Judge Musyoki: Dismisses Privatization Commission CEO Recusal Bid

• Milimani High Court Judge B.M. Musyoki declined to recuse himself from a corruption case involving Privatization Authority Ag Managing Director / CEO Janerose Sande Omondi and three others.
• The judge dismissed the recusal application on September 18, 2026, stating the defendants failed to provide sufficient grounds for his withdrawal.
• Defendants cited concerns over fair hearing, apprehension of bias, and specific procedural decisions, including a disputed adjournment and the handling of appeals whose judgment date of July 31, 2026, had already passed.
• Judge Musyoki clarified his actions, emphasizing that judicial discretion does not automatically equate to bias and that the determined appeals did not warrant a stay of proceedings.
• The ruling reinforces Kenya's high legal threshold for judicial recusal, requiring objective evidence of bias rather than mere dissatisfaction with court decisions.

The court reiterated that the test for recusal hinges on whether an independent and fair-minded person, after considering all circumstances, evidence, facts, and applicable law, would reasonably conclude that there was a possibility of bias.

Milimani High Court Judge B.M. Musyoki has dismissed an application seeking his recusal from a significant corruption case involving Janerose Sande Omondi, the Ag Managing Director / CEO of the Privatization Authority, along with James Ambuso Omondi and two other co-defendants. The ruling, delivered on September 18, 2026, found that the defendants had not presented sufficient grounds to warrant Judge Musyoki's withdrawal from the proceedings, which were initiated by the Ethics and Anti-Corruption Commission (EACC).

The judge explicitly stated, "I am not satisfied that the defendants have laid sufficient grounds that I ought to recuse myself from hearing or handling this matter." This decision underscores the rigorous standards applied to judicial recusal applications in Kenya, particularly in high-stakes cases such as the Janerose Sande Omondi corruption case. The defendants had formally requested the judge's recusal through a notice of motion filed on April 10, 2026, arguing that his handling of the matter had created a reasonable apprehension of bias and raised concerns about their right to a fair hearing.

The defendants' application for recusal was predicated on several specific grievances concerning the judge's procedural decisions and directions throughout the case. They cited issues related to the scheduling of hearing dates and the dismissal of a previous application in November 2025 as evidence of perceived impartiality. A key contention revolved around the proceedings of March 10, 2026, where the defendants claimed the court had declined to grant an adjournment despite their lawyer being engaged in other legal matters.

Furthermore, the defense argued that the hearing of the EACC graft case should have been postponed until after the anticipated determination of two appeals before the Court of Appeal, whose judgment date of July 31, 2026, had already passed. They also pointed to an incident on November 17, 2025, alleging that Judge Musyoki had dismissed an application without providing the parties an opportunity to be heard. The defendants contended that this sequence of events collectively demonstrated a disregard for their position and fueled their concerns about the judge's impartiality, forming the basis for their reasonable apprehension of bias application.

The EACC opposed the recusal application, asserting that the defendants had failed to present adequate grounds for the judge's withdrawal. The commission maintained that the court had properly exercised its discretion in handling the request for an adjournment and emphasized that mere dissatisfaction with a judicial decision could not, by itself, constitute valid grounds for recusal. The EACC also argued that the existence of determined appeals did not preclude the Milimani High Court from proceeding with the case, as no order staying the proceedings had been issued.

Judge Musyoki, in his ruling, directly addressed and disputed the defendants' account of the March 10, 2026 proceedings, clarifying that he had, in fact, granted their request for an adjournment due to their counsel's other engagements. He explained that the subsequent disagreement arose when the defense sought a hearing date beyond July 31, 2026, citing the determined appeals. The judge determined that the pendency and eventual outcome of these appeals should not impact the case before him, subsequently setting new hearing dates for May 5 and 6, 2026. He further noted that all proceedings were recorded in writing and audio, allowing for verification. He emphasized that even if an adjournment had been declined, such a decision would fall within the ambit of judicial discretion and would not, without additional evidence, establish bias. He cited established legal principles, including a Supreme Court decision, which mandates disqualification only when a reasonable person would objectively suspect that a fair trial is impossible, aligning with the test for judicial bias Kenya.

This ruling by Judge Musyoki reinforces the high threshold required for successful judicial recusal applications in Kenya. The court reiterated that the test for recusal hinges on whether an independent and fair-minded person, after considering all circumstances, evidence, facts, and applicable law, would reasonably conclude that there was a possibility of bias. This standard moves beyond subjective feelings of unfairness, demanding objective evidence to meet the EACC graft case recusal grounds.

The decision highlights that procedural disagreements or dissatisfaction with a judge's exercise of discretion are generally insufficient to warrant a judge's withdrawal. It underscores the judiciary's commitment to ensuring that recusal is reserved for situations where genuine, objectively verifiable grounds for bias exist, rather than being used as a tactic to delay proceedings or challenge unfavorable rulings. This outcome provides important guidance on the stringent requirements for establishing judicial bias in Kenyan courts.

This ruling reinforces the high threshold for judicial recusal applications in Kenya, emphasizing that mere dissatisfaction with a judge's procedural decisions or rulings is insufficient to establish bias. Lawyers advising clients on potential recusal applications must focus on demonstrating a strong, objective basis for apprehended bias, rather than relying on perceived procedural unfairness, to meet the 'independent and fair-minded person' test.

Source: Original reporting via {source}