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ELRCDismissedCause No. 1325 of 2011 (and related causes Nos. 980 of 2012, 1430 of 2012) - Notice of Motion dated 31st October 2012

PETER MWAURA KAMAU & 2 OTHERS V WICKS MWETHI NJENGA & ANOTHER [2012] KEELRC 99 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
14 December 2012
2,114 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Industrial Court refused to step aside from a teachers' union case, ruling that unproven bias claims don't force a judge off a matter.

What this practically means

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Executive summary

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The applicants, current officials of KUPPET led by deponent Wicks Mwethi Njenga, moved the Industrial Court by Notice of Motion dated 31st October 2012 seeking the disqualification of Lady Justice Hellen Wasilwa from hearing Cause No. 1325 of 2011, Cause No. 980 of 2012 and any other matter filed by or against them. They alleged bias arising from events when the Judge served as Registrar: an allegedly unsigned exparte order in Cause No. 315 of 2009, a refusal to forward an order in Cause No. 167 of 2011 to the CID, an allegedly improper freezing of KUPPET's bank account, an undisclosed assurance of favourable orders, an alleged friendship with one Leonard Rufus Ochieng, and the re-allocation of Cause No. 1430 of 2012 to her court. The respondents opposed, submitting that the allegations were unsworn hearsay, that a litigant cannot choose a judge, and that the application was designed to delay determination of the causes. The court applied the objective test in Republic v Mwalulu & 8 Others, which requires facts constituting bias to be specifically alleged and established, and adopted Justice G.B.M. Kariuki's observation that not every allegation of bias can disqualify a judge. Finding the allegations unproved, unsupported by affidavits of the persons said to have made them, and driven by losing litigants' tendencies to attribute verdicts to bias, the Judge declined to recuse herself, described the applicants as vexatious litigants, dismissed the application with costs to the respondents and interested parties.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the submissions by the applicants meet the test to warrant disqualification of the presiding Judge

Key legal issues

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01

Whether the allegations of bias against the presiding Judge met the objective test for disqualification

Holding

The court held that the allegations were unproved hearsay and did not meet the objective test; there was no reason to disqualify herself.

Reasoning

The court applied the Mwalulu test requiring objective facts constituting bias to be specifically alleged and established. The deponent's allegations were based on what he was told by persons who swore no affidavits, amounting to hearsay. The alleged refusal to sign orders, personal relationships and case re-allocation were all unexplained or unsupported. The court also noted that losing litigants are apt to attribute verdicts to bias.

p. 4
02

Whether apprehension or discomfort of a litigant with a judge justifies recusal

Holding

No; a litigant cannot choose a judge, and mere allegations of bias, whether baseless or not, cannot disqualify a judge.

Reasoning

The court adopted the authority that it would be chaotic if all allegations of bias, whether buttressed with sufficient grounds or baseless, were sufficient to disqualify a judge. The test is objective and the comfort of litigants is not the measure. Judge-shopping and vexatious recourse to disqualification applications are to be discouraged.

p. 4

Legal principles established

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  • The test for disqualification of a judge is objective; facts constituting bias must be specifically alleged and established
  • A judge ought not to be too ready to disqualify himself, particularly in cases involving parties who are constantly in court
  • The fact that a judge has sat on many cases involving one party is not a sufficient reason for disqualification

Court orders

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  1. 1.The application dated 31st October 2012 is dismissed
  2. 2.Costs to the Respondents and the Interested Parties

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 12(1), (7) of the Labour Relations Act 2007 (cited by applicant); inherent powers of the court and Article 159(2)(d) of the Constitution of Kenya, 2010

Relief refused

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Disqualification of Lady Justice Hellen Wasilwa from presiding over Cause No. 1325 of 2011, Cause No. 980 of 2012 and/or any other matter filed by or against the applicants

Allegations of bias were not proved; the objective test for disqualification was not met

p. 4

Costs of the application

Application dismissed with costs to the respondents and interested parties

p. 4

Costs

Costs of the application awarded to the Respondents and the Interested Parties.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I therefore dismiss this application with costs to the Respondents and the Interested Parties.
p. 4Final orders - dismissal with costs
The test is objective and facts constituting bias must be specifically alleged and established.
p. 3Objective test for disqualification of a judge
All the court can do is to carefully examine the facts which are alleged to show bias and from those draw an inference as any reasonable and fair-minded person would do, that the judge is biased or is likely to be biased.
p. 3Court's role in assessing bias allegations
The single fact that a judge has sat on many cases involving one party cannot be sufficient reason for that judge to disqualify himself
p. 3Repeated judicial contact with a party is not a ground for recusal
They are actually Vexatious Litigants and they would want to be in court every other time.
p. 4Applicants characterized as vexatious litigants

Issues in the judgment

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minor

The application cites a non-existent statutory provision

minor

Duplicated sentence in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "PETER MWAURA KAMAU & 2 OTHERS V WICKS MWETHI NJENGA & ANOTHER [2012] KEELRC 99 (KLR)", Case Analysis (2012). Cause No. 1325 of 2011 (and related causes Nos. 980 of 2012, 1430 of 2012) - Notice of Motion dated 31st October 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/99/eng@2012-12-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.