Kuruswo v Foundation & another

it is in the exercise and protection of this constitutional right, and not for any collateral motive, that the present Motion has been brought. 4. The Applicants state that the Firm of Guserwa & Company Advocates is on record for the Claimant, and that its Founder, Ms. Judith Guserwa, has appeared and continues to appear before The Judge on behalf of the Claimant, whose interests are directly adverse to those of the Respondents. 5. They further aver that, contemporaneously with these proceedings, Ms. Guserwa also acts for The Judge in her personal capacity, having issued a demand letter dated 27th April 2026 to the Firm of Nelson Havi & Co. Advocates on the Judge's behalf, demanding withdrawal of statements alleged to be defamatory of The Judge. 6. It is averred that this demand culminated in the institution of Nairobi High Court Civil Case No. E141 of 2026, Justice Hellen Wasilwa v. Nelson Andayi Havi, in which the Judge is represented by Ms. Guserwa. In proof thereof, the Applicants annex the demand letter and a screengrab of the Judiciary Case Tracking System conrming the pendency of that suit. 7. It is the Applicants' contention that the demand letter, together with the subsequent institution of the civil suit, constitutes a clear and unequivocal representation of a subsisting advocate-client relationship between Ms. Guserwa and the Judge, existing concurrently with Ms. Guserwa's continued appearance for the Claimant in the instant cause. 8. The Applicants aver that Ms. Guserwa thereby occupies two concurrent and conicting positions: as Counsel for the Claimant in proceedings where the Claimant's interests are adverse to those of the Respondents, and as personal Counsel for the Judge in a matter touching on the Judge's own reputation and standing. 9. They contend that this concurrent state of aairs gives rise to a legitimate and reasonable apprehension that the Respondents may not receive a hearing that is seen to be impartial and independent, as required by Article 50(2) of the Constitution. 10. The Applicants rely on the Judicial Code of Conduct and Ethics for Judges, made under the Judicial Service Act, which obliges a judicial ocer to disqualify herself from any proceeding in which her impartiality might reasonably be questioned. 11. They state that the applicable test for recusal is whether a fair-minded and informed observer, apprised of the relevant facts, would conclude that there exists a real possibility or apprehension of bias, and assert that a fair-minded observer, aware that Counsel for the Claimant is concurrently personal Counsel for the Judge in a matter of the Judge's own reputation, would reasonably so conclude. 12. By way of the further adavit sworn by Rose Karanja in response to the Claimant's replying adavit, the Applicants clarify and maintain that the recusal motion does not impugn the character, integrity, competence, or professional standing of Ms. Guserwa, nor question her ability to discharge her professional obligations as an Advocate of the High Court of Kenya. 13. It is the Applicant’s case that the application is founded solely on the existence and eect of the advocate-client relationship between Ms. Guserwa and the Judge, and the resulting apprehension of bias. 14. They aver that any suggestion that the application is intended to malign Counsel, or is animated by a malicious presumption or fear of the outcome of the proceedings, is misconceived. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2454/eng@2026-09-17 2

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15. The Applicants maintain that the circumstances disclosed meet the threshold for recusal and that it is in the interest of justice, and necessary for the protection of their constitutional right to a fair hearing before an independent and impartial court, that the application be allowed. Claimant/ Respondent’s Case 16. In opposition to the application, the Claimant/Respondent led a replying adavit dated 19th May 2026, sworn by her advocate Ms. Judith Guserwa. 17. Ms. Guserwa states that she is an Advocate of the High Court of Kenya and, being a qualied and seasoned practitioner, is entitled to represent any client irrespective of rank or position in society, provided she observes professional conduct and ethics. She avers that her representation of Justice Wasilwa in any matter the Judge chooses to appoint her is no exception to this entitlement. 18. The Aant contends that the application is mischievous and intended to paint her as her a person and professionally in bad light, casting aspersions on her capability to make decisions in accordance with professional standards. 19. She states that she has no control over the listing of matters before any Court or Judge, as she does not guide the listing registry, and asserts that her relationship with the Judge, insofar as any matter including the present matter, is purely one of Client/Advocate. 20. It is averred that the presumption of a likelihood of legitimate and reasonable apprehension of bias, conict of interest, or partiality is a malicious presumption, premised on a mindset that is, in truth, scared of the outcome of the case. 21. The Aant maintains that there is no violation of any constitutional right occasioned by the Judge hearing or determining the matter, and puts the Applicants to strict proof of their allegations. 22. Ms. Guserwa further states that the aspersions raised are personal to her and intended to malign her reputation before a Court where she has served with a clean record for over 40 years. 23. She avers that the matter is listed for hearing like any other matter before Hon. Justice Wasilwa, and that should the Applicants be apprehensive of her personal conduct of the matter, she has Assistants who can proceed with it to its logical conclusion. 24. She therefore denies all negative accusations made against her as a professional worthy of representing any client of her choice, and prays that the application be dismissed with costs, to pave way for hearing of the part-heard matter to its conclusion. 25. It is the Claimant's contention that the application is strategically timed in the face of the hearing scheduled for 20th May, 2026, without any basis whatsoever, and is made with the intention of scuttling that hearing, and is accordingly brought with malice and without foundation. Respondents/Applicants’ Submissions 26. The Applicants framed the sole issue for determination as whether, in light of the subsisting advocateclient relationship between the Claimant's Counsel and the Judge, a reasonable apprehension of bias arises so as to warrant recusal. 27. On the applicable law, it was submitted that Article 50(1) of the Constitution guarantees every person the right to have any dispute resolved by an independent and impartial court, a right rendered nonderogable by Article 25(c). Reliance was placed on the Supreme Court decision in Rai & 3 others v Rai & 4 others [2013] KESC 20 (KLR), which adopted the South African authority of South African https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2454/eng@2026-09-17 3

