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ELRCOtherNot stated in the judgment· [2013] KEELRC 724 (KLR)

Erastus Safari Kenga v Awanand Enterprises Limited [2013] KEELRC 724 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
28 August 2013
RSRadido Stephen
537 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Cause came up before Makau O. N. J on 26 July 2013, when the Respondent's counsel orally requested that it be heard before another judge, on the ground that Makau J had dealt with a similar matter between the same parties and lawyers. The Claimant opposed, arguing this amounted to forum shopping. Makau J referred the matter to Radido J for directions, the request being treated in essence as one for his own recusal. Before Radido J, the Respondent, through Mr. Amuga, expressed apprehension that Makau J was handling four other matters involving the Respondent and that this could prejudice its case. Radido J applied the objective test for recusal: there must be a reasonable apprehension of bias. No personal relationship or financial interest was alleged, and the court found the Respondent's concerns to be unsubstantiated perceptions of bias insufficient for recusal. The court noted that only two judges of the Industrial Court sat in Mombasa, and that many cases emanate from the same employers, so recusal on such grounds would soon prevent any cases from proceeding and the cycle would merely restart. The court could not discern that the Respondent would not get a fair trial before Makau J, and directed that the Cause be placed before Makau J the same day for further directions on commencement of the trial. The ruling was delivered on 28 August 2013. No costs order was made.

Key legal issues

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01

Recusal on grounds of apprehended bias

Holding

Recusal refused; unsubstantiated perceptions of bias do not suffice

Reasoning

The court held that apprehension of bias must be reasonable and objectively assessed. The Respondent did not allege any personal relationship, financial interest or other factual basis for bias; it merely noted that Makau J was handling several matters involving the Respondent. With only two Industrial Court judges in Mombasa and many cases emanating from the same employers, recusal on that basis alone would paralyse the station. The court could not discern that the Respondent would not receive a fair trial before Makau J.

p. 2

Legal principles established

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  • The test for recusal is an objective one: there must be a reasonable apprehension of bias on the part of the judge

Court orders

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  1. 1.That the Cause be placed before Makau J the same day so that he could give further directions as to when the trial could commence before him
Jurisdiction invoked
Inherent directions jurisdiction of the Industrial Court; no specific provision cited

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Erastus Safari Kenga v Awanand Enterprises Limited [2013] KEELRC 724 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/724/eng@2013-08-28

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