'
1.By notice of motion application dated 28th October, 2025 the respondent/applicant herein seeks the following orders
i)Spent;
ii)Dates fixed for hearing of this case to wit 3rd, 4th and 5th November, 2025 be vacated and the case be removed from the causelist of 3rd, 4th and 5th November, 2025;
iii) This Court do recuse itself or disqualify itself from further hearing and determination of the case forthwith;
iv) The case be referred to another Judge for hearing or be handled by another Judge;
v) Costs of the application be in the cause.
2.As can be discerned from the grounds on the face of the application and the averments in the affidavits sworn in support of the application, the application is premised on alleged perceived bias on the part of this Court. The perceived bais is said to arise from the following alleged facts/situations:-
a)That despite this Court being on transfer and having stated that it would not hear fresh or new matters, it has heard this case and given it preference by fixing three (3) consecutive hearing dates;
b)That during cross examination of the petitioner/respondent, this court discouraged the respondent/applicant from marking its documents and rebuked its counsel suggesting bias;
c)That the counsel acting for the petitioner enjoys some form of unusual familiarity to the deteriment of the proceedings at hand hence the likelihood of bias or miscarriage of justice;
d)That the respondent is apprehensive that it will not receive a fair hearing contrary to Article 50(1) and 25(c) of the Constitution of Kenya 2010;
e)That the ruling of 2nd October, 2025 is another tale sign that suggests bias;
f)That justice must not only be done but must be seen to be done;
g)That the Court has inherent jurisdiction to ensure fair administration of justice and that can be achieved if the learned Judge disqualifies herself from hearing the matter.
3.In oppostion, the petitioner filed a replying affidavit sworn on 29th October, 2025. He deposes that the application is unfounded, speculative and consitutes an abuse of the court process being aimed at solely delaying the hearing and determination of the petition; that the applicant has taken too long to file the application given that the matter proceeded in Court for hearing on 2nd October, 2025 but the applicant waited until the eve of the hearing to file the application.
4.He further deposes that the applicant is not happy with the Court because its officers were cited for contempt and penalized by the Court. He avers that the Court’s intention to finalise the matter before proceeding on transfer, is a standard judicial practise consistent with he overriding objective of expeditious justice and that the fixing of three consecutive dates for hearing the matter, is a clear demonstration of the Judge’s dedication to expeditious justice which is beneficial to all parties; that the applicant’s complaint about the ruling of 2nd October 2025, is baseless; that if the applicant felt aggrieved by the ruling, they would have sought for review or prefered an appeal instead of seeking the disqualification of the Judge.
5. He averred that counsel for the petitioner and the Judge do not enjoy any ‘unusual familiarity’ as alleged and their relationship is strictly professional. The petitioner urges the court to dismiss the application as it is an attempt by the applicant to forum shop and has failed to provide any specific, verifiable evidence to substantiate the vague and baseless claim.
6.The application was disposed of by way of written submissions. Only the petitioner filed submissions which l have read and considered.
7.The law on recusal of judicial officers was aptly discussed by Kizito Magare J. in the case of Kamau & Another vs. Kingdom Bank Ltd (Civil suit E001 of 2022)(2025) KEHC 2545 (KLR) (27 February 2025) (Ruling) thus:-
“On recusal of Judges and Judicial Officers, the Judicial Service Commission made the Judicial Service (Code of Conduct and Ethics) Regulations 2020 pursuant to Section 47(2)(a) of the Judicial Service Act, Section 37 of the Leadership and Integrity Act, 2012 and section 5(1) of the Public Officer Ethics Act, 2003.
8.Under regulation 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 is:
-a.is a party to the proceedings;
b.was, or is a material witness in the matter in controversy;
c.has personal knowledge of disputed evidentiary facts concerning the proceedings;
d.has actual bias or prejudice concerning a party;
e.has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter;
f.had previously acted as a counsel for a party in the same matter;
g.is precluded from hearing the matter on account of any other sufficient reason; or
h.or a member of the judge’s family has economic or other interest in the outcome of the matter in question.
