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ELRCDismissedELRCA E125 of 2023 (Mombasa)· [2024] KEELRC 2459 (KLR)

Hipora Security Solutions Limited v Omondi (Appeal E038 of 2024) [2024] KEELRC 2459 (KLR)

Employment and Labour Relations Court
11 October 2024
3,088 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Employment and Labour Relations Court at Mombasa (Mbaru J) delivered a ruling in a consolidated line of files including Mombasa ELRC No. E125 of 2023, ELRCA E136 of 2023 and ELRCA E012 of 2024. The respondent, Zachariah Otieno Omondi, represented by Mung'oma Mung'oma & Company Advocates, applied by notice dated 14 May 2024 for a stay of proceedings, the recusal of Justice Monica Mbaru and reassignment of the appeal to another court, invoking Article 50(1) of the Constitution. His apprehension rested on the fact that his advocates had represented other respondents whose appeals before the court succeeded or yielded insignificant awards, and that protest letters to the Judicial Service Commission over the judge's conduct had gone unanswered. The appellant, through HR manager Edward Ntonyiri, opposed the application as forum shopping lacking good cause. The court applied the objective test of reasonable apprehension of bias from Attorney General v Anyang' Nyong'o, the recusal grounds in Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020, and precedents including Kalpana Rawal, Rachuonyo & Rachuonyo Advocates, the CORD judicial review decision, and Gladys Boss Sholei v JSC. It held the applicant bore the burden of establishing facts from which a fair-minded and informed observer would infer bias; prior decisions in similar matters do not ground recusal, and a judge has a duty to sit absent valid grounds. The application was dismissed with costs to the appellant.

Key legal issues

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01

Reasonable apprehension of bias

Holding

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

Reasoning

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.

p. 4
02

Recusal grounds under Judicial Service (Code of Conduct and Ethics) Regulations 2020

Holding

None of the Regulation 21 grounds (party, witness, personal interest, prior counsel, etc.) were established

Reasoning

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.

p. 5
03

Reassignment and forum shopping

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The application dated 14 May 2024 is dismissed
  2. 2.Costs of the application to the appellant
  3. 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

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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, "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.