdrawn. The application could only be said to be withdrawn once the notice was accepted by the Court. It is noteworthy that the 1st Executor is opposed to the notice of withdrawal and desires to have the application dated 15th November 2023 heard on the merits. It was for this reason that on 3rd March 2025 I ordered that parties file written submissions in respect of the intention by the applicant to withdraw the application dated 15th November 2023 and also in respect of an application dated “13th February 2025” (which doesn’t exist, but which should have been in reference to the application for review dated 28th November 2024 in respect of which directions were issued on 2nd December 2024, 28th January and 26th February 2025).
35. Upon the issuance of the directions of 3rd March 2025, the applicant wrote to the Judicial Service Commission on 5th March 2025 and, for good measure, copied the Ethics and Anti-Corruption Commission and the office of the Judiciary Ombudsman. The firm of Kakai Mugallo Advocates LLP wrote to the judge in a discourteous and unprocedural manner, without copying the other parties, and purported to advise the Court on the facts.
36. Based on the foregoing, as the applicant has shown that a fair-minded person reading the Court proceedings would conclude that the judge is biased? I am afraid not. I say so for several reasons.
37. Firstly, this Court has the jurisdiction under section 47 of the Law of Succession Act to pronounce such degrees and to make such orders therein as may be expedient. Rule 73 of the Probate and Administration Rules, 1980 states that “nothing in these rules shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.” In my view, the Court acted within its jurisdiction and properly exercised its inherent powers to meet what, in fact, was the ends of justice.
38. In exercising its inherent powers, the Court was scrupulously impartial. It made directions on the provisions of the account after hearing the parties. The submissions parties made were in respect of an account made by the firm of Kakai Mugallo Advocates LLP. The firm of Akanga Alera & Co. Advocates represented the applicant. It is not, therefore, correct to say that the Court condemned him without being heard as alleged.
39. Parties aggrieved by the ruling delivered on 5th November 2024 had the option of appealing or applying for review, as Kakai Mugallo Advocates LLP did vide their application dated 28th November 2024.
40. This Court does not know the parties involved in the matter, nor has it ever met any of them. No evidence of any contacts made by the Court with any party was made. There would absolutely be no reason for this court to be biased against any party.
41. In Tumaini vs Republic [1972]EALR 441, the Court stated as follows:-
“In considering the possibility of bias, it is not the mind of the judge which is considered but the impression given to reason.”
42. Which reasonable person would, upon reading the proceedings, conclude that the judge is biased?
43. The foregoing test has not been met. The application is without merit and is for dismissal.
44. I must comment on the unfortunate conduct of the applicant. The applicant first made a complaint to the Judicial Service Commission against the judge on 5th March 2025 and thereafter filed an application for recusal dated 27th March 2025. Upon reading his application, it is clear that the complaint is, in fact, the linchpin of his recusal application; put another way, he filed the complaint, in all likelihood, so as to force the Court to recuse itself. This conduct is reprehensible. It is clear to me that the applicant, having apprehended that the Court would be firm, seeks to engage in forum shopping, but required a good excuse to do so.
45. I am reminded of what H. Omondi, J, as she then was, stated in Prayosha Ventures Limited v NIC Bank Ltd & another; Beartice Jeruto Kipketer & another (Interested Parties) [2020] eKLR, to wit that:-
“ I have no lien over the matter, and would be more than willing to have this matter taken over by another judicial officer, EXCEPT that the manner in which the recusal is sought reeks of mala fides clothed with sharp practice, outright bullying and intimidation. That where a litigant does not call the tune and play the piper, then the bias flag is waved all over. Indeed, for good measure, Dr Kiprono reminded this court that his client would be considering presenting a complaint to the Judicial Service Commission over my conduct in this matter. If that was not intended to scare the daylights out of me, then I do not know why the name of my employer was being invoked at that point..”
46. In my view, the applicant has bullied and intimidated the Court. If this Court gives in to this kind of conduct, it would be betraying its oath of office to do justice to all without fear or ill will. It would also be a dereliction of the judge’s duties. That would encourage this kind of disreputable conduct, and our system of justice would be unable to function. I will not aid forum shopping nor encourage sharp practice, calumny or the chicanery that the applicant has engaged in.
47. I note that the trigger of this application is the direction this Court gave, requiring accounting and giving a timeline for compliance. This betrays what this is all about: the applicant is unhappy that he was required to account for his actions.
48. That said, I assure the parties that the Court will continue dispensing justice, professionally, without fear or ill will and that the applicant, the firm of Kakai Mugallo Advocates LLP and the executors have nothing to fear from this Court. This Court, however, will demand and expect accountability from the parties.
49. From the foregoing, it is clear that there is no merit in the application. I dismiss the same with costs to the Respondents.
50. It is so ordered.
Dated and signed at Mombasa, this 11th day of August 2025. Delivered virtually through Microsoft TEAMS.