Introduction
1. For determination is the Respondent/Applicant's Notice of Motion dated 25th May 2026 seeking principally that I recuse myself from hearing, determining or otherwise dealing with these proceedings and all consequential proceedings arising therefrom.
2. The Applicant further seeks an order staying these proceedings pending the determination of the application and, upon recusal, that the file be placed before the Presiding Judge of the Commercial and Tax Division for allocation to another Judge.
3. The application is supported by the affidavit of Ms. Suleka Alia Duale sworn on 25th May 2026 together with the written submissions and authorities filed on behalf of the Applicant.
4. The Motion is opposed. The Court has considered the application, the affidavit in support, the record of these proceedings, the written submissions and the authorities relied upon by the Applicant.
5. Although the application raises numerous complaints spanning several proceedings, the legal question presented is a narrow one. It is whether the facts relied upon, viewed objectively and cumulatively, would lead a fair-minded and informed observer to conclude that there exists a real possibility that this Court will not bring an impartial mind to the determination of these proceedings.
6. The application therefore calls for a careful balancing of two constitutional imperatives. On the one hand lies the guarantee under Article 50(1) of the Constitution that every litigant is entitled to have his or her dispute determined by an independent and impartial court. On the other hand lies the equally fundamental guarantee under Article 160 that judicial officers, in the exercise of judicial authority, are subject only to the Constitution and the law and are not to be influenced by external pressure or collateral considerations. Those constitutional guarantees are complementary rather than competing. Public confidence in the administration of justice is enhanced both when judges recuse themselves where the circumstances objectively require it and when they decline to recuse themselves where no proper legal basis exists.
Background
7. The present proceedings arise from this Court's ruling delivered on 5th February 2026 determining the Applicant's application for leave to appeal out of time together with an application for stay pending appeal.
8. Dissatisfied with portions of that ruling, the Applicant lodged a Notice of Appeal and subsequently filed a Notice of Motion dated 6th March 2026 seeking review of part of the decision.
9. Before that review application could be determined, the Applicant filed the present Motion dated 25th May 2026 seeking my recusal from any further conduct of this matter.
10. The application is not confined to these proceedings alone. The application also invites the Court to examine a number of judicial determinations delivered by the undersigned in three (3) other separate proceedings (matters) involving either the Applicant or companies associated with its director, Bullent Gulbahar, who ordinarily appears in Court in person on behalf of all the companies.
11. The four matters, including the present matter, where a similar application, all dated 25th May 2026, has been lodged by the Applicant are as follows:
i . HCCOMMISC No. E049 of 2024 , being the present matter;
ii. HCCC No. 431 of 2014 , involving Bamburi Special Products Limited and Remax Construction Limited, in which the Court dismissed an application for contempt by a ruling delivered on 26th January 2026;
iii. Civil Suit No. 171 of 2009, in which Paragon Electronics Limited is the decree-holder against Samsung Electronics Co. Limited (withdrawn on 6th July 2026); and
iv. HCCCOMM No. 8 of 2016 , involving Paragon Electronics Limited and I&M Bank PLC.
12. According to the Applicant, the rulings and orders rendered by this Court in all the four files, when viewed collectively, reveal a pattern demonstrating actual bias or, at the very least, a reasonable apprehension of bias.
13. The Applicant’s director, Mr. Gulbahar, further pointed out that arising from the foregoing rulings, he on 16th March 2026, lodged Judicial Service Commission Petition No. 28 of 2026 seeking my removal from office as a judge. According to Mr. Gulbahar, the existence of these disciplinary proceedings independently gives rise to a reasonable apprehension that I may not determine their matters with the requisite impartiality.
14. However, on 6th July 2026 the Applicant filed a Notice of Withdrawal in Civil Suit No. 171 of 2009 withdrawing, in its entirety, the recusal application in the matter.
The Applicant's Case
15. The Applicant, citing Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2013] eKLR, submitted that the recusal application in this matter, like the other three, has been by a “documented record of conflict of interest, actual bias, reasonable apprehension of bias, and a consistent pattern of conduct that has emerged across four separate active proceedings — HCCC No. 431 of 2014, HCCOMMMISC E049 of 2024, Civil Suit No. 171 of 2009 and HCCCOMM 8 of 2016 — all presided over by Hon. Mr. Justice Moses Ado.”
16. According to the Applicant, the Court's conduct across the four proceedings demonstrates a pattern inconsistent with judicial impartiality. The Applicant’s contentions can, for convenience’s sake, be classified in the following broad arguments;
17. First, it is contended that the Court has inconsistently applied legal principles relating to waiver, acquiescence and participation in proceedings in HCCC No. 431 of 2014, and HCCOMMMISC E049 of 2024. The Applicant pointed to rulings delivered within a relatively short period of each other (ten days) in which, it argues, the Court adopted contradictory approaches to substantially similar legal questions.
18. Second, the Applicant submitted that the Court, particularly in HCCC No. 431 of 2014, selectively considered evidence favourable to opposing parties while failing to accord similar consideration to evidence and submissions advanced on its behalf. It argues that this selective treatment of evidence reveals a predisposition against the Applicant.
19. Third, the Applicant alleges that the Court assumed jurisdiction where none existed while declining jurisdiction in other matters where it ought properly to have exercised it. According to the Applicant, those inconsistent approaches cannot be explained merely as judicial error but instead demonstrate partiality.
20. Finally, the Applicant argues that the pendency of Judicial Service Commission (JSC) Petition No. 28 of 2026 creates an independent and objective basis for recusal. It was submitted that, irrespective of the merits of the complaint before the Commission, public confidence in the administration of justice would be undermined if the same Judge were to continue hearing proceedings involving the complainant.
