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ELRCDismissedNot stated in the judgment· [2020] KEELRC 736 (KLR)

Richard Kipkoech Aiyabei v Agricultural Development Corporation [2020] KEELRC 736 (KLR)

Employment and Labour Relations Court
9 July 2020
2,945 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to disqualify its judge from a dispute involving a former Managing Director, finding no strong evidence of bias.

What this practically means

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Executive summary

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The Agricultural Development Corporation (Respondent/Applicant) moved the Employment and Labour Relations Court by Notice of Motion dated 6th May 2020 seeking the recusal of Hon. Lady Justice Hellen Wasilwa from the main petition by its former Managing Director, Richard Kipkoech Aiyabei, and that the file be placed before the Presiding Judge for directions. The applicant alleged a likelihood of bias because the Court had granted ex parte orders on 31st March 2020 reinstating the Petitioner's access to his office as Managing Director without considering Sections 49(4) and 50 of the Employment Act or Rule 17(10) of the ELRC Procedure Rules, and had failed to give directions on its application to set aside those orders filed on 15th April 2020, while prioritising a contempt application. The Petitioner objected, arguing the application was a disguised appeal against the orders of 31/3/2020, that no bias was proved, and that a litigant cannot choose their judge. The Court found that it could not have given directions suo moto on the set-aside application online without being moved and without the physical file, and that it had properly prioritised the earlier contempt application, whose ruling was pending. Relying on the Supreme Court's reasoning in Supreme Court Petition No. 34/2014 and Shilenje v Republic, the Judge held that very strong grounds are required for recusal, found none, and declined to recuse herself, noting the application could be reconsidered after delivery of the pending contempt ruling. Costs were awarded in the cause. Judgment delivered on 9th July 2020 via zoom.

Key legal issues

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01

Whether perceived bias warranted the Judge's recusal

Holding

The application for recusal was declined as no valid grounds of bias were established.

Reasoning

The applicant's complaint was that the Court granted ex parte orders on 31/3/2020 and failed to give directions on its application to set them aside. The Court found it could not have moved itself suo moto online without being moved by a party and without the physical file, and that it had prioritised the earlier-filed contempt application. Relying on Supreme Court authority, the Court held a judge cannot down tools on unsubstantiated allegations of conflict of interest, as recusal on such grounds would abdicate the Court's constitutional duty and occasion a miscarriage of justice.

p. 3
02

Whether a pending contempt application affected the competence or propriety of recusal at that stage

Holding

The Court retained exclusive competence to determine the pending contempt application, and recusal before delivering the pending ruling would cause a miscarriage of justice.

Reasoning

The contempt application, filed on 8/4/2020 for breach of the orders of 31/3/2020, had been heard and a ruling was pending. The Court reasoned that only it could determine whether contempt had been committed or purged, and that recusal before disposal of that application would compromise the due administration of justice. It however left the door open for the recusal application to be reconsidered after delivery of the ruling.

p. 3
03

The test applicable to recusal applications

Holding

The parties advanced competing formulations: the fair-minded and informed observer test (applicant) and the Supreme Court's perception-of-fairness test (respondent); the Court applied the requirement of strong grounds for recusal.

Reasoning

The applicant relied on the Court of Appeal's Kalpana Rawal decision and the South African Sarfu formulation of the reasonable, objective and informed person test for apprehended bias. The respondent relied on the Supreme Court's Jasbir Singh Rai decision and the Republic v Cabinet Secretary for Transport case, emphasising that perception of fairness is the proper test and that a litigant cannot choose the judicial officer. The Court held itself bound by the Supreme Court's reasoning and required very strong grounds for recusal.

p. 4

Legal principles established

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  • Courts require very strong grounds before a case is transferred from one judicial officer to another or before a judge recuses herself
  • A court need not down its tools merely because a party to the cause is connected to the issues before it; doing so would amount to abdicating its constitutional duty

Court orders

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  1. 1.The Notice of Motion dated 6th May 2020 seeking recusal of the Judge is declined
  2. 2.The recusal application may be reconsidered after delivery of the pending ruling on the contempt application
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1); Article 49; Article 168(8)
  • Employment Act, 2007Sections 49(4), 50
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17(10)
  • Employment and Labour Relations Court Act (Practice Directions), 2016Rule 28(c)
  • Evidence ActSection 107
  • Public Officers Ethics ActSection 10(1)

Cases cited (8)

  • Justice Kalpana H. Rawal vs. Judicial Service Commission & 2 others
    [2016] eKLR
  • South African Commercial Catering and Allied Workers Union and Others vs Irrin & Johnson Limited Seafoods Division Fish Processing
    CCT 2/2000
  • Juma Kiprono Kandie & 2 Others vs. Communication of Kenya
    [2015] eKLR
  • Jasbir Singh Rai & 3 Others vs. Tarlochan Singh Rai & 4 Others, Petition No. 4 of 2012
    [2013] eKLR
  • Republic v Cabinet Secretary for Transport & Infrastructure & 5 others Ex-Parte Kenya Country Bus Owners Association (Thro Paul G. Muthumbi Chairman) Samuel Njuguna Secretary Joseph Kimiri Treasurer & 8 others
    [2014] eKLR
  • Philip Tunoi J & Another vs. Judicial Service Commission & another
    [2016] eKLR
  • Supreme Court Petition No. 34/2014
  • Shilenje vs The Republic
    (1980) KLR 132
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over an employment dispute (Petition); Article 50(1) of the Constitution on fair hearing invoked in submissions

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, "Richard Kipkoech Aiyabei v Agricultural Development Corporation [2020] KEELRC 736 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/736/eng@2020-07-09

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