David & 303 others v Governor, County Government of Kilifi & 2 others (Petition E003 of 2023) [2025] KEELRC 1066 (KLR)
The bottom line
#A Kenyan employment court ruled that unfounded suspicion of a judge's bias is not enough to force a judge to step aside from a case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there exists sufficient grounds for recusal.
- 2.Should the matter be placed before the Chief Justice to allocate another judge?
- 3.Who should pay the costs?
Key legal issues
#Whether the alleged personal contact between the Judge and the respondents warrants recusal
No; the only contact was at a public forum (Malindi Open Day/Court Users Committee) and a chambers consultation sought by both counsel; the test is whether a fair-minded and informed observer would conclude there is a real possibility of bias.
The court examined the history: the chambers meeting of 27 July 2024 was sought by both counsel; the Malindi Open Day was a public judicial outreach under the STAJ strategy attended by many. The Judge confirmed the respondents were not personally known to her. Applying the cited authorities, unsubstantiated suspicion of bias cannot suffice for recusal; a fair-minded observer would find no possibility of bias.
Whether pending petitions to the JSC for the Judge's removal justify recusal
No; the mere existence of removal petitions is insufficient grounds for recusal.
The respondents argued, and the court accepted, that allowing litigants to disqualify a judge merely by filing JSC removal petitions would encourage forum shopping, undermine confidence in the administration of justice and harm the rule of law. Counsel's conduct in setting conditions before prosecuting his own application was condemned as improper and unable to ground recusal.
Whether the court should be compelled to summon the respondents before the contempt application is heard
No; due process requires the contempt application to be heard on its merits first.
Counsel for the petitioners refused to prosecute the contempt application dated 8 October 2024 unless conditions were met, including summoning the respondents. The court held that parties cannot dictate how proceedings are conducted; summoning respondents before hearing the application would condemn them unheard; an aggrieved party's remedy is appeal.
Legal principles established
#- Allegations of improper contact with a judge must be supported by evidence; unsubstantiated suspicion cannot ground recusal.
- Public judicial engagement such as Open Days and Court Users Committee meetings is an accepted judicial function and not a basis for recusal.
Court orders
#- 1.The application dated 4 February 2025 is dismissed with costs to the Respondents.
- 2.The petitioners remain the rights-holders of the petition and shall secure a hearing date at the registry.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 25, 48, 50, 74 and 75 of the Constitution read with the Judicial Service Code of Ethics, Section 5 of the Public Officers Ethics Act, and Rules 5 and 10 (as invoked in the application dated 4 February 2025)
Relief refused
#Recusal of Hon. Lady Justice Monica Mbaru from hearing and handling the matter
The apprehension of bias was unfounded and unreasonable; the alleged contact was a public forum (Malindi Open Day/Court Users Committee) and chambers consultation, not inappropriate contact.
Forwarding the file to the Chief Justice for assignment to another judge
Not necessary as there is no basis for recusal.
Costs
The application dated 4 February 2025 is dismissed with costs to the Respondents.
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.
In the circumstances, the Application dated 4 February 2025 is hereby dismissed with costs to the Respondents. The petitioners remain the rights-holders of this petition and shall secure a hearing date at the registry.
The Petitioners' apprehension is both unfounded and unreasonable and cannot form a justifiable basis for recusal. The Court shall not accede to an unfounded application for recusal.
Any fair-minded and informed person observing these proceedings and having the facts herein would conclude that there is no possibility that the presiding judge has unreasonable, inappropriate contact or communication with any of the parties, particularly the respondents.
Unsubstantiated allegations made by parties through their counsel against a Judge who is dutifully discharging her judicial functions compromise the dignity of the Court and the relationship between the bar and the bench.
The court cannot allow counsel to hold all parties at ransom.
Issues in the judgment
#Paragraph numbering error - paragraph 53 appears twice.
Corrupted date in paragraph 26 - the date of the Malindi Open Day is garbled.
Opening paragraphs conflate the application and the supporting affidavit ('The afidavit of Shitakha Tom Ambwere supports the application and advocate...'), making the party/role description unclear.
Case title and case number are not stated in the judgment; parties are identified only through the recusal application and affidavits.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David & 303 others v Governor, County Government of Kilifi & 2 others (Petition E003 of 2023) [2025] KEELRC 1066 (KLR)", Case Analysis (2025). Not stated in the judgment (petition pending before the ELRC, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1066/eng@2025-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.