Ouko v Kenya Railways Corporation

Respondent/Applicant’s Case 2 The Applicant avers that this Petition proceeded for hearing before Hon. Justice Hellen Wasilwa on 16 th March, 2026, during which the Petitioner testified and closed his case, with the matter scheduled for hearing of the Respondent's case on 14th May, 2026, the Petitioner being represented throughout by the firm of J.A. Guserwa & Company Advocates. 3 The Applicant avers that on or about May, 2026, information and documentation came to the attention of its Principal Legal Officer, Stanley Gitari, revealing that J.A. Guserwa & Company Advocates are concurrently acting for the presiding Judge, Hon. Justice Hellen Wasilwa, in a separate defamation dispute involving one Nelson Andayi Havi. 4 In support, the Applicant relied to a demand letter dated 27th April, 2026 authored by the said firm on the learned Judge's behalf and addressed to Mr. Havi, together with a response on his behalf. 5 The Applicant contends that this dispute has since culminated in the filing of Milimani High Court Civil Case No. HCCC E141 of 2026, Hon. Justice Hellen Wasilwa v Nelson Andayi Havi, in which J.A. Guserwa & Company Advocates remain on record for the learned Judge and which matter remains active, having been confirmed via the Judiciary's Case Tracking System as scheduled to come Page 2 of 15

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up before Hon. Justice Stella Mutuku on 13 th May, 2026 for directions. 6 On this basis, it is the Applicant's case that it formed a genuine and reasonable apprehension that continued conduct of the proceedings before Hon. Justice Hellen Wasilwa, while the Petitioner's advocates simultaneously act as her personal counsel in separate live proceedings, places it in a position where it cannot confidently expect an impartial determination of the dispute. 7 The Applicant contends that this ongoing advocate-client relationship, viewed objectively, creates a real likelihood of perceived partiality and undermines confidence in the neutrality of the adjudicative process, and that the applicable legal test is whether a fair-minded and informed observer, apprised of the relevant facts, would reasonably apprehend the likelihood of bias or partiality. 8 It is further averred that the Judicial Service (Code of Conduct and Ethics) Regulations require judicial officers to uphold impartiality and avoid both impropriety and the appearance of impropriety, and that at no point during the proceedings, including the hearing of 16 th March, 2026, did Hon. Justice Hellen Wasilwa disclose the existence of the personal proceedings or the concurrent representation to the parties. Page 3 of 15

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9 Responding to the Replying Affidavit sworn by Judith A. Guserwa on 12th May, 2026, the Applicant, through its advocate Gideon Kamau Muturi, clarified that its application is not founded on any personal attack against Ms. Guserwa, her professional competence, or her entitlement to act for a client of her choice, but is founded solely on the undisclosed and now admitted advocateclient relationship between the Petitioner's advocates on record and the Judge presiding over the pending matter. 10 The Applicant pointed out that the Replying Affidavit expressly confirm the existence of that relationship, yet contended that the Replying Affidavit remains evasive and fails to disclose when instructions to act for the learned Judge were issued, whether the relationship predated the hearing of the instant matter, or whether the firm acts for the Judge in any other matter, omissions the Applicant contends heighten its apprehension of partiality and lack of transparency. 11 The Applicant further avers that its concern extends beyond Ms. Guserwa's personal appearance to the continued concurrent representation by the firm as a whole, and cannot be cured merely by having another advocate from the same firm proceed, absent disclosure as to whether any other advocate within that firm is handling the learned Judge's personal case. Page 4 of 15

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12 It was averred that the allegations that the Application is mischievous, malicious, intended to scuttle proceedings, or motivated by fear of an adverse outcome are unfounded, speculative and unsupported by evidence, the Application having been filed promptly upon discovery of the relevant facts. 13 The Applicant maintained that the admitted facts are sufficient to raise a legitimate and reasonable apprehension that continued hearing of the matter before Hon. Justice Hellen Wasilwa may compromise, or appear to compromise, its constitutional right under Article 50(1) to a fair hearing before an independent and impartial court, that no prejudice would be occasioned to the Petitioner should the matter be reallocated to another judge, whereas the Applicant stands to suffer prejudice if compelled to proceed before a court whose impartiality has reasonably been called into question. 14 The Applicant accordingly prayed that the recusal sought is necessary for the preservation of public confidence in the administration of justice and the safeguarding of judicial integrity, independence and impartiality, and that its Notice of Motion dated 8th May, 2026 be allowed as prayed. Petitioner/Respondent’s Case Page 5 of 15

