When the applicant’s originating summons dated 6 th March 2026 was placed before me on 6 th March 2026, I after giving the facts pleaded therein due consideration granted orders of injunction preserving for six months funds in form of government securities held in investment account number 147488-004 held by the respondents pursuant to Section 56(3) of the Anti-Corruption and Economic Crimes Act (ACECA).
On 9 th April 2026, the respondent through the firm of E. Omulloh Advocates filed a notice of motion dated 2 nd April 2026 under Section 56(4) and (5) of ACECA seeking to vary, stay and set aside my orders dated 6 th March 2026. On the same date the application was filed, I gave comprehensive directions in respect of the said respondents’ application and reserved the matter for mention on 19-05-2026 on which date the parties confirmed to have substantially complied save that the applicant had not filed submissions. I then allowed the applicant seven days to file submissions and fixed the matter for mention for fixing of a ruling date on 3-06-2026. On this date, parties had fully complied and I reserved the matter for ruling on 18-09-2026. None of the parties raised issue with the ruling date.
Three days later, precisely on 8-06-2026 which was a Friday, the respondents filed a notice of motion under certificate of urgency dated 4 th June 2026 which was placed before me in the morning of 8 th June 2026 and which I attended and dealt with before I started my normal cause list. The said application was asking me to bring forward my ruling to a date in July since the preservation orders were set to lapse on 6 th September 2026. I declined the application for reasons (which are recorded) that I was unable to bring the ruling forward because of pressure of work considering my diary and workload and the fact that I would be on leave from 1-07-2026 to 29-07-2026 and the remaining term dates could not accommodate another ruling or judgment. I also observed that the lapse of the preservation orders and likelihood of extension of the same were speculative.
A few hours after I declined to grant the orders, the respondents filed another notice of motion asking me to reconsider my earlier decision and bring forward the ruling date arguing among others that the question was not a matter of judicial calendar management but a constitutional obligation. I again declined to grant the orders for vacation of the ruling date. This prompted the respondents to write a letter to the Presiding Judge of this division and the Judicial Service Commission complaining of my alleged partisan way of handling of the matter and incompetence and asking that this file be taken from me and allocated to another Judge.
In quick succession and as a follow up, the respondents filed application dated 11 th June 2026 which is the subject of this ruling. The application is asking me to disqualify myself from this matter and the file be designated to another Judge for reasons that I have manifested differential treatment, apparent judicial bias, incompetence, misconduct, misbehaviour and preferential treatment of the parties and issuance of procedurally ineffective orders and directions that are incapable of innocent explanation. To buttress these allegations, the respondents proceeded to give the history of the matter as I have reproduced above. The application is supported by affidavit of the 2 nd respondent sworn on 11 th June 2026.
The applicant opposed the respondents’ application through grounds of opposition dated 11 th June 2026 in which it states that the application is misconceived, frivolous, vexatious and an abuse of the process of the court. The applicant adds that the application does not satisfy the constitutional, statutory and jurisprudential threshold for recusal of the court. It adds that fixing of a ruling date is a case-management function within the exclusive discretion of the court and even where a party considers such a date inconvenient, that fact does not establish actual bias or a reasonable apprehension of bias.
The application was disposed of through written submissions. I have read the submissions of the respondents dated 10 th July 2026 and those of the applicant dated 16 th July 2026. The respondents’ submissions oscillate around their apprehension that their right to fair hearing may be prejudiced by my continued handling of this matter given the pendency of an active complaint against me and the fact that I declined their two aforestated applications. The issue of incompetence and granting of what the respondents consider procedurally ineffective orders cannot be grounds for recusal. Their relevance can only be in an appeal or prosecution of their complaint against me before the Judicial Service Commission.
The grounds for recusal of a Judge from hearing a matter are wide but all are based on presence of possibility of the Judge not rendering a fair, independent and impartial decision. This translates to the Judge leaning or having bias on either side of the case. In other words, the grounds on which recusal is sought must show that the Judge is likely to lean, incline, bent or is predisposed towards one side or a particular result irrespective of the facts and evidence produced before the court.
In my view, the mere fact that a Judge declines to grant orders as sought by a party does not form grounds for the Judge to recuse themselves. Every case filed before a court would definitely go one way or the other and unless there is a settlement through mutual agreement of the parties, there cannot be a middle ground. More often than not, the losing party would not be happy with the outcome of a court’s decision but that alone does not form a basis of accusing the Judge of bias. For bias to be successfully pleaded, there must be conduct or approach by the Judge or circumstances that is real or apparent and in my view, denial of orders prayed for does not fall within that realm.
