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ELRCDismissedNot stated in the judgment (petition pending before the ELRC, Malindi)

David & 303 others v Governor, County Government of Kilifi & 2 others (Petition E003 of 2023) [2025] KEELRC 1066 (KLR)

Employment and Labour Relations Court
3 April 2025
4,006 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioners, county government employees with a pending employment petition against the County Government of Kilifi, applied by notice of motion dated 4 February 2025 under articles 25, 48, 50, 74 and 75 of the Constitution, the Judicial Service Code of Ethics and the Public Officers Ethics Act, seeking the recusal of the presiding judge (Hon. Lady Justice Monica Mbaru) and that the file be forwarded to the Chief Justice for reassignment. They alleged inappropriate personal contact between the judge and the respondents (including a chambers meeting on 27 July 2024 and a meeting at the Malindi Open Day/Court Users Committee), failure to enforce orders for payment of salaries, and the pendency of some 85 petitions for the judge's removal before the Judicial Service Commission. The respondents, through Hon. Martin Mwaro, denied any inappropriate contact, explaining that the only interactions occurred at a public forum and in a chambers consultation sought by both counsel, and characterised the application as an attempt to scandalise the court after the petitioners' counsel declined to prosecute his own contempt application dated 8 October 2024 unless preconditions (including summoning the respondents) were met. Framing three issues (grounds for recusal, referral to the Chief Justice, and costs), the court applied Owner of Motor Vessel "Mirembe Judith", Kinyua Muyaa and Saad Yusuf Saad, holding that unsubstantiated suspicion of bias cannot ground recusal, that public judicial outreach is an accepted judicial function, and that pending JSC removal petitions are insufficient for recusal. It warned counsel against setting conditions before the court and directed that the contempt application be heard on its merits. The application dated 4 February 2025 was dismissed with costs to the respondents; the petitioners were to secure a hearing date at the registry.

Questions the Court framed

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

  1. 1.Whether there exists sufficient grounds for recusal.
  2. 2.Should the matter be placed before the Chief Justice to allocate another judge?
  3. 3.Who should pay the costs?

Key legal issues

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01

Whether the alleged personal contact between the Judge and the respondents warrants recusal

Holding

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.

Reasoning

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.

p. 8
02

Whether pending petitions to the JSC for the Judge's removal justify recusal

Holding

No; the mere existence of removal petitions is insufficient grounds for recusal.

Reasoning

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.

p. 3
03

Whether the court should be compelled to summon the respondents before the contempt application is heard

Holding

No; due process requires the contempt application to be heard on its merits first.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The application dated 4 February 2025 is dismissed with costs to the Respondents.
  2. 2.The petitioners remain the rights-holders of the petition and shall secure a hearing date at the registry.

The bench

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

majority

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

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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.

p. 8

Forwarding the file to the Chief Justice for assignment to another judge

Not necessary as there is no basis for recusal.

p. 8

Costs

The application dated 4 February 2025 is dismissed with costs to the Respondents.

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.

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.
p. 8Final orders - dismissal of recusal application
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.
p. 8Recusal standard - unfounded apprehension of bias
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.
p. 8Objective test for apparent bias
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.
p. 7Counsel's duty to protect the dignity of the court (quoting Saad Yusuf Saad)
The court cannot allow counsel to hold all parties at ransom.
p. 6Counsel cannot set conditions for prosecuting their own applications

Issues in the judgment

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minor

Paragraph numbering error - paragraph 53 appears twice.

minor

Corrupted date in paragraph 26 - the date of the Malindi Open Day is garbled.

minor

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.

minor

Case title and case number are not stated in the judgment; parties are identified only through the recusal application and 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, "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.