Ethics and Anti Corruption Commission (EACC) Formerly (Kenya Anti Corruption Commission) v Bernsoft Limited & 2 others (Environment and Land Case 168 of 2009) [2025] KEELC 7850 (KLR)
The bottom line
#A Kenyan court refused to disqualify a judge over his old job at the plaintiff, ruling that past employment alone doesn't prove bias.
What this practically means
#Executive summary
#Key legal issues
#Whether prior employment of the presiding judge with the plaintiff creates a legitimate apprehension of bias
No. Prior service with the plaintiff, a public body, which ended more than 13 years earlier and involved no evidence of involvement in the suit's investigations or pleadings, does not raise a real danger of bias
The court accepted that it had served with the plaintiff between 2006 and 2013 but noted the suit arose from investigations conducted in Mombasa where the judge never served. There was no evidence of involvement in the investigations, drafting or approval of pleadings. Disengagement from such a public organization more than 13 years earlier did not constitute a real danger of bias. The applicant bore the burden of rebutting the presumption of impartiality with cogent evidence.
Applicable test for recusal
The real danger of bias test applies; a judge may recuse where his impartiality might reasonably be questioned per Rule 21 of the Judicial Service Regulations, but the presumption of impartiality is not easily dislodged
The court applied Rule 21 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020 listing instances for recusal, and adopted the real danger of bias test from Mativo J. and the Court of Appeal in Gachagua and Uhuru Highway Development. General allegations of bias are insufficient; the apprehension must be reasonable and not based on mere suspicion or conjecture.
Legal principles established
#- The applicant for recusal bears the onus of rebutting the presumption of judicial impartiality and must satisfy the real danger of bias test with cogent or convincing evidence
- The test for bias is whether a fair minded and informed observer, having considered the facts, would conclude there was a real possibility that the tribunal was biased
- Judicial officers should not accede too readily to suggestions of apparent bias so as to encourage parties to shop for judges
Court orders
#- 1.The Notice of Motion dated 12th May, 2023 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Article 50 of the Constitution; Judicial Service (Code of Conduct and Ethics) Regulations 2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti Corruption Commission (EACC) Formerly (Kenya Anti Corruption Commission) v Bernsoft Limited & 2 others (Environment and Land Case 168 of 2009) [2025] KEELC 7850 (KLR)", Case Analysis (2025). Mombasa ELC Suit No. 168 of 2019 (KACC v Bernsoft Limited & 2 Others). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7850/eng@2025-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.