21. On the basis of the foregoing, the Applicant urged the Court to conclude that a reasonable and informed member of the public would entertain a legitimate apprehension that the Court may not approach these proceedings with the requisite impartiality.
22. The Application was canvassed by way of written submissions. The Applicant filed submissions dated 17 June 2026. No submissions were filed on behalf of the Respondent.
Analysis and Determination
23. Having carefully considered the application, the supporting affidavit, the submissions on record and the authorities cited, I find that the sole issue for determination is whether the application for recusal is merited.
24. It a settled constitutional imperative, under Article 50(1) of the Constitution, as read together with Article 160(1) that public confidence in the administration of justice requires both that judges recuse themselves where circumstances objectively warrant recusal, and that judges continue to discharge their constitutional mandate where no such circumstances exist.
25. Unwarranted recusal may be just as damaging to the administration of justice, just as an unwarranted refusal to recuse, since both would significantly erode public confidence in judicial independence guaranteed under Article 160(1) of the Constitution.
26. The Supreme Court in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, held that the object of recusal is to ensure that justice remains uncompromised and that due process is not only observed but is seen to have been observed. The Court emphasized that perception of fairness is the proper test.
27. That principle was reaffirmed in Philip K. Tunoi & Another v Judicial Service Commission & Another [2016] eKLR, where the Court of Appeal emphasized that the concern is with maintaining public confidence in the administration of justice through an objective assessment of the relevant facts.
28. In Hon. Kalpana H. Rawal v Judicial Service Commission & 2 Others [2016] eKLR, the Court of Appeal clarified that the question is objective and is based on what an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude. A mere suspicion of bias is not enough. The apprehension must be reasonable and grounded on solid facts.
29. Similarly, in Kipkoech Kangongo & 62 Others v Board of Governors Sacho High School & 5 Others, the Court held that the applicable test is objective and centers on whether a reasonable and informed person, fully apprised of the circumstances, would conclude that there exists an appearance of bias. The Court, citing with approval the South African Constitutional Court in President Of The Republic Of South Africa V South African Rugby Football Union [1999] (4) SA 147, stated as follows:
“It follows from the foregoing that the correct approach to this application for recusal of members of this Court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or propositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial office should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer for whatever reasons was not or will not be impartial.”
30. With the foregoing in mind, I will now turn to consider whether the specific issues raised by the Applicant meet the legal threshold for this Court’s recusal.
Whether the previous rulings establish apparent bias
31. The Applicant's principal complaint is that rulings delivered by the undersigned in four separate proceedings demonstrate inconsistency in legal reasoning, selective treatment of evidence and jurisdictional error. According to the Applicant, those matters collectively establish a pattern of partiality.
32. To effectively address this question, it is imperative that I set out the specific rulings which form the basis of the Applicant’s application for recusal of this Court. As pointed out earlier, the four matters are:
a) HCCOMMMISC/E049/2024 GEORGES AFFAKI VS TECHNOSERVICE LIMITED – the present matter
b) COMM 431/2014 BAMBURI SPECIAL PRODUCTS LTD VS REMAX CONSTRUCTION LTD
c) HCCCOMM NO. 8 OF 2016: PARAGON ELECTRONICS LIMITED AND I&M BANK PLC
d) HC. COMM/171/2009 PARAGON ELECTRONICS LTD VS SAMSUNG ELECTRONICS LTD
33. In HCCOMMMISC/E049/2024 GEORGES AFFAKI VS TECHNOSERVICE LIMITED, the Applicant (Georges Affaki) moved this Court by an Amended Notice of Motion dated 15 February 2024, seeking principally: (i) leave to appeal out of time against the judgment of 3 July 2023 in CMCC No. 9449 of 2019; (ii) stay of proceedings in the said suit; and (iii) that the Memorandum of Appeal filed with the application be deemed duly filed.
The Respondent (Tecnoservice – the present applicant) opposed the application arguing in the main that the Motion was fatally defective, the delay was inordinate and unexplained, the default judgment remained unchallenged, and the intended appeal was hopeless.
This Court in its Ruling of 5th February 2026 allowed the application, granting the Georges Affaki leave to appeal out of time. The Court also granted a stay of proceedings in the lower court on condition that the Applicant was to deposit a sum of Kshs. 7,000,000/- within 30 days from the date of that ruling.
Dissatisfied, the Respondent on 9th February 2026, lodged a notice of appeal to the Court of Appeal.
34. In COMM 431/2014 BAMBURI SPECIAL PRODUCTS LTD VS REMAX CONSTRUCTION LTD, the Applicant, through its director Mr. Bulent Gulbahar, filed two applications; a contempt application and a review application. The Respondent filed a Preliminary Objection in opposition to the two applications, which this Court also determined.
i. The Notice of Motion dated 15th February 2023, a contempt application against Eric Wampamba Kironde, Seddiq Hassani, (directors of the Respondent) and their Advocate, Joy Justine Impano, for having allegedly fabricated a newspaper advertisement used for substituted service (the Court having earlier allowed substituted service upon the Applicant).
Upon consideration, this Court dismissed the contempt application, finding that the Applicant, having participated in the proceedings, cannot now turn around and complain that he was not properly served. The Court ultimately held that:
“The allegations of fraud and forgery regarding the service advertisement do not override the fact that the Applicant received notice and participated in the subsequent proceedings.”
ii. Notice of Motion dated 18th September 2023 (Review Application) – sought the setting aside of the Ruling delivered on 15th May 2023 (Hon. A. Mshila, J.) which, inter alia, ordered him (Mr. Gulbahar) to attend court for oral examination and produce financial records. He argued the ruling was obtained through forgery, fraud, and perjury related to the aforementioned advertisement.
