Maria Kagai Shipiri Ligaga v Prudential Africa Services Limited

relationship with J. A. Guserwa & Company Advocates, counsel on record for the Claimant. 3 The Applicant avers that the Claimant's advocates are, in addition, representing the Hon. Justice Wasilwa in a defamation claim, HCCC E141 of 2026, Justice Hellen Wasilwa v Nelson Andayi Havi. Consequently, a conflict of interest exists by virtue of this subsisting advocate-client relationship between the Judge and counsel for the Claimant, which threatens to undermine the Applicant's right to a fair, impartial and just determination of the dispute. 4 The Applicant asserts that it is a cardinal principle of justice that justice must not only be done but be seen to be done, and that it is accordingly in the interest of justice that the Hon. Lady Justice Hellen Wasilwa recuse herself from continuing to have conduct of, or to hear, the matter. 5 It is the Applicant's case that the Court, being a seat of justice, ought not to act in a manner that would violate, or give the perception of violating, a party's right to a fair hearing, or create the impression that the principle of neutrality is being abused. 6 By the Further Affidavit of Raymond Ngoma sworn on 15 th June 2026, the Applicant responded to the Claimant's replying affidavit sworn on 29th May 2026. 7 The Applicant denies that the application is aimed at disparaging the name or character of the Claimant's Page 2 of 15

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advocate, averring that no personal allegations have been made against her or her firm. 8 The Applicanr states that the Application seeks only the recusal of the Hon. Judge from a matter in which one of the parties is represented by the same firm currently representing her, in a personal capacity, in other proceedings. 9 The Applicant avers that it has made no allegation that the Claimant's advocate or her firm controls the listing of matters or the appointment of judges, and contends that any averment to that effect is incorrect. 10 It is the Applicant's case that it has a right to a fair trial, and that the existence of an actual or perceived conflict of interest between the Judge and the Claimant's advocate places that right in danger of violation. 11 The Applicant states that it is advised by Ms. Esther Kinyenje-Opiyo, a partner at Kaplan and Stratton Advocates, and verily believes, that where a judge is shown to have a conflict of interest, she ought automatically to disqualify herself from hearing the matter. 12 The Applicant further avers that the Claimant's advocate's suggestion that other members of her staff could be assigned to handle the matter does not address the conflict, the Application relating specifically to the firm of J. A. Guserwa & Company Advocates and not merely to its senior partner. Page 3 of 15

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13 It is the Applicant’s case that the Claimant's advocate has admitted the existence of an advocate-client relationship between herself and Hon. Wasilwa J. 14 The Applicant denies the Claimant's contention that the Application is intended to scuttle the hearing or delay the matter, asserting that it seeks only to safeguard its right to a fair hearing overseen by an impartial arbiter. Claimant/Respondent’s Case 15 In opposition to the application, the Claimant/Respondent filed a replying affidavit dated 24th May 2026 sworn by her advocate, Judith A. Guserwa. 16 The Affiant avers that she is an Advocate of the High Court of Kenya, competent and duly authorised to swear the affidavit. 17 She states 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. 18 The Affiant contends that the present application is mischievous and intended to light, casting profession in bad capability of making decisions cast her person aspersions in and on her accordance with professional standards, and avers that she has no control Page 4 of 15

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over the listing of matters before any Court or Judge, this not being a function of counsel. 19 The Affiant states that her relationship with the Judge, in respect of the present matter as in any other, is purely one of Client and Advocate, and contends that the presumption of a likelihood of legitimate and reasonable apprehension of bias, conflict of interest and partiality is a malicious presumption, premised on a mindset apprehensive of the outcome of the case. 20 She asserts 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. 21 It is her case that the aspersions raised are personal, made with the intention of maligning her reputation before a Court in which she has served with a clean record for over forty years. 22 The Affiant avers that the matter is indeed administratively listed before Hon. Justice Wasilwa, and states that, should the Applicant be apprehensive of her personal conduct of the matter, she has assistants capable of proceeding with it to its logical conclusion. 23 The Affiant 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 3 rd June Page 5 of 15

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2026, without basis, and is calculated with malice to scuttle that hearing. Respondent/Applicant’s Submissions 24 On whether Hon. Justice Hellen Wasilwa ought to recuse herself from hearing the suit, the Respondent/Applicant submitted that the Application arose after its advocates learnt, in the days leading up to the hearing scheduled for 3rd June 2026, that the Honourable Judge has an ongoing advocate-client relationship with the firm on record for the Claimant, M/s J.A. Guserwa & Company Advocates. It stated that the firm represents the Honourable Judge in a defamation claim, HCCC E141 of 2026 – Justice Hellen Wasilwa vs Nelson Andayi Havi. 25 The Applicant argued that this relationship is not in dispute, since Counsel for the Claimant, Judith A. Guserwa, admitted its existence in her replying affidavit sworn on 29th May 2026. Because the Claimant and the presiding Judge share the same firm of advocates, the Applicant urged, a clear conflict of interest arises. If the Court proceeds with the matter, it argued, the Respondent's right to a fair hearing under Article 50(1) of the Constitution would be violated. 26 The Applicant relied on Regulation 46(1) of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, which provides that a judicial officer shall avoid being in situations in which his or her personal interests conflict, or appear to conflict, with the duties of his or her office. It Page 6 of 15

