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ELRCPartially AllowedE644 of 2021 (Notice of Motion dated 10th March, 2024)· [2024] KEELRC 1788 (KLR)

Musyoki v Kenya Airways Limited (Cause E644 of 2021) [2024] KEELRC 1788 (KLR)

Employment and Labour Relations Court
10 July 2024
1,958 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 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

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi on the Claimant's Notice of Motion dated 10th March 2024, brought by a self-represented litigant in suit E644 of 2021. The application sought two substantive prayers: review of the application dated 26th November 2023 and the ruling delivered on 28th February 2024, on the ground that the ruling was unfair, and the recusal of Dr. Jacob Gakeri, the trial Judge. The Claimant contended that the 'release and discharge' document relied on by the Respondent was not genuine, that the Respondent had not filed his identity card, and that the earlier ruling wrongly found he had not produced evidence of forgery; he was apprehensive the final judgment would be compromised. The Respondent submitted there was no evidence of actual bias, applying the objective recusal test from Nielsen, Tunoi and Rai, and urging that a Judge should not recuse without valid basis. The court framed two issues: whether a review application was before it, and whether the Judge should recuse. On the first, invoking Section 80 of the Civil Procedure Act, Order 45 and Rule 33 of the ELRC (Procedure) Rules, 2016, and Mativo J.'s decision in Ex parte Appollo Mboya, the court held the review was a disguised appeal against a finding of fact and struck it out. On recusal, though no actual bias was established, the court, considering the Applicant's persistent apprehension as a self-litigant, granted recusal so that justice is seen to be done. The Judge disqualified himself and ordered each party to bear its own costs.

Key legal issues

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01

Whether the application qualified for review

Holding

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

Reasoning

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.

p. 3
02

Whether the Judge should recuse himself

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Judge hereby disqualifies himself from the instant case.
  2. 2.Each party shall bear its own costs.

Authorities

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Legislation

  • Penal Codenot specified
  • Judicial Service (Code of Conduct & Ethics) Regulations, 2020Regulation 21 Part II; Regulation 9
  • Civil Procedure ActSection 80; Section 1B
  • Civil Procedure Rules, 2010Order 45(1); Order 21 Rule 1
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33
  • Constitution of KenyaArticles 10, 27, 48, 73(2)(b), 159(2)(d), 232

Cases cited (14)

  • Jan Bonde Nielsen V Herman Philipus Sleyn & 2 others
    (2014) eKLR
  • Philip K. Tunoi & another V Judicial Service Commission
    (2016) eKLR
  • Jasbir Rai & 3 others V Tarlochan Singh Rai & 4 others
    (2013) eKLR
  • Rachuonyo & Rachuonyo Advocates V National Bank of Kenya
    (2021) eKLR
  • Joyce N. Simitu V Stephen O Mallowah & 2 others
    (2013) eKLR
  • Community Uplift Ministries V Nathan Chesang Moson & others
    (2019) eKLR
  • Republic V Advocates Disciplinary Tribunal Ex parte Appollo Mboya
    (2019) eKLR
  • National Bank of Kenya Ltd V Ndung’u Njau
    (1996) KLR 469
  • Evan Bwire V Andrew Nginda
    (2000) LLR 8340
  • Sadar Mohamed V Charan Singh & another
    (1963) EA
  • Abasi Belinda V Fredrick Kangwamu & another
    (1963) EA 557
  • Attorney General & others V Byanyima
    HCMA No. 1789 of 2000
  • Nyamongo & Nyamongo V Kogo
    (2000) EA 170
  • R V Jackson Mwalolu & others
    Civil App No. 310 of 2024
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

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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, "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.