Patrick Otera Matere v Sic Investment Cooperative

Hellen Wasilwa to execute her judicial functions, and holds the Court in the highest professional regard, the application being brought with utmost respect and without any intention to impugn the character of the Hon. Judge. 3 The Applicant states that the matter is presently before Her Ladyship, with a hearing scheduled for 7 th October 2026, necessitating the filing of the application under certificate of urgency. 4 The Applicant avers that the firm of Messrs. J. A. Guserwa & Company Advocates is on record for the Claimant, and that it has come to its knowledge that the said firm are the personal advocates of the Hon. Lady Justice Hellen Wasilwa. In support, the Applicant relies on a letter dated 28th April 2026 addressed by the said firm to Messrs. Havi & Company Advocates, in which it was unequivocally stated that Her Ladyship was a client of J. A. Guserwa & Company Advocates. 5 It is therefore the Applicant's case that it entertains reasonable apprehension that the Hon. Lady Justice Hellen Wasilwa cannot preside over the matter with impartiality, given that the Claimant's advocates are, in a separate matter, acting as her legal counsel, thereby establishing a direct advocate-client relationship with the presiding judge. Page 2 of 14

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6 The Applicant contends that its inalienable right to have its dispute resolved through a fair hearing is at imminent risk of violation should the suit continue to be heard and determined by Her Ladyship, and asserts that a reasonable, fair-minded observer, aware of all the relevant facts, would inevitably conclude that there exists a real possibility of bias, whether conscious or unconscious, where the presiding judge is a client of the law firm representing the opposing party. 7 The Applicant further relies on Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations, which it contends provides for recusal where a judge has a bias, a personal interest, or is in a relationship with a person having a personal interest in the outcome of the matter, and asserts that this squarely applies to the circumstances herein. 8 It is the Applicant’s case that Hon. Lady Justice Hellen Wasilwa recuse herself from the matter, and that the matter be allocated to another judicial officer of competent jurisdiction, with costs to itself. Claimant/Respondent’s Case 9 In opposition to the application, the Claimant/Respondent filed on 12th May 2026 filed a Replying Affidavit sworn by his advocate Judith A. Guserwa. Page 3 of 14

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10 The Affiant avers that as 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 Judge chooses to appoint her is no exception. 11 She contends mischievous that and the application intended to cast filed her herein person is and profession in bad light, impugning her capability of making decisions in accordance with professional standards, and avers that she has no control over the listing of matters before any Court or Judge, this not being a function of counsel. 12 The Affiant states that her relationship with the Judge, in respect of the present matter as in any other, is purely one of Advocate and Client, and asserts that the presumption of a likelihood of legitimate and reasonable apprehension of bias, conflict of interest or partiality is a malicious presumption, premised on a mindset apprehensive of the outcome of the case. 13 She contends that there is no violation of any constitutional right occasioned by the Judge's hearing or determination of the matter, as alleged by the Applicant, and puts the Applicant to strict proof of its allegations. Page 4 of 14

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14 It is her case that the aspersions raised are personal, intended to malign her reputation before a Court in which she has served with a clean record for over forty years. 15 The Affiant avers that the matter is indeed part-heard before Hon. Justice Wasilwa, and states that, should the Applicant be apprehensive of her prosecution of the matter, she has assistants capable of proceeding with it to its logical conclusion. 16 She denies all negative accusations made against her as a professional entitled to represent a client of her choice, and contends that the application is strategically brought in the face of the hearing scheduled for 7 th October 2026, without basis, and is calculated with malice to scuttle that hearing. 17 On this basis, the Respondent prays that the Application be dismissed with costs, to pave way for the hearing of the part-heard matter to its conclusion. Respondent/Applicant’s Submissions 18 It was submitted that the sole question for determination is whether the Court ought to recuse itself in light of the undisputed advocate-client relationship between the Hon. Judge and the advocate for the Claimant, it not being disputed, and indeed not disowned in the Claimant's Page 5 of 14

