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ELRCDismissedNot stated in the excerpt· [2023] KEELRC 798 (KLR)

Poussard v Bradley Limited & 5 others (Cause 2465 of 2017) [2023] KEELRC 798 (KLR)

Employment and Labour Relations Court
27 March 2023
3,533 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to disqualify a judge over bias claims, ruling that parties cannot use recusal applications to delay paying court-ordered debts.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa (Mbaru J) determines a notice of motion dated 26th April, 2022 by which the respondents/judgment-debtors sought the recusal of the presiding Judge on grounds of alleged bias and a direction that the file be placed before the Principal Judge. The background is a judgment delivered on 28th October, 2019 and a decree of Kshs. 22,200,000 plus costs of Kshs. 799,834.95, against which execution had yielded only Kshs. 3,321,092.82, prompting a claimant's application dated 21st January, 2022 seeking to lift the corporate veil after some Kshs. 44 million was allegedly moved out of the judgment-debtor's accounts. The applicants complained of being condemned unheard, short notice, and failure to prioritise their applications, citing the fair-hearing jurisprudence in Mohamed Abdi Mahamud and Kaplana Rawal. The claimant countered that the application scandalised the court and was designed to derail execution. The court traced the chronology and found the respondents were duly served, attended court, were directed to take hearing dates at the registry — ordinary practice — but failed to do so or attend for cross-examination. Applying the fair-minded and informed observer test from Republic v Assa Kibagendi Nyakundi and Oloololo Game Ranch, and the 'duty to sit' principle from Gladys Boss Sholei v JSC, the court held the bias allegation unsubstantiated and dismissed the application with costs on 27th March, 2023.

Key legal issues

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01

Whether the court's case-management directions amounted to bias

Holding

They did not; the respondents were given fair opportunity to take hearing dates at the registry, which is normal practice.

Reasoning

The court reviewed the chronology: the respondents were served on 28th January 2022, attended court on 10th March 2022, and were given directions with ample opportunity to comply. They failed to take hearing dates at the registry, did not attend for cross-examination and did not produce books of account. The direction to take hearing dates at the registry was ordinary case management, not bias.

p. 6
02

Whether the fair-hearing right was violated by the speed of directions on the 21st January 2022 application

Holding

No violation; service was effected and confirmed by returns, and the respondents' attendance on 10th March 2022 was to confirm compliance with directions.

Reasoning

The purpose of the mention was to confirm filed submissions; service was not contested and returns confirmed service on all respondents on 28th January 2022. The respondents appointed advocates on 9th March 2022 by choice. Short timeframes were justified as the respondents had not complied with prior directions.

p. 4
03

Recusal as a tool to delay execution

Holding

Recusal applications cannot be used to derail execution; the duty to sit counterbalances impartiality requirements.

Reasoning

Relying on Gladys Boss Sholei v JSC and Joseph Maina Theuri v Gitonga Kabugi, the court held that absent valid grounds, a judge must sit, protecting courts against manouvering by parties seeking forensic advantage through delay. The respondents had avoided execution since judgment in 2019 and the recusal application was an abuse aimed at stopping the judicial function.

p. 7

Legal principles established

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  • The test for recusal is that of a fair minded and informed observer who would adopt a balanced approach.
  • Absent valid reasons, a judge has a duty to sit, to protect courts against manouvering by parties seeking strategic advantage through delay.
  • Judicial bias is no basis for recusal unless the bias is personal or extra-judicial.

Court orders

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  1. 1.The application dated 26th April, 2022 seeking recusal of the Judge is dismissed with costs
Jurisdiction invoked
Articles 25(c), 27, 48, 50(1) and 159 of the Constitution and rules 17 and 22 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Poussard v Bradley Limited & 5 others (Cause 2465 of 2017) [2023] KEELRC 798 (KLR)", Case Analysis (2023). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/798/eng@2023-03-27

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