Again, this Court, upon consideration, dismissed the review application for having failed to meet the threshold set under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. In particular, the Court stated as follows:
“42. In the present case, whereas the Applicant contends that the ruling of 15th May 2023 was obtained through fraud and perjury, no allegations of fraud have been proved. A review is only permissible where there is a discovery of new matter, an error apparent on the record, or for any other sufficient reason. The issues regarding service were addressed during the hearing of the Preliminary Objection that led to the 15th May 2023 Ruling.”
iii. The Preliminary Objection – The question of a ‘Defective Affidavit’
In opposing the two applications, the Respondents raised a preliminary objection that the Applicant’s supporting affidavits were sworn before a Commissioner for Oaths instead of a Notary Public, despite the Applicant being in Turkey. The Court found that a determination of the PO would be immaterial, observing as follows:
“……While this may be a procedural irregularity, the Court is of the view that the determination of this question, one way or the other, is not in any way likely to change the overall outcome of the two applications.
The Court notes that even if the objection were to succeed, it would not cure the substantive deficiencies in the applications before Court. Conversely, even assuming the affidavits were valid, the applications would still fail on merit.”
35. In HCCCOMM NO. 8 OF 2016: PARAGON ELECTRONICS LIMITED AND I&M BANK PLC , the Plaintiff, Paragon Electronics Limited, through its director Mr. Gulbahar, filed a Notice of Motion dated 5 February 2026, seeking my recusal from further hearing or management of their Notice of Motion dated 20th January 2026, which had sought in the main that the file be placed before the Presiding Judge Commercial & Tax Division in the first instance, for certification (by the presiding judge) under Article 165(4) of the Constitution, and to the Chief Justice, and referral of the matter to the Chief Justice for empanelment of a bench of judges to consider the contention by the Applicant that the Ruling of 25th November 2021 (by Majanja J) was a forgery, was never delivered as purported, and therefore ought not to be relied on.
The Applicant’s principal contention in support of the recusal application was that this Court erred in issuing directions on the application, calling for responses and submissions, since, according to Mr. Gulbahar, the primary prayer in that application was simply for the matter to be placed before the Presiding Judge of the Commercial & Tax Division, who would then deal the rest of the prayers, including certification of the matter to be raising substantial legal questions and subsequent referral of the matter to the Chief Justice.
This Court, having considered the application and rendered itself on the application as follows:
“ The Applicant's principal complaint is that the Notice of Motion dated 20th January 2026 contained a prayer seeking placement of the matter before the Presiding Judge of the Commercial & Tax Division in the first instance and that, before that prayer was determined, this Court proceeded to issue directions requiring affidavits and written submissions. The Applicant contends that those directions created the appearance that the question of administrative seisin had already been resolved.
With respect, I am unable to accept that proposition.
First, it is necessary to appreciate the nature of the relief sought in the Motion dated 20th January 2026. Although framed as a request that the matter be placed before the Presiding Judge, the application also sought numerous substantive and consequential orders, including, among others, a stay of reliance on the purported ruling of 25th November 2021, certification under Article 165(4) of the Constitution, and referral of the matter to the Chief Justice for empanelment of a bench.
Those prayers were directed against the Respondent and were capable of affecting its legal interests. The Respondent was therefore entitled, as a matter of procedural fairness and natural justice, to notice of the application and an opportunity to be heard before any orders capable of affecting its position could be considered or granted. The Court could not properly proceed on the basis that the Respondent had no right to participate in the process merely because the Applicant viewed the prayer for placement before the Presiding Judge as a threshold matter.
Secondly, the directions issued on 3rd February 2026 did no more than require the filing of responses and submissions. They did not determine the Applicant's prayer for placement of the matter before the Presiding Judge. Nor did they express any concluded view regarding the merits of that prayer.
In those circumstances, a reasonable and informed observer, apprised of the ordinary workings of judicial process, would recognize that case-management directions are frequently issued without prejudging outstanding procedural issues.
Consequently, I find and hold that the first ground does not satisfy the threshold for recusal.”
The Court further stated as follows:
“The Applicant's second ground is founded upon observations made by this Court in HCCC No. 431 of 2014 concerning affidavits sworn outside Kenya before a Commissioner for Oaths. The Applicant contends that because the supporting affidavit in the present application was sworn in Turkey before a solicitor of England and Wales acting as a Commissioner for Oaths, a fair-minded observer may reasonably apprehend that the issue has already been prejudged.
The Court has carefully considered the ruling relied upon by the Applicant. Contrary to the submissions advanced before this Court, the issue was not determined adversely to the party relying upon the affidavit.”
36. In HC. COMM/171/2009 PARAGON ELECTRONICS LTD VS SAMSUNG ELECTRONICS LTD , the present applicant, being a decree holder, filed post-judgment execution proceedings against Samsung Electronics Limited, vide a Notice of Motion dated 6 February 2026, seeking in the main, “warrants of attachment do issue attaching all of the Judgment Debtor’s trademarks” for the satisfaction of USD 165,104.82 allegedly due.
The Applicant also sought interim orders attaching the trademarks and restraining the Interested Party (KIPI) “from assigning, licensing, sublicensing, transferring, charging, encumbering, abandoning or otherwise dealing with any trademarks registered in Kenya or designated to Kenya in the name of the Judgment Debtor” pending the hearing and determination of that application. The Court granted these orders, on an interim basis.
On 25th May 2026, the Applicant through its director, Mr. Bulent Gulbahar, filed an application for my recusal, raising similar issues as those raised in the other related matters.
The recusal application has, however, been withdrawn in this matter vide a notice of withdrawal dated 6th July 2026.
37. The question for this Court’s determination therefore is whether this Court’s rulings in the aforesaid matters, taken as a whole, disclose either actual bias or circumstances capable of giving rise to a reasonable apprehension of bias.
