Mohamed & 2 others v Pothiwala t/a Sangoro Boat Services (Employment and Labour Relations Cause E019 of 2024) [2024] KEELRC 2338 (KLR)
The bottom line
#A Kenyan employment court dismissed a request for a judge to step aside, confirming that vague claims of bias are not enough to disqualify a judge.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the presiding Judge should recuse herself on the ground that the appellants' advocates have represented other parties whose appeals succeeded or whose awards were reviewed insignificantly
- 2.Whether the appellants established a reasonable apprehension of bias
- 3.Who bears the burden of establishing bias on a recusal application
Key legal issues
#Reasonable apprehension of bias
The appellants failed to establish a reasonable apprehension of bias
The court applied the objective test of reasonable apprehension of bias, requiring a reasonable, fair minded and informed member of the public to conclude that the judge would not apply their mind impartially. The appellants' only basis was that other parties represented by the same firm had their appeals allowed or awards reduced insignificantly. The court held that each case is separate and based on different facts, and dissatisfied parties have a right of appeal.
Burden of proof on recusal application
The applicant must establish facts from which bias may be inferred; mere apprehension is insufficient
The court emphasized that an applicant bears the duty of establishing facts upon which the inference of bias is to be drawn, and that reasonable grounds must be presented. Merely informing the court that other litigants succeeded or received substantial awards does not meet this threshold.
Duty to sit
A judge has a duty to sit where no grounds of disqualification exist
Drawing on the Supreme Court in Gladys Boss Sholei v JSC and the New Zealand Court of Appeal in Mnir v Commissioner of Inland Revenue, the court held that the duty to sit counterbalances requirements of independence and impartiality, and protects courts against parties manoeuvring for strategic advantage through delay.
Legal principles established
#- An applicant for recusal bears the duty of establishing facts from which a fair minded and informed observer would conclude that the judge is biased; bare allegations are insufficient
- The fact that a judge decided a case with similar facts involving the same advocates does not automatically justify recusal
- Judges have a duty to sit where no grounds of disqualification exist, to protect courts against tactical recusal applications
Court orders
#- 1.The application dated 15 April 2024 seeking recusal and stay of proceedings is dismissed
- 2.Costs to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- null
- null
- Jurisdiction invoked
- Sections 50(1) and 47 of the Constitution, Sections 1A and 1B of the Civil Procedure Act and Section 3 of the Employment and Labour Relations Court Act
- Consolidated with
- Mombasa ELRCA No. E038 of 2024, ELRCA E136 of 2023, ELRCA E012 of 2024
Relief refused
#Stay of further proceedings pending hearing and determination of the application
The court found no basis established for recusal or stay
Recusal and disqualification of the Honourable Justice Monica Mbaru from hearing and determining the suit
No factual or legal basis established for bias; apprehension based on outcomes in other cases is not a proper foundation
Costs
Costs to abide the outcome of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The court finds no factual or legal basis established for its recusal. The application dated 15 April 2024 is tantamount to seeking to stop this court from the conduct of judicial function and I consequently dismiss the same. Costs to abide the outcome of the appeal.
merely because this court decided any of these cited cases does not automatically form a justified basis for recusal
mere apprehension on the part of a litigant that a judge will be biased, even a strongly and honestly felt anxiety is not enough
To seek the recusal of a Judge from hearing a matter simply on the ground that he has determined a matter with similar facts is an implication that there is a likelihood that another Judge will arrive at a difierent decision
absent valid reasons for recusal their remains what has been termed as a "duty to sit"
Issues in the judgment
#Inconsistent naming of the same case within the judgment (Mung'oma / Mungo'ma / Mungoma and Mungoma)
The application is described as by 'the 1st appellant' and the deponent as respondent in paragraph 14; the judgment also refers to the applicants variously as appellants and respondent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed & 2 others v Pothiwala t/a Sangoro Boat Services (Employment and Labour Relations Cause E019 of 2024) [2024] KEELRC 2338 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2338/eng@2024-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.