9.Regulation 21(2) requires that recusal by a judge shall be based on specific grounds to be recorded in writing as part of the proceeding. This is supplemented by regulation 21 (3) which forbids a judge from recusing himself or herself if in the circumstances set out therein.
10.The effect of the said regulations is that the court must guard against its independence and not to recuse itself in circumstances that do not merit. However, in circumstances where there is merit either due to the surrounding facts or appearance of bias, a judge should recuse himself. If for example a family member is involved, the court should not wait for an application for recusal.
11.This even occurs in cases where, the judge’s conscious points to discomfort due to relationship, either legal or clandestine. However, where there is no merit and the same is based on unfounded speculations, the court should and must not recuse itself.
Under Regulation Rule 7 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020, a judge shall exercise judicial authority independently and shall: -
a.Uphold the independence and integrity of the judiciary and the authority of the courts;
b.Maintain an independence of mind in the performance of judicial duties;
c.Take all reasonable steps to ensure that no person, forum, or organ of state, interferes with the functioning of the courts;
d.Exercise judicial function on the basis of the judge’s own assessment of the facts of the case, in accordance with a conscientious understanding of the law, and without reference to any extraneous influences; and
e.Exercise judicial function without being influenced by personal feelings, prejudice, or bias.
12.Independent exercise of judicial authority is affected by bias or ill will against a party. It is also compromised if the court succumbs to machinations and intimidation by parties.
13.However, where a party wants to waste the court’s time or otherwise forum shop, the court should be firm and clearly indicate so to parties. Unnecessary application for recusal is an affront to the independence of the judiciary and decisional independence of the judges. On the other hand a biased court is anathema to the independence of the court and the image of the judiciary.
14.In this matter, there is no allegation of actual or perceived bias arising from the relation between parties. The court is accused of entertaining contempt and noncompliance of the directions by the court on the part of the Defendant. The same has not been said of the manner in which the court prejudicially assists the Defendant to the disadvantage of the Plaintiff on the beam balance of justice.
15.There is no contempt of court application that the court has declined to determine. A reasonable, objective, and informed person would, on the correct facts, reasonably find no apprehension that the Court has not or will not bring an impartial mind to bear on the adjudication of this case based on a mind open to persuasion by the evidence and by the Plaintiffs herein.
In the case of National Water Conservation and Pipeline Corporation v. Runji & Partners Consulting Engineers and Planners Limited (2021) eKLR the Court stated as follows: -30.I cannot think of a more eloquent exposition of the law on recusal of judicial officers than the succinct exposition proffered by the Constitutional Court of South Africa in President of the Republic of South Africa and Others v South African Rugby Football Union and Others which indisputably articulated the proper approach as follows:-
“... 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 predispositions. 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 officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”
31.Because of the relevancy of the above elucidation to the issues at hand, some of the salient facets of the judgment merit some emphasis in the present context. In articulating the test in the terms quoted above, the court observed that two considerations are built into the test itself. First, in considering the application for recusal, the court as a starting point presumes that judicial officers are impartial in adjudicating disputes. This in-built aspect entails two further consequences. One, it is the applicant for recusal who bears the onus of rebutting the presumption of judicial impartiality. Two, the presumption is not easily dislodged. It requires “cogent” or “convincing” evidence to be rebutted32.Second, the other in-built aspect of the test is that “absolute neutrality” is something of a chimera in the judicial context.[12] This is because judges are human. They are unavoidably the product of their own life experiences, and the perspective thus derived inevitably and distinctively informs each judge’s performance of his or her judicial duties. But colourless neutrality stands in contrast to judicial impartiality; a distinction the above cited decision vividly illustrates. Impartiality is that quality of open-minded readiness to persuasion - without unfitting adherence to either party, or to the judge’s own predilections, preconceptions and personal views - that is the keystone of a civilized system of adjudication. Impartiality requires in short “a mind open to persuasion by the evidence and the submissions of counsel” and, in contrast to neutrality, this is an absolute requirement in every judicial proceeding. This is because: -“A cornerstone of any fair and just legal system is the impartial adjudication of disputes which come before courts and other tribunals. . . Nothing is more likely to impair confidence in such proceedings, whether on the part of litigants or the general public, than actual bias or the appearance of bias in the official or officials who have the power to adjudicate on disputes.”
