Mary Munyuli Luseka v Brand Kenya Board; Cabinet Secretary, Ministry of Industry, Trade and Co-operatives (Interested Party) [2018] KEELRC 81 (KLR)
The bottom line
#Kenya's Employment Court ruled that a judge's efforts to speed up a case are not bias, dismissing a bank's bid to have the judge step aside.
What this practically means
#Executive summary
#Key legal issues
#Test for recusal of a judge
The objective test of a fair-minded and informed observer applies; dissatisfaction with directions is not bias
The Court adopted the Court of Appeal's formulation in the Tunoi case that the test is that of a fair-minded and informed observer who adopts a balanced approach, neither complacent nor unduly sensitive or suspicious, in determining whether there is a real possibility of bias. It found the applicant was merely dissatisfied with case-management orders.
Ethical duty to sit versus obligation to recuse
The threshold for recusal equals the threshold for hearing the case; absent valid disabling reasons the judge must hear it
Relying on its own earlier ruling in Joseph Maina v Gitonga Kabugi, the Court held that a judge carries an ethical obligation to recuse only if a reason is known or established; otherwise the judge carries an equal ethical obligation to hear and determine the case, balancing the two duties carefully.
Guarding against judge-shopping
Courts must not readily accede to recusal applications that enable litigants to choose favourable judges
Following Uhuru Highway Development Ltd v Central Bank of Kenya, the Court cautioned that judicial officers must discharge their duty to sit and should not encourage parties to believe that seeking disqualification will secure a judge more likely to decide in their favour.
Leave to appeal
No leave of the ELRC is required to appeal to the Court of Appeal under section 17 of the ELRC Act
The Court found the applicant had not cited any legal provision prescribing leave; section 17 of the ELRC Act provides that appeals lie to the Court of Appeal against any judgment, award, order or decree in accordance with Article 164(3) of the Constitution, so the right to appeal is as of course and leave sought was superfluous.
Legal principles established
#- Expeditious case management directions do not amount to bias or denial of fair hearing
- A judge bears an ethical obligation to hear and determine a case unless a valid reason for recusal is established
- Dissatisfaction with interlocutory orders, without more, is not a ground for recusal
- Appeals from the ELRC lie to the Court of Appeal as of course without leave
Court orders
#- 1.The application by the notice of motion dated 13.11.2018 is dismissed with costs
- 2.The parties are invited to fix a convenient mention date before the Principal Judge for directions on the expeditious hearing and determination of the petition before any Judge as will be convenient
- Jurisdiction invoked
- Rule 17(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016 and Articles 50 and 159(1) of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Munyuli Luseka v Brand Kenya Board; Cabinet Secretary, Ministry of Industry, Trade and Co-operatives (Interested Party) [2018] KEELRC 81 (KLR)", Case Analysis (2018). Notice of Motion dated 13.11.2018 in ELRC Petition filed 28.05.2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/81/eng@2018-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.