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Replying Affidavit, that the firm of J. A. Guserwa & Company Advocates, on record for the Claimant, are the personal advocates of the Hon. Lady Justice Hellen Wasilwa, a fact confirmed by their own letter of 28 th April 2026. 19 The Applicant anchored its submissions on Article 50(1) of the Constitution, guaranteeing every person the right to have a dispute decided in a fair hearing before an independent and impartial tribunal, and cited Maseno University v University Academic Staff Union, Maseno Chapter [2022] KEELRC 3929 (KLR) for the proposition that an application for recusal: " Such an application calls into question the fairness of a Judge who has sworn to do justice impartially and in accordance with the Constitution.” 20 Reliance was further placed on Regulation 21(1) of the Judicial Service (Code of Conduct and Ethics) Regulations, which permits a judge to recuse where impartiality might reasonably be questioned, including where the judge has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter. 21 It was submitted that the applicable test is the objective test of reasonable apprehension of bias, as articulated in Attorney General of Kenya v Prof Anyang Nyong'o & 10 Others, EACJ Application No 5 of 2007, namely Page 6 of 14

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whether the circumstances give rise to a reasonable apprehension, in the mind of a reasonable, fair-minded and informed member of the public, that the judge will not apply her mind to the case impartially, a position reiterated 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). 22 The Applicant argued that the advocate-client relationship, founded on trust, confidence, loyalty and professional reliance, is not one that can be lightly dismissed, and relied on King Woolen Mills Ltd Formely Known As Manchester Outfitters Suiting Division Ltd & Another V Standard Chartered Financial Services Ltd & 2 others [1995] KECA 92 (KLR), citing Tumaini v. Republic (1972) E.A. 441, for the principle that: “…….The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.” 23 Similarly, reliance was placed on Standard Chartered Financial Services Ltd & another v Manchester Outfitters (Suiting Division) Ltd (Now known as King Woollen Mills Ltd) & 2 others Page 7 of 14

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[2016] KECA 671 (KLR), citing Lord Goff in R v Gough that "justice must be rooted in confidence, and confidence is destroyed when right-minded people go away thinking 'the judge was biased,'" and on Philip K. Tunoi & another v Judicial Service Commision & another [2016] KECA 715 (KLR) for the requirement that: “……… justice must not only be done, but it must also manifestly and undoubtedly be seen to be done. In short, there must be impartiality. At the core of this maxim is the need to inspire and maintain public confidence in the administration of justice and to obviate not only the appearance of unfairness but also the risk of unfairness.” 24 It is the Applicant's submission that its apprehension is not speculative but grounded on the documented letter of 28 th April 2026, and that, by parity of reasoning drawn from Serah Njeri Mwobi [2013] KECA 501 (KLR), v John citing Kimani Lord Njoroge Bingham in Davidson v Scottish Ministers (2004) UKHL 34, “Thus a judge will be disqualified from hearing a case (whether sitting alone, or as a member of a multiple tribunal) if he or she has a personal interest which is not negligible in the outcome, or is a friend or relation of a party or a witness, or is disabled by personal experience from bringing an objective judgment to bear on the case in question. Where a feature of this kind is present, the case is usually categorised as one of actual bias.” Page 8 of 14

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25 The Applicant submitted that none of the exceptions to recusal under Regulation 21(3) of the Code of Conduct and Ethics arise, there being other judges of the ELRC available to hear the matter and no urgency warranting continued hearing before the Honourable Judge, the matter having been filed in 2025 and listed for hearing within the same year. 26 Reliance was further placed on Article 73 of the Constitution on the nature of public trust reposed in State officers, and on Alvin Kamande Njenga & another v Esther Njeri Njenga & 5 others [2018] KEELC 2833 (KLR), where the court found it "prudent to remove the matter from this court and have it heard by another Judge." 27 Responding to the Claimant's contentions in her Replying Affidavit, it was submitted that the Application was not strategically timed to scuttle the scheduled hearing, having been filed on 11th May 2026, a mere thirteen days after the confirmatory letter of 28th April 2026, demonstrating diligence rather than delay, and that the Respondent does not seek to stall the hearing but only its transfer to an impartial court. 28 It was further submitted that the Claimant's suggestion that her assistants could conduct the matter in her stead is misconceived, as the concern is not personal conduct of the proceedings by Ms Guserwa but the subsisting Page 9 of 14

