Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No 57 of 2021· [2023] KEELRC 2615 (KLR)

Kenya Plantation & Agricultural Workers Union v Shalimar Flowers Limited (Cause 57 of 2021) [2023] KEELRC 2615 (KLR)

Employment and Labour Relations Court
26 October 2023
DNDavid Nderitu
3,457 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court refused to step aside from a union's unfair dismissal case, ruling that disappointment with court orders is not proof of bias.

What this practically means

#

Executive summary

#
The Kenya Chemical Workers Union, acting for grievant Maurice Simiyu, filed a memorandum of claim in October 2021 seeking reinstatement, salary arrears, notice pay, twelve months' compensation for unfair termination, gratuity, leave travelling allowance, costs and interest. The respondent entered appearance through the Agricultural Employer's Association and filed a defence. The cause suffered several adjournments: the court declined to allow a union official, Mr. Musumba, to lead evidence as he was not a qualified advocate; the claimant's counsel had not served a bundle of documents or filed a notice of appointment; and the claimant failed to comply with costs orders. The union then filed a notice of motion dated 19 June 2023 under Articles 50 and 159 of the Constitution and the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, seeking the disqualification of Hon. Justice David Nderitu on grounds of alleged bias, frivolous adjournments and negative remarks, and transfer of the file for reallocation. The respondent took no part in the application. Relying on the Porter v Magill test as adopted in the Tunoi case, the court reviewed its entire record, accounted for each adjournment, and found the allegations unsubstantiated and misconceived. It held that a judge with an interest must recuse, but that this judge had none; that a dissatisfied litigant's remedies are review or appeal, not recusal; and that allowing such applications would entrench forum-shopping. The court dismissed the recusal application with no order as to costs and directed that the cause proceed to hearing on a priority basis, assuring the parties of a fair determination on the merits.

Key legal issues

#
01

Whether a reasonable person would apprehend bias by the trial judge

Holding

No; the court accounted for every adjournment and found the recusal allegations baseless, unfounded and misconceived

Reasoning

The court traced the entire case record: the hearing on 27 March 2023 was redirected because a union official was not a qualified advocate; 15 May 2023 adjournment resulted from claimant's non-service of documents and lack of notice of appointment; 26 June 2023 was occasioned by the claimant's own non-compliance and recusal application; 18 October 2022 was a court non-sitting. The claimant could not identify the alleged frivolous adjournments. The court affirmed it had no personal interest and assured the claimant of a merits-based hearing.

p. 6
02

Proper remedy for a litigant dissatisfied with interim orders

Holding

Review or appeal, not a recusal application

Reasoning

The court held that the claimant, having not complied with the orders of 15 May 2023 and being unhappy with them, should have sought review or stay rather than seeking the judge's disqualification. Deploying recusal applications for this purpose undermines justice and entrenches forum-shopping. The court also criticised counsel for filing a recusal application while the pending amendment application should have been prioritised.

p. 6

Legal principles established

#
  • A judge must recuse himself where he has an interest in the matter, as interest obscures impartiality
  • A party dissatisfied with a court order must pursue review or appeal; recusal applications cannot be used to forum-shop
  • The recusal test is whether a reasonable and fair-minded person, knowing all the relevant facts, would suspect a fair trial is not possible

Court orders

#
  1. 1.The application dated 19th June 2023 seeking recusal of the trial judge is dismissed with no order as to costs
  2. 2.The matter shall proceed to hearing on priority basis

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159
  • Civil Procedure Act / Rules (cited as 'Civil Procedure Rules')Sections 1A, 1B, 3A & 63(e)
  • Judicial Service (Code of Conduct and Ethics) Regulations, 2020Regulations 5, 9 and 21(1)

Cases cited (4)

  • President of the Republic of South Africa v The South African Rugby Football Union & Others
    CCT/98
  • Philip K. Tunoi & Another v The Judicial Service Commission & Another
    (2016) eKLR
  • Kenya Engineering Workers Union v Rift Valley Engineering Limited
    Nakuru ELRC Cause No. 240 of 2018
  • Jabir Rai & Others v Tarcholan Sing Rai & Others
Jurisdiction invoked
Articles 50 and 159 of the Constitution, Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act, and Regulations 5, 9 and 21(1) of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 (invoked by the claimant's application)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Plantation & Agricultural Workers Union v Shalimar Flowers Limited (Cause 57 of 2021) [2023] KEELRC 2615 (KLR)", Case Analysis (2023). Cause No 57 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2615/eng@2023-10-26

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