REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MALINDI
ENVIRONMENT AND LAND CASE NO. E003 OF 2023
NIMO AHMED ABDI
ABDIRAHAMAN MUHUMED ABDI………………………………. PLAINTIFFS
VERSUS
ARVIC TOURS AND TRAVELS LTD (Changed to AINUSHMSI MULTIPLE AGENCIES LTD) …………………..………………………………1ST DEFENDANT
ISAAC JUMA OBILA……………..…………………………….…2ND DEFENDANT
RULING
1. The 3rd defendant herein filed the Notice of Motion Application dated April 14, 2026, seeking the following orders:
a) Spent;
b) The Honorable Justice Evans Makori recuses himself from further conduct, hearing, and/or determination of this suit;
c) The Honorable Court be pleased to order that the file be returned to the Environment and Land Court in Malindi for hearing and determination by another judge;
d) Costs incidental to this Application are to be provided for.
2. The application is supported by affidavits sworn by the applicant, deposed on April 14, 2026, and May 5, 2026.
3. In response to the application, the respondent filed a replying affidavit dated April 21, 2026.
4. Based on the parties’ averments and submissions, the issues for this Court to decide are: whether the merits justify the 3rd defendant/applicant’s Notice of Motion dated 14th April, 2026, seeking recusal, and who should bear the costs of the application.
5. I acknowledge receipt of submissions from the parties' counsel with much appreciation, as they went a long way toward determining the issues raised in the application.
Submissions by the 3rd Defendant/Applicant
6. Counsel for the applicant submits that the right to an impartial tribunal is a cornerstone of the rule of law. Article 50(1) of the 2010 Constitution of Kenya guarantees every person the right to have any dispute resolved through a fair and public hearing before a court or an independent and impartial tribunal. This constitutional guarantee is not merely procedural. It is a substantive right that the courts are duty-bound to protect.
7. Counsel asserts that the test for recusal in Kenya was authoritatively settled by the Supreme Court in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR, where the Court held that the applicable standard is whether a fair-minded and informed observer, having considered all the facts, would reasonably apprehend a real possibility of bias. This objective test does not require proof of actual bias — reasonable apprehension of bias is sufficient.
8. Counsel contends that the Court of Appeal likewise affirmed this standard in Philip K. Tunoi & Another v Judicial Service Commission & Another (2016), holding that a judge must recuse himself when circumstances would lead a right-thinking member of the public, fully informed of the facts, to entertain a reasonable suspicion that justice is not being done. The court further emphasized that judicial impartiality must be evident not only in substance but also in appearance.
9. Counsel further states that Rule 3(3)(a) of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 (Legal Notice No. 172 of 2020), expressly mandates that a judicial officer shall "disqualify himself or herself from participating in any proceeding in which the judicial officer's impartiality might reasonably be questioned." Rule 3(3)(b) extends this obligation to situations involving personal bias or prejudice against a party. These Regulations give domestic legal force to Value 2 of the Bangalore Principles of Judicial Conduct (2002), which they expressly adopt as their framework. The grounds for recusal are well established and cumulative.
10. Counsel asserts that the applicant herein does not rest his case on any single incident. As consistently held by the superior courts of Kenya, it is the cumulative pattern of a judicial officer's conduct that may, when viewed as a whole, cross the threshold of reasonable apprehension of bias. In Dari Ltd & 5 others v East African Development Bank (Petition (Application) E012 of 2023) [2024] KESC 58 (KLR) (Civ) (11 October 2024) (Ruling), the Supreme Court recognized that bias may be demonstrated by a series of events considered holistically.
11. Counsel lists grounds, in the applicant's view, that merit recusal as follows:
(a) Disparate treatment of the parties
12. The Applicant avers that the Learned Judge applied markedly different standards to comparable applications brought by the respective parties. On 16th March, 2026, counsel for the 2nd Defendant successfully obtained an unconditional adjournment, while all similar applications by the Applicant's counsel grounded in counsel's illness were met with hostility and punitive cost orders. The imposition of costs on 1st December, 2025, for an adjournment sought on account of a counsel's indisposition, without corresponding treatment of the 2nd Defendant's later adjournment application, constitutes differential treatment that is a recognized indicium of bias. The same can be said of the punitive costs order made on 15th December, 2025, against the 3rd defendant for raising a valid objection to the Court’s jurisdiction to hear and determine the matter.
