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ELRCPartially AllowedELRC PET No. E023 of 2026· [2026] KEELRC 2422 (KLR)

Institution of Engineering Technology of Kenya v Kenya Rural Roads Authority & another (Petition E023 of 2026) [2026] KEELRC 2422 (KLR)

Employment and Labour Relations Court
20 August 2026
3,408 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court found no bias but stepped aside anyway, showing that judges may recuse to protect confidence in justice.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 12th April 2026 by which the Petitioner, through an affidavit sworn by Bibiye Mahmoud Juma, sought the recusal of Hon. Lady Justice Jemimah Wanza Keli from ELRC Petition No. E023 of 2026, reallocation of the file, and a stay of proceedings. The application arose from the court's ruling of 27th February 2026, in which the judge declined interim conservatory orders against engineering job vacancies advertised by the Kenya Rural Roads Authority, vacated earlier conservatory orders, and made substantive findings that engineering technologists and engineers are distinct professional cadres and that there was no discrimination against technologists in the 87 advertised vacancies. The applicant contended that the judge had determined the substratum of the petition at the interlocutory stage, giving rise to a reasonable apprehension of bias, and relied on MUHURI v Attorney General. The respondent, relying on Jasbir Singh Rai, Kalpana Rawal, Mama Millers and Anyang' Nyong'o, argued that mere dissatisfaction with an adverse ruling is not bias, that the objective test was not met, and that the proper remedy is appeal or review. The court held that the applicant had not met the Rule 21(1)(d) threshold of actual bias or prejudice, agreeing substantially with the respondent. However, persuaded by Musyoki v Kenya Airways and Thugi River Estate v National Bank of Kenya, the court recused itself in the interest of justice because the applicant's apprehension could not be assuaged. It referred the file to the Division Presiding Judge for re-allocation, made no order as to costs, and fixed mention for 22nd September 2026.

Key legal issues

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01

Whether the applicant established actual bias or prejudice under Rule 21(1)(d) of the Judicial Service (Code of Conduct and Ethics) Regulations

Holding

The court found the threshold was not met; the applicant's grievance was confined to the reasoning in the ruling of 27th February 2026, which is not evidence of bias.

Reasoning

The court noted that in determining the conservatory orders application the judge was obliged to assess whether a prima facie case existed, which necessarily involved evaluation of facts and law. Findings that engineers and engineering technologists were distinct cadres were judicial determinations of issues presented for consideration. Mere dissatisfaction with such findings cannot satisfy the objective recusal test; the applicant had not identified any personal, financial or institutional relationship or extraneous circumstance indicating predisposition.

p. 12
02

Whether the court should nonetheless recuse itself to preserve the appearance of a fair hearing

Holding

Yes. Although no bias was found, the court recused itself in the interest of justice because the applicant remained convinced it could not obtain a fair hearing before the judge who had made the preliminary findings.

Reasoning

Following Musyoki v Kenya Airways and Thugi River Estate v National Bank of Kenya, the court accepted that justice must not only be done but be seen to be done. Since the preliminary ruling had determined aspects of the petition's merit, the applicant's apprehension, though far-fetched in the court's view, could not be assuaged. Recusal and re-allocation would preserve confidence in the administration of justice, at the price of no costs order.

p. 14

Legal principles established

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  • A judicial officer is presumed impartial and the burden of rebutting that presumption rests on the party alleging bias, tested objectively against the reasonable, fair-minded and informed observer
  • Disagreement with an adverse interlocutory ruling is not proof of bias; the proper remedy is appeal or review, not recusal
  • Notwithstanding failure to demonstrate actual bias, a judge may nonetheless recuse himself or herself to preserve the appearance of justice where the litigant remains convinced justice will not be done

Court orders

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  1. 1.The court recuses itself from the matter in the interest of justice
  2. 2.The matter is referred to the Division Presiding Judge for re-allocation
  3. 3.No order as to costs
  4. 4.Mention on 22nd September 2026
Jurisdiction invoked
Rule 21(1)(d) of the Judicial Service (Code of Conduct and Ethics) Regulations (Legal Notice 102 of 2020) and the court's inherent jurisdiction over its own proceedings

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, "Institution of Engineering Technology of Kenya v Kenya Rural Roads Authority & another (Petition E023 of 2026) [2026] KEELRC 2422 (KLR)", Case Analysis (2026). ELRC PET No. E023 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2422/eng@2026-08-20

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