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advocate-client relationship between her firm, as a whole, and the presiding Judge, which the involvement of assistants does not sever. 29 It is the Applicant’s submission that judicial recusal is not a matter of discretion but a constitutional and ethical imperative once impartiality is reasonably called into question, and that the application is meritorious and has met the threshold for recusal. Claimant/Respondent’s Submissions 30 The Claimant/Respondent submitted that the suit herein is a personal interest claim which the Claimant is ready and willing to prosecute on a date to be set by the Court following pre-trial directions, and that but for the recusal application, the matter would proceed to be heard and determined on its merits. 31 It was argued that Counsel Judith Guserwa cannot and should not be estopped from representing any client, whether in the judiciary or elsewhere, her ability to differentiate between legal matters and personal matters not being in doubt, and that the same applies to the Hon. Lady Justice Hellen Wasilwa, who understands the parameters within which she is to handle any matter before her. Page 10 of 14

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32 It is the Claimant/Respondent submission that any allegation made against the Judge must be subjected to the ordinary requirements of proof before she can be sidelined, and that the Court should not permit a party or its advocate to profile and demean a judicial officer on the strength of unproven allegations. 33 On the applicable test, it was submitted that recusal turns 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. 34 In support, reliance was placed on Universities Academic Staff Union Egerton Chapter/Branch v Egerton University & 2 others; Board of Trustees, Egerton University Retirement Benefits Scheme & 2 others (Interested [2023] KEELRC 2927 (KLR), where Parties) the trial court dismissed a recusal application premised on alleged prior bias and resolved to hear the matter on its merits based on the evidence and the law; on Masila v Athi Water Works Development Agency & another [2025] KEELRC 3268 (KLR), where the court, finding no actual or perceived bias established, described the recusal application as an afterthought and a delaying tactic to keep the parties in court indefinitely; and on David & 303 others v Governor, County Government of Kilifi & 2 Page 11 of 14

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others [2025] KEELRC 1066 (KLR), where a recusal application was dismissed as unfounded, unreasonable and incapable of forming a justifiable basis for recusal. 35 It was contended that the Court has displayed no bias in favour of Ms Guserwa merely by reason of her acting to defend the Judge in a separate forum, and that the advocate-client relationship only came to light after the instant suit was already at an advanced stage awaiting hearing, which hearing ought to be concluded, the Respondent being at liberty to move to the Court of Appeal should it remain dissatisfied with the outcome. 36 The Claimant/Respondent submitted that what the Court is, in effect, being asked to do is to sideline matters prosecuted by Ms Guserwa before it so as to delay hearing and determination of causes listed before the Judge, for reasons outside Counsel's control, and that a party alleging bias or favoritism cannot rely on bare allegation unsupported by evidence, the Court being enjoined to protect a litigant's right to be represented by counsel of its choice. 37 Reliance was further placed on Republic v Egerton University & 2 others; Kibue & 2 others (Ex parte Applicants); University Academic Staff Union (Interested Party) [2023] KEELRC 1707 (KLR), where the court declined to grant a recusal application on the Page 12 of 14

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ground that it was premised on speculations, innuendos and paranoia without supporting evidence. 38 It is the Claimant/Respondent’s submission that the application as filed is misconceived and lacking in merit, and he thus prayed that it be dismissed with costs. 39 I have examined all the averments and submissions of the parties herein. This court does not dispute the fact that the firm of J. A Guserwa is acting for her in another suit as submitted herein. This is pegged on the right of every individual to be represented by counsel of own choice and which fact arose before this cause was allocated to me. 40 I have noted that my integrity or competence is not in question in handling this matter. This is so given my oath of service to dispense justice to my utmost knowledge and ability without fear, favour, bias, affection, ill will prejudice and any political, religious or other influence. 41 That being the case and in order to ensure that justice is not only done but is seen to be done, I will allow the application and respectfully recuse myself from hearing this claim forthwith. Costs in the cause. Dated, Signed and Delivered virtually at Nairobi this 30th Day of September 2026. Page 13 of 14

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HELLEN WASILWA JUDGE Page 14 of 14

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