Gathithi (The Legal Representative of the Estate of the Late Fredrick Gathithi Kabue) v Cannon Assurance Kenya Limited [2025] KEELC 31 (KLR)

Gathithi (The Legal Representative of the Estate of the Late Fredrick Gathithi Kabue) v Cannon Assurance Kenya Limited (Enviromental and Land Originating Summons E065 of 2024) [2025] KEELC 31 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 31 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Enviromental and Land Originating Summons E065 of 2024

MD Mwangi, J

January 16, 2025

Between

Eunice Wanjiru Gathithi

Plaintiff

The Legal Representative of the Estate of the Late Fredrick Gathithi Kabue

and

Cannon Assurance Kenya Limited

Defendant

Ruling

(On recusal at the court's own motion) 1. On 11th November 2024, the court directed that the Plaintiff’s application dated 16th October 2024 and the preliminary objection filed by the Defendant be heard concurrently. The court heard the oral submissions of the Advocates for both parties on 19th November 2024 and reserved the ruling for 19th December 2024. Due to unavoidable circumstances, the court was not able to deliver the ruling as scheduled on 19th December 2024. The same was rescheduled for 16th January 2025.

2. The court has in preparing to make the ruling considered the pleadings filed by the Plaintiff and the responses by the Defendant. The responses by the Defendant include the replying affidavit to the originating summons dated 29th October 2024, the preliminary objection dated 4th November 2024 and the replying affidavit to the Notice of Motion application which is dated 5th November 2024.

3. In the course of the preparation, the court since has realized that the two replying affidavits filed on behalf of the Defendant are sworn by one Ms. Betty Kanyagia, the Head of Legal and Corporate Services of the Defendant company, who is well known to me at a personal level. The facts deposed to in the affidavits are hotly contested by the Plaintiff. The Plaintiff did in fact, on 6th November 2024, file a notice to cross-examine the said deponent, Ms. Betty Kanyagia, dated 6th November 2024.

4. I have conscientiously considered this matter in view of the above realization, the provisions of the judicial code of conduct and ethics and my constitutional responsibilities under Article 73 of the Constitution to promote public confidence in the integrity of the office of a judge and to bring honour to the nation and dignity to the office of a judge. I have further meditated over the judicious pronouncement by Justice Rolston F. Nelson of the Caribbean Court of Justice as cited with approval by Justice Ibrahim (SCJ) in the case of Gladys Boss Shollei - vs - Judicial Service Commission & ano (2018) EKLR, to the effect that;“A judge who has to decide an issue of self-recusal has to do a balancing exercise. On the one hand, the judge must consider that self-recusal aims at maintaining the appearance of impartiality and instilling public confidence in the administration of justice. On the other hand, a judge has a duty to sit in the cases assigned to him or her and may only refuse to hear a case for an extremely good reason.”

5. In this case, I consider it inappropriate for me to preside over this matter for the reason already stated above. I feel obliged to recuse myself from this matter, which I hereby do.

6. Consequently, I direct that this matter be placed before the Presiding Judge of the Land Division, of the Nairobi ELC with a request to allocate or re-assign it appropriately to another Judge, at her discretion.It is so ordered.

DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 16TH DAY OF JANUARY 2025. M.D. MWANGIJUDGEIn the virtual presence of:Mr. Githinji h/b for Mr. Allen Gichuhi S.C for the ApplicantN/A for the RespondentCourt Assistant: MpoyeM.D. MWANGIJUDGE