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Defence Force and Others v. Monnig and Others (1992) (3) SA 482 (A), p.491: “The resusal right is derived from one of a number of rules of natural justice designed to ensure that a person accused before a court of law should have a fair trial.” 28. The Applicants also invoked Tu Bitumen Limited v SBM Bank (Kenya) Limited & another [2023] KEHC 3198 (KLR), where the Court observed that "recusal is not merely the litigants' tool for dislodging judicial ocers from proceedings, but a tool that judicial ocers can themselves harness to advance the rule of law as well as the dictates of natural justice and fair play," submitting that the application was brought in the exercise of this right rather than as a tactic to dislodge the Court. 29. The Applicants argued that the advocate-client relationship between Ms. Judith Guserwa and the Judge is an undisputed fact, evidenced by the demand letter of 27th April 2026 issued on Justice Wasilwa’s behalf to Nelson Havi & Company Advocates, and by the subsequent institution of Nairobi High Court Civil Case No. E141 of 2026: Justice Hellen Wasilwa v Nelson Andayi Havi, concerning the Judge’s personal reputation and standing. It was submitted that Ms. Guserwa's replying adavit did not deny this representation, rendering the relationship current, active and subsisting. 30. Anchoring their case in Regulations 9 and 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, the Applicants submitted that these provisions oblige judicial ocers to maintain impartiality and recognize recusal as appropriate where impartiality might reasonably be questioned, including by reason of a relationship or other sucient cause. 31. They urged that the applicable test is the objective one settled in Rai (Supra) and rearmed by the Court of Appeal in Rawal v Judicial Service Commission & another; Okoiti (Interested Party); International Commission of Jurists & another (Amicus Curiae) [2016] KECA 717 (KLR), citing the The East Africa Court of Justice adopted the same test in Attorney General of Kenya v Prof Anyang’ Nyong’o & 10 Others EACJ Application No. 5 of 2007 when it stated:“ We think that the objective test of “reasonable apprehension of bias” is good law. The test is stated variously, but amounts to this: do the circumstances give rise to a reasonable apprehension, in the mind of the reasonable, fair minded and informed member of the public that the judge did not (will not) apply his mind to the case impartially. Needless to say.” 32. On this basis, it was submitted that the inquiry is not whether the Judge is in fact biased or capable of impartiality, but whether the circumstances, viewed objectively, give rise to a reasonable apprehension of biasin the mind of a fair-minded and informed observer. 33. The Applicants distinguished the ordinary professional interactions between judges and advocates which, without more, would not warrant recusal from the present case, where Counsel is actively representing the Judge's personal interests in separate, contentious litigation touching on her reputation. 34. It is the Applicants’ submission that the relationship transcends a purely administrative engagement and gives rise to a degree of trust, condence, which if viewed objectively, is capable of creating a reasonable apprehension of bias in the mind of a fair-minded and informed observer. 35. The Applicants submitted that the answer to whether a fair-minded observer would apprehend a real possibility, or at least an appearance, of bias was in the armative, since such an observer inevitably question whether a litigant appearing against a client of Counsel who simultaneously represents the Presiding Judge in separate proceedings can reasonably be assured that justice will not only be done but will manifestly be seen to be done. 36. They submitted that the importance of preserving public condence in the administration of justice cannot be overstated and we are guided by Lord Heward’s statement in the English case of R v Sussex https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2454/eng@2026-09-17 4

