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ELRCDismissedELRCA E125 of 2023 (Mombasa)

Hipora Security Solutions Limited v Omondi (Appeal E038 of 2024) [2024] KEELRC 2459 (KLR)

Employment and Labour Relations Court
11 October 2024
3,088 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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The Employment and Labour Relations Court at Mombasa (Mbaru J) delivered a ruling in a consolidated line of files including Mombasa ELRC No. E125 of 2023, ELRCA E136 of 2023 and ELRCA E012 of 2024. The respondent, Zachariah Otieno Omondi, represented by Mung'oma Mung'oma & Company Advocates, applied by notice dated 14 May 2024 for a stay of proceedings, the recusal of Justice Monica Mbaru and reassignment of the appeal to another court, invoking Article 50(1) of the Constitution. His apprehension rested on the fact that his advocates had represented other respondents whose appeals before the court succeeded or yielded insignificant awards, and that protest letters to the Judicial Service Commission over the judge's conduct had gone unanswered. The appellant, through HR manager Edward Ntonyiri, opposed the application as forum shopping lacking good cause. The court applied the objective test of reasonable apprehension of bias from Attorney General v Anyang' Nyong'o, the recusal grounds in Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020, and precedents including Kalpana Rawal, Rachuonyo & Rachuonyo Advocates, the CORD judicial review decision, and Gladys Boss Sholei v JSC. It held the applicant bore the burden of establishing facts from which a fair-minded and informed observer would infer bias; prior decisions in similar matters do not ground recusal, and a judge has a duty to sit absent valid grounds. The application was dismissed with costs to the appellant.

Questions the Court framed

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

  1. 1.Whether the respondent has established a reasonable apprehension of bias warranting the recusal of Justice Monica Mbaru
  2. 2.Whether the appeal should be reassigned to another court of competent jurisdiction
  3. 3.Who should bear the costs of the application

Key legal issues

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01

Reasonable apprehension of bias

Holding

The objective test requires circumstances giving rise to a reasonable apprehension in the mind of a reasonable, fair-minded and informed member of the public; the respondent's knowledge that other litigants succeeded before the judge does not meet this test

Reasoning

The court applied the objective test of reasonable apprehension of bias and the Judicial Service (Code of Conduct and Ethics) Regulations 2020 grounds for recusal. None of the enumerated grounds applied. The respondent had never appeared before the court; his apprehension stemmed from his advocate's experience in other cases, each of which is separate and distinct. The applicant failed to address the principles and made bare allegations.

p. 4
02

Recusal grounds under Judicial Service (Code of Conduct and Ethics) Regulations 2020

Holding

None of the Regulation 21 grounds (party, witness, personal interest, prior counsel, etc.) were established

Reasoning

The court set out the Regulation 21 criteria for recusal and found the respondent had not addressed any of them, resting his application solely on the fact that other respondents represented by the same firm had succeeded in appeals before the court.

p. 5
03

Reassignment and forum shopping

Holding

Reassignment is not to be lightly undertaken; seeking a different judge to obtain a different outcome is bad faith and brings the judicial process into disrepute

Reasoning

Relying on Gladys Boss Sholei v JSC and the CORD decision, the court held that the duty to sit protects judicial independence against manipulation by parties seeking strategic advantage, and that seeking recusal on the basis of similar prior decisions is a manifestation of bad faith.

p. 5

Legal principles established

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  • An applicant for recusal bears the duty of establishing facts from which a fair-minded and informed observer would infer bias; bare allegations are insufficient
  • A judge's prior determination of matters with similar facts is not a basis for recusal; parties should appeal instead
  • Absent valid grounds for disqualification, a judge has a concomitant duty to sit

Court orders

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  1. 1.The application dated 14 May 2024 is dismissed
  2. 2.Costs of the application to the appellant
  3. 3.The interim stay of proceedings is lifted/terminated as the court dismisses the application seeking stay

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 50(1), 47 of the Constitution; Sections 1A and 1B of the Civil Procedure Act; Section 3 of the Employment and Labour Relations Court Act

Relief refused

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Stay of further proceedings pending hearing of the application

No factual or legal basis established for recusal or reassignment

p. 6

Recusal and disqualification of Justice Monica Mbaru

Applicant failed to establish facts upon which a fair-minded and informed observer would conclude bias; mere knowledge that others succeeded in appeals is not a proper foundation

p. 5

Reassignment of the matter to another court of competent jurisdiction

A judge has a duty to sit absent valid grounds; the application was an attempt at forum shopping

p. 6

Costs

Costs of the application to the appellant

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.

The court finds no factual or legal basis established for its recusal or reassignment of the matter to another court. The application dated 14 May 2024 is tantamount to seeking to stop this court from the conduct of judicial function and I consequently dismiss the same with costs to the appellant.
p. 6Final orders - dismissal of recusal application
Reasonable grounds must be presented from which an inference of bias may be drawn.
p. 4Burden on applicant for recusal
merely because this court decided any of these cited cases does not automatically form a basis for recusal.
p. 5Prior decisions on similar facts no basis for recusal
each case is separate and distinct and based on its facts and any party dissatisfied with the decision is entitled to appeal.
p. 5Separate treatment of each appeal

Issues in the judgment

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minor

Paragraphs 10-13 describe the respondent both filing written submissions and opting to rely on the Replying Affidavit; the Replying Affidavit however belongs to the appellant (Edward Ntonyiri), indicating a mislabelling of the parties' documents

minor

The application is described as filed by 'the respondent' in a matter styled as an appeal with an 'appellant', but no case title is stated anywhere in the judgment; party names are inferred only from the affidavits

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, "Hipora Security Solutions Limited v Omondi (Appeal E038 of 2024) [2024] KEELRC 2459 (KLR)", Case Analysis (2024). ELRCA E125 of 2023 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2459/eng@2024-10-11

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