Richard Kipkoech Aiyabei v Agricultural Development Corporation [2020] KEELRC 736 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether perceived bias warranted the Judge's recusal
The application for recusal was declined as no valid grounds of bias were established.
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.
Whether a pending contempt application affected the competence or propriety of recusal at that stage
The Court retained exclusive competence to determine the pending contempt application, and recusal before delivering the pending ruling would cause a miscarriage of justice.
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.
The test applicable to recusal applications
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.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 6th May 2020 seeking recusal of the Judge is declined
- 2.The recusal application may be reconsidered after delivery of the pending ruling on the contempt application
- 3.Costs in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.