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15 In opposition to the application, the Petitioner/Respondent filed a replying affidavit dated 12th May 2026, deposed to by Advocate Judith A. Guserwa. 16 The Affiant avers that being a qualified and seasoned practitioner, she is entitled to represent any client irrespective of rank or position in society while observing professional conduct and ethics, and that her representation of Justice Hellen Wasilwa in any matter the learned Judge chooses to appoint her is no exception. 17 The Affiant contends that the Application filed herein is mischievous and intended to paint her person and profession in bad light, casting aspersions on her capability of making decisions as required by professional standards. 18 The Affiant avers that she has no control over the matters listed before any Court or Judge, as she does not guide the listing registry, and that her relationship with the learned Judge, in so far as any matter including the present one, is purely one of Client/Advocate. 19 It is the Affiant's case that the presumption of a legitimate and reasonable apprehension of bias, conflict of interest and likelihood of partiality is a malicious presumption premised on a mindset that is scared of the outcome of the case, and that there is no violation of any constitutional right by the Judge in hearing and/or Page 6 of 15

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determining this matter, the Applicant being put to strict proof of his allegations. 20 The Affiant contends that the aspersions raised by the Applicant are personal and intended to malign her reputation before a Court where she has served with a clean record for over 40 years. 21 It was averred that the instant matter is indeed part-heard before Hon. Justice Wasilwa, and that should the Applicant be apprehensive of her prosecuting the matter, she has assistants who can proceed with it to its logical conclusion. 22 The Affiant therefore denies all the 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 the hearing of the part-heard matter to its conclusion. 23 It is further the Affiant 's case that the application is strategically made in the face of the defence hearing scheduled for 14th May, 2026 without any basis whatsoever, in order to scuttle the hearing, and that this is done with malice and without foundation. Respondent/Applicant’s Submissions 24 It was submitted that the sole issue for determination is whether this admitted advocate-client relationship between the Petitioner's advocates and the presiding Page 7 of 15

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Judge gives rise to sufficient grounds warranting her recusal. 25 On the law, the Applicant submitted that Article 50(1) of the Constitution guarantees every litigant the right to have disputes determined by an independent and impartial court, and that Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 obliges a Judge to recuse where impartiality might reasonably be questioned, specifically providing for with recusal Regulation where 21(1)(g) "any other sufficient reason" exists. 26 It was submitted that the applicable test in an application recusal is objective, whether a fair-minded and informed observer, apprised of all relevant facts, would conclude there exists a real possibility of bias, and that proof of actual bias is not required. In this regard, the Applicant relied on the test in Porter v Magill [2002] 2 AC 357, submitting that "the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased." 27 Applying this test, the Applicant submitted that the material facts are substantially undisputed: the firm representing the Petitioner is concurrently and actively representing the learned Judge in her own personal litigation, a relationship that is neither historical nor Page 8 of 15

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incidental but current and subsisting. It was argued that an advocate-client relationship is founded on trust, confidence and fidelity, and that a fair-minded observer would legitimately question whether advocates actively representing a simultaneously Judge appear in personal before that litigation same Judge can in contested proceedings without creating an appearance of partiality, however unintended. 28 It further submitted that the circumstances are aggravated by non-disclosure that neither the learned Judge nor the Petitioner's advocates disclosed the relationship at any point, including during the hearing already concluded, thereby depriving the Applicant of the opportunity to raise concerns before substantial steps had been taken in the proceedings. 29 It is the Applicant’s submission that disclosure is an important safeguard for public confidence in judicial proceedings, and its absence here materially heightens the appearance of partiality. 30 Responding to the Replying Affidavit, the Applicant submitted that Ms. Guserwa's assertion of entitlement to represent any client, and her suggestion that another advocate from the firm could proceed, do not address the Applicant's actual concern, which relates to the continued relationship between the learned Judge and the firm as a whole. Additionally, no evidence having been placed Page 9 of 15

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before the Court that the firm no longer acts for the Judge or that the underlying relationship has ceased. 31 On the object of recusal, the Applicant relied on the Supreme Court's statement in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2013] eKLR, as cited in Athi Paper Mills Limited v Dakawou Transport Limited [2023] KEELC 17854 (KLR) that: "the object in view, in the recusal of a judicial officer, is that justice as between the parties should be uncompromised; that the due process of law should be realized and be seen to have had its role and that the profile of the rule of law in the matter in question, should be seen to have remained uncompromised.." 32 The Applicant further relied on Galaxy Paints Company Ltd. v Falcon Guards Ltd. [1999] 2 EA 83, citing R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577 for the principle that justice must not only be done but must manifestly and undoubtedly be seen to be done, and that public confidence may be undermined by mere appearance of partiality as much as by actual bias. 33 On this basis, it was submitted that a fair-minded and informed observer would reasonably apprehend a real possibility of bias arising from the undisclosed and Page 10 of 15