16.The Plaintiffs have themselves delayed their case through numerous applications and cannot turn the blame on the court. I consider it a mere inquiry upon this court to decide whether or not it should resolve the pending matter. I choose to proceed and deal with this matter for no reason that justifies my recusal, whether self-imposed or imposed by the Plaintiffs or any other party. The test used in cases for recusal of such a nature is what the house of Lords in R –vs- Gough (1993) AC 646 calls the real danger test, though not of universal application, the test is whether, there is real danger that a fair trial was likely to be denied. To me such a test is too restrictive and may not be achieved by most parties applying for recusal.
17.I prefer the test of the real likelihood of bias. In this case, it is not necessary to prove actual bias, but whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased. In paragraph 39 of the decision of Michael Obare Tago versus Fredrcik Ambrose Otieno (2020) eKLR, the court posited as follows:-In the Attorney General of Kenya vs Professor Anyang Nyong’o & 10 Others EACJ Application No. 5 Of 2007, the court stated: -“We think that the objective test of reasonable apprehension of bias is good law. The test is stated variously, but amount to this- do the circumstances give rise to a reasonable apprehension, in the mind of the reasonable, fair minded and informed member of the public that the judge did not (will not) apply his mind to the case impartially”
18.The test is not what the litigant feels. It is a member of the public, who is not only reasonable but also fair minded and informed about all the circumstances of the case. Rachuonyo and Rachuonyo Advocates v National Bank of Kenya Limited [2021] eKLR , Justice D.S. Majanja, held as follows: -“In Philip K. Tunoi & another v Judicial Service Commission & Another CA Civil Application NAI No. 6 of 2016 [2016] eKLR the Court of Appeal adopted the test for recusal propounded by the House of Lords in Porter v Magill [2002] 1 All ER 465, where it stated that, “The question is whether the fair minded and informed observer, having considered the facts, would conclude that was a real possibility that the tribunal was biased.” The same position was taken by the Supreme Court (per Ibrahim J.) in Jasbir Rai and 3 Others v Tarlochan Singh Rai and 4 Others SCK Petition No. 4 of 2012 [2013] eKLR where he observed that, “The Court has to address its mind to the question as to whether a reasonable and fair-minded man sitting in Court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the applicant was not possible. If the answer is in the affirmative, disqualification will be inevitable.”
19.In this matter, a fair-minded person, knowing the circumstances of this case, will not have any doubt that the case will be heard fairly. In the case of In Rachuonyo and Rachuonyo Advocates v National Bank of Kenya Limited [2021] eKLR (supra) the court proceeded as doth: -“On the test of a ‘fair minded and informed observer’ and the provisions of the Code of Conduct above, can it be said that taking into account all circumstances of this case, I am likely to be biased against the Advocates and deny them a right to a fair trial? I think not. The Advocates have not laid any factual basis for a reasonable observer appraised of the facts to demonstrate a possibility of real bias.”
8.In applying the principles and tests cited/espoused in the case of Kamau & Another vs. Kingdom Bank Ltd (supra) to the circumstances of this case/application, the respondent applicant urges this Court to recuse itself from hearing this case on grounds of alleged bias. The alleged bias is said to have arisen from the fact that this court, despite being on transfer has given preference to the case by allocating it three consecutive hearings dates; that on 2nd October, 2025 this court gave directions concerning admission of documents in evidence which the applicant feels may give the petitioner an upper hand in hearing and determination of the case. The applicant also claims without any substantiation whatsoever, that the Court has demonstrated unusual familiarity with the counsel for the petitioner/respondent. The application further appears to be informed by the fact that this court cited and punished some of the applicant’s employees /officers for contempt of Court.
9.According to the respondent, when the above facts are taken collectively, they justify their perception that this court may not be impartial.