In Philip K. Tunoi & another v Judicial Service Commission & another [2016] KECA 715 (KLR), it was held that;
‘In determining the existence or otherwise of bias, the test to be applied is that of a fair-minded and informed observer who will adopt a balanced approach and will neither be complacent nor be unduly sensitive or suspicious in determining whether or not there is a real possibility of bias.’
The respondents claim that they believe that the court will not render a sound or reasoned ruling going by the way it handled their applications to bring forward the ruling. It is a matter of public notoriety and that is the practice that, once applications have been filed under certificates of urgency, the court does not have to hear oral submissions of the parties. The applications are considered in the first instance on the basis of the documents filed and the court has judicial discretion to give directions it may deem fit. Failure by this court to hear the respondents’ advocate in oral submissions on 8-06-2026 does not denote any bias. As I have stated above, I handled the certificate of urgency before I started my normal cause list and the fact that the certificate was listed did not obligate this court to hear the counsel for the respondents. The cause listing of certificates which is done in all other courts is meant for accountability and results tracking purposes.
It is a wrong approach for a litigant to impute bias on the part of the court because it has previously made orders against them. The fact that I denied the prayers sought in the two applications in question does not mean that I have already made my mind on the outcome of the application dated 2 nd April 2026. In Republic v Kenya Motorsports Federation Ltd & another; Ex-parte Rory Hugh Thomas Mckean & another (Suing through parents and next friend) [2021] KEHC 7976 (KL R), the Court held that;
‘The said commentary underscores the fact that each case is decided on its own facts and evidence, and the Judge is required and expected to apply the law to those particular facts and evidence. In the event that a Judge does not apply himself or herself as required, then a party’s remedy is that of review or appeal to correct and reverse any perceived errors made by a Judge. Applications to seek recusal of a judge on the basis of previous decisions in the absence of any evidence giving rise to a perception of bias, are a dangerous and unacceptable affront to judicial independence, and results in the abdication of judicial authority, and must therefore be discouraged in the interests of the rule of law and justice.
The respondents may hold their personal opinion, judgment or belief about me or any other Judge but that would not be a ground for me to disqualify myself. They have exhibited a detailed letter of complaint dated 10 th June 2026 to the Judicial Service Commission. The same centers on the orders I gave on 8-06-2026. Nothing in that letter or the respondents’ supporting affidavit discloses any personal conduct or relationship between me and any of the parties in this matter. There are no allegations that I have previously handled similar matters involving the same parties or made any orders that would demonstrate bias other than the suspicion or beliefs by the respondents that I will not be impartial. If we were to allow applications for recusal of a Judge whenever an order is made against a party, there would not be an end to such applications.
In stating as I have in the foregoing paragraph, I associate myself with the holding of Honourable Justice DAS Majanja (may he continue resting in peace) in Showcase Properties Limited v John Mugambi t/a Mugambi and Company Advocates [2022] KEHC 14485 (KLR) thus;
‘Unless an actual interest is demonstrated in which case a judge must recuse himself, a party who seeks recusal on the basis of apparent or perceived bias must demonstrate to the court that reasonable and fair minded people having knowledge of the facts of the case would conclude that the judge was biased.
Judges are obliged to sit and hear cases hence they must not recuse themselves on flimsy or bare allegations made by a party as this would undermine the administration of justice hence the authorities are clear that there must be a factual basis for the judge to recuse himself.’
The respondents allege that since they have filed the complaint with the Judicial Service Commission against me, they are apprehensive that I will be biased against them. That line of submissions suggests that the fact that a complaint has been filed against me will influence the way I treat or handle this matter. It would appear from those submissions that the complaint was made in order to form a basis for the application. The conduct of presenting a complaint to the Judicial Service Commission in order to ground an application for recusal is not only unprofessional but also unacceptable. In my mind, I consider the complaint as expression of the respondents’ right and that does not affect my judgment on the issues raised in the respondents’ application dated 2 nd April 2026. Courts’ decisions must be based on facts, evidence and the law and not the Judge’s personal emotions or opinion about the parties.
