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ELRCDismissedCause No 66 of 2013· [2014] KEELRC 910 (KLR)

Kayum Khan v International Commercial Company (K) Ltd [2014] KEELRC 910 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
24 January 2014
MMMonica Mbaru
4,194 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a litigant's bid to stall his case and remove the judge, confirming suspicion alone can't prove bias.

What this practically means

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Executive summary

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The claimant, acting in person in an unfair termination suit, filed a Notice of Motion dated 28th October 2013 seeking a stay of proceedings pending appeal against the court's ruling of 11th October 2013, which dismissed his application for leave to amend his memorandum of claim (which would have increased his claim by Kshs. 803,903 to Kshs. 3,230,047), and further sought the disqualification of Lady Justice Monica Mbaru on allegations of bias. The respondent opposed the application through grounds of opposition and a replying affidavit, arguing there was no arguable appeal, no evidence of real or imputed bias, and that the application abused judicial time. The court framed two issues: whether proceedings should be stayed pending appeal, and whether the Judge should disqualify herself. On disqualification, the court distinguished disqualification from voluntary recusal, applied the objective test from Metropolitan Properties v Lannon (via Republic v Mwalulu) and the Supreme Court's guidance in Jasbir Singh Rai, and held that mere suspicion of bias is insufficient; it found no basis for disqualification. On the stay, the court held that an applicant must establish an arguable appeal, that the appeal would be rendered nugatory, and the balance of convenience. No memorandum or draft appeal was placed before the court, and the claim was still at a preliminary stage with no award made, so the stay would perpetuate injustice. The application was dismissed with costs in the cause and parties directed to take hearing dates.

Key legal issues

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01

Whether the Judge should disqualify herself

Holding

No. The threshold for judicial bias is high, there is a presumption of impartiality, and no cogent evidence of bias was presented

Reasoning

The court distinguished disqualification (party-driven) from recusal (voluntary) and adopted the objective test from Metropolitan Properties v Lannon via Republic v Mwalulu and the Supreme Court's guidance in Jasbir Singh Rai. Allegations must be specifically established; losing litigants often attribute adverse rulings to bias. The application was made only after the amendment application failed, suggesting pressure rather than genuine apprehension.

p. 5
02

Whether proceedings should be stayed pending appeal

Holding

No. The claimant failed to establish an arguable appeal, that the appeal would be rendered nugatory, and that the balance of convenience favoured a stay

Reasoning

No memorandum or draft appeal was placed before the court, so the nugatory submission could not hold. The claim is unfinished, no award exists, and no successful party has a vested interest to protect. Courts should discourage parties who lose interlocutory motions from stalling hearings through appeals.

p. 7

Legal principles established

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  • A stay of proceedings pending appeal requires special circumstances: an arguable appeal, the appeal being rendered nugatory, and the balance of convenience; any one ingredient alone is insufficient
  • Judicial disqualification/recusal requires a legitimate statutory or constitutional basis; mere suspicion or fear of bias is not enough, and the test for bias is objective
  • Recusal/disqualification applications must be made for good cause after reasonable inquiry and should not be used as a tactical device

Court orders

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  1. 1.Application dated 28th October 2013 dismissed
  2. 2.Costs shall be in the cause
  3. 3.Parties to take hearing dates at the registry

Authorities

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Legislation

  • Industrial Court Procedure RulesRule 16
  • Industrial Court Actsection 12; section 3
  • Constitution of KenyaArticle 159(2)

Cases cited (7)

  • David Morton Silverstein versus Atsango Chesoni
    [2002] eKLR
  • Jasbir Singh Rai and 3 Others versus Tarlochan Singh and 4 Others
    Petition No. 4 of 2012 (2013) eKLR
  • David Mwangi Muiruri versus Chief Magistrate's Court Malindi and Others
    [2012] eKLR
  • Republic versus Mwalulu and 8 Others
    [2005] eKLR
  • Metropolitan Properties Co. (F.G.C) Ltd versus Lannon and others
    (1969) 1 Q.B.
  • R. versus S. (R.D)
    (1997) 118 CCC, 353
  • President of the Republic of South Africa and Others versus South Africa Rugby Football Union and Others
    CCT 16 of 1998
Jurisdiction invoked
Section 12 of the Industrial Court Act and Rule 16 of the Industrial Court Procedure Rules 2010

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, "Kayum Khan v International Commercial Company (K) Ltd [2014] KEELRC 910 (KLR)", Case Analysis (2014). Cause No 66 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/910/eng@2014-01-24

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