38. I am unable to agree.
39. The complaints advanced by the Applicant are, in substance, directed at the correctness of previous judicial decisions. They concern whether the Court properly evaluated the evidence, correctly interpreted the law, consistently applied legal principles, or properly exercised jurisdiction. Those are matters which lie at the very heart of the judicial function.
40. Judges are frequently required to resolve difficult questions of fact and law. The mere fact that a litigant disagrees with the reasoning adopted, believes that evidence was misunderstood, or considers that the Court ought to have reached a different conclusion does not, without more, establish bias. Indeed, if such complaints were sufficient to compel recusal, every unsuccessful litigant would possess an automatic mechanism for disqualifying the judicial officer who rendered the impugned decision.
41. Such a proposition is inconsistent with the constitutional design. Judicial decisions are subject to review and appeal precisely because judges, like all decision-makers, may err. The appellate process exists to correct such errors. Recusal, by contrast, serves a different constitutional function. It protects the integrity of the adjudicative process by ensuring that disputes are heard by an independent and impartial tribunal. It is not intended to provide an alternative means of challenging judicial reasoning.
42. The Applicant also contends that the Court selectively considered evidence favourable to opposing parties while disregarding evidence favourable to it. Again, that complaint relates to the evaluation of evidence and the reasons given in previous rulings. Whether the Court sufficiently addressed a particular submission or properly assessed the evidential record are matters falling squarely within the province of appeal. They do not, without more, demonstrate personal prejudice or predisposition against a litigant.
43. Equally unpersuasive is the argument that alleged inconsistencies in jurisdictional rulings establish apparent bias. The mere fact that a litigant considers a jurisdictional determination to be erroneous does not transform that alleged error into evidence of partiality. To hold otherwise would conflate legal error with judicial bias, contrary to well-established authority.
44. I therefore find that the Applicant’s grievances in relation to the previous rulings of this court belong within the province of review or appeal mechanisms, not through recusal proceedings.
Whether the Judicial Service Commission Petition requires recusal
45. The Applicant also argued that having filed a Petition with the Judicial Service Commission for my removal from office as a judge (being Judicial Service Commission Petition No. 28 of 2026), I ought to recuse myself from handling all these matters, in which the Petitioner (Mr. Bulent Gulbahar) is a director.
46. I readily accept that the existence of such proceedings is a relevant circumstance. The question, however, is not whether a complaint has been filed, but whether its existence, viewed objectively, gives rise to a reasonable apprehension that the Court will not determine the matter impartially.
47. In my respectful view, the answer must be in the negative.
48. Were the mere filing of a complaint against a judge sufficient to compel recusal, the administration of justice would be vulnerable to manipulation. Any litigant dissatisfied with the conduct of proceedings could effectively determine which judicial officer should hear his or her case by lodging a complaint before the Judicial Service Commission. Such an approach would undermine Article 160 of the Constitution and erode judicial independence.
49. The fair-minded and informed observer contemplated in Jasbir Singh Rai is presumed to understand both the constitutional guarantee of impartial adjudication and the constitutional protection afforded to judicial independence. Such an observer would not conclude that a judge becomes incapable of determining proceedings fairly merely because one of the parties has chosen to initiate disciplinary proceedings.
50. The proper inquiry remains whether there exist independent facts demonstrating a real possibility of bias. For the reasons already given, I find that no such facts have been established.
Effect of the Withdrawal of the Companion Recusal Application in HC. COMM/171/2009
51. After the filing of the present application and before its determination, the Applicant filed a Notice of Withdrawal in Civil Suit No. 171 of 2009, withdrawing in its entirety the recusal application that had been brought against the undersigned Judge in those proceedings.
52. The Court draws no adverse inference merely because the Applicant exercised its undoubted right to withdraw proceedings. Every litigant is entitled, where the law permits, to abandon proceedings or applications without attracting penal consequences merely by reason of that decision.
53. The Court, however, takes judicial notice that the withdrawn application relates to Civil Suit No. 171 of 2009, a matter in which the Applicant enjoys interim preservatory orders in its favour. Conversely, the Applicant has elected to maintain the present and related recusal applications in proceedings where the judicial determinations complained of were adverse to its interests.
54. Viewed objectively, this selective maintenance of recusal applications, where the application is no longer pursued where favourable interlocutory relief has been obtained but continues to be pursued where adverse judicial determinations have been made, reinforces the conclusion that the present recusal application is not genuinely directed at preserving the appearance of judicial impartiality, but is an abuse of the Court process.
55. The jurisdiction to order recusal exists for a singular constitutional purpose: to preserve public confidence in the independence and impartiality of the judicial process (see Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others). It is an exceptional jurisdiction, exercised not to protect judges from criticism nor to shield judicial decisions from scrutiny, but to ensure that justice is both done and manifestly seen to be done.
56. In Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, the Court of Appeal explained that an abuse of the process of the Court occurs where judicial procedures are employed for purposes significantly different from those for which they were designed, or where the process of the Court is used in a manner that would bring the administration of justice into disrepute. The Court stated that:
“In our view he, knowingly and dishonestly used the legal process to accomplish an ulterior purpose to that of the court process, which is to protect the interests of justice. We are of course aware that we cannot comprehensively list all possible forms of abuse of court process and that we cannot formulate any hard and fast rule to determine whether in any given facts, abuse is to be found or not, but in the circumstances of this case we do think that since the Originating Summons was instituted in the face of the admission of tenancy, this, in our view, does constitute an abuse of the court process.”
57. Applying the principles articulated in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [supra], I am satisfied that in the circumstances of this case, the present application for recusal is being pursued for purposes other than those for which is envisaged, and therefore amounts to an abuse of the process of the Court.
58. In the premises, I find that the Notice of Motion dated 25th May 2026 is devoid of merit and is therefore dismissed with costs.
59. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 9TH DAY OF JULY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the
[...truncated]
1. For determination is the Respondent/Applicant's Notice of Motion dated 25th May 2026 seeking principally that I recuse myself from hearing, determining or otherwise dealing with these proceedings and all consequential proceedings arising therefrom.
2. The Applicant further seeks an order staying these proceedings pending the determination of the application and, upon recusal, that the file be placed before the Presiding Judge of the Commercial and Tax Division for allocation to another Judge.
3. The application is supported by the affidavit of Ms. Suleka Alia Duale sworn on 25th May 2026 together with the written submissions and authorities filed on behalf of the Applicant.
4. The Motion is opposed. The Court has considered the application, the affidavit in support, the record of these proceedings, the written submissions and the authorities relied upon by the Applicant.
5. Although the application raises numerous complaints spanning several proceedings, the legal question presented is a narrow one. It is whether the facts relied upon, viewed objectively and cumulatively, would lead a fair-minded and informed observer to conclude that there exists a real possibility that this Court will not bring an impartial mind to the determination of these proceedings.
6. The application therefore calls for a careful balancing of two constitutional imperatives. On the one hand lies the guarantee under Article 50(1) of the Constitution that every litigant is entitled to have his or her dispute determined by an independent and impartial court. On the other hand lies the equally fundamental guarantee under Article 160 that judicial officers, in the exercise of judicial authority, are subject only to the Constitution and the law and are not to be influenced by external pressure or collateral considerations. Those constitutional guarantees are complementary rather than competing. Public confidence in the administration of justice is enhanced both when judges recuse themselves where the circumstances objectively require it and when they decline to recuse themselves where no proper legal basis exists.
Background
7. The present proceedings arise from this Court's ruling delivered on 5th February 2026 determining the Applicant's application for leave to appeal out of time together with an application for stay pending appeal.
8. Dissatisfied with portions of that ruling, the Applicant lodged a Notice of Appeal and subsequently filed a Notice of Motion dated 6th March 2026 seeking review of part of the decision.
9. Before that review application could be determined, the Applicant filed the present Motion dated 25th May 2026 seeking my recusal from any further conduct of this matter.
10. The application is not confined to these proceedings alone. The application also invites the Court to examine a number of judicial determinations delivered by the undersigned in three (3) other separate proceedings (matters) involving either the Applicant or companies associated with its director, Bullent Gulbahar, who ordinarily appears in Court in person on behalf of all the companies.
11. The four matters, including the present matter, where a similar application, all dated 25th May 2026, has been lodged by the Applicant are as follows:
i . HCCOMMISC No. E049 of 2024 , being the present matter;
ii. HCCC No. 431 of 2014 , involving Bamburi Special Products Limited and Remax Construction Limited, in which the Court dismissed an application for contempt by a ruling delivered on 26th January 2026;
iii. Civil Suit No. 171 of 2009, in which Paragon Electronics Limited is the decree-holder against Samsung Electronics Co. Limited (withdrawn on 6th July 2026); and
iv. HCCCOMM No. 8 of 2016 , involving Paragon Electronics Limited and I&M Bank PLC.
12. According to the Applicant, the rulings and orders rendered by this Court in all the four files, when viewed collectively, reveal a pattern demonstrating actual bias or, at the very least, a reasonable apprehension of bias.
13. The Applicant’s director, Mr. Gulbahar, further pointed out that arising from the foregoing rulings, he on 16th March 2026, lodged Judicial Service Commission Petition No. 28 of 2026 seeking my removal from office as a judge. According to Mr. Gulbahar, the existence of these disciplinary proceedings independently gives rise to a reasonable apprehension that I may not determine their matters with the requisite impartiality.
14. However, on 6th July 2026 the Applicant filed a Notice of Withdrawal in Civil Suit No. 171 of 2009 withdrawing, in its entirety, the recusal application in the matter.
The Applicant's Case
15. The Applicant, citing Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2013] eKLR, submitted that the recusal application in this matter, like the other three, has been by a “documented record of conflict of interest, actual bias, reasonable apprehension of bias, and a consistent pattern of conduct that has emerged across four separate active proceedings — HCCC No. 431 of 2014, HCCOMMMISC E049 of 2024, Civil Suit No. 171 of 2009 and HCCCOMM 8 of 2016 — all presided over by Hon. Mr. Justice Moses Ado.”
16. According to the Applicant, the Court's conduct across the four proceedings demonstrates a pattern inconsistent with judicial impartiality. The Applicant’s contentions can, for convenience’s sake, be classified in the following broad arguments;
17. First, it is contended that the Court has inconsistently applied legal principles relating to waiver, acquiescence and participation in proceedings in HCCC No. 431 of 2014, and HCCOMMMISC E049 of 2024. The Applicant pointed to rulings delivered within a relatively short period of each other (ten days) in which, it argues, the Court adopted contradictory approaches to substantially similar legal questions.
18. Second, the Applicant submitted that the Court, particularly in HCCC No. 431 of 2014, selectively considered evidence favourable to opposing parties while failing to accord similar consideration to evidence and submissions advanced on its behalf. It argues that this selective treatment of evidence reveals a predisposition against the Applicant.
19. Third, the Applicant alleges that the Court assumed jurisdiction where none existed while declining jurisdiction in other matters where it ought properly to have exercised it. According to the Applicant, those inconsistent approaches cannot be explained merely as judicial error but instead demonstrate partiality.
20. Finally, the Applicant argues that the pendency of Judicial Service Commission (JSC) Petition No. 28 of 2026 creates an independent and objective basis for recusal. It was submitted that, irrespective of the merits of the complaint before the Commission, public confidence in the administration of justice would be undermined if the same Judge were to continue hearing proceedings involving the complainant.