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contended that the conflict need not be actual, and that the appearance of conflict is enough to engage the Regulation. 27 On the legal threshold for recusal, the Applicant cited Webb v The Queen [1994] 181 CLR 41, where the High Court of Australia identified four categories of conflict of interest, bias or prejudice that may warrant disqualification of a judge. The Applicant placed its case within the category of disqualification by association, which the Court described as follows:"Disqualification by association consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings." 28 The Applicant further relied on the Supreme Court decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2013] eKLR, wherein the Court adopted the definition of recusal in Black's Law Dictionary, 8th Edition, as the "removal of oneself as judge or policy maker in a particular matter, [especially] because of a conflict of interest," and held as follows: "From this definition, it is evident that the circumstances calling for recusal, for a Judge, are by no means cast in stone. Perception of fairness, of conviction, of moral authority to hear the matter, is the proper test of whether or not the nonparticipation of the judicial officer is called for. The object in view, in the recusal of a judicial officer, is that justice as between the parties be uncompromised; that the due Page 7 of 15

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process of law be realized, and be seen to have had its role; that the profile of the rule of law in the matter in question, be seen to have remained uncompromised." 29 It was submitted that reasonable apprehension of bias rests on whether a reasonable, fair-minded and informed member of the public would conclude that the judge will not apply her mind to the case impartially. The Applicant noted that in the same decision the Supreme Court adopted the reasonable person test from Perry v Schwarzenegger 671 F.3d 1052 (9th Cir. 2012), where it was held that "the test for establishing a Judge's impartiality is the perception of a 'reasonable person', this being a 'well-informed, thoughtful observer who understands all the facts', and who has 'examined the record and the law'." 30 It is the Applicant’s submission that the question is not whether the Honourable Judge is actually biased; the question is whether such an observer, aware of the advocate-client relationship, would reasonably apprehend bias. 31 To show that such relationships have been found to meet this threshold, the Applicant cited Nderitu v Fincom Technologies Limited [2023] KEELRC 709 (KLR) wherein the Court applying Webb (supra), found that the Judge's prior membership, with the applicant, of the Board of Management of a secondary school chaired by the applicant gave rise to a reasonable apprehension of bias. The Applicant also cited the South African decision in Nthai v S (SS33/2022) [2025] ZAGPJHC 151, where Page 8 of 15

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the judge recused herself and stated:"Due to the close relationship that I have with Mr Mariano and the fact that he is a material witness in this matter, a reasonable, objective and informed person would reasonably apprehend that I may not bring an impartial mind to bear on the adjudication of the case." 32 The Applicant argued by analogy that an existing advocate-client relationship between the Judge and the Claimant's counsel is a closer and more direct nexus than a past association on a school board. It submitted that recusal applications are grounded in constitutional, statutory and common law principles. It also submitted that a court must exercise and exhibit independence and must not be seen as subject to the control or direction of any party. 33 The Applicant submitted that the Claimant's Counsel misapprehended the nature and purpose of the application in the replying affidavit. It maintained that the Application is not an attack on Counsel's career or character, nor does it seek to deprive Counsel of her right to represent any client of her choosing, including judicial officers. The Applicant acknowledged that right but maintained that its exercise in this instance creates a conflict of interest that gives rise to a reasonable apprehension of bias. 34 On the Claimant's assertion that the application was filed to scuttle the hearing of 3 rd June 2026, the Applicant submitted that the law sets no fixed timeline for a recusal Page 9 of 15

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application. A party may move the Court as soon as an apprehension of bias arises, which is what it did upon discovering the relationship. 35 On the Claimant's proposal that an associate of the firm could handle either this matter or the defamation suit to avoid the conflict, the Applicant submitted that this would not cure the conflict. The application is directed at the firm of J.A. Guserwa & Company Advocates, which acts for the Judge; and every member of that firm would remain conflicted, whoever conducts either matter. 36 The Applicant further submitted that decision-makers must be seen by all to decide fairly and impartially, free from private or personal interest. It stressed that a recusal application ought not to be treated as a personal attack on the Judge, the parties or their advocates. 37 Reliance was placed on Sophinah Kalondu Mbiti v Arun Mahendra Adalja & 3 others [2019] KEELC 3481 (KLR), where the Court held that a party or its advocate is entitled to seek the recusal of a judge and that the judge should not treat such an application as a personal affront. In that case the Court cited President of the Republic of South Africa & Others v South African Rugby Football Union & Others (CCT16/98) [1999] ZACC 9; 1999 (4) SA 147, where it was held: "At the very outset we wish to acknowledge that a litigant and her or his counsel who find it necessary to apply for the recusal of a judicial officer has an unenviable task and the propriety of their Page 10 of 15