10.As pointed out in the case of Kamau & another vs Kingdom Bank Ltd (supra), there is a presumption of judicial impartiality, which presumption, a person seeking recusal of a judicial officer has to rebut by way of cogent and/or convincing evidence. The question to answer in the circumstances of this case, is whether the respondent/applicant has provided cogent or convincing evidence that this Court would not impartially hear and determine the matter as required of it by law and its oath of office.
11.Regarding that question, a review of the grounds taken up by the respondent/applicant shows that none of the grounds has been substantiated and/or are reasonable grounds for believing that the court will not be impartial. For instance, whereas the respondent/applicant suggests that it was dissatisfied with the ruling of 2nd October 2025, it did not challenge that decision by way of appeal or seek review of the decision of the Court.
12.As rightly submitted by counsel for the petitioner/respondent, the cause of action for a person who is dissatisfied with the decision of a Court is to appeal the decision in a higher Court or apply for review of the decision. However, such decision alone, cannot found a ground for applying for recusal of a judicial officer.
13.Whilst its true, that this court identified this suit for hearing despite having indicated that it will not hear fresh matters, the decision to give priority to the matter is solely because it is one of the old matters that had been pending before it. Proceeding on transfer, did not mean the court was under an obligation to stop hearing all the matters it was seized of. Giving priority to an old matter cannot form a basis of inferring bias on the part of the court.
14.Being of the view that the circumstances giving rise to the application for my recusal would not give rise to a reasonable apprehension of bias in the mind of a reasonable, fair-minded and informed member of the public that I may not apply my mind to the case objectively, I decline to recuse myself.
15.There being no sufficient reason given for vacating the hearing slated for 3rd, 4th and 5th November 2025, I direct that the hearing of the case shall proceed as scheduled.
16.The upshot of the foregoing is that I find the notice of motion dated 28th October, 2025 to be lacking in merits and l dismiss it with costs to the petitioner/ respondent.
17.Orders accordingly.
Dated, signed and delivered this 31st day of November, 2025.
Ruling delivered virtually in the presence of;-
Ms Kiptum for the Petitioneer
Mr Wafula for the Respondent
CA: Ian.
'
1.By notice of motion application dated 28th October, 2025 the respondent/applicant herein seeks the following orders
i)Spent;
ii)Dates fixed for hearing of this case to wit 3rd, 4th and 5th November, 2025 be vacated and the case be removed from the causelist of 3rd, 4th and 5th November, 2025;
iii) This Court do recuse itself or disqualify itself from further hearing and determination of the case forthwith;
iv) The case be referred to another Judge for hearing or be handled by another Judge;
v) Costs of the application be in the cause.
2.As can be discerned from the grounds on the face of the application and the averments in the affidavits sworn in support of the application, the application is premised on alleged perceived bias on the part of this Court. The perceived bais is said to arise from the following alleged facts/situations:-
a)That despite this Court being on transfer and having stated that it would not hear fresh or new matters, it has heard this case and given it preference by fixing three (3) consecutive hearing dates;
b)That during cross examination of the petitioner/respondent, this court discouraged the respondent/applicant from marking its documents and rebuked its counsel suggesting bias;
c)That the counsel acting for the petitioner enjoys some form of unusual familiarity to the deteriment of the proceedings at hand hence the likelihood of bias or miscarriage of justice;
d)That the respondent is apprehensive that it will not receive a fair hearing contrary to Article 50(1) and 25(c) of the Constitution of Kenya 2010;
e)That the ruling of 2nd October, 2025 is another tale sign that suggests bias;
f)That justice must not only be done but must be seen to be done;
g)That the Court has inherent jurisdiction to ensure fair administration of justice and that can be achieved if the learned Judge disqualifies herself from hearing the matter.
3.In oppostion, the petitioner filed a replying affidavit sworn on 29th October, 2025. He deposes that the application is unfounded, speculative and consitutes an abuse of the court process being aimed at solely delaying the hearing and determination of the petition; that the applicant has taken too long to file the application given that the matter proceeded in Court for hearing on 2nd October, 2025 but the applicant waited until the eve of the hearing to file the application.
