RULING
The defendants prayed through a notice of motion dated 10 th April 2026 that I recuse myself from the hearing and handling of this matter which application is supported by the affidavit of James Ambuso Omondi the 1 st defendant sworn on even date. The defendants aver that they are entitled to the right to fair hearing as enshrined in Article 50(1) of the Constitution and that a Judge is required to act independently and have an open mind in performance of judicial duties consistent with the principles articulated in the Bangalore Principles of Judicial Conduct.
It is their averment that on the 10 th day of March 2026, I declined to grant them an adjournment despite counsel for both parties having consented to have the matter adjourned and that the basis for seeking the adjournment was that counsel for the applicants was engaged in two different matters, one before the Supreme Court and the other before a three Judges bench of the High Court.
It was further averred that I failed to consider the parties’ position that the outcome of two pending appeals before the Court of Appeal, i.e (COACA/E966/2024 and COACRA/E095/2023) which were set to come for judgment on 31 st July 2026 would affect the proceedings in this matter and adjourn it to a date after the said judgments. The defendants add that following the refusal to grant an adjournment, I on the following day proceeded to issue directions on a related application by the opposing counsel. In addition, it was deposed that on the 17 th of November, 2025 I summarily dismissed the defendants’ application without affording the parties an opportunity to be heard.
Based on the above history, the defendants hold the view that I demonstrated disregard for the counsel’s consent and the relevance of pending appeal proceedings, thereby undermining their right to effective representation and giving rise to a reasonable apprehension of bias, which necessitates recusal. According to the defendants, the sequence of events risks eroding public confidence in the judiciary as per the provisions of Regulation 20(1) of the Judicial Service (Code of Conduct and Ethics) Regulations.
The application was opposed by the plaintiff through grounds of opposition dated 8 th May, 2026. The plaintiff stated that no basis had been laid to warrant recusal and the grounds raised in the application did not meet the threshold for recusal. It averred that the court in refusing to grant an adjournment exercised its discretion which does not imply bias. It added that the court dismissed the application dated 6 th November 2025 after considering its merits and mere discontentment with the decision does not form the basis of recusal. The plaintiff averred further stated that the existence of the appeals without an order staying the proceedings herein would not prevent the court from proceeding with the matter herein.
Analysis and determination
The application was canvassed by way of written submissions. I have read and considered the submissions filed by the parties herein. The only issue for determination I have identified from the averments and the submissions is whether my conduct in this matter gives rise to a reasonable apprehension of bias warranting recusal.
The heart of this application is that an inference of bias in the way I have handled this matter is drawn from the following;
I failed to grant an adjournment on the 10 th of March, 2026 despite parties having agreed to the same and in light of the fact that Counsel for the defendants was to be engaged in two different matters before the Supreme Court and in a bench before the High Court.
Following the failure to grant an adjournment, I gave directions on an application by the respondent herein on the following day.
Despite being moved that there were pending appeals in Court of Appeal which would affect the proceedings herein and which were scheduled for judgment on 31 st July, 2026, I did not consider the same and I opined that “someone can be released or acquitted” which remarks were condescending and trivialized pending appellate matters.
That on the 17 th of November, 2025 I dismissed the defendants’ application dated 6 th November, 2025 without affording the parties an opportunity to be heard.
Contrary to what the defendants have narrated in relation to proceedings of 10 th March 2026, I granted their application for adjournment on grounds of engagement of their counsel elsewhere. I did not decline the application for adjournment as alleged. After I granted the adjournment, the defendants’ counsel asked for a date after 31 st July 2026 citing the pendency of the appeals. I held that the pendency and the outcome of the appeals must not have a bearing on this matter and I gave hearing dates of 5 th and 6 th May 2026. It is therefore unprofessional and unbecoming of the defendants’ counsel to insinuate that I declined to give an adjournment on 10 th March 2026. I do not find important or necessary for me to make comments on other two or three things the defendants have falsely stated about what I said while declining to push the hearing to a date past 31 st July 2026. The court proceedings are recorded both in writing and audio and anyone interested in knowing what the court said is free to peruse the court file or apply for an audio recording.
