Hipora Security Solutions Limited v Omondi (Appeal E038 of 2024) [2024] KEELRC 2459 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Reasonable apprehension of bias
The objective test requires circumstances giving rise to a reasonable apprehension in the mind of a reasonable, fair-minded and informed member of the public; the respondent's knowledge that other litigants succeeded before the judge does not meet this test
The court applied the objective test of reasonable apprehension of bias and the Judicial Service (Code of Conduct and Ethics) Regulations 2020 grounds for recusal. None of the enumerated grounds applied. The respondent had never appeared before the court; his apprehension stemmed from his advocate's experience in other cases, each of which is separate and distinct. The applicant failed to address the principles and made bare allegations.
Recusal grounds under Judicial Service (Code of Conduct and Ethics) Regulations 2020
None of the Regulation 21 grounds (party, witness, personal interest, prior counsel, etc.) were established
The court set out the Regulation 21 criteria for recusal and found the respondent had not addressed any of them, resting his application solely on the fact that other respondents represented by the same firm had succeeded in appeals before the court.
Reassignment and forum shopping
Reassignment is not to be lightly undertaken; seeking a different judge to obtain a different outcome is bad faith and brings the judicial process into disrepute
Relying on Gladys Boss Sholei v JSC and the CORD decision, the court held that the duty to sit protects judicial independence against manipulation by parties seeking strategic advantage, and that seeking recusal on the basis of similar prior decisions is a manifestation of bad faith.
Legal principles established
#- An applicant for recusal bears the duty of establishing facts from which a fair-minded and informed observer would infer bias; bare allegations are insufficient
- A judge's prior determination of matters with similar facts is not a basis for recusal; parties should appeal instead
- Absent valid grounds for disqualification, a judge has a concomitant duty to sit
Court orders
#- 1.The application dated 14 May 2024 is dismissed
- 2.Costs of the application to the appellant
- 3.The interim stay of proceedings is lifted/terminated as the court dismisses the application seeking stay
- Jurisdiction invoked
- Sections 50(1), 47 of the Constitution; Sections 1A and 1B of the Civil Procedure Act; Section 3 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hipora Security Solutions Limited v Omondi (Appeal E038 of 2024) [2024] KEELRC 2459 (KLR)", Case Analysis (2024). ELRCA E125 of 2023 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2459/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.