High Court sets test for recusing magistrates in bias-related case

The High Court has clarified the legal threshold for the recusal of a trial magistrate in criminal proceedings.

In a ruling delivered by Justice Alexander Muteti, the court held that allegations of bias must be supported by tangible evidence and not mere dissatisfaction with how a case is managed.

The court declined to remove a Chief Magistrate from a criminal trial linked to a land ownership dispute, involving the complainant, Ashok Rupshi Shah, and four others.

However, it faulted the magistrate for failing to hear parties on a formal recusal application, describing the omission as a breach of the right to a fair hearing.

The decision arose from a criminal revision application filed by Davis Chelogoi, the first accused in the Nairobi Chief Magistrate’s court criminal case.

Court documents state that Chelogoi sought the recusal of the trial magistrate, arguing that she had demonstrated bias in the manner she conducted the proceedings.

“Consequently, thereupon to order that the trial in the said Criminal proceedings proceed forthwith to their logical conclusion before any other Court of competent jurisdiction in Nairobi Chief Magistrates Court,” reads part of the judgement.

The records note that Chelogoi accused the magistrate of selectively recording proceedings, failing to capture defence objections and testimony favourable to him, displaying disinterest during defence hearings, and prejudging the case.

He further argued that the trial court had overstepped its jurisdiction by effectively turning the criminal proceedings into a forum for determining ownership of disputed land, an issue pending before the Environment and Land Court.

The applicant also faulted the magistrate, alleging that she dismissed his recusal application dated October 21, 2025, without affording him an opportunity to be heard or allowing service upon the prosecution and his co-accused, which he argued was contrary to Article 50 of the Constitution.

“In the result, the duty of this Court is to satisfy itself as to the correctness, legality, or propriety of any finding, sentence, or order recorded or passed as was made by the Magistrate on 23rd October, 2025, summarily dismissing the Applicant's/1st Accused Person's Recusal Motion dated 21st October, 2025,” he submitted.

In opposing the revision, the Director of Public Prosecutions, through an affidavit sworn by Detective Sergeant Nicolaus Osuri Otieno of the Directorate of Criminal Investigations, maintained that the magistrate had considered the recusal application and correctly declined to delve into the merits of the case, which was still pending trial.

The prosecution argued that the applicant had failed to demonstrate which proceedings were not recorded or which witnesses’ evidence had been omitted. 

It further contended that the trial court had on several occasions ruled in favour of the accused, including rejecting attempts by the prosecution to introduce fresh documents mid-trial.

The DPP also accused Chelogoi of delaying the trial, noting that he had sought and obtained multiple adjournments over the course of the proceedings.

According to the prosecution, the recusal application was an afterthought, brought only after the applicant was placed on his defence, and formed part of a broader pattern of forum shopping, including parallel cases filed in the High Court and the Environment and Land Court seeking to halt the criminal proceedings.

Notably, the second accused in the criminal matter, named as an interested party, also opposed the revision, distancing himself from the recusal application. 

He argued that no bias had been demonstrated and that the applicant had failed to identify any part of the proceedings that had not been properly recorded.

“The interested party maintained that there is no basis for the claim of bias and the court should proceed to dismiss the application and direct that the matter proceed to its logical conclusion,” court records note.

In determining the matter, Justice Muteti reiterated that the test for recusal is whether a reasonable, fair-minded observer would apprehend bias on the part of the judicial officer. 

Such apprehension, the judge said, must be grounded in evidence and not speculation.

“Judicial officers take an oath to do justice and to faithfully discharge their duties. To displace the presumption of good faith on their part in the discharge of their duty, a litigant must adduce evidence to the contrary,” he observed.

The court found that the applicant had made sweeping allegations of selective recording without identifying specific omissions from the record. 

Justice Muteti described claims of selective recording as serious, bordering on criminality, and warned that they could not be made without proof.

The judge further held that a court’s effort to manage proceedings and conclude a criminal trial within a reasonable time does not amount to bias, nor does the fact that an accused person has been placed on his defence imply a predetermined conviction.

However, the High Court found merit in the applicant’s complaint that the trial magistrate failed to hear parties on the formal recusal application despite directing that it be filed. 

Justice Muteti held that this omission amounted to a procedural irregularity that did not meet the standards of a fair hearing under Article 50.

“The omission is, however, curable by ordering that if, even after what the court has stated above, the applicant still feels constrained to pursue the path of recusal, the trial court should reopen the matter and hear him substantively on the formal application,” he ruled.

The judge, however, declined to transfer the criminal case to another court, holding that no evidence of bias had been established.

Justice Muteti concluded by emphasising that not all procedural lapses amount to judicial bias, noting that courts are permitted to correct errors as they arise in the course of administering justice.