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ELRCDismissedNot stated in the judgment· [2024] KEELRC 1099 (KLR)

Khaemba v Transport Workers Union Kenya & another (Employment and Labour Relations Cause 1188 of 2015) [2024] KEELRC 1099 (KLR)

Employment and Labour Relations Court
9 May 2024
1,604 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court dismissed a litigant's attempt to overturn an adverse ruling and have the judge removed, confirming that losing alone is not evidence of judicial bias.

What this practically means

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Executive summary

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The Claimant, Titus Wamalwa Khaemba, applied by notice of motion dated 5th October 2023 under Order 45 Rule 1 of the Civil Procedure Rules and Rule 17 of the ELRC (Procedure) Rules, 2016, seeking review and setting aside of the court's ruling of 22nd September 2023, which had dismissed his application for stay of execution of an earlier ruling of Mbaru J of 26th January 2023 awarding the Respondents costs of Kshs 100,000. He also sought the Judge's recusal on grounds of alleged bias, including an assertion that the Judge had wrongly commented that his intended appeal was filed out of time, and referral of the file to the Principal Judge. The Respondents opposed, urging that the claim of bias was unsupported, that litigation must end after eight years, and that bias must be proved beyond reasonable doubt. The court, Abuodha Nelson Jorum J, restated its power of review under Section 16 of the ELRC Act and Rule 33 of the ELRC (Procedure) Rules, 2016, and held that the Applicant had not established any of the statutory grounds, the application being in substance an appeal against the ruling. On recusal, applying the objective test from R v David Makali and R v Jackson Mwalulu as adopted in Rachuonyo and Rachuonyo Advocates v National Bank of Kenya Limited, the court found no credible evidence of bias, observing that accusations of bias must never be whimsically invoked to intimidate a judge or enable forum shopping. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether grounds for review under Section 16 ELRC Act and Rule 33 ELRC (Procedure) Rules were established

Holding

The application failed to demonstrate discovery of new matter, error apparent on the face of the record, need for clarification, or any other sufficient reason; it was in substance an appeal dressed as review

Reasoning

The court set out the review grounds under Rule 33 and found the Applicant had not sufficiently illustrated any of them. The application was characterised as an appeal against the ruling of 22nd September 2023, for which the Applicant had an appeal as of right. Dissatisfaction with the outcome cannot ground review.

p. 3
02

Whether the Judge should recuse himself for alleged bias

Holding

Recusal was refused; the Applicant did not demonstrate anything the Judge did outside the factual and circumstantial analysis of events that a reasonable person would deem bias

Reasoning

Applying the objective test from the Court of Appeal authorities and Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020, the court held that a judge who reaches a conclusion based on facts canvassed by the parties is not biased. Allegations of bias must be specifically alleged, established and supported by credible evidence.

p. 4

Legal principles established

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  • A party dissatisfied with a ruling has a right of appeal and should not seek recusal or review merely because the outcome displeases them; allegations of judicial bias must be supported by credible evidence
  • The test for disqualification of a judge is objective: whether there is reasonable ground for assuming the possibility of bias likely to create reasonable doubt in the minds of the public about the fairness of the administration of justice

Court orders

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  1. 1.The Claimant's application dated 5th October 2023 seeking review and setting aside of the Ruling of 22nd September 2023 and recusal of the Judge is dismissed
  2. 2.Costs of the application awarded to the Respondents
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act, 2011 and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 (application also brought under Order 45 Rule 1 of the Civil Procedure Rules and Rule 17 of the ELRC (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, "Khaemba v Transport Workers Union Kenya & another (Employment and Labour Relations Cause 1188 of 2015) [2024] KEELRC 1099 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1099/eng@2024-05-09

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