Kotieno & 5 others

THE CABINET SECRETARY MINISTRY OF LABOUR AND SOCIAL PROTECTION .................................................................. 2ND INTERESTED PARTY THE NATIONAL LABOUR BOARD ............................. 3RD INTERESTED PARTY THE HON ATTORNEY GENERAL ............................... 4TH INTERESTED PARTY KIBOS SUGAR & ALLIED INDUSTRIES LIMITED. ... 5TH INTERESTED PARTY RULING 1. Before the Court is the 1st Respondent's application dated 17th April 2026 seeking my recusal from these proceedings and an order transferring the matter to another Judge for hearing and determination. The application is premised on the grounds on its face and the 1st Applicant's supporting adavit. He contends that this Court erred in making nal orders at the interlocutory stage. He draws attention to the fact that in determining the Petitioners' application dated 3rd February 2026 the Court ordered his de-gazettement despite that order not being sought in the application. Accordingly, he contends that the ruling has rendered any defence he may advance on the validity of his election futile, as the Court has already expressed a concluded view on the central issue in dispute. The 1st Respondent further contends that his interpretation of Rule 7 of the Union's Constitution is supported by the decision in Kisumu ELRC Petition No. E012 of 2021, Jason Ochieng Kibondo & others v Kenya Union of Sugar Plantation & Allied Workers & others, where the Court held that the Union's Rules do not require a person to have been elected as a branch ocial before contesting for election to the National Executive Board or any oce therein. He maintains that, notwithstanding that authority, this Court reached a contrary conclusion at the interlocutory stage, thereby denying him a meaningful opportunity to canvass his defence during the hearing of the petition. Consequently, he asserts that the Court's ndings have created a reasonable apprehension that he will not receive a fair hearing, as a fair-minded and informed observer would conclude that the legality of his election has already been predetermined. He therefore urges the Court to recuse itself so that the dispute concerning his election as National Treasurer may be heard impartially after a full hearing. 2. Opposing the application the Petitioners led a replying adavit sworn by the 1st Petitioner. The deponent avers that the application is misconceived and is intended to delay the determination of the Petition. The Petitioners contend that the 1st Respondent has failed to establish any factual or legal basis for recusal and that no credible evidence has been presented demonstrating actual bias, partiality, personal interest or any other circumstance capable of giving rise to a reasonable apprehension of bias on the part of the Court. The Petitioners maintain that recusal cannot issue on the basis of mere apprehension, speculation or dissatisfaction with the Court's interlocutory ndings. According to the Petitioners the legal threshold for recusal has not been met because the 1st Respondent's allegations are vague, unsubstantiated and do not satisfy the test of a reasonable observer concluding that there exists a real possibility of bias. The Petitioners further contend that judicial ocers are presumed to act impartially and in accordance with their oath of oce unless the contrary is established through cogent evidence. They maintain that the Court has throughout the proceedings conducted itself fairly, impartially and in accordance with the law. In view of the foregoing the Petitioners state that allowing the application would set an undesirable precedent of encouraging forum shopping and undermining the administration of justice. 3. The application was canvassed by way of written submissions. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2143/eng@2026-07-23 2

