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ELRCDismissedCause 2181 of 2014· [2021] KEELRC 2021 (KLR)

Trailink Group Limited v Kenya Long Distance Truck Drivers and Allied Workers Union (Cause 2181 of 2014) (Employment and Labour) [2021] KEELRC 2021 (KLR)

Employment and Labour Relations Court of Kenya
5 March 2021
MOMaureen Onyango
3,023 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed Trailink Group's bid to have the judge step aside, ruling that losing applications is not evidence of judicial bias.

What this practically means

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Executive summary

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In this ruling in Cause 2181 of 2014, the Employment and Labour Relations Court at Nairobi (Maureen Onyango J) determined two applications by the claimant, Trailink Group Limited. The first, dated 27th August 2020, sought reallocation of the matter and a prior application to another judge on grounds of alleged bias, principally the court's handling of a preliminary objection on 22nd October 2019 and its refusal to allow cross-examination of 140 grievants - matters subject to a pending appeal, Civil Appeal No. 589 of 2019. The second, dated 18th December 2020, sought priority hearing of the recusal application and a stay of delivery of a ruling on a stay-of-execution application scheduled for 21st January 2021. The respondent union opposed both, contending the applications were an abuse of process and that the court, having rendered final judgment, was functus officio. The court framed a single issue: whether the applicant had satisfied the threshold for recusal. Applying the fair-minded and informed observer test from Porter v Magill as adopted in Philip K. Tunoi, the court found no evidence of bias. The preliminary objection had been rendered redundant after the respondent withdrew an affidavit; the computation directions flowed from Nduma J's order that the claimant compute terminal benefits, which the claimant had failed to obey; and adverse rulings against a litigant are not a ground for recusal. The court observed that the applicant's applications were aimed at delaying execution. Both applications were dismissed with costs to the respondent.

Key legal issues

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01

Whether the threshold for recusal of Onyango J. was met on grounds of alleged bias

Holding

The recusal applications lacked merit; no evidence showed circumstances compromising the judge's impartiality, and the fair-minded and informed observer test was not satisfied.

Reasoning

The court traced the bias test from R v Gough to Porter v Magill and its adoption in Philip K. Tunoi. It found the proceedings of 22nd October 2019 were not biased: the respondent withdrew an affidavit, rendering the preliminary objection redundant. The directive on computation of terminal benefits flowed from Nduma J's judgment, which the claimant had failed to obey. Adverse rulings against a party are not grounds for recusal, and the applications were intended to delay execution.

p. 4
02

Whether the court delegated a judicial function in directing the Deputy Registrar to issue a decree

Holding

The court did not delegate quantification of terminal benefits; it merely directed the respondent to seek a decree based on its own tabulation after the claimant failed to comply with Nduma J's order to compute terminal benefits.

Reasoning

Nduma J had directed the claimant to compute and pay all terminal benefits within 30 days. The claimant never complied, prompting the respondent's application for computation. The court directed parties to file computations and, in its ruling of 20th December 2019, allowed the respondent to obtain a decree on the assessed amount. Even if quantification had been delegated, the court held this would not amount to bias warranting recusal.

p. 4

Legal principles established

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  • The test for apparent bias is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
  • A judge's dismissal of a party's applications is not a ground for recusal; the onus of proving bias lies on the applicant.

Court orders

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  1. 1.The Applications filed by the Claimant/Applicant seeking the recusal of Onyango J. are dismissed with costs to the Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 25
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Employment ActSection 12
  • Employment Rules and Practice DirectionsRules 17 and 26
  • Judicial Service Code of Conduct and EthicsRule 5; Rule 10(1)
  • Public Officer Ethics Act, 2003Section 5(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (7)

  • Kalpana H. Rawal v Judicial Service Commission & 2 Others
    (2016) eKLR
  • Gladys Boss Shollei v Judicial Service Commission & Another
    (2018) eKLR
  • Philip K. Tunoi & Another v Judicial Service Commission & Another
    (2016) eKLR
  • Charity Muthoni Gitabi v Joseph Gichangi Gitabi
    (2017) eKLR
  • Kenya Revenue Authority v Menginya Salim Murgan
    (2010) eKLR
  • R v Gough
    [1993] AC 646
  • Porter v Magill
    (2002) 1 All ER 465
Jurisdiction invoked
Section 12 of the Employment Act, Rules 17 and 26 of the Employment Rules and Practice Directions, and Article 50(1) of the Constitution of Kenya, 2010

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, "Trailink Group Limited v Kenya Long Distance Truck Drivers and Allied Workers Union (Cause 2181 of 2014)  (Employment and Labour) [2021] KEELRC 2021 (KLR)", Case Analysis (2021). Cause 2181 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2021/eng@2021-03-05

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