PETER MWAURA KAMAU & 2 OTHERS V WICKS MWETHI NJENGA & ANOTHER [2012] KEELRC 99 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the submissions by the applicants meet the test to warrant disqualification of the presiding Judge
Key legal issues
#Whether the allegations of bias against the presiding Judge met the objective test for disqualification
The court held that the allegations were unproved hearsay and did not meet the objective test; there was no reason to disqualify herself.
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.
Whether apprehension or discomfort of a litigant with a judge justifies recusal
No; a litigant cannot choose a judge, and mere allegations of bias, whether baseless or not, cannot disqualify a judge.
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.
Legal principles established
#- 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
#- 1.The application dated 31st October 2012 is dismissed
- 2.Costs to the Respondents and the Interested Parties
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs of the application
Application dismissed with costs to the respondents and interested parties
Costs
Costs of the application awarded to the Respondents and the Interested Parties.
Quotable passages
#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.
The test is objective and facts constituting bias must be specifically alleged and established.
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.
The single fact that a judge has sat on many cases involving one party cannot be sufficient reason for that judge to disqualify himself
They are actually Vexatious Litigants and they would want to be in court every other time.
Issues in the judgment
#The application cites a non-existent statutory provision
Duplicated sentence in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.