4.He further deposes that the applicant is not happy with the Court because its officers were cited for contempt and penalized by the Court. He avers that the Court’s intention to finalise the matter before proceeding on transfer, is a standard judicial practise consistent with he overriding objective of expeditious justice and that the fixing of three consecutive dates for hearing the matter, is a clear demonstration of the Judge’s dedication to expeditious justice which is beneficial to all parties; that the applicant’s complaint about the ruling of 2nd October 2025, is baseless; that if the applicant felt aggrieved by the ruling, they would have sought for review or prefered an appeal instead of seeking the disqualification of the Judge.
5. He averred that counsel for the petitioner and the Judge do not enjoy any ‘unusual familiarity’ as alleged and their relationship is strictly professional. The petitioner urges the court to dismiss the application as it is an attempt by the applicant to forum shop and has failed to provide any specific, verifiable evidence to substantiate the vague and baseless claim.
6.The application was disposed of by way of written submissions. Only the petitioner filed submissions which l have read and considered.
7.The law on recusal of judicial officers was aptly discussed by Kizito Magare J. in the case of Kamau & Another vs. Kingdom Bank Ltd (Civil suit E001 of 2022)(2025) KEHC 2545 (KLR) (27 February 2025) (Ruling) thus:-
“On recusal of Judges and Judicial Officers, the Judicial Service Commission made the Judicial Service (Code of Conduct and Ethics) Regulations 2020 pursuant to Section 47(2)(a) of the Judicial Service Act, Section 37 of the Leadership and Integrity Act, 2012 and section 5(1) of the Public Officer Ethics Act, 2003.
8.Under regulation 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 is:
-a.is a party to the proceedings;
b.was, or is a material witness in the matter in controversy;
c.has personal knowledge of disputed evidentiary facts concerning the proceedings;
d.has actual bias or prejudice concerning a party;
e.has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter;
f.had previously acted as a counsel for a party in the same matter;
g.is precluded from hearing the matter on account of any other sufficient reason; or
h.or a member of the judge’s family has economic or other interest in the outcome of the matter in question.
9.Regulation 21(2) requires that recusal by a judge shall be based on specific grounds to be recorded in writing as part of the proceeding. This is supplemented by regulation 21 (3) which forbids a judge from recusing himself or herself if in the circumstances set out therein.
10.The effect of the said regulations is that the court must guard against its independence and not to recuse itself in circumstances that do not merit. However, in circumstances where there is merit either due to the surrounding facts or appearance of bias, a judge should recuse himself. If for example a family member is involved, the court should not wait for an application for recusal.
11.This even occurs in cases where, the judge’s conscious points to discomfort due to relationship, either legal or clandestine. However, where there is no merit and the same is based on unfounded speculations, the court should and must not recuse itself.
Under Regulation Rule 7 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020, a judge shall exercise judicial authority independently and shall: -
a.Uphold the independence and integrity of the judiciary and the authority of the courts;
b.Maintain an independence of mind in the performance of judicial duties;
c.Take all reasonable steps to ensure that no person, forum, or organ of state, interferes with the functioning of the courts;
d.Exercise judicial function on the basis of the judge’s own assessment of the facts of the case, in accordance with a conscientious understanding of the law, and without reference to any extraneous influences; and
e.Exercise judicial function without being influenced by personal feelings, prejudice, or bias.
12.Independent exercise of judicial authority is affected by bias or ill will against a party. It is also compromised if the court succumbs to machinations and intimidation by parties.
13.However, where a party wants to waste the court’s time or otherwise forum shop, the court should be firm and clearly indicate so to parties. Unnecessary application for recusal is an affront to the independence of the judiciary and decisional independence of the judges. On the other hand a biased court is anathema to the independence of the court and the image of the judiciary.
14.In this matter, there is no allegation of actual or perceived bias arising from the relation between parties. The court is accused of entertaining contempt and noncompliance of the directions by the court on the part of the Defendant. The same has not been said of the manner in which the court prejudicially assists the Defendant to the disadvantage of the Plaintiff on the beam balance of justice.
