Keith Wright v Ketegra Biotechnology (EPZ) Limited [2021] KEELRC 1482 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the test for reasonable apprehension of bias was met
The application did not meet the objective test; the allegations of bias were unsubstantiated and made in bad faith
The court applied the Kalpana Rawal objective test of reasonable apprehension. It found the court record contradicted the allegations: directions of 15th December 2020 closed pleadings within 21 days, the hearing notice was served on 16th February 2021 giving the respondent opportunity under Rules 14(10) and 15(1), the respondent opted not to cross-examine and itself sought the adjourned hearing dates of 6th May and 21st May 2021. The respondent had also already appealed the impugned directions to the Court of Appeal, which declined stay.
Whether the court could revisit its earlier directions of 15th December 2020 and 24th March 2021
No - the court stands functus officio as to the ruling and directions, and the proper remedy was appeal, which the respondent had pursued
The court held that the directions and the detailed ruling of 24th March 2021 were final on the matters complained of. Inferring bias was tantamount to challenging the ruling; the respondent's lawful remedy was appeal under section 17 of the ELRC Act, which it had exercised in Civil Appeal No. E111 of 2021, with stay refused. Reopening the matter to justify itself would offend the rule of law and amount to misconduct.
Whether failure to hold pre-trial directions under Rule 15(1) grounded recusal or reallocation
No; the procedural rules were available to all parties and the respondent could have invoked them, but did not specify what it wished to be addressed at pre-trial
The court held that upon service of the hearing notice on 16th February 2021, Rules 15(1) and 14(10) allowed the respondent a fair chance to seek to file any record with the court. The respondent failed to set out what matter it wished to be addressed during pre-trial, and the substantive hearing had already commenced with the respondent's participation, including an allowed adjournment.
Legal principles established
#- The test for recusal is the objective test of reasonable apprehension: whether circumstances would give rise to a reasonable apprehension in the mind of a reasonable, fair-minded and informed member of the public that the judge will not apply his mind impartially
- Judges should not recuse themselves on flimsy and baseless allegations; there is a concomitant duty to sit absent valid reasons for recusal
- Rules of procedure are subsidiary to the principal constitutive statute and cannot override the law
- A court that has issued ruling and directions becomes functus officio in respect of them; revisiting them to justify itself would be misconduct
Court orders
#- 1.The application dated 30th April, 2021 seeking recusal and reallocation is dismissed
- 2.Costs of the application awarded to the claimant
- Jurisdiction invoked
- Section 3 of the Employment and Labour Relations Court Act, 2011; Articles 10, 47, 50 and 159 of the Constitution (invoked by the applicant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Keith Wright v Ketegra Biotechnology (EPZ) Limited [2021] KEELRC 1482 (KLR)", Case Analysis (2021). Not stated in the judgment (substantive suit; respondent's appeal noted as Civil Appeal No. E111 of 2021 – Kentegra Biotechnology EPZ Ltd v Keith Wright). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1482/eng@2021-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.