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1st Respondent's Submissions 4. In his written submissions, the 1st Respondent reiterates that the Court created a reasonable apprehension of an unfair hearing by making conclusive ndings on substantive issues reserved for determination in the amended petition. He submits that the Court went beyond the reliefs sought in the interlocutory application by directing his de-gazettement, notwithstanding that such relief had only been sought in the amended petition, thereby prejudging the dispute. The 1st Respondent further submits that the perception of a predetermined outcome is reinforced by what he describes as the Court's misapprehension of the evidence relating to the timing of his gazettement. He asserts that, whereas the Ruling stated that his gazettement occurred after the issuance of the interim orders, the documentary evidence showed that he was gazetted on 27th January 2026, while the interim orders restraining the elections were issued on 4th February 2026. Although he acknowledges having lodged an appeal against the impugned ruling, the 1st Respondent maintains that the present application raises a distinct issue, namely, whether the Court should continue presiding over proceedings in which it has already expressed conclusive views on the principal issues in dispute. He submits that a fair-minded and informed observer would conclude that the Court has predetermined the legality of his election and that a further hearing before the same Court would not aord him a fair opportunity to present his case. He therefore urges the Court to allow the application in order to preserve public condence in the administration of justice. Petitioners' Submissions 5. The Petitioners submit that the 1st Respondent has failed to demonstrate any actual bias, conict of interest or improper conduct on the part of the Court to warrant recusal. They argue that the application is founded on speculation, unsupported allegations and dissatisfaction with the Court's interlocutory ndings, none of which satises the objective test for recusal articulated in Porter v Magill (2002) 1 All ER 46, namely, whether a fair-minded and informed observer, having considered all the facts, would conclude that there exists a real possibility of bias. They further submit that Kenyan courts have adopted this test highlighting Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2007] KECA 132 (KLR), where the Court emphasized that the test is objective and that mere suspicion or apprehension of bias is insucient without cogent evidence. They also rely on Kaplana H. Rawal v Judicial Service Commission & 2 others [2016] KESC 1 (KLR) for the proposition that judicial ocers are presumed to be impartial and that the burden of proving bias rests upon the party alleging it. 6. The Petitioners further submit that the presumption of judicial impartiality cannot be displaced by conjecture or unsubstantiated allegations. Relying on Kaplana H. Rawal v Judicial Service Commission & 2 others (supra), they argue that the 1st Respondent has not adduced any credible evidence capable of rebutting that presumption. They further contend that the application constitutes an abuse of the court process and is intended to delay the proceedings through forum shopping. In support of that contention, they again rely on Republic v David Makali & 3 others Ex Parte Josephine Wambui Gichuru, where the Court warned against the misuse of recusal applications, observing that permitting such applications without strict scrutiny would undermine judicial independence and disrupt the administration of justice. 7. Finally, the Petitioners submit that the Court should be guided by the public interest in the expeditious disposal of disputes. They assert that granting recusal without a proper factual foundation would undermine public condence in the judiciary, encourage litigants to manipulate court processes, and occasion unnecessary delay and expense. They accordingly urge the Court to dismiss the application with costs and direct that the matter proceeds before the present Court to its logical conclusion. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2143/eng@2026-07-23 3

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Disposition 8. The 1st Respondent asserts without any evidence that the Court is biased. Recusal and disqualication of a court always has to be seen within the broader spectrum of the subject matter in court and not the narrow spectrum of a particular issue for determination among the various issues that are before the court for determination. It is asserted that on ordering the degazettement which had taken place after issuance of Court orders herein amounts to bias against the said Respondent. The 1st Respondent has failed to establish any factual or legal basis for recusal and that no credible evidence has been presented demonstrating actual bias, partiality, personal interest or any other circumstance capable of giving rise to a reasonable apprehension of bias on the part of the Court. There has to be cogent evidence of bias for a Court to recuse itself in a matter as there is a real apprehension when allegations of bias are made. It should not be that a party may be pursuing forum shopping through the recusal sought. Recusal cannot issue on the basis of mere apprehension, speculation or dissatisfaction with the Court's interlocutory ndings. The application led has obfuscated the real issues for determination and has taken the matter on a tangent thereby delaying the resolution of the dispute the 1st Respondent and the Petitioners mainly face in as far as the 1st Respondent's occupation of oce goes. I decline to order a recusal as there is no basis for the grant of the order sought by the 1st Respondent. Application dismissed with costs. It is so ordered. DATED AND DELIVERED AT KISUMU THIS 23RD DAY OF JULY 2026 NZIOKI WA MAKAU, MCIARB. JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2143/eng@2026-07-23 4

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