Even if I indeed declined to grant an adjournment as claimed, that would not be a factor that may manifest bias as I would have been exercising my judicial discretion and unless the same is supported by other aggravating evidence or circumstances, it cannot lay a basis for recusal. In Kariuki v Attorney General [2014] KECA 713 (KLR) , the Court of Appeal held as follows;
“ In Savannah Development Company Ltd v Merchantile Company Ltd, CA No . 120 of 1992, this Court stated that there may be reasons for seeking adjournment of a case set down for hearing on a particular day and that where there are valid reasons to justify granting of an adjournment, the Court always has unfettered discretion to grant the adjournment. The Court further stated that elements to be taken into consideration in an application for adjournment include the adequacy of the reasons given for the application for adjournment; how far, if at all, the other party is likely to be prejudiced by the adjournment; and whether the other party can be suitably compensated by award of costs.’
According to the defendants, the dismissal of their application in November 2025 followed by my refusal to give a date beyond 31 st July 2026 and the attendance of the plaintiff’s application April 2026 was a manifestation of bias against them and in favour of the plaintiff which is sufficient reasons to infer compromise of public confidence in these proceedings. Again, the defendants have thrown words and opinion without basis in the context of the recorded proceedings. My order dated 17 th November 2025 is available and as far as I am concerned based on reasons and based on the documents filed in this matter. It is normal and expected that the defendants were not happy with it.
It was within my judicial duty to give directions in respect of application dated 12 th March 2026 when it was placed before me. I do not know whether the defendants expected me to ignore existence of the application in order to placate them. It is ironic for the defendants to take these directions as biased against them when in the same, I vacated the date of 5 th and 6 th of May 2-26 which in my view was in their favour. I have already addressed the issue of giving hearing date of 5 th and 6 th of May 2026. The defendants may not have been contented by these findings but that alone is not a ground for this court to recuse itself. I do not think that a fair-minded person would for the reasons see bias in such.
The test of a fair-minded person is not the side, position or opinion of either of the parties in the proceedings the court is being asked to recuse itself. The test is of an independent person sitting in a neutral position and seeing the matter on the strength of the circumstances, the evidence, the pleaded facts and the law. What I see from the arguments of the defendants is a test applied from the biased side of their case and opinion.
The Supreme Court of Kenya held in Rai & 3 others v Rai & 4 others [2013] KESC 20 (KLR) as follows;
‘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.’
The Court of Appeal while discussing what constitutes merits in an application for recusal of a Judge in Republic v Mwalulu & 8 others [2005] KECA 344 (KLR) held that;
1. When the Courts are faced with such proceedings for the 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.
2. In such cases the Court must carefully scrutinize the affidavits on either side, remembering that when some litigants lose their cases, they are unable or unwilling to see the correctness of the verdict and are apt to attribute that verdict to a bias in the mind of the Judge. Magistrate or Tribunal.
3. The Court dealing with the issue of disqualification is not, indeed it cannot, go into the question of whether the officer is or will be actually biased. All the Court can do is to carefully examine the facts which are alleged to show bias and from those facts draw an inference, as any reasonable and fair-minded person would do, that the judge is biased or is likely to be biased.
Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations obligates a judicial officer to step aside from any proceedings where his or her impartiality may reasonably be called into question. The Regulation provides that;
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 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.”
None of the above requires that a Judge to recuse themselves whenever a party in the proceedings accuse them of bias but a recusal must be upon consideration of the reasons advanced for the possibility of bias. If the courts were to recuse themselves every time their decisions are called into question, we will never see an end to unmerited applications for recusal and that will encourage parties who are not interested in seeing the end to cases employ tactics of delaying the matters by making allegations of bias followed by an application for recusal.
This court and indeed every other court has a duty and mandate to manage the cases in their diaries and take control of their proceedings. As such the court has the discretion to allocate dates in a manner that would promote efficient, effective and expeditious disposal of the cases. A court does not have to accede to a consent of the parties on the timing of the cases unless of course the date it proposes is not for good reasons convenient to either of the parties in the manner that would deny them their right to a fair hearing. In this matter, the sole reason for asking me to give a date after 31 st July 2026 was that there were pending appeals and not because the dates were not convenient to the either of the parties.
Flowing from the above therefore, I am not satisfied that the defendants have laid sufficient grounds that I ought to recuse myself from hearing or handling this matter. Going by the experience and the standing of the defendants’ advocates, it is my opinion, and I may be wrong, that the application was meant to achieve the objective of delay and ensuring that the hearing of this matter goes passed 31 st July 2026. There are no merits in the said application and the same is hereby dismissed with costs to the plaintiff.