21. On the basis of the foregoing, the Applicant urged the Court to conclude that a reasonable and informed member of the public would entertain a legitimate apprehension that the Court may not approach these proceedings with the requisite impartiality.
22. The Application was canvassed by way of written submissions. The Applicant filed submissions dated 17 June 2026. No submissions were filed on behalf of the Respondent.
Analysis and Determination
23. Having carefully considered the application, the supporting affidavit, the submissions on record and the authorities cited, I find that the sole issue for determination is whether the application for recusal is merited.
24. It a settled constitutional imperative, under Article 50(1) of the Constitution, as read together with Article 160(1) that public confidence in the administration of justice requires both that judges recuse themselves where circumstances objectively warrant recusal, and that judges continue to discharge their constitutional mandate where no such circumstances exist.
25. Unwarranted recusal may be just as damaging to the administration of justice, just as an unwarranted refusal to recuse, since both would significantly erode public confidence in judicial independence guaranteed under Article 160(1) of the Constitution.
26. The Supreme Court in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, held that the object of recusal is to ensure that justice remains uncompromised and that due process is not only observed but is seen to have been observed. The Court emphasized that perception of fairness is the proper test.
27. That principle was reaffirmed in Philip K. Tunoi & Another v Judicial Service Commission & Another [2016] eKLR, where the Court of Appeal emphasized that the concern is with maintaining public confidence in the administration of justice through an objective assessment of the relevant facts.
28. In Hon. Kalpana H. Rawal v Judicial Service Commission & 2 Others [2016] eKLR, the Court of Appeal clarified that the question is objective and is based on what an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude. A mere suspicion of bias is not enough. The apprehension must be reasonable and grounded on solid facts.
29. Similarly, in Kipkoech Kangongo & 62 Others v Board of Governors Sacho High School & 5 Others, the Court held that the applicable test is objective and centers on whether a reasonable and informed person, fully apprised of the circumstances, would conclude that there exists an appearance of bias. The Court, citing with approval the South African Constitutional Court in President Of The Republic Of South Africa V South African Rugby Football Union [1999] (4) SA 147, stated as follows:
“It follows from the foregoing that the correct approach to this application for recusal of members of this Court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or propositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial office should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer for whatever reasons was not or will not be impartial.”
30. With the foregoing in mind, I will now turn to consider whether the specific issues raised by the Applicant meet the legal threshold for this Court’s recusal.
Whether the previous rulings establish apparent bias
31. The Applicant's principal complaint is that rulings delivered by the undersigned in four separate proceedings demonstrate inconsistency in legal reasoning, selective treatment of evidence and jurisdictional error. According to the Applicant, those matters collectively establish a pattern of partiality.
32. To effectively address this question, it is imperative that I set out the specific rulings which form the basis of the Applicant’s application for recusal of this Court. As pointed out earlier, the four matters are:
a) HCCOMMMISC/E049/2024 GEORGES AFFAKI VS TECHNOSERVICE LIMITED – the present matter
b) COMM 431/2014 BAMBURI SPECIAL PRODUCTS LTD VS REMAX CONSTRUCTION LTD
c) HCCCOMM NO. 8 OF 2016: PARAGON ELECTRONICS LIMITED AND I&M BANK PLC
d) HC. COMM/171/2009 PARAGON ELECTRONICS LTD VS SAMSUNG ELECTRONICS LTD
33. In HCCOMMMISC/E049/2024 GEORGES AFFAKI VS TECHNOSERVICE LIMITED, the Applicant (Georges Affaki) moved this Court by an Amended Notice of Motion dated 15 February 2024, seeking principally: (i) leave to appeal out of time against the judgment of 3 July 2023 in CMCC No. 9449 of 2019; (ii) stay of proceedings in the said suit; and (iii) that the Memorandum of Appeal filed with the application be deemed duly filed.
The Respondent (Tecnoservice – the present applicant) opposed the application arguing in the main that the Motion was fatally defective, the delay was inordinate and unexplained, the default judgment remained unchallenged, and the intended appeal was hopeless.
This Court in its Ruling of 5th February 2026 allowed the application, granting the Georges Affaki leave to appeal out of time. The Court also granted a stay of proceedings in the lower court on condition that the Applicant was to deposit a sum of Kshs. 7,000,000/- within 30 days from the date of that ruling.
Dissatisfied, the Respondent on 9th February 2026, lodged a notice of appeal to the Court of Appeal.
34. In COMM 431/2014 BAMBURI SPECIAL PRODUCTS LTD VS REMAX CONSTRUCTION LTD, the Applicant, through its director Mr. Bulent Gulbahar, filed two applications; a contempt application and a review application. The Respondent filed a Preliminary Objection in opposition to the two applications, which this Court also determined.
i. The Notice of Motion dated 15th February 2023, a contempt application against Eric Wampamba Kironde, Seddiq Hassani, (directors of the Respondent) and their Advocate, Joy Justine Impano, for having allegedly fabricated a newspaper advertisement used for substituted service (the Court having earlier allowed substituted service upon the Applicant).
Upon consideration, this Court dismissed the contempt application, finding that the Applicant, having participated in the proceedings, cannot now turn around and complain that he was not properly served. The Court ultimately held that:
“The allegations of fraud and forgery regarding the service advertisement do not override the fact that the Applicant received notice and participated in the subsequent proceedings.”
ii. Notice of Motion dated 18th September 2023 (Review Application) – sought the setting aside of the Ruling delivered on 15th May 2023 (Hon. A. Mshila, J.) which, inter alia, ordered him (Mr. Gulbahar) to attend court for oral examination and produce financial records. He argued the ruling was obtained through forgery, fraud, and perjury related to the aforementioned advertisement.
