Poussard v Bradley Limited & 5 others (Cause 2465 of 2017) [2023] KEELRC 798 (KLR)
The bottom line
#A Kenyan court refused to disqualify a judge over bias claims, ruling that parties cannot use recusal applications to delay paying court-ordered debts.
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 facts establish bias on the part of the presiding Judge warranting recusal
- 2.Whether the respondents were denied a fair hearing
Key legal issues
#Whether the court's case-management directions amounted to bias
They did not; the respondents were given fair opportunity to take hearing dates at the registry, which is normal practice.
The court reviewed the chronology: the respondents were served on 28th January 2022, attended court on 10th March 2022, and were given directions with ample opportunity to comply. They failed to take hearing dates at the registry, did not attend for cross-examination and did not produce books of account. The direction to take hearing dates at the registry was ordinary case management, not bias.
Whether the fair-hearing right was violated by the speed of directions on the 21st January 2022 application
No violation; service was effected and confirmed by returns, and the respondents' attendance on 10th March 2022 was to confirm compliance with directions.
The purpose of the mention was to confirm filed submissions; service was not contested and returns confirmed service on all respondents on 28th January 2022. The respondents appointed advocates on 9th March 2022 by choice. Short timeframes were justified as the respondents had not complied with prior directions.
Recusal as a tool to delay execution
Recusal applications cannot be used to derail execution; the duty to sit counterbalances impartiality requirements.
Relying on Gladys Boss Sholei v JSC and Joseph Maina Theuri v Gitonga Kabugi, the court held that absent valid grounds, a judge must sit, protecting courts against manouvering by parties seeking forensic advantage through delay. The respondents had avoided execution since judgment in 2019 and the recusal application was an abuse aimed at stopping the judicial function.
Legal principles established
#- The test for recusal is that of a fair minded and informed observer who would adopt a balanced approach.
- Absent valid reasons, a judge has a duty to sit, to protect courts against manouvering by parties seeking strategic advantage through delay.
- Judicial bias is no basis for recusal unless the bias is personal or extra-judicial.
Court orders
#- 1.The application dated 26th April, 2022 seeking recusal of the Judge is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 25(c), 27, 48, 50(1) and 159 of the Constitution and rules 17 and 22 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Relief refused
#Recusal/disqualification of Hon. Justice Monica Mbaru from further proceedings
Allegation of bias unsubstantiated; no real apprehension of bias established; directions to take hearing dates at the registry secured the respondents' fair hearing rights
Placement of the matter before the Principal Judge for directions
Follows from dismissal of the recusal prayer
Costs
The application is dismissed with costs (costs awarded to the claimant).
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 find that the instant application does not meet the reasonable test and thus the facts do not establish the alleged bias nor establish the same.
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.
The right to fair hearing is a constitutional right but with it comes responsibility. One cannot claim to enjoy the right to a fair hearing even where they do not seek to address basic minimums so as to secure such a right.
judicial bias is no basis for recusal unless the judge’s bias is personal or based on some extra-judicial reason.
Issues in the judgment
#The application premised on alleged bias refers to a non-existent application dated 4th April, 2022; the court noted the error and an amendment application dated 31st October, 2022 was never prosecuted.
Internal inconsistencies in dates in the judgment text: reference to 'application dated 10th April,2022' described elsewhere as 'dated 4th April, 2022 [10th April, 2022]'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Poussard v Bradley Limited & 5 others (Cause 2465 of 2017) [2023] KEELRC 798 (KLR)", Case Analysis (2023). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/798/eng@2023-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.