Hipora Security Solutions Limited v Omondi (Appeal E038 of 2024) [2024] KEELRC 2459 (KLR)
The bottom line
#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 respondent has established a reasonable apprehension of bias warranting the recusal of Justice Monica Mbaru
- 2.Whether the appeal should be reassigned to another court of competent jurisdiction
- 3.Who should bear the costs of the application
Key legal issues
#Reasonable apprehension of bias
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
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.
Recusal grounds under Judicial Service (Code of Conduct and Ethics) Regulations 2020
None of the Regulation 21 grounds (party, witness, personal interest, prior counsel, etc.) were established
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.
Reassignment and forum shopping
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
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.
Legal principles established
#- 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
#- 1.The application dated 14 May 2024 is dismissed
- 2.Costs of the application to the appellant
- 3.The interim stay of proceedings is lifted/terminated as the court dismisses the application seeking stay
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#Stay of further proceedings pending hearing of the application
No factual or legal basis established for recusal or reassignment
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
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
Costs
Costs of the application to the appellant
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 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.
Reasonable grounds must be presented from which an inference of bias may be drawn.
merely because this court decided any of these cited cases does not automatically form a 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.
Issues in the judgment
#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
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.