Again, this Court, upon consideration, dismissed the review application for having failed to meet the threshold set under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. In particular, the Court stated as follows:
“42. In the present case, whereas the Applicant contends that the ruling of 15th May 2023 was obtained through fraud and perjury, no allegations of fraud have been proved. A review is only permissible where there is a discovery of new matter, an error apparent on the record, or for any other sufficient reason. The issues regarding service were addressed during the hearing of the Preliminary Objection that led to the 15th May 2023 Ruling.”
iii. The Preliminary Objection – The question of a ‘Defective Affidavit’
In opposing the two applications, the Respondents raised a preliminary objection that the Applicant’s supporting affidavits were sworn before a Commissioner for Oaths instead of a Notary Public, despite the Applicant being in Turkey. The Court found that a determination of the PO would be immaterial, observing as follows:
“……While this may be a procedural irregularity, the Court is of the view that the determination of this question, one way or the other, is not in any way likely to change the overall outcome of the two applications.
The Court notes that even if the objection were to succeed, it would not cure the substantive deficiencies in the applications before Court. Conversely, even assuming the affidavits were valid, the applications would still fail on merit.”
35. In HCCCOMM NO. 8 OF 2016: PARAGON ELECTRONICS LIMITED AND I&M BANK PLC , the Plaintiff, Paragon Electronics Limited, through its director Mr. Gulbahar, filed a Notice of Motion dated 5 February 2026, seeking my recusal from further hearing or management of their Notice of Motion dated 20th January 2026, which had sought in the main that the file be placed before the Presiding Judge Commercial & Tax Division in the first instance, for certification (by the presiding judge) under Article 165(4) of the Constitution, and to the Chief Justice, and referral of the matter to the Chief Justice for empanelment of a bench of judges to consider the contention by the Applicant that the Ruling of 25th November 2021 (by Majanja J) was a forgery, was never delivered as purported, and therefore ought not to be relied on.
The Applicant’s principal contention in support of the recusal application was that this Court erred in issuing directions on the application, calling for responses and submissions, since, according to Mr. Gulbahar, the primary prayer in that application was simply for the matter to be placed before the Presiding Judge of the Commercial & Tax Division, who would then deal the rest of the prayers, including certification of the matter to be raising substantial legal questions and subsequent referral of the matter to the Chief Justice.
This Court, having considered the application and rendered itself on the application as follows:
“ The Applicant's principal complaint is that the Notice of Motion dated 20th January 2026 contained a prayer seeking placement of the matter before the Presiding Judge of the Commercial & Tax Division in the first instance and that, before that prayer was determined, this Court proceeded to issue directions requiring affidavits and written submissions. The Applicant contends that those directions created the appearance that the question of administrative seisin had already been resolved.
With respect, I am unable to accept that proposition.
First, it is necessary to appreciate the nature of the relief sought in the Motion dated 20th January 2026. Although framed as a request that the matter be placed before the Presiding Judge, the application also sought numerous substantive and consequential orders, including, among others, a stay of reliance on the purported ruling of 25th November 2021, certification under Article 165(4) of the Constitution, and referral of the matter to the Chief Justice for empanelment of a bench.
Those prayers were directed against the Respondent and were capable of affecting its legal interests. The Respondent was therefore entitled, as a matter of procedural fairness and natural justice, to notice of the application and an opportunity to be heard before any orders capable of affecting its position could be considered or granted. The Court could not properly proceed on the basis that the Respondent had no right to participate in the process merely because the Applicant viewed the prayer for placement before the Presiding Judge as a threshold matter.
Secondly, the directions issued on 3rd February 2026 did no more than require the filing of responses and submissions. They did not determine the Applicant's prayer for placement of the matter before the Presiding Judge. Nor did they express any concluded view regarding the merits of that prayer.
In those circumstances, a reasonable and informed observer, apprised of the ordinary workings of judicial process, would recognize that case-management directions are frequently issued without prejudging outstanding procedural issues.
Consequently, I find and hold that the first ground does not satisfy the threshold for recusal.”
The Court further stated as follows:
“The Applicant's second ground is founded upon observations made by this Court in HCCC No. 431 of 2014 concerning affidavits sworn outside Kenya before a Commissioner for Oaths. The Applicant contends that because the supporting affidavit in the present application was sworn in Turkey before a solicitor of England and Wales acting as a Commissioner for Oaths, a fair-minded observer may reasonably apprehend that the issue has already been prejudged.
The Court has carefully considered the ruling relied upon by the Applicant. Contrary to the submissions advanced before this Court, the issue was not determined adversely to the party relying upon the affidavit.”
36. In HC. COMM/171/2009 PARAGON ELECTRONICS LTD VS SAMSUNG ELECTRONICS LTD , the present applicant, being a decree holder, filed post-judgment execution proceedings against Samsung Electronics Limited, vide a Notice of Motion dated 6 February 2026, seeking in the main, “warrants of attachment do issue attaching all of the Judgment Debtor’s trademarks” for the satisfaction of USD 165,104.82 allegedly due.
The Applicant also sought interim orders attaching the trademarks and restraining the Interested Party (KIPI) “from assigning, licensing, sublicensing, transferring, charging, encumbering, abandoning or otherwise dealing with any trademarks registered in Kenya or designated to Kenya in the name of the Judgment Debtor” pending the hearing and determination of that application. The Court granted these orders, on an interim basis.
On 25th May 2026, the Applicant through its director, Mr. Bulent Gulbahar, filed an application for my recusal, raising similar issues as those raised in the other related matters.
The recusal application has, however, been withdrawn in this matter vide a notice of withdrawal dated 6th July 2026.
37. The question for this Court’s determination therefore is whether this Court’s rulings in the aforesaid matters, taken as a whole, disclose either actual bias or circumstances capable of giving rise to a reasonable apprehension of bias.