In view of the above, I find no merits in the application dated 11 th June 2026 and the same is hereby dismissed. I make no orders as to costs
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 Kibogy for the plaintiff and Mr. Omulloh for the 1 st and 2 nd defendants.
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On 9 th April 2026, the respondent through the firm of E. Omulloh Advocates filed a notice of motion dated 2 nd April 2026 under Section 56(4) and (5) of ACECA seeking to vary, stay and set aside my orders dated 6 th March 2026. On the same date the application was filed, I gave comprehensive directions in respect of the said respondents’ application and reserved the matter for mention on 19-05-2026 on which date the parties confirmed to have substantially complied save that the applicant had not filed submissions. I then allowed the applicant seven days to file submissions and fixed the matter for mention for fixing of a ruling date on 3-06-2026. On this date, parties had fully complied and I reserved the matter for ruling on 18-09-2026. None of the parties raised issue with the ruling date.
Three days later, precisely on 8-06-2026 which was a Friday, the respondents filed a notice of motion under certificate of urgency dated 4 th June 2026 which was placed before me in the morning of 8 th June 2026 and which I attended and dealt with before I started my normal cause list. The said application was asking me to bring forward my ruling to a date in July since the preservation orders were set to lapse on 6 th September 2026. I declined the application for reasons (which are recorded) that I was unable to bring the ruling forward because of pressure of work considering my diary and workload and the fact that I would be on leave from 1-07-2026 to 29-07-2026 and the remaining term dates could not accommodate another ruling or judgment. I also observed that the lapse of the preservation orders and likelihood of extension of the same were speculative.
A few hours after I declined to grant the orders, the respondents filed another notice of motion asking me to reconsider my earlier decision and bring forward the ruling date arguing among others that the question was not a matter of judicial calendar management but a constitutional obligation. I again declined to grant the orders for vacation of the ruling date. This prompted the respondents to write a letter to the Presiding Judge of this division and the Judicial Service Commission complaining of my alleged partisan way of handling of the matter and incompetence and asking that this file be taken from me and allocated to another Judge.
In quick succession and as a follow up, the respondents filed application dated 11 th June 2026 which is the subject of this ruling. The application is asking me to disqualify myself from this matter and the file be designated to another Judge for reasons that I have manifested differential treatment, apparent judicial bias, incompetence, misconduct, misbehaviour and preferential treatment of the parties and issuance of procedurally ineffective orders and directions that are incapable of innocent explanation. To buttress these allegations, the respondents proceeded to give the history of the matter as I have reproduced above. The application is supported by affidavit of the 2 nd respondent sworn on 11 th June 2026.
The applicant opposed the respondents’ application through grounds of opposition dated 11 th June 2026 in which it states that the application is misconceived, frivolous, vexatious and an abuse of the process of the court. The applicant adds that the application does not satisfy the constitutional, statutory and jurisprudential threshold for recusal of the court. It adds that fixing of a ruling date is a case-management function within the exclusive discretion of the court and even where a party considers such a date inconvenient, that fact does not establish actual bias or a reasonable apprehension of bias.
The application was disposed of through written submissions. I have read the submissions of the respondents dated 10 th July 2026 and those of the applicant dated 16 th July 2026. The respondents’ submissions oscillate around their apprehension that their right to fair hearing may be prejudiced by my continued handling of this matter given the pendency of an active complaint against me and the fact that I declined their two aforestated applications. The issue of incompetence and granting of what the respondents consider procedurally ineffective orders cannot be grounds for recusal. Their relevance can only be in an appeal or prosecution of their complaint against me before the Judicial Service Commission.
The grounds for recusal of a Judge from hearing a matter are wide but all are based on presence of possibility of the Judge not rendering a fair, independent and impartial decision. This translates to the Judge leaning or having bias on either side of the case. In other words, the grounds on which recusal is sought must show that the Judge is likely to lean, incline, bent or is predisposed towards one side or a particular result irrespective of the facts and evidence produced before the court.
In my view, the mere fact that a Judge declines to grant orders as sought by a party does not form grounds for the Judge to recuse themselves. Every case filed before a court would definitely go one way or the other and unless there is a settlement through mutual agreement of the parties, there cannot be a middle ground. More often than not, the losing party would not be happy with the outcome of a court’s decision but that alone does not form a basis of accusing the Judge of bias. For bias to be successfully pleaded, there must be conduct or approach by the Judge or circumstances that is real or apparent and in my view, denial of orders prayed for does not fall within that realm.