15.There is no contempt of court application that the court has declined to determine. A reasonable, objective, and informed person would, on the correct facts, reasonably find no apprehension that the Court has not or will not bring an impartial mind to bear on the adjudication of this case based on a mind open to persuasion by the evidence and by the Plaintiffs herein.
In the case of National Water Conservation and Pipeline Corporation v. Runji & Partners Consulting Engineers and Planners Limited (2021) eKLR the Court stated as follows: -30.I cannot think of a more eloquent exposition of the law on recusal of judicial officers than the succinct exposition proffered by the Constitutional Court of South Africa in President of the Republic of South Africa and Others v South African Rugby Football Union and Others which indisputably articulated the proper approach as follows:-
“... 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 predispositions. 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 officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”
31.Because of the relevancy of the above elucidation to the issues at hand, some of the salient facets of the judgment merit some emphasis in the present context. In articulating the test in the terms quoted above, the court observed that two considerations are built into the test itself. First, in considering the application for recusal, the court as a starting point presumes that judicial officers are impartial in adjudicating disputes. This in-built aspect entails two further consequences. One, it is the applicant for recusal who bears the onus of rebutting the presumption of judicial impartiality. Two, the presumption is not easily dislodged. It requires “cogent” or “convincing” evidence to be rebutted32.Second, the other in-built aspect of the test is that “absolute neutrality” is something of a chimera in the judicial context.[12] This is because judges are human. They are unavoidably the product of their own life experiences, and the perspective thus derived inevitably and distinctively informs each judge’s performance of his or her judicial duties. But colourless neutrality stands in contrast to judicial impartiality; a distinction the above cited decision vividly illustrates. Impartiality is that quality of open-minded readiness to persuasion - without unfitting adherence to either party, or to the judge’s own predilections, preconceptions and personal views - that is the keystone of a civilized system of adjudication. Impartiality requires in short “a mind open to persuasion by the evidence and the submissions of counsel” and, in contrast to neutrality, this is an absolute requirement in every judicial proceeding. This is because: -“A cornerstone of any fair and just legal system is the impartial adjudication of disputes which come before courts and other tribunals. . . Nothing is more likely to impair confidence in such proceedings, whether on the part of litigants or the general public, than actual bias or the appearance of bias in the official or officials who have the power to adjudicate on disputes.”
16.The Plaintiffs have themselves delayed their case through numerous applications and cannot turn the blame on the court. I consider it a mere inquiry upon this court to decide whether or not it should resolve the pending matter. I choose to proceed and deal with this matter for no reason that justifies my recusal, whether self-imposed or imposed by the Plaintiffs or any other party. The test used in cases for recusal of such a nature is what the house of Lords in R –vs- Gough (1993) AC 646 calls the real danger test, though not of universal application, the test is whether, there is real danger that a fair trial was likely to be denied. To me such a test is too restrictive and may not be achieved by most parties applying for recusal.
17.I prefer the test of the real likelihood of bias. In this case, it is not necessary to prove actual bias, but whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased. In paragraph 39 of the decision of Michael Obare Tago versus Fredrcik Ambrose Otieno (2020) eKLR, the court posited as follows:-In the Attorney General of Kenya vs Professor Anyang Nyong’o & 10 Others EACJ Application No. 5 Of 2007, the court stated: -“We think that the objective test of reasonable apprehension of bias is good law. The test is stated variously, but amount to this- do the circumstances give rise to a reasonable apprehension, in the mind of the reasonable, fair minded and informed member of the public that the judge did not (will not) apply his mind to the case impartially”
18.The test is not what the litigant feels. It is a member of the public, who is not only reasonable but also fair minded and informed about all the circumstances of the case. Rachuonyo and Rachuonyo Advocates v National Bank of Kenya Limited [2021] eKLR , Justice D.S. Majanja, held as follows: -“In Philip K. Tunoi & another v Judicial Service Commission & Another CA Civil Application NAI No. 6 of 2016 [2016] eKLR the Court of Appeal adopted the test for recusal propounded by the House of Lords in Porter v Magill [2002] 1 All ER 465, where it stated that, “The question is whether the fair minded and informed observer, having considered the facts, would conclude that was a real possibility that the tribunal was biased.” The same position was taken by the Supreme Court (per Ibrahim J.) in Jasbir Rai and 3 Others v Tarlochan Singh Rai and 4 Others SCK Petition No. 4 of 2012 [2013] eKLR where he observed that, “The Court has to address its mind to the question as to whether a reasonable and fair-minded man sitting in Court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the applicant was not possible. If the answer is in the affirmative, disqualification will be inevitable.”
