PETER MWAURA KAMAU & 2 OTHERS V WICKS MWETHI NJENGA & ANOTHER [2012] KEELRC 99 (KLR)
The bottom line
#Kenya's Industrial Court refused to step aside from a teachers' union case, ruling that unproven bias claims don't force a judge off a matter.
What this practically means
#Executive summary
#Key legal issues
#Whether the allegations of bias against the presiding Judge met the objective test for disqualification
The court held that the allegations were unproved hearsay and did not meet the objective test; there was no reason to disqualify herself.
The court applied the Mwalulu test requiring objective facts constituting bias to be specifically alleged and established. The deponent's allegations were based on what he was told by persons who swore no affidavits, amounting to hearsay. The alleged refusal to sign orders, personal relationships and case re-allocation were all unexplained or unsupported. The court also noted that losing litigants are apt to attribute verdicts to bias.
Whether apprehension or discomfort of a litigant with a judge justifies recusal
No; a litigant cannot choose a judge, and mere allegations of bias, whether baseless or not, cannot disqualify a judge.
The court adopted the authority that it would be chaotic if all allegations of bias, whether buttressed with sufficient grounds or baseless, were sufficient to disqualify a judge. The test is objective and the comfort of litigants is not the measure. Judge-shopping and vexatious recourse to disqualification applications are to be discouraged.
Legal principles established
#- The test for disqualification of a judge is objective; facts constituting bias must be specifically alleged and established
- A judge ought not to be too ready to disqualify himself, particularly in cases involving parties who are constantly in court
- The fact that a judge has sat on many cases involving one party is not a sufficient reason for disqualification
Court orders
#- 1.The application dated 31st October 2012 is dismissed
- 2.Costs to the Respondents and the Interested Parties
- Jurisdiction invoked
- Section 12(1), (7) of the Labour Relations Act 2007 (cited by applicant); inherent powers of the court and Article 159(2)(d) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "PETER MWAURA KAMAU & 2 OTHERS V WICKS MWETHI NJENGA & ANOTHER [2012] KEELRC 99 (KLR)", Case Analysis (2012). Cause No. 1325 of 2011 (and related causes Nos. 980 of 2012, 1430 of 2012) - Notice of Motion dated 31st October 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/99/eng@2012-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.