Musyoki v Kenya Airways Limited (Cause E644 of 2021) [2024] KEELRC 1788 (KLR)
The bottom line
#A Kenyan employment court struck out a review application disguised as an appeal but allowed a self-represented litigant's request for the judge to step aside.
What this practically means
#Executive summary
#Key legal issues
#Whether the application qualified for review
The application for review was a disguised appeal against a finding of fact and was struck out for not meeting the grounds in Rule 33
The court noted that review lies only for discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, made without unreasonable delay. The Applicant was challenging a finding of fact, which cannot be revisited on review. Citing Mativo J., the court held that re-appraisal of evidence amounts to an impermissible exercise of appellate jurisdiction, so the Notice of Motion for review was struck out.
Whether the Judge should recuse himself
Although no actual bias was established, the court granted recusal so that justice is seen to be done, given the self-represented Applicant's apprehension
The court recited Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 and Regulation 9 on impartiality, and the objective test from the Court of Appeal. It found that nothing alleged established actual bias, but considering that the Applicant is a self-litigant who has made numerous applications since 2021 and remains unconvinced of the Judge's impartiality, the court decided there was nothing more it could do to assuage him and granted recusal.
Legal principles established
#- Review proceedings are not an appeal and must be confined to error apparent on the face of the record; re-appraisal of evidence amounts to impermissible appellate jurisdiction
- The test for recusal is objective and facts constituting bias must be specifically alleged and established
- A judge may recuse himself where his impartiality might reasonably be questioned under Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020
Court orders
#- 1.The Judge hereby disqualifies himself from the instant case.
- 2.Each party shall bear its own costs.
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 33; Civil Procedure Act, Section 80; Judicial Service (Code of Conduct and Ethics) Regulations, 2020, Regulations 9 and 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musyoki v Kenya Airways Limited (Cause E644 of 2021) [2024] KEELRC 1788 (KLR)", Case Analysis (2024). E644 of 2021 (Notice of Motion dated 10th March, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1788/eng@2024-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.