19.In this matter, a fair-minded person, knowing the circumstances of this case, will not have any doubt that the case will be heard fairly. In the case of In Rachuonyo and Rachuonyo Advocates v National Bank of Kenya Limited [2021] eKLR (supra) the court proceeded as doth: -“On the test of a ‘fair minded and informed observer’ and the provisions of the Code of Conduct above, can it be said that taking into account all circumstances of this case, I am likely to be biased against the Advocates and deny them a right to a fair trial? I think not. The Advocates have not laid any factual basis for a reasonable observer appraised of the facts to demonstrate a possibility of real bias.”
8.In applying the principles and tests cited/espoused in the case of Kamau & Another vs. Kingdom Bank Ltd (supra) to the circumstances of this case/application, the respondent applicant urges this Court to recuse itself from hearing this case on grounds of alleged bias. The alleged bias is said to have arisen from the fact that this court, despite being on transfer has given preference to the case by allocating it three consecutive hearings dates; that on 2nd October, 2025 this court gave directions concerning admission of documents in evidence which the applicant feels may give the petitioner an upper hand in hearing and determination of the case. The applicant also claims without any substantiation whatsoever, that the Court has demonstrated unusual familiarity with the counsel for the petitioner/respondent. The application further appears to be informed by the fact that this court cited and punished some of the applicant’s employees /officers for contempt of Court.
9.According to the respondent, when the above facts are taken collectively, they justify their perception that this court may not be impartial.
10.As pointed out in the case of Kamau & another vs Kingdom Bank Ltd (supra), there is a presumption of judicial impartiality, which presumption, a person seeking recusal of a judicial officer has to rebut by way of cogent and/or convincing evidence. The question to answer in the circumstances of this case, is whether the respondent/applicant has provided cogent or convincing evidence that this Court would not impartially hear and determine the matter as required of it by law and its oath of office.
11.Regarding that question, a review of the grounds taken up by the respondent/applicant shows that none of the grounds has been substantiated and/or are reasonable grounds for believing that the court will not be impartial. For instance, whereas the respondent/applicant suggests that it was dissatisfied with the ruling of 2nd October 2025, it did not challenge that decision by way of appeal or seek review of the decision of the Court.
12.As rightly submitted by counsel for the petitioner/respondent, the cause of action for a person who is dissatisfied with the decision of a Court is to appeal the decision in a higher Court or apply for review of the decision. However, such decision alone, cannot found a ground for applying for recusal of a judicial officer.
13.Whilst its true, that this court identified this suit for hearing despite having indicated that it will not hear fresh matters, the decision to give priority to the matter is solely because it is one of the old matters that had been pending before it. Proceeding on transfer, did not mean the court was under an obligation to stop hearing all the matters it was seized of. Giving priority to an old matter cannot form a basis of inferring bias on the part of the court.
14.Being of the view that the circumstances giving rise to the application for my recusal would not give rise to a reasonable apprehension of bias in the mind of a reasonable, fair-minded and informed member of the public that I may not apply my mind to the case objectively, I decline to recuse myself.
15.There being no sufficient reason given for vacating the hearing slated for 3rd, 4th and 5th November 2025, I direct that the hearing of the case shall proceed as scheduled.
16.The upshot of the foregoing is that I find the notice of motion dated 28th October, 2025 to be lacking in merits and l dismiss it with costs to the petitioner/ respondent.
17.Orders accordingly.
Dated, signed and delivered this 31st day of November, 2025.
Ruling delivered virtually in the presence of;-
Ms Kiptum for the Petitioneer
Mr Wafula for the Respondent
CA: Ian.
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