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ongoing advocate-client relationship, an apprehension strengthened by the personal nature of the litigation involved and the fact that it remained undisclosed throughout substantive proceedings. 34 The Applicant submitted that permitting the matter to proceed in these circumstances would risk undermining the Applicant's constitutional right to a fair hearing under Article 50(1), and that the only course capable of preserving public confidence in the administration of justice is recusal of the learned Judge from further conduct of the proceedings. 35 The Applicant accordingly submitted that sufficient grounds have been established under Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, and prayed that the application be allowed with costs. Claimant/Respondent’s Submissions 36 The Respondent submitted that the Petition is a personal interest petition filed by the Petitioner, who was ready and willing to proceed with the defence hearing scheduled for 14th May, 2026 when he was ambushed with the recusal application. 37 It was submitted that Counsel Judith Guserwa cannot and should not be estopped from representing any client in the Judiciary or elsewhere, as her ability to differentiate Page 11 of 15

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between legal and personal matters is not in doubt, and that the same applies to Justice Hellen Wasilwa, who understands her parameters in law in handling any matter before her. 38 It is the Respondent’s submission that any allegations against the Judge must be subjected to the requisite standard of proof before she can be profiled and sidelined, and that the Court should not fall into the error of allowing a party or its advocate to profile and demean a Judge based on allegations of the kind typically made on social media or in public space. 39 The Respondent further submitted that grounds for recusal are generally premised on whether the circumstances cited 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 to the matter before her. 40 In support, the Respondent relied on Masila v Athi Water Works Development [2025] KEELRC 3268 (KLR), Agency the court & another declined to recuse itself absent any actual or perceived bias, and described the recusal application as an afterthought and a delaying tactic by the applicant to keep the parties in court indefinitely. He further relied on Universities Academic Staff Union Egerton Chapter/Branch v Egerton University & 2 others; Board of Trustees, Page 12 of 15

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Egerton University Retirement Benefits Scheme & 2 others (Interested Parties) [2023] KEELRC 2927 (KLR) and David & 303 others v Governor, County Government of Kilifi & 2 others [2025] KEELRC 1066 (KLR). 41 It was submitted that this Court has displayed no signs of bias in favour of Ms. Guserwa merely because she is defending the Judge in a separate forum, and that the advocate-client relationship only came to light after the instant suit was already part-heard and awaiting conclusion; it was submitted that if the Applicant remains dissatisfied or entertains any illusion about the likely outcome, it remains at liberty to move the Court of Appeal. 42 The Respondent submitted that what the Court is truly being asked to do is sideline matters prosecuted by Ms. Guserwa in order to delay hearing and determination of proceedings before it, effectively punishing counsel over matters beyond her control, namely the Registry's administrative listing role. It was submitted that a party alleging possible bias or favouritism cannot rely on unsubstantiated allegations against a Judge, and that the Court should guard its own right, and that of litigants, to choose and be represented by counsel of choice. 43 The Respondent relied further on Republic v Egerton University & 2 others; Kibue & 2 others (Ex parte Page 13 of 15

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Applicants); University (Interested Party) Academic Staff Union [2023] KEELRC 1707 (KLR), submitting that the court there declined to grant a recusal application premised on "speculations, innuendos and paranoia without any evidence to support the same." 44 In conclusion, it was submitted that the Court should find and hold that the Application as filed is misconceived and lacking in merit, befitting dismissal with costs. 45 I have examined all the averments and submission of the parties herein. It is not in doubt that the firm of S.A. Guserwa & Company advocates are representing me in the suit filed before the High court Civil Division. 46 That notwithstanding, my relationship with the firm of S.A. Guserwa is premised on my right to be represented by an advocate of my own choice. I am a Judge of integrity having taken various oaths of service to do my work without fear, favour ill will, prejudice or affection and that does not preclude this present cause. 47 It is my position that the respondent applicants should not have any fear or doubt that I am capable of making a proper finding in this case my relationship with J. A. Guserwa & Company advocates notwithstanding. 48 However, in order to settle the respondents fears and apprehension, and so that justice can not only be done Page 14 of 15

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but be seen to have been done, I will allow the applicant and recuse myself from hearing this cause forthwith. Costs shall be with cause. Dated, Signed and Delivered virtually at Nairobi this 17th Day of September 2026. HELLEN WASILWA JUDGE Page 15 of 15

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