Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition No. 2 of 2018· [2019] KEELRC 2303 (KLR)

Philip Kipsang Kemboi v Speaker, County Government of Kericho & 3 others [2019] KEELRC 2303 (KLR)

Employment and Labour Relations Court
1 February 2019
2,742 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment and Labour Relations Court dismissed a judge-recusal bid, ruling that unproven bias allegations don't disqualify a judge and cost the loser money.

What this practically means

#

Executive summary

#
The Petitioner/Applicant moved the court by Notice of Motion dated 22nd June 2018 seeking, inter alia, the disqualification of the presiding Judge, Hon. D. K. Njagi Marete, from hearing Petition No. 2 of 2018, transfer of the matter to another judge, and a declaration that the Judge's inclusion of an Intended Interested Party was null and void. The applicant alleged that the Judge had taken sides, had issued adverse orders in Petition No. 12 of 2017 affecting the present petition, and had granted leave for joinder of the Intended Interested Party suo motu. The Intended Interested Party and the 3rd and 4th respondents opposed, arguing that the application was brought in bad faith, was an abuse of process, misrepresented the record (no ruling on joinder had been made), and failed to meet the threshold for recusal, which requires actual bias or extra-judicial grounds and, for perceived bias, the objective test of a reasonable, fair-minded and informed observer. They relied on Kalpana Rawal, the Anyang Nyong'o EACJ authority and Galaxy Paint. The court held that the law on recusal is settled, found the application suspicious, ambiguous, and riddled with misrepresentation and half-truths, and concluded that the allegations of bias were mere allegations that did not meet even the basics for disqualification of a judicial officer. The court characterized the application as frivolous, vexatious, an abuse of process, and an attempt to scuttle and delay the suit. The application was dismissed with costs to the respondents and the Intended Interested Party on 1st February 2019.

Key legal issues

#
01

Whether the applicant established grounds for recusal/disqualification of the presiding Judge

Holding

No. The application did not meet the ingredients for disqualification; the allegations of bias remained unsubstantiated mere allegations.

Reasoning

The court applied the settled law and practice on recusal, including the objective test of reasonable apprehension of bias from the Anyang Nyong'o authority. Valid grounds for recusal are actual bias or extra-judicial reasons such as the judge being a party, related to a party, a material witness, having a financial interest, or having acted as counsel. The applicant demonstrated none of these; the application was also ambiguous as to whether recusal was sought for the petition or the joinder application, was riddled with misrepresentation and half-truths, and was designed to delay and disrupt proceedings.

p. 5
02

Whether the application was an abuse of the court process

Holding

Yes. It was brought in bad faith, was frivolous and vexatious, and was an attempt to scuttle and delay the suit.

Reasoning

The court found the application suspicious from the outset because it was unclear whether recusal was sought from the petition or the joinder application. It contained misrepresentations, including the claim that the Judge had already granted leave for the joinder when no such determination had been made. The court characterized it as a disruption of proceedings and an unnecessary endeavour to muddle the issues, and held it must be combated and dismissed with costs.

p. 5

Legal principles established

#
  • The threshold for disqualification based on perceived bias is the objective test of reasonable apprehension of bias in the mind of a reasonable, fair-minded and informed member of the public; mere allegations of bias do not suffice
  • A judge has a duty to sit and should not accede too readily to suggestions of apparent bias

Court orders

#
  1. 1.The Notice of Motion dated 22nd June 2018 is dismissed
  2. 2.Costs of the application awarded to the respondents and the Intended Interested Party

Authorities

#

Cases cited (3)

  • Kalpana Rawal vs. Judicial Service Commission & 2 Others
    (2016) eKLR
  • Attorney General vs. Prof. Anyang Nyong’o & Others
    EACJ Application No. 5 of 2007
  • Galaxy Paint Company Ltd v Falcon Guards Ltd
    [1999] eKLR
Jurisdiction invoked
Inherent jurisdiction of the court to determine an application for recusal/disqualification of a judicial officer in Petition No. 2 of 2018

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Philip Kipsang Kemboi v Speaker, County Government of Kericho & 3 others [2019] KEELRC 2303 (KLR)", Case Analysis (2019). Petition No. 2 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2303/eng@2019-02-01

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