Esevwe v University of Nairobi (Cause E458 of 2022) [2023] KEELRC 413 (KLR)
The bottom line
#Kenya's Employment Court granted a litigant's request for a judge to step aside, because a statement suggesting his case had little chance of success created a reasonable appearance of bias.
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 application dated November 16, 2022 seeking the recusal of Hon. Justice Dr Jacob Gakeri is merited
Key legal issues
#Whether the judge's statement that the suit had doubtful probability of success amounted to a pre-determined mind justifying recusal
The court accepted that although the statement did not expressly pre-judge the matter, it could be construed as a pre-determined mind and supported a reasonable apprehension of bias.
The impugned statement was made in a ruling delivered on October 27, 2022 in the context of the findings of Mbaru J in ELRC Cause No 511 of 2016. The court found that, viewed objectively, the statement that the probability of success was doubtful could be construed as indicating a pre-determined mind even though it did not expressly say so. Given that justice must be seen to be done, this grounded the recusal.
Whether the judge's alleged continuing employment by the Respondent disqualifying him from hearing the matter
The claim that the judge remained an employee of the Respondent was unsubstantiated; the judge ceased rendering service and receiving payment upon appointment.
The applicant relied on an undated CV and internet printouts showing the judge as a Senior Lecturer at the University of Nairobi. The court found none of the documents showed active service; the judge had served full-time until December 2014, part-time until 2021, and had neither rendered service nor received payment since appointment to the bench. The applicant admitted he had not verified with the Respondent's Finance Department or School of Law.
Burden of proof on an applicant seeking recusal
The applicant bears the burden of furnishing cogent evidence in support of allegations of bias, which are serious where made against a State Officer.
The court emphasized that while a litigant has the right to seek recusal, the onus of demonstrating bias lies with the person alleging it and the threshold is high. Unsubstantiated allegations that a judge is working for two government entities contrary to the Constitution are unfair to the judge. Here, however, the reasonable apprehension test was nonetheless satisfied on the judge's own ruling statement.
Legal principles established
#- The test for recusal is the reasonable apprehension of bias test: the apprehension must be reasonable, held by reasonable and right-minded and informed persons, and a real likelihood or probability of bias must be demonstrated.
Court orders
#- 1.The Hon Justice Dr Jacob Gakeri recuses himself from any further conduct of the matter
- 2.The file be placed before the Principal Judge for directions on disposal of the Application for review dated November 16, 2022 and the main suit
- 3.Costs of the application to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 12 and 20 of the Employment and Labour Relations Court Act and Rule 14(9)(10) of the Employment and Labour Relations (Procedure) Rules, 2016
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.
the court is satisfied that application should be granted in the interest of justice being seen to be done consistent with the adage that justice must not only be done but must manifestly be seen to be done.
The court is persuaded that the applicant has demonstrated reasonable apprehension of bias.
In conclusion, the Application dated November 16, 2016 is allowed as prayed and the Hon Judge hereby recuses himself from handling the matter.
The file be placed before the Principal Judge for directions on disposal of the Application for review dated November 16, 2022 and main suit.
The existence of a reasonable apprehension of bias depends entirely on the facts the threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence.
Issues in the judgment
#The application is dated November 16, 2022 but the concluding order refers to it as the Application dated November 16, 2016, and also refers to an Application for review dated November 16, 2022 - inconsistent dates within the judgment.
The judgment is marked DRAFT on its final page.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esevwe v University of Nairobi (Cause E458 of 2022) [2023] KEELRC 413 (KLR)", Case Analysis (2022). ELRC Cause (Notice of Motion dated November 16, 2022) – cause number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/413/eng@2023-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.