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ELRCDismissedNot stated in the judgment (substantive suit; respondent's appeal noted as Civil Appeal No. E111 of 2021 – Kentegra Biotechnology EPZ Ltd v Keith Wright)

Keith Wright v Ketegra Biotechnology (EPZ) Limited [2021] KEELRC 1482 (KLR)

Employment and Labour Relations Court
21 June 2021
2,741 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi on a recusal application dated 30th April, 2021 by the respondent, Ketegra Biotechnology (EPZ) Limited, represented by its advocate John Kisigwa. The respondent sought the recusal of Lady Justice Monica Mbaru, vacation of the hearing date of 6th May, 2021, and reallocation of the file to another Judge with directions for pre-trial, alleging bias on the ground that the Judge had on 15th December, 2020 issued ex-parte orders allocating a hearing date before pre-trial directions under Rule 15(1) of the ELRC (Procedure) Rules, 2016, and had on 24th March, 2021 allowed the claimant to file supplementary documents without leave and in breach of Rule 14(10), leaving the respondent unable to cross-examine. The claimant opposed through the affidavit of Judith A. Guserwa, noting that the respondent had already appealed the court's directions in Civil Appeal No. E111 of 2021, in which stay was refused. The court applied the objective test of reasonable apprehension of bias from Kalpana H. Rawal v Judicial Service Commission, held that rules of procedure are subsidiary to the ELRC Act, found the respondent's allegations unsubstantiated and made without justification, and held that having issued its ruling and directions it stood functus officio, the respondent's remedy being the appeal already lodged. The application was dismissed with costs on 21st June, 2021.

Questions the Court framed

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

  1. 1.Whether the file should be placed before the Presiding Judge, Employment and Labour Relations Court, for reallocation to another Judge other than Justice Mbaru
  2. 2.Whether the case should be directed to undergo pre-trial directions
  3. 3.Whether the facts establish a reasonable apprehension of bias justifying the recusal of Lady Justice Monica Mbaru

Key legal issues

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01

Whether the test for reasonable apprehension of bias was met

Holding

The application did not meet the objective test; the allegations of bias were unsubstantiated and made in bad faith

Reasoning

The court applied the Kalpana Rawal objective test of reasonable apprehension. It found the court record contradicted the allegations: directions of 15th December 2020 closed pleadings within 21 days, the hearing notice was served on 16th February 2021 giving the respondent opportunity under Rules 14(10) and 15(1), the respondent opted not to cross-examine and itself sought the adjourned hearing dates of 6th May and 21st May 2021. The respondent had also already appealed the impugned directions to the Court of Appeal, which declined stay.

p. 5
02

Whether the court could revisit its earlier directions of 15th December 2020 and 24th March 2021

Holding

No - the court stands functus officio as to the ruling and directions, and the proper remedy was appeal, which the respondent had pursued

Reasoning

The court held that the directions and the detailed ruling of 24th March 2021 were final on the matters complained of. Inferring bias was tantamount to challenging the ruling; the respondent's lawful remedy was appeal under section 17 of the ELRC Act, which it had exercised in Civil Appeal No. E111 of 2021, with stay refused. Reopening the matter to justify itself would offend the rule of law and amount to misconduct.

p. 4
03

Whether failure to hold pre-trial directions under Rule 15(1) grounded recusal or reallocation

Holding

No; the procedural rules were available to all parties and the respondent could have invoked them, but did not specify what it wished to be addressed at pre-trial

Reasoning

The court held that upon service of the hearing notice on 16th February 2021, Rules 15(1) and 14(10) allowed the respondent a fair chance to seek to file any record with the court. The respondent failed to set out what matter it wished to be addressed during pre-trial, and the substantive hearing had already commenced with the respondent's participation, including an allowed adjournment.

p. 4

Legal principles established

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  • The test for recusal is the objective test of reasonable apprehension: whether circumstances would 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 his mind impartially
  • Judges should not recuse themselves on flimsy and baseless allegations; there is a concomitant duty to sit absent valid reasons for recusal
  • Rules of procedure are subsidiary to the principal constitutive statute and cannot override the law
  • A court that has issued ruling and directions becomes functus officio in respect of them; revisiting them to justify itself would be misconduct

Court orders

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  1. 1.The application dated 30th April, 2021 seeking recusal and reallocation is dismissed
  2. 2.Costs of the application awarded to the claimant

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 3 of the Employment and Labour Relations Court Act, 2011; Articles 10, 47, 50 and 159 of the Constitution (invoked by the applicant)

Relief refused

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Recusal of Lady Justice Monica Mbaru from further participation in the case

The allegations of bias were unsubstantiated and did not meet the objective test of reasonable apprehension of bias

p. 5

Vacation of the hearing date of 6th May, 2021

Fell with the dismissal of the recusal application; the hearing dates had been proposed by the respondent's own advocate

Reallocation of the file to another Judge with directions for pre-trial

The court had already rendered itself on the directions of 15th December, 2020 and 24th March, 2021 and stands functus officio; the respondent had already exercised its right of appeal

p. 4

Costs

Costs of the application awarded to the claimant

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 find that the allegation of bias is unsubstantiated and is tantamount to wanting to stop this court from the conduct of judicial function and I consequently dismiss the same with costs.
p. 5Final orders - dismissal of recusal application with costs
From the above it is clear that the requirements of independence and impartiality of judge must be counterbalanced by the judge's duty to sit where no grounds of disqualification exists in fact or in law
p. 5Duty to sit
The Rules of Procedure such as the ELRC (Procedure) Rules, 2016 are subsidiary to the principal constitutive statute regulating the functions of the Court.
p. 3Status of procedural rules
On the ruling and directions, the court stands functus officio.
p. 4Functus officio as to earlier directions

Issues in the judgment

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minor

The respondent's name is spelled inconsistently in the judgment - 'Ketegra Biotechnology (EPZ) Limited' in the application versus 'Kentegra Biotechnology EPZ Ltd' in the cited appeal

minor

The judgment gives the date of the ex-parte orders inconsistently as 15th December, 2020 in one place and '15th December, 2021' in another

minor

The EACJ case is cited by the respondent as Application No. 5 of 2007 but later referred to by the court as 'ApealNo.5 , Ref No. 1 of 2006'

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, "Keith Wright v Ketegra Biotechnology (EPZ) Limited [2021] KEELRC 1482 (KLR)", Case Analysis (2021). Not stated in the judgment (substantive suit; respondent's appeal noted as Civil Appeal No. E111 of 2021 – Kentegra Biotechnology EPZ Ltd v Keith Wright). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1482/eng@2021-06-21

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