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motives should not lightly be questioned. Where the grounds are reasonable it is counsel's duty to advance the grounds without fear. On the part of the judge whose recusal is sought there should be a full appreciation of the admonition that she or he should 'not be unduly sensitive and ought not to regard an application for his [or her] recusal as a personal affront'." 38 It is the Applicant’s submission that the application is not intended to taint the character or careers of any party, advocate or the Honourable Judge. It maintained that the application merely asserts that a fair-minded person looking at these circumstances would find that a conflict of interest, and therefore a reasonable apprehension of bias, exists. 39 In conclusion, the Applicant submitted that recusal is a fundamental safeguard in the administration of justice and is essential to preserving the integrity and impartiality of the judicial process. It argued that the pre-existing advocate-client relationship between the Claimant's advocate and the Honourable Judge creates a clear conflict of interest and a reasonable apprehension of bias. 40 It invoked the dictum in R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 that "it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done." On that basis, it urged the Honourable Judge to recuse herself from hearing this suit. Page 11 of 15

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Claimant/Respondent’s Case 41 The Claimant submitted that the Claim is a personal claim which she was ready and willing to prosecute on the hearing date of 3rd June 2026. She argued that the recusal application ambushed her on the eve of that hearing and stood in the way of the suit being heard and determined on its merits. 42 It is the Claimant's submission that Counsel Judith Guserwa cannot be barred from representing any client, whether a member of the Judiciary or otherwise. The Claimant argued that Counsel's ability to distinguish her professional mandate in one matter from her mandate in another is not in doubt. She submitted that the same applies to the Honourable Lady Justice Hellen Wasilwa, who understands the legal parameters within which she handles any matter before her. 43 The Claimant further submitted that any allegation against a judge must meet the legal requirement of proof before the judge can be profiled and sidelined. She urged the Court not to allow parties or their advocates to profile and demean a judge on the basis of malicious allegations made on social media or in the public space. 44 On the applicable test, the Claimant submitted that recusal turns on whether the circumstances relied on would give rise to a reasonable apprehension, in the mind of a fair-minded and informed member of the public, that Page 12 of 15

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the judge would not apply her mind impartially to the matter before her. 45 In support of this position, the Claimant relied on three decisions of this Court in which recusal applications were dismissed. The first is Universities Academic Staff Union Egerton Chapter/Branch v Egerton University & 2 others; Board of Trustees, Egerton University Retirement Benefits Scheme & 2 others (Interested Parties) [2023] KEELRC 2927 (KLR), where the Court dismissed an application premised on the respondents' apprehension that they would not receive an impartial hearing because the Court had allegedly acted with bias against them, and observed that it would determine the matter on its merits on the basis of the evidence and the law and nothing more. 46 The second is Development Masila v Athi Agency Water & Works another [2025] KEELRC 3268 (KLR) in which the Court declined to recuse itself where no actual or perceived bias was established, and described the application as an afterthought and a delaying tactic intended to keep the parties in court indefinitely. 47 The final case it relied on, David & 303 others v Governor, County Government of Kilifi & 2 others [2025] KEELRC 1066 (KLR); in which the application was dismissed as unfounded, unreasonable and incapable of forming a justifiable basis for recusal. Page 13 of 15

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48 Drawing on these authorities, the Claimant argued that the Court has shown no sign of bias in favour of Counsel merely because she acts for the Honourable Judge in another forum. It was submitted that the advocate-client relationship arose when this suit had already been processed and was awaiting hearing. The Claimant urged that the suit ought to proceed to conclusion, and that a party dissatisfied with the outcome is at liberty to move to the Court of Appeal. 49 The Claimant further contended that the application, in effect, asks the Court to sideline matters prosecuted by Counsel Judith Guserwa in this Court. She submitted that this would delay the hearing and determination of matters allocated to the Honourable Judge by the Registry in its administrative role, and would punish Counsel for circumstances beyond her control. 50 It was also submitted that a party alleging bias or favoritism cannot rely on bare allegations against a judge without evidence. The Claimant urged the Court to decline to act on such allegations so as to protect her right to choose, and to be represented by, counsel of her choice. 51 The Claimant further relied 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 a recusal application on the basis that it was premised on speculation, innuendo and paranoia, without evidence to support it. Page 14 of 15

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52 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 filed. 53 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. 54 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 1st Day of October 2026. HELLEN WASILWA JUDGE Page 15 of 15

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