13. Counsel asserts that in Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154, the High Court emphasized that justice requires equal treatment of parties before the court. Manifestly unequal treatment, such as granting unconditional adjournments to one party while penalizing the other, undermines the fundamental requirement of judicial evenhandedness. The Replying Affidavit's explanation that the applicant caused delays does not address this asymmetry.
(b) Ex parte communication with the 2nd defendant's counsel
14. It is a common fact that on 1st December, 2025, the Judge allowed counsel for the 2nd defendant into his chambers in the absence of and without the knowledge or consent of the other parties, and further shared a laptop with that counsel to enable virtual participation. It is submitted that while the Replying Affidavit characterizes this as routine administrative practice, it does not dispute the factual allegation itself. The principle against ex parte communications is well established: any private communication between a judicial officer and one party, outside the presence of the other, is capable of giving rise to a reasonable apprehension of bias regardless of the content or intent.
(c) Refusal to give reasons for dismissing the applicant's applications
15. The Applicant deposes that on April 9, 2026, the Judge summarily dismissed two properly filed applications, one seeking leave to cross-examine the deponent of the 2nd defendant's replying affidavit and the other seeking to expunge an irregular amendment, without assigning any reasons, characterizing both as attempts to take the matter "round and round."
16. Counsel asserts that by undertaking such actions, the Court not only condescendingly condemned the applicant without adequate justification but also approved and accepted an irregular amended defense and counterclaim filed without the court's leave, in violation of the mandatory provisions stipulated in Order 8 Rule 1 of the Civil Procedure Rules.
17. Counsel states that the duty to give reasons is a constitutional and common-law imperative. In Judicial Service Commission v Mbalu Mutava & Another [2014] eKLR, the Court of Appeal held that the duty to give reasons is integral to the right to a fair hearing under Article 50 and to fair administrative action under Article 47 of the Constitution of Kenya, 2010. The Court emphasized that reasoned decisions safeguard the right of appeal and enable parties to understand the basis of adverse rulings.
18. Counsel proceeds to state that the consistent, selective failure to give reasons solely in respect of the Applicant's applications, while presumably reasoning through the 2nd Defendant's applications, creates a reasonable apprehension that the Learned Judge has prejudged the Applicant's cause. An unreasoned judicial decision striking down a party's legitimate substantive procedural rights is susceptible to the inference of bias. Permitting an irregular amendment to stand 19. It is common ground that the 2nd Defendant amended its Defense and Counterclaim without leave of court and served the same on 16th March, 2026, well after the close of pleadings. Order 8 Rule 3 of the Civil Procedure Rules, 2010 requires leave of court before any amendment after the close of pleadings. An amendment filed in breach of that rule is a procedural nullity. The Judge's implicit sanction of this irregularity — by refusing to strike it out and assigning no reasons — further demonstrates the lopsided exercise of judicial discretion by the Judge.
(e) Continued jurisdiction after transfer
19. It is not disputed that the Honorable Justice Evans Makori has been transferred to the Environment and Land Court in Nyeri. Although judicial practice permits a transferred judge to continue handling matters that have been substantially heard or are pending judgment, the hearing in the present case has not yet commenced on the merits.
20. It is submitted that the continued retention of jurisdiction over a Malindi matter by a Nyeri-stationed judge, in circumstances where no prior hearing has been substantially concluded, is inconsistent with the spirit of geographical judicial deployment and creates a further reasonable apprehension that the judge harbors a personal and undisclosed interest in the outcome of this matter. The replying affidavit does not dispel the grounds for recusal.