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Justices ex parte Mccarthy (1924) 1 KB 256, which has been cited with approval in ICEA Lion Life Assurance Company Limited v Commissioner of Domestic Taxes [2021] KETAT 33 (KLR), wherein he stated: “Not only must Justice be done; it must also be seen to be done” 37. It is the Applicants’ submission that this was one of the exceptional cases warranting recusal, not for want of actual prejudice or partiality, but because continued conduct of the proceedings amid a subsisting advocate-client relationship between the Presiding Judge and Claimant's Counsel is incompatible with Article 50(1) of the Constitution and the Judicial Service (Code of Conduct and Ethics) Regulations, 2020. 38. It was contended that no prejudice would ow from recusal; rather, recusal would enhance public condence in the administration of justice and assure the parties of determination by a court whose impartiality cannot reasonably be questioned. Claimant/Respondent’s Submissions 39. The Claimant/Respondent submitted that the suit is a personal interest claim which the Claimant was ready and willing to prosecute on the hearing date xed for 20th May 2026, when she was ambushed by the application seeking the Judge’s recusal from hearing and determining the matter on its merits. 40. It was contended that Counsel Judith Guserwa cannot and should not be estopped from representing any client, whether in the Judiciary or elsewhere, as her ability to dierentiate between legal and personal matters is not in doubt, and that the same holds true of Justice Wasilwa, who understands the parameters of the law in handling matters listed before her. 41. The Claimant submitted that any allegations against a Judge must be subjected to the requirements of the law in so far as proof of the same is required before she can be proled and sidelined. Therefore, the Court ought not to fall into the error of permitting a party or its advocate to prole and demean a Judge on the basis of allegations made on social media or in the public space. 42. It was argued that the test for recusal turns on whether the circumstances give rise to a reasonable apprehension, in the mind of a fair-minded and informed member of the public, that the Judge did not apply her mind impartially. 43. In support, the Claimant cited several ELRC decisions in which recusal applications were dismissed: Universities Academic Sta Union Egerton Chapter/Branch v Egerton University & 2 others; Board of Trustees, Egerton University Retirement Benets Scheme & 2 others (Interested Parties) [2023] KEELRC 2927 (KLR), where the trial court held it would determine the matter on the merits notwithstanding an allegation of bias; and Masila v Athi Water Works Development Agency & another [2025] KEELRC 3268 (KLR), where the court declined recusal absent proof of actual or perceived bias, describing the application as an afterthought and a delaying tactic to keep the parties in court indenitely. 44. She further cited David & 303 others v Governor, County Government of Kili & 2 others [2025] KEELRC 1066 (KLR), where the application was dismissed as unfounded, unreasonable and could not form a justiable basis for the recusal; and Republic v Egerton University & 2 others; Kibue & 2 others (Ex parte Applicants); University Academic Sta Union (Interested Party) [2023] KEELRC 1707 (KLR), where recusal was declined on the footing that the application was premised on speculations, innuendos and paranoia without supporting evidence. 45. Applying these authorities, the Claimant submitted that the Court had displayed no sign of bias in favour of Ms. Guserwa merely because she acts to defend the Judge in another forum, and that the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2454/eng@2026-09-17 5

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advocate-client relationship in question arose only after the instant suit was already at the point of hearing, such that, if dissatised, the aggrieved party retains recourse to the Court of Appeal. 46. It was contended that what the Court was, in eect, being asked to do was to sideline matters prosecuted by Ms. Guserwa so as to delay hearing and determination of causes listed before it, in order to punish Counsel for matters beyond her control, and that a party alleging possible bias or favoritism cannot rely on unproven allegations against a Judge, the Court being obliged to protect a litigant's right to choose and be represented by counsel of its choice. 47. It is the Claimant’s submission that the application is misconceived and lacking in merit, and urged the Court to dismiss it with costs. 48. I have examined all the averments and submissions of the parties herein. It is not in doubt that the rm of J.A Guserwa & Co. advocates are representing me in the suit led before the High Court which suit was led long after the current one. That notwithstanding, my relationship with the rm of J A Guserwa & Co. advocates is premised on my right to be represented by counsel of my own choice. 49. I am a judge of integrity having taken various oaths of service to do my work without fear favour ill will or aection and this does not preclude the current case. 50. It is my position that the respondent applicant should not have any fear or doubt that I am capable of hearing and disposing this cause in a most transparent manner my relationship with J A Guserwa & Co. advocates not withstanding. 51. However in order to alley the fear and apprehension of the respondent applicant, and so that justice should not only be done but be seen to be done I allow the application and recuse myself from hearing this cause forthwith. Costs shall be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF SEPTEMBER 2026. HELLEN WASILWA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2454/eng@2026-09-17 6

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