In Philip K. Tunoi & another v Judicial Service Commission & another [2016] KECA 715 (KLR), it was held that;
‘In determining the existence or otherwise of bias, the test to be applied is that of a fair-minded and informed observer who will adopt a balanced approach and will neither be complacent nor be unduly sensitive or suspicious in determining whether or not there is a real possibility of bias.’
The respondents claim that they believe that the court will not render a sound or reasoned ruling going by the way it handled their applications to bring forward the ruling. It is a matter of public notoriety and that is the practice that, once applications have been filed under certificates of urgency, the court does not have to hear oral submissions of the parties. The applications are considered in the first instance on the basis of the documents filed and the court has judicial discretion to give directions it may deem fit. Failure by this court to hear the respondents’ advocate in oral submissions on 8-06-2026 does not denote any bias. As I have stated above, I handled the certificate of urgency before I started my normal cause list and the fact that the certificate was listed did not obligate this court to hear the counsel for the respondents. The cause listing of certificates which is done in all other courts is meant for accountability and results tracking purposes.
It is a wrong approach for a litigant to impute bias on the part of the court because it has previously made orders against them. The fact that I denied the prayers sought in the two applications in question does not mean that I have already made my mind on the outcome of the application dated 2 nd April 2026. In Republic v Kenya Motorsports Federation Ltd & another; Ex-parte Rory Hugh Thomas Mckean & another (Suing through parents and next friend) [2021] KEHC 7976 (KL R), the Court held that;
‘The said commentary underscores the fact that each case is decided on its own facts and evidence, and the Judge is required and expected to apply the law to those particular facts and evidence. In the event that a Judge does not apply himself or herself as required, then a party’s remedy is that of review or appeal to correct and reverse any perceived errors made by a Judge. Applications to seek recusal of a judge on the basis of previous decisions in the absence of any evidence giving rise to a perception of bias, are a dangerous and unacceptable affront to judicial independence, and results in the abdication of judicial authority, and must therefore be discouraged in the interests of the rule of law and justice.
The respondents may hold their personal opinion, judgment or belief about me or any other Judge but that would not be a ground for me to disqualify myself. They have exhibited a detailed letter of complaint dated 10 th June 2026 to the Judicial Service Commission. The same centers on the orders I gave on 8-06-2026. Nothing in that letter or the respondents’ supporting affidavit discloses any personal conduct or relationship between me and any of the parties in this matter. There are no allegations that I have previously handled similar matters involving the same parties or made any orders that would demonstrate bias other than the suspicion or beliefs by the respondents that I will not be impartial. If we were to allow applications for recusal of a Judge whenever an order is made against a party, there would not be an end to such applications.
In stating as I have in the foregoing paragraph, I associate myself with the holding of Honourable Justice DAS Majanja (may he continue resting in peace) in Showcase Properties Limited v John Mugambi t/a Mugambi and Company Advocates [2022] KEHC 14485 (KLR) thus;
‘Unless an actual interest is demonstrated in which case a judge must recuse himself, a party who seeks recusal on the basis of apparent or perceived bias must demonstrate to the court that reasonable and fair minded people having knowledge of the facts of the case would conclude that the judge was biased.
Judges are obliged to sit and hear cases hence they must not recuse themselves on flimsy or bare allegations made by a party as this would undermine the administration of justice hence the authorities are clear that there must be a factual basis for the judge to recuse himself.’
The respondents allege that since they have filed the complaint with the Judicial Service Commission against me, they are apprehensive that I will be biased against them. That line of submissions suggests that the fact that a complaint has been filed against me will influence the way I treat or handle this matter. It would appear from those submissions that the complaint was made in order to form a basis for the application. The conduct of presenting a complaint to the Judicial Service Commission in order to ground an application for recusal is not only unprofessional but also unacceptable. In my mind, I consider the complaint as expression of the respondents’ right and that does not affect my judgment on the issues raised in the respondents’ application dated 2 nd April 2026. Courts’ decisions must be based on facts, evidence and the law and not the Judge’s personal emotions or opinion about the parties.
In view of the above, I find no merits in the application dated 11 th June 2026 and the same is hereby dismissed. I make no orders as to costs
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 Kibogy for the plaintiff and Mr. Omulloh for the 1 st and 2 nd defendants.
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