Dated, signed and delivered at Nairobi this 18 th day of September 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered in presence of Miss Wairimu Kamau for the plaintiff ad in absence of the defendants
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The defendants prayed through a notice of motion dated 10 th April 2026 that I recuse myself from the hearing and handling of this matter which application is supported by the affidavit of James Ambuso Omondi the 1 st defendant sworn on even date. The defendants aver that they are entitled to the right to fair hearing as enshrined in Article 50(1) of the Constitution and that a Judge is required to act independently and have an open mind in performance of judicial duties consistent with the principles articulated in the Bangalore Principles of Judicial Conduct.
It is their averment that on the 10 th day of March 2026, I declined to grant them an adjournment despite counsel for both parties having consented to have the matter adjourned and that the basis for seeking the adjournment was that counsel for the applicants was engaged in two different matters, one before the Supreme Court and the other before a three Judges bench of the High Court.
It was further averred that I failed to consider the parties’ position that the outcome of two pending appeals before the Court of Appeal, i.e (COACA/E966/2024 and COACRA/E095/2023) which were set to come for judgment on 31 st July 2026 would affect the proceedings in this matter and adjourn it to a date after the said judgments. The defendants add that following the refusal to grant an adjournment, I on the following day proceeded to issue directions on a related application by the opposing counsel. In addition, it was deposed that on the 17 th of November, 2025 I summarily dismissed the defendants’ application without affording the parties an opportunity to be heard.
Based on the above history, the defendants hold the view that I demonstrated disregard for the counsel’s consent and the relevance of pending appeal proceedings, thereby undermining their right to effective representation and giving rise to a reasonable apprehension of bias, which necessitates recusal. According to the defendants, the sequence of events risks eroding public confidence in the judiciary as per the provisions of Regulation 20(1) of the Judicial Service (Code of Conduct and Ethics) Regulations.
The application was opposed by the plaintiff through grounds of opposition dated 8 th May, 2026. The plaintiff stated that no basis had been laid to warrant recusal and the grounds raised in the application did not meet the threshold for recusal. It averred that the court in refusing to grant an adjournment exercised its discretion which does not imply bias. It added that the court dismissed the application dated 6 th November 2025 after considering its merits and mere discontentment with the decision does not form the basis of recusal. The plaintiff averred further stated that the existence of the appeals without an order staying the proceedings herein would not prevent the court from proceeding with the matter herein.
Analysis and determination
The application was canvassed by way of written submissions. I have read and considered the submissions filed by the parties herein. The only issue for determination I have identified from the averments and the submissions is whether my conduct in this matter gives rise to a reasonable apprehension of bias warranting recusal.
The heart of this application is that an inference of bias in the way I have handled this matter is drawn from the following;
I failed to grant an adjournment on the 10 th of March, 2026 despite parties having agreed to the same and in light of the fact that Counsel for the defendants was to be engaged in two different matters before the Supreme Court and in a bench before the High Court.
Following the failure to grant an adjournment, I gave directions on an application by the respondent herein on the following day.
Despite being moved that there were pending appeals in Court of Appeal which would affect the proceedings herein and which were scheduled for judgment on 31 st July, 2026, I did not consider the same and I opined that “someone can be released or acquitted” which remarks were condescending and trivialized pending appellate matters.
That on the 17 th of November, 2025 I dismissed the defendants’ application dated 6 th November, 2025 without affording the parties an opportunity to be heard.
Contrary to what the defendants have narrated in relation to proceedings of 10 th March 2026, I granted their application for adjournment on grounds of engagement of their counsel elsewhere. I did not decline the application for adjournment as alleged. After I granted the adjournment, the defendants’ counsel asked for a date after 31 st July 2026 citing the pendency of the appeals. I held that the pendency and the outcome of the appeals must not have a bearing on this matter and I gave hearing dates of 5 th and 6 th May 2026. It is therefore unprofessional and unbecoming of the defendants’ counsel to insinuate that I declined to give an adjournment on 10 th March 2026. I do not find important or necessary for me to make comments on other two or three things the defendants have falsely stated about what I said while declining to push the hearing to a date past 31 st July 2026. The court proceedings are recorded both in writing and audio and anyone interested in knowing what the court said is free to peruse the court file or apply for an audio recording.
Even if I indeed declined to grant an adjournment as claimed, that would not be a factor that may manifest bias as I would have been exercising my judicial discretion and unless the same is supported by other aggravating evidence or circumstances, it cannot lay a basis for recusal. In Kariuki v Attorney General [2014] KECA 713 (KLR) , the Court of Appeal held as follows;
“ In Savannah Development Company Ltd v Merchantile Company Ltd, CA No . 120 of 1992, this Court stated that there may be reasons for seeking adjournment of a case set down for hearing on a particular day and that where there are valid reasons to justify granting of an adjournment, the Court always has unfettered discretion to grant the adjournment. The Court further stated that elements to be taken into consideration in an application for adjournment include the adequacy of the reasons given for the application for adjournment; how far, if at all, the other party is likely to be prejudiced by the adjournment; and whether the other party can be suitably compensated by award of costs.’
According to the defendants, the dismissal of their application in November 2025 followed by my refusal to give a date beyond 31 st July 2026 and the attendance of the plaintiff’s application April 2026 was a manifestation of bias against them and in favour of the plaintiff which is sufficient reasons to infer compromise of public confidence in these proceedings. Again, the defendants have thrown words and opinion without basis in the context of the recorded proceedings. My order dated 17 th November 2025 is available and as far as I am concerned based on reasons and based on the documents filed in this matter. It is normal and expected that the defendants were not happy with it.
It was within my judicial duty to give directions in respect of application dated 12 th March 2026 when it was placed before me. I do not know whether the defendants expected me to ignore existence of the application in order to placate them. It is ironic for the defendants to take these directions as biased against them when in the same, I vacated the date of 5 th and 6 th of May 2-26 which in my view was in their favour. I have already addressed the issue of giving hearing date of 5 th and 6 th of May 2026. The defendants may not have been contented by these findings but that alone is not a ground for this court to recuse itself. I do not think that a fair-minded person would for the reasons see bias in such.
The test of a fair-minded person is not the side, position or opinion of either of the parties in the proceedings the court is being asked to recuse itself. The test is of an independent person sitting in a neutral position and seeing the matter on the strength of the circumstances, the evidence, the pleaded facts and the law. What I see from the arguments of the defendants is a test applied from the biased side of their case and opinion.
The Supreme Court of Kenya held in Rai & 3 others v Rai & 4 others [2013] KESC 20 (KLR) as follows;
‘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.’
The Court of Appeal while discussing what constitutes merits in an application for recusal of a Judge in Republic v Mwalulu & 8 others [2005] KECA 344 (KLR) held that;
1. When the Courts are faced with such proceedings for the 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.
2. In such cases the Court must carefully scrutinize the affidavits on either side, remembering that when some litigants lose their cases, they are unable or unwilling to see the correctness of the verdict and are apt to attribute that verdict to a bias in the mind of the Judge. Magistrate or Tribunal.
3. The Court dealing with the issue of disqualification is not, indeed it cannot, go into the question of whether the officer is or will be actually biased. All the Court can do is to carefully examine the facts which are alleged to show bias and from those facts draw an inference, as any reasonable and fair-minded person would do, that the judge is biased or is likely to be biased.
Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations obligates a judicial officer to step aside from any proceedings where his or her impartiality may reasonably be called into question. The Regulation provides that;
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 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.”
None of the above requires that a Judge to recuse themselves whenever a party in the proceedings accuse them of bias but a recusal must be upon consideration of the reasons advanced for the possibility of bias. If the courts were to recuse themselves every time their decisions are called into question, we will never see an end to unmerited applications for recusal and that will encourage parties who are not interested in seeing the end to cases employ tactics of delaying the matters by making allegations of bias followed by an application for recusal.
This court and indeed every other court has a duty and mandate to manage the cases in their diaries and take control of their proceedings. As such the court has the discretion to allocate dates in a manner that would promote efficient, effective and expeditious disposal of the cases. A court does not have to accede to a consent of the parties on the timing of the cases unless of course the date it proposes is not for good reasons convenient to either of the parties in the manner that would deny them their right to a fair hearing. In this matter, the sole reason for asking me to give a date after 31 st July 2026 was that there were pending appeals and not because the dates were not convenient to the either of the parties.
Flowing from the above therefore, I am not satisfied that the defendants have laid sufficient grounds that I ought to recuse myself from hearing or handling this matter. Going by the experience and the standing of the defendants’ advocates, it is my opinion, and I may be wrong, that the application was meant to achieve the objective of delay and ensuring that the hearing of this matter goes passed 31 st July 2026. There are no merits in the said application and the same is hereby dismissed with costs to the plaintiff.
Dated, signed and delivered at Nairobi this 18 th day of September 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered in presence of Miss Wairimu Kamau for the plaintiff ad in absence of the defendants
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