38. I am unable to agree.
39. The complaints advanced by the Applicant are, in substance, directed at the correctness of previous judicial decisions. They concern whether the Court properly evaluated the evidence, correctly interpreted the law, consistently applied legal principles, or properly exercised jurisdiction. Those are matters which lie at the very heart of the judicial function.
40. Judges are frequently required to resolve difficult questions of fact and law. The mere fact that a litigant disagrees with the reasoning adopted, believes that evidence was misunderstood, or considers that the Court ought to have reached a different conclusion does not, without more, establish bias. Indeed, if such complaints were sufficient to compel recusal, every unsuccessful litigant would possess an automatic mechanism for disqualifying the judicial officer who rendered the impugned decision.
41. Such a proposition is inconsistent with the constitutional design. Judicial decisions are subject to review and appeal precisely because judges, like all decision-makers, may err. The appellate process exists to correct such errors. Recusal, by contrast, serves a different constitutional function. It protects the integrity of the adjudicative process by ensuring that disputes are heard by an independent and impartial tribunal. It is not intended to provide an alternative means of challenging judicial reasoning.
42. The Applicant also contends that the Court selectively considered evidence favourable to opposing parties while disregarding evidence favourable to it. Again, that complaint relates to the evaluation of evidence and the reasons given in previous rulings. Whether the Court sufficiently addressed a particular submission or properly assessed the evidential record are matters falling squarely within the province of appeal. They do not, without more, demonstrate personal prejudice or predisposition against a litigant.
43. Equally unpersuasive is the argument that alleged inconsistencies in jurisdictional rulings establish apparent bias. The mere fact that a litigant considers a jurisdictional determination to be erroneous does not transform that alleged error into evidence of partiality. To hold otherwise would conflate legal error with judicial bias, contrary to well-established authority.
44. I therefore find that the Applicant’s grievances in relation to the previous rulings of this court belong within the province of review or appeal mechanisms, not through recusal proceedings.
Whether the Judicial Service Commission Petition requires recusal
45. The Applicant also argued that having filed a Petition with the Judicial Service Commission for my removal from office as a judge (being Judicial Service Commission Petition No. 28 of 2026), I ought to recuse myself from handling all these matters, in which the Petitioner (Mr. Bulent Gulbahar) is a director.
46. I readily accept that the existence of such proceedings is a relevant circumstance. The question, however, is not whether a complaint has been filed, but whether its existence, viewed objectively, gives rise to a reasonable apprehension that the Court will not determine the matter impartially.
47. In my respectful view, the answer must be in the negative.
48. Were the mere filing of a complaint against a judge sufficient to compel recusal, the administration of justice would be vulnerable to manipulation. Any litigant dissatisfied with the conduct of proceedings could effectively determine which judicial officer should hear his or her case by lodging a complaint before the Judicial Service Commission. Such an approach would undermine Article 160 of the Constitution and erode judicial independence.
49. The fair-minded and informed observer contemplated in Jasbir Singh Rai is presumed to understand both the constitutional guarantee of impartial adjudication and the constitutional protection afforded to judicial independence. Such an observer would not conclude that a judge becomes incapable of determining proceedings fairly merely because one of the parties has chosen to initiate disciplinary proceedings.
50. The proper inquiry remains whether there exist independent facts demonstrating a real possibility of bias. For the reasons already given, I find that no such facts have been established.
Effect of the Withdrawal of the Companion Recusal Application in HC. COMM/171/2009
51. After the filing of the present application and before its determination, the Applicant filed a Notice of Withdrawal in Civil Suit No. 171 of 2009, withdrawing in its entirety the recusal application that had been brought against the undersigned Judge in those proceedings.
52. The Court draws no adverse inference merely because the Applicant exercised its undoubted right to withdraw proceedings. Every litigant is entitled, where the law permits, to abandon proceedings or applications without attracting penal consequences merely by reason of that decision.
53. The Court, however, takes judicial notice that the withdrawn application relates to Civil Suit No. 171 of 2009, a matter in which the Applicant enjoys interim preservatory orders in its favour. Conversely, the Applicant has elected to maintain the present and related recusal applications in proceedings where the judicial determinations complained of were adverse to its interests.
54. Viewed objectively, this selective maintenance of recusal applications, where the application is no longer pursued where favourable interlocutory relief has been obtained but continues to be pursued where adverse judicial determinations have been made, reinforces the conclusion that the present recusal application is not genuinely directed at preserving the appearance of judicial impartiality, but is an abuse of the Court process.
55. The jurisdiction to order recusal exists for a singular constitutional purpose: to preserve public confidence in the independence and impartiality of the judicial process (see Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others). It is an exceptional jurisdiction, exercised not to protect judges from criticism nor to shield judicial decisions from scrutiny, but to ensure that justice is both done and manifestly seen to be done.
56. In Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, the Court of Appeal explained that an abuse of the process of the Court occurs where judicial procedures are employed for purposes significantly different from those for which they were designed, or where the process of the Court is used in a manner that would bring the administration of justice into disrepute. The Court stated that:
“In our view he, knowingly and dishonestly used the legal process to accomplish an ulterior purpose to that of the court process, which is to protect the interests of justice. We are of course aware that we cannot comprehensively list all possible forms of abuse of court process and that we cannot formulate any hard and fast rule to determine whether in any given facts, abuse is to be found or not, but in the circumstances of this case we do think that since the Originating Summons was instituted in the face of the admission of tenancy, this, in our view, does constitute an abuse of the court process.”
57. Applying the principles articulated in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [supra], I am satisfied that in the circumstances of this case, the present application for recusal is being pursued for purposes other than those for which is envisaged, and therefore amounts to an abuse of the process of the Court.
58. In the premises, I find that the Notice of Motion dated 25th May 2026 is devoid of merit and is therefore dismissed with costs.
59. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 9TH DAY OF JULY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the
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