21. The 2nd defendant's replying affidavit seeks to reframe the recusal application as an exercise in forum shopping and deliberate delay. While the Applicant does not deny that various adjournments have been sought in these proceedings, the inquiry is not whether those adjournments were numerous, but whether the court's treatment of the respective parties' applications was even-handed. As demonstrated above, it was not.
22. The replying affidavit further contends that adverse rulings alone cannot ground a recusal application, and this is indeed established law. See Mohamed Abdi Mahamud v. Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR. However, the Applicant's case is not founded on mere dissatisfaction with adverse rulings. It is founded on a pattern as disclosed above
23. Counsel further submits that the replying affidavit's characterization of the laptop-sharing incident as routine administrative practice is, with respect, unsatisfactory. Whether or not the substantive content of the communication was innocuous, the propriety of judicial conduct must be judged by appearance, not by outcome. As the Court held in Alliance Media Kenya Limited v Monier 2000 Limited & Njoroge Regeru, HCCC No. 370 of 2007 (eKLR), cited in Lawrence Mukiri Mungai v Attorney General & 5 Others [2014] KEELC 588 (KLR), justice must be seen to be done, and any conduct that might reasonably raise doubts in the mind of a fair-minded observer about a judge's impartiality must be avoided.
Submissions by the 2nd Defendant/Respondent
24. Counsel contends that the appropriate test for determining an application for disqualification was laid down by the Court of Appeal in R v David Makali and others, Criminal Application No. Nai 4 and 5 of 1995 (Unreported), and reinforced in subsequent cases. See R v Jackson Mwalulu & Others, C.A. Civil Application No. Nai 310 of 2004 (Unreported), where the Court of Appeal stated that when courts are faced with such proceedings for disqualification of a judge, it is necessary to consider whether there is a reasonable ground for assuming the possibility of 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.
25. Counsel avers that the position of the law in Kenya was accordingly guided by the principle set out in Metropolitan Properties Co., Ltd v Lannon (1969) 1 Qb 577, [1968] 3 All ER 304, [1968] 3 WLR 694 that where bias is alleged against a court or judge, it is not the likelihood that the court or judge could or did favor one side at the expense of the other that is important; rather, it is that any person looking at what the court or judge has done will, in the circumstances of the case, have the impression that there was a real likelihood of bias.
26. Counsel is of the view that the applicant has failed to demonstrate any real likelihood of bias/prejudice in this case. As such, the Application herein is unwarranted, and the applicant is undeserving of being granted the relief sought. This is because, along with other reasons set out in the Respondent’s replying affidavit:
27. Counsel states that the allegations against the Honorable Justice Evans Makori are entirely unfounded, speculative, and devoid of any factual or legal basis. They constitute a calculated and deliberate attempt at forum shopping, aimed at delaying, obstructing, and frustrating the expeditious hearing and determination of this matter, as is evident from the consistent pattern of conduct exhibited by the 3rd defendant, as outlined hereunder:
28. That the Honorable Court has previously exercised its discretion in favor of the applicant and granted an adjournment on grounds of illness, despite the absence of proof of illness; That the applicant herein has filed numerous applications and procedural objections, thereby frustrating scheduled hearings and causing further delay. On 9th April 2026, the Court expressly observed that the multiplicity of applications filed by the 3rd defendant was intended to delay the hearing of the matter and directed that it would not entertain any other application and that only the preliminary objection be fixed for highlighting of submissions on 16th April 2026. On 15th April 2026, on the eve of the scheduled hearing, the 3rd defendant filed the present application for recusal, thereby continuing the pattern of last-minute interventions designed to frustrate proceedings.
29. Counsel observes that the foregoing chronology clearly demonstrates a deliberate, sustained, and calculated pattern of conduct by the 3rd defendant, characterized by procedural ambushes, last-minute applications, and tactical maneuvers intended to obstruct the due course of justice and to prevent the matter from being heard on its merits.
30. Counsel asserts that the present application is therefore not a bona fide invocation of the law on recusal, but rather a continuation of the applicant’s strategy to derail the proceedings and avoid substantive adjudication.
31. Counsel states that, in any event, the applicant has failed to present to this Honorable Court any credible, cogent, or admissible evidence establishing bias or a reasonable apprehension of bias, and, in particular, the Honorable Judge has, at all material times, conducted himself fairly, impartially, and strictly in accordance with the law. The orders relating to adjournment costs were justified, arose directly from the applicant’s own conduct, and, in any event, were admitted by the 3rd defendant. The allegation that counsel was granted access to chambers in the absence of opposing counsel is false, misleading, and unsupported. The hearing scheduled for December 1, 2025, was held in person, and the Court had the discretion to conduct it in chambers or in open court. In view of the fact that the 3rd defendant was attending court virtually, the Court invited counsel to proceed virtually via the Court's computer. The applicant has repeatedly filed multiple applications and objections solely to delay proceedings. The 2nd defendant has consistently demonstrated readiness and willingness to proceed with the hearing. It is settled law and practice that a judge may continue to hear and determine part-heard matters notwithstanding transfer. In this instance, Justice Mwangi directed that the matter be handled by Justice Makori.
32. Counsel asserts that the applicant has failed to demonstrate any such bias, prejudice, personal interest, or improper conduct on the part of the Honorable Judge, and the application is merely a reaction to adverse rulings lawfully made in the course of proceedings.
33. Furthermore, counsel contends that it is trite law that adverse rulings, case management directions, and the exercise of judicial discretion cannot, without more, justify recusal, and that holding otherwise would open the door to litigants seeking to choose their preferred judicial officers.
34. Counsel proceeds to state that the application herein constitutes a classic case of forum shopping, intended to secure a different judicial officer perceived to be more favorable, and such conduct amounts to a grave abuse of the process of this Honorable Court. Allowing such an application would set a dangerous and undesirable precedent, undermining the independence of the judiciary, eroding public confidence in the administration of justice, and encouraging litigants to manipulate court processes through unfounded allegations. See Charity Muthoni Gitabi v Joseph Gichangi Gitabi (Substituted By) Michael Wachira Gitabi [2017] KEHC 1502 (KLR)
35. Counsel further submits that the applicant ought to have established material facts showing personal inclination or prejudice on the part of the judge toward a party, based on extrajudicial reasons, or that the observation amounted to a preconceived judgment formed without a factual basis. By establishing those facts, the applicant would have shown that there was a real likelihood of bias, as the matters complained of are capable of creating a reasonable doubt in the minds of the public about the fairness of the administration of justice in this particular case, which criterion goes beyond mere apprehension, belief, or desire of the party and rests on more concrete and cogent grounds based on a proven judge’s interest, predisposition, or prejudice in the case. See Pale Kenya Limited v Pauline Ngomi Mwangangi [2021] KEELC 3409 (KLR).
36. To resolve the issues at hand, perhaps a brief background, as captured in the proceedings, will suffice.
37. This matter was filed on February 7, 2023. The current 2nd and 3rd defendants were never parties.
38. The parties then filed a consent dated February 15, 2023, which was endorsed, thereby settling the matter.
39. On March 7, 2025, the 2nd defendant filed a motion seeking to set aside the consent and to be joined as a defendant in the matter.
40. After service, the respondents to the application failed to respond. On April 2, 2025, the court set aside the consent, allowed the 2nd defendant to defend, and issued interim orders to preserve the substratum of the suit pending a hearing of the main suit.
41. Pre-trials were set for May 1, 2025, June 3, 2025, and June 19, 2026
42. After the parties complied, a hearing date was set for October 21, 2026. Before then, the now 3rd defendant filed a joinder motion on October 8, 2025, which was allowed on October 15, 2025. With the joinder of the 3rd defendant, the scheduled hearing could not proceed because the 3rd defendant was permitted to file pleadings.
43. After the parties complied with pre-trial requirements, the matter was set for hearing on December 1 and 2, 2025. On that date, the matter could not proceed because it was alleged that counsel for the 3rd defendant was indisposed.
44. The matter was then rescheduled for hearing on December 15 and 16, 2025. It could not proceed because the 3rd defendant filed a Preliminary Objection dated December 10, 2025, challenging this court's jurisdiction.
45. The court directed that the parties canvass the PO via written submissions, with timelines for compliance and a ruling set for January 21, 2026.
46. On January 21, 2026, the court was unable to issue the ruling on that date. As the court was to reschedule the matter and provide another date for the ruling, the plaintiff's counsel indicated that his client wished to withdraw the entire suit. The other parties did not object, and the suit was accordingly withdrawn.
47. Meanwhile, counsel for the 2nd defendant contended that he was instructed to proceed with the matter because a counterclaim had been filed. At the same time, counsel for the plaintiff also intimated that he would file a PO attacking the counterclaim. At the same time, counsel for the 3rd defendant sought status quo orders to remain in force, alleging that one of the parties had moved building materials to the suit property. After hearing the parties on that issue, the court directed that the status quo orders remain in place pending the determination of the pending application and Pos.
48. Meanwhile, because the issues now appeared convoluted, the parties sought to file further affidavits, which were allowed, and a further request was made for highlighting. The court then set the matter for highlighting of submissions on March 16, 2026.
49. On March 16, 2026, Mr. Kipkorir, for the 3rd defendant, addressed the court, stating that he was not ready to make a highlight and instead applied to cross-examine Mr. Bwire, for the 2nd defendant, regarding the affidavit he had sworn in opposition to the pending application and POs. He also stated that an amended counterclaim had been filed and served, which, to him, was an apparent response to the pending application and POs, and that it ought to be expunged because it was filed after the closure of pleadings.
50. Mr. Kilumo, holding a brief for Mr. Bwire, opposed the striking out of the amended counterclaim and sought an adjournment for Mr. Bwire to explain himself in the near future. He also indicated that the filed amended counterclaim would cure the issues raised in the application and POs
51. The court issued an extempore ruling, considering the many rulings and directions it had provided in the past, dismissing both counsel's requests and asserting that the matter had been pending for too long, that new grounds were being covered outside the application, and POs that were pending for determination. In any event, a ruling on the pending issues should have been delivered way back on 21st January 2026, and the file returned to Malindi.
52. What followed next is the application for recusal.
53. It is significant to note from the onset that this file has been pending before me for a ruling on the application and POs by the plaintiff and the 3rd respondent, which was due on 21st January 2026. It was not ready. I have captured the events leading to the retention of the file before me.
54. I will agree with the parties' submissions on what the Court should consider in a recusal application. This Court captured it quite well in Le Pleadi Investment Ltd v Athur & another [2024] KEELC 3273 (KLR):
“When a Court is being asked to recuse itself, it is placed right in the middle of the litigation before it. The Court becomes the subject matter. Its impartiality is questioned. The oath of office is at stake. The Bangalore Principles of Judicial Code of Conduct come into play. And so is the Judicial Service (Code of Conduct and Ethics) Regulations 2020.
6. I need not go into so many judicial authorities on the principles to consider before one accedes to recusal see for example the case of Republic v Assa Kibagendi Nyakundi [2022] eKLR: citing the decisions in Charity Muthoni Gitabi Versus Joseph Gichangi Gitabi [2017] eKLR, and Kalpana H. Rawal Versus Judicial Service Commission and 2 others [2016] eKLR, where the Court of Appeal held;
“An application for recusal of a Judge is a necessary evil. On the one hand, it calls into a question the fairness of a judge who has sworn to do justice impartially, the accordance with the constitution without any fear, favour bias, affection, ill will, prejudice, political, religion, or other influence. In such applications, the impartiality of the Judge is called into question, and his independence is impugned. On the other hand, the oath of office notwithstanding, the Judge is all too human, and above all, the Constitution does guarantee all litigants the right to a fair hearing by an independent and impartial Judge. When reasonable basis for requesting a Judge to recuse himself or herself exists, the application has to be made, unpleasant as it may be. That is the lesser of the 2 evils. The alternative is to risk. Violating a cardinal guarantee of the constitution, namely the right to a fair trial, upon which the entire judicial edifice is built. Allowing a Judge who is reasonably suspected of bias to sit in a matter would be in violation of the constitutional guarantee of a trial by independent and impartial court …..”
7. The principles are as simple as laid above – two-tier, the Judge living up to his oath of office, and a litigant who has a constitutional right to a fair hearing. The two have to be balanced with the result being to do justice when looked at from the lens of a reasonable man.
8. When the Committee (I was there. A member representing Magistrates in Kenya), formulating the Judicial Service (Code of Conduct and Ethics) Regulations 2020, was discussing Regulation 21 on recusal, which provides as follows:
“21. (1)A judge may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned, where the judge—
(a)is a party to the proceedings;
(b)was, or is, a material witness in the matter in controversy;
(c)has personal knowledge of disputed evidentiary facts concerning the proceedings;
(d)has actual bias or prejudice concerning a party;
(e)has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter;
(f)had previously acted as 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)a member of the judge’s family has economic or other interest in the outcome of the matter in question.
(2) Recusal by a judge shall be based on specific grounds to be recorded in writing as part of the proceedings.
(3)A judge may not recuse himself or herself if—
(a)no other judge can deal with the case; or
(b)because of urgent circumstances, failure to act could lead to a serious miscarriage of justice;
(c)the merits of the application for recusal have been considered by a plural bench of judges, and recusal held to be unnecessary.
(4)In the case of a collegiate bench, the decision to dispense with the disqualification of any judge shall be made by the bench.”
55. I have elaborated on the reasons for recusal, as set out by the applicant, including disparate treatment of the parties, ex parte communication with the 2nd defendant's counsel, refusal to provide reasons for dismissing the applicant's applications, and continued jurisdiction after transfer.
56. At the outset, as I have stated, this file was pending a ruling on the parties' motions. All parties have filed submissions; the matter has been pending for that purpose, yet the parties have been making oral applications and taking actions, oblivious to the fact that the court should set the matter down for ruling. The court did not carry the file because it had an interest in it. It was because of the pending ruling. I had, in fact, carried over 68 files from Malindi for rulings and judgments, which I could not reasonably conclude, as my tour of duty ended in Malindi. This can be seen from the handing-over report. All the files I had carried have been dealt with and returned to Malindi, save for this one and some other 12 sent recently, for which I have set ruling dates in early July. It is normal practice for a judge on transfer to conclude matters pending rulings and judgments to avoid placing a burden on the succeeding judge. So, on continued jurisdiction as elaborated above, the circumstances explain why the file is before me – I need not state further.
57. Regarding treating parties differently, there are elaborate rulings and directions on record explaining why the court decided the way it did, and those directions are subject to appeal.
58. Regarding communication with counsel and the use of a laptop, the matter on the material date was set for a hearing in open court, as the proceedings will show. All the other parties were physically absent but present virtually. In Malindi, the only device I have for virtual court hearings and sessions is my laptop. In all the cases I handled in the past, the laptop was used. It's unlike Nyeri, where I now have a large screen. Nothing was communicated to counsel privately beyond what transpired during their virtual presence.
59. Regarding the failure to give reasons for the application to cross-examine, I was taken aback, given the past, to see the case reopened, even though the counsel for the 2nd defendant was aware that the matter was pending for highlighting and that all parties had filed submissions. I declined to allow the application. The issues raised could easily be addressed in the parties' submissions. I also declined to comment on the filed and served amended defense, as the issue was not before me and I had not been prompted to grant leave for the intended amendments. The only fault on my part is that I posted the typed reasons late.
60. This matter is awaiting a ruling concerning the application and the existing POs. The court will not recuse itself. It will issue its ruling, as it is the only reason the file is pending before me, and subsequently return the file to Malindi.
61. Consequently, the Application for recusal dated 14th April 2026 is hereby dismissed with no order as to costs.
Dated, signed, and electronically delivered in Nyeri on the 17th day of June, 2026.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Kiplangat for the 3rd Defendant
Denis: Court Assistant
In the Absence of:
Mr. Makworo for the Plaintiff
Bwire for the 2nd Defendant
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