Mohamed & 2 others v Pothiwala t/a Sangoro Boat Services (Employment and Labour Relations Cause E019 of 2024) [2024] KEELRC 2338 (KLR)
The bottom line
#A Kenyan employment court dismissed a request for a judge to step aside, confirming that vague claims of bias are not enough to disqualify a judge.
What this practically means
#Executive summary
#Key legal issues
#Reasonable apprehension of bias
The appellants failed to establish a reasonable apprehension of bias
The court applied the objective test of reasonable apprehension of bias, requiring a reasonable, fair minded and informed member of the public to conclude that the judge would not apply their mind impartially. The appellants' only basis was that other parties represented by the same firm had their appeals allowed or awards reduced insignificantly. The court held that each case is separate and based on different facts, and dissatisfied parties have a right of appeal.
Burden of proof on recusal application
The applicant must establish facts from which bias may be inferred; mere apprehension is insufficient
The court emphasized that an applicant bears the duty of establishing facts upon which the inference of bias is to be drawn, and that reasonable grounds must be presented. Merely informing the court that other litigants succeeded or received substantial awards does not meet this threshold.
Duty to sit
A judge has a duty to sit where no grounds of disqualification exist
Drawing on the Supreme Court in Gladys Boss Sholei v JSC and the New Zealand Court of Appeal in Mnir v Commissioner of Inland Revenue, the court held that the duty to sit counterbalances requirements of independence and impartiality, and protects courts against parties manoeuvring for strategic advantage through delay.
Legal principles established
#- An applicant for recusal bears the duty of establishing facts from which a fair minded and informed observer would conclude that the judge is biased; bare allegations are insufficient
- The fact that a judge decided a case with similar facts involving the same advocates does not automatically justify recusal
- Judges have a duty to sit where no grounds of disqualification exist, to protect courts against tactical recusal applications
Court orders
#- 1.The application dated 15 April 2024 seeking recusal and stay of proceedings is dismissed
- 2.Costs to abide the outcome of the appeal
- On appeal from
- null
- null
- Jurisdiction invoked
- Sections 50(1) and 47 of the Constitution, Sections 1A and 1B of the Civil Procedure Act and Section 3 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed & 2 others v Pothiwala t/a Sangoro Boat Services (Employment and Labour Relations Cause E019 of 2024) [2024] KEELRC 2338 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2338/eng@2024-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.