Munga v Owuor & 3 others (Employment and Labour Relations Miscellaneous E074 of 2026) [2026] KEELRC 2378 (KLR) (11 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT MOMBASA** **ELRC MISC NO. E074 OF 2026** **BENARD MUNGA………………………………………………………………….APPLICANT** **VS** **SULMAN OTIENO OWUOR** **AND MOHAMMED MWASERA AND 2 OTHERS…………………….RESPONDENTS** **RULING** (On (i) the oral application made on 10th August 2026 for the recusal of the presiding Judge, and (ii) the Chamber Summons dated 3rd August 2026) A. INTRODUCTION 1. This Ruling determines two applications that have, by the parties’ own submission and bythe direction of this Court given on 10th August 2026, come to be argued and are now disposed of together. The first is an oral application, made from the Bar on 10th August 2026 by Mr Khisa, holding brief for the Applicant, that I recuse myself from the further hearing and determination of this Application and direct that the file be placed before the Principal Judge of this Court for reallocation to another Judicial Officer. The second is the substantive Chamber Summons dated 3rd August 2026, by which the Applicant, Benard Munga, a member of the Dock Workers Union, seeks a raft of preservatory, declaratory and consequential orders touching upon the composition and constitutional competence of the Election Board that this Court, by its Judgment delivered on 17th June 2026 in ELRC Petition No. E009 of 2026, directed to conduct fresh national elections for the Union. 2. It is necessary to say, at the very outset, why the two applications are addressed in a single Ruling and in the sequence that follows. Logic and precedent alike dictate that a challenge to the very competence of the Court to sit must be resolved before the Court proceeds to pronounce upon anything else; a judge who has been asked to recuse himself cannot properly determine the substantive merits of a cause without first determining whether he is the proper judge to do so at all. I therefore address the recusal application first, in Part I of this Ruling. Having determined that application, I proceed, in Part II, to determine the substantive Application dated 3rd August 2026 on its merits. 3. The matter has an unusually rich procedural history for an application of its kind, spanning an ex parte order issued by a Judge other than myself, a contested inter partes mention, an oral application for recusal, and written submissions filed under considerable time pressure. I set out that history in some detail in the section that follows, because it is against that full history, and not against any single episode extracted from it, that both the recusal application and the substantive Application fall to be fairly assessed. 4. I record, too, at this early stage, the spirit in which this Ruling is written. An allegation that a sitting judge has prejudged a matter, however informally raised, is a serious one, and this Court has not treated it lightly merely because it was raised orally and without the formality of a written notice of motion. Equally, a litigant’s genuine anxiety that a body directed by this Court’s own Judgment to conduct union elections may not be properly constituted is not to be brushed aside. Both concerns deserve, and have received, this Court’s full and dispassionate attention. 5. I turn first to the background against which both applications must be understood. B. BACKGROUND: ELRC PETITION NO. E009 OF 2026 1. By a Judgment delivered on 17th June 2026 in ELRC Petition No. E009 of 2026 — Matano Omar Shakombo and Abdala Nuru Ali v Registrar of Trade Unions, Sulman Otieno Owuor and Others, a cause which this Court had, in the exercise of its case-management powers and having regard to the clear connection between that Petition and a related Cause, ordered to be heard together with the latter for a consolidated determination — this Court declared that the purported national elections of the Dock Workers Union conducted on 4th April 2026 were a sham, null and void, and nullified them accordingly. The Court found, upon a full trial and after a searching evaluation of the evidence on notice, quorum and venue, that the election had been conducted without proper or adequate notice to the general membership, in a manner inconsistent with the Union’s own established practice, and in violation of the constitutional and statutory safeguards designed to protect the democratic rights of trade union members. 2. Of central relevance to the two applications now before me, the Court made the following further orders, which I set out in the precise terms in which they were made: “110. In the upshot; i. I declare that the purported election of 4th April 2026 was a sham, null and void. It is hereby nullified. ii. I hereby direct that the 1st Interested Party conduct fresh elections in accordance with its constitution, constitutional principles and values, and the relevant statutory stipulations, within 60 days of today. iii. The registration of the purportedly elected officials by the 1st Respondent is hereby nullified. iv. The Election Board that was in office before the sham elections will conduct and oversee the elections. v. Costs of the petition to be borne by the 1st and 2nd Respondents.” 1. That Judgment, and in particular order (iv) — anchoring the mandate to conduct the fresh elections to the Election Board “that was in office before the sham elections” — has proved to be the fertile ground from which no fewer than three subsequent proceedings before this Court have since sprung, each concerned, in one guise or another, with the question whether that same Election Board, as constituted immediately before 4th April 2026, remains lawfully and constitutionally competent to discharge the mandate this Court conferred upon it. 2. The first such proceeding was an application for a stay of execution of the Judgment pending an intended appeal, brought within ELRC Petition No. E009 of 2026 itself by the 2nd Respondent in that Petition, Sulman Otieno Owuor — the very individual whose purported election as General Secretary the Judgment nullified, and who appears before me in the present Application as the 1st Respondent. By a Ruling delivered on 20th July 2026, this Court dismissed that application in its entirety, holding that the orders made on 17th June 2026, including orders (i) to (iv) reproduced above, remained in force and binding upon all persons bound thereby. It was in the course of that same application, by way of a supplementary affidavit, that a dispute touching upon the composition of the Election Board was first raised before this Court — a dispute the Court noted but declined to determine at that stage, it not having been properly pleaded or ventilated in a form permitting its determination. 3. The second such proceeding was ELRC Cause No. E066 of 2026, Sulman Otieno Owuor v Mohammed Mwasera, Frederick Baya and 7 Others, brought by the very same Sulman Otieno Owuor, this time naming the nine individual members of the Election Board personally as respondents, and seeking, in substance, a declaration that the Board had ceased to exist in law because six of its nine members had, in the interim, been promoted into management positions with their employer, the Kenya Ports Authority, and had thereby ceased to be “unionisable” employees and qualified members of the Board. By a Ruling delivered on 31st July 2026, this Court dismissed the Notice of Motion filed in that Cause, holding, among other things, that the Judgment’s direction was deliberately and expressly backward-looking — anchored to the Board’s composition as it stood immediately before the impugned election of 4th April 2026, and not to a continuing, evolving test of each member’s personal circumstances — and that the claimant had, in any event, failed to establish a prima facie case with a probability of success sufficient to warrant the interlocutory relief sought. 4. The third such proceeding is the Application now before me, ELRC Miscellaneous Application No. E074 of 2026, filed on 3rd August 2026 by Benard Munga, a member of the Union who was not a party to either of the two proceedings just described, but who raises, in substance, precisely the same composition objection that had already been raised, and rejected, in the two proceedings preceding his. 5. I have thought it necessary to set out this background at some length, and before descending into the immediate procedural history of the present Application, because it is impossible to assess either the propriety of the recusal application or the merits of the substantive Application without a clear appreciation of how closely, and how repeatedly, this same underlying dispute — the lawful competence of the Election Board to conduct the elections this Court directed it to conduct — has already been placed before, and determined by, this Court. 6. It bears mention, too, that this Court is not oblivious to the practical stakes involved. The fresh elections directed by the Judgment of 17th June 2026 concern the governance of a registered trade union with a membership running into the thousands, whose right under Article 41(2)(c) of the Constitution to participate in free and fair elections for their union leadership was the very right the Judgment was designed to vindicate. Every day of delay in the conduct of those elections is a day in which that constitutional right remains unrealised. It is against that background, and mindful of that public interest, that the present Application must be assessed. 7. I turn now to the immediate history of the present Application. C. THE PRESENT APPLICATION AND SUBSEQUENT PROCEEDINGS 1. By a Chamber Summons dated 3rd August 2026, brought under Order 53 Rule 1(2) of the Civil Procedure Rules, Rules 44, 45 and 47 of the Employment and Labour Relations Court (Procedure) Rules, 2024, and the inherent jurisdiction of this Court, the Applicant, Benard Munga, suing on his own behalf and “in a representative capacity on behalf of bona fide members of the Dock Workers Union,” moved this Court, in substance, for: a conservatory order restraining the 1st and 2nd Respondents and the Election Board from convening, conducting or otherwise implementing the Union’s national elections; a stay of the implementation of order (ii) of the Judgment of 17th June 2026 to the extent necessary to determine whether the Election Board remains constitutionally constituted; a declaration and determination that five named members of the Board — Yvonne Ngutu, Joshua Kasera, Marco Aden, Edwin Birech and Musa Rajab — had been rendered ineligible to serve on the Board by their intervening promotion into management positions with the Kenya Ports Authority; a finding that this constitutional issue was neither placed before nor determined by this Court in Petition No. E009 of 2026; a direction that the Union convene a Special Conference to elect a fresh Election Board; an enlargement of the period for implementation of the Judgment; and consequential orders. 2. The Application was accompanied by a Certificate of Urgency and was placed, that same day or shortly thereafter, before Hon. Justice M. Mbaru, sitting as duty Judge. By an Order dated 4th August 2026, Mbaru J. certified the Application urgent, directed that it be served upon all parties, including the parties in Mombasa Petition No. E009 of 2026, whose file was directed to be placed together with this one; suspended, in the interim, the Union’s national elections that had been scheduled for 13th August 2026, “pending the parties addressing the re-constitution of the Elections Board taking into account proceedings in Mombasa Petition No. E009 of 2026”; fixed the matter for mention on 14th August 2026; and directed that the Order be placed in the file of Petition No. E009 of 2026. I return to that Order, and to certain observations I consider it necessary, though not dispositive, to make about it, later in this Ruling. 3. The Application, upon service, attracted a Replying Affidavit from Matano Omar Shakombo, sworn on behalf of himself and Abdala Nuru Ali — respectively the 1st and 2nd Petitioners in ELRC Petition No. E009 of 2026 — opposing the Application as an abuse of the process of the Court; a Replying Affidavit from the 1st Respondent, Sulman Otieno Owuor, sworn on 11th August 2026, substantially supporting the Application; written submissions filed by counsel for the 1st Respondent in support of the Application; written submissions filed by the Applicant himself in support of his own Application; and written submissions filed jointly by the 2nd and 3rd Respondents in opposition to the Application. 4. The matter came up for mention before me on 10th August 2026. It is what transpired on that date, and the oral application for recusal made in the course of it, to which I now turn in Part I of this Ruling. 5. Before doing so, I record one further matter of context, material to both Parts of this Ruling. The 2nd and 3rd Respondents’ written submissions disclose that they have, in addition to opposing the present Application