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ELRCDismissedHC Petition No. 1964 of 2011· [2013] KEELRC 399 (KLR)

KENYA HOTELS & ALLIED WORKERS UNION V MINISTER OF LABOUR & 3 OTHERS [2013] KEELRC 399 (KLR)

Industrial Court of Kenya
22 April 2013
MNMathews Nderi NdumaMOMaureen OnyangoLNLinnet Ndolo
1,532 words in judgment
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The bottom line

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Kenya's Industrial Court refused to disqualify two judges simply because they once worked for employers' lawyers opposing a hotel workers' union.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Industrial Court, constituted by the Chief Justice on 18 December 2012 (Justices Nderi Nduma presiding, Maureen Onyango and Linnet Ndolo) to hear HC Petition No. 1964 of 2011, transferred to the Industrial Court under Article 162(2)(a) read with Article 165(5)(b) of the Constitution. The Petitioner, Kenya Hotels and Allied Workers Union, filed a Notice of Motion under Rule 24(1) of the Industrial Court (Procedure) Rules 2012 seeking the recusal of Justices Onyango and Nduma on the ground that, while employed by the Federation of Kenya Employers, they had acted for the Petitioner's opponents - Musiara Limited, Serena Hotels, the Association of Hotel Keepers & Caterers and Nairobi Gymkhana - in earlier industrial causes concerning service charge deductions, agency fees and registration of collective bargaining agreements. The Respondents opposed, arguing no specific allegation of bias was pleaded. The court found no allegation of bias in the application or supporting affidavit; none of the present respondents had been party to the cited causes, and the judges as employees merely made presentations on their employer's instructions. Distinguishing Trust Bank v Midco and applying the 'real danger of bias' test from R v Gough, the bench held there was no conflict of interest or danger of bias. The recusal application was dismissed and the matter directed to take its normal course. No costs order was made.

Key legal issues

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01

Whether prior professional representation of the Petitioner's opponents by the judges while employed by the Federation of Kenya Employers warrants recusal

Holding

No - recusal was refused because no bias, conflict of interest or real danger of bias was established

Reasoning

The court found that the Notice of Motion and Supporting Affidavit contained no specific allegation of bias. The prior cases cited involved different parties and issues; the judges, as employees of the Federation of Kenya Employers, merely acted on instructions and had no personal relationship with the parties. Having taken the oath of office, they would hear the matter impartially.

p. 3
02

Whether failure to plead bias in the application defeats a recusal request

Holding

Yes - allegations must appear in the application and supporting affidavit

Reasoning

The Respondents contended, and the court agreed after perusing the grounds and affidavit, that no single allegation of bias or semblance of it was made against the two judges. The pleading rule required the Petitioner to stand or fall on its pleadings, and the affidavit only disclosed past representation in unrelated causes.

p. 2

Legal principles established

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  • A party must stand or fall on its pleadings; allegations of bias must be specifically pleaded and supported
  • The test for recusal is whether there is a real danger of bias or a conflict of interest; past professional representation by a judge as an employee of an employers' federation, where the judge is not personally connected to the parties, does not establish bias

Court orders

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  1. 1.The Application for recusal of Justice Nderi Nduma and Justice Maureen Onyango is dismissed for lack of merit
  2. 2.The matter will take its normal course
Jurisdiction invoked
Article 162(2)(a) as read with Article 165(5)(b) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "KENYA HOTELS & ALLIED WORKERS UNION V MINISTER OF LABOUR & 3 OTHERS [2013] KEELRC 399 (KLR)", Case Analysis (2013). HC Petition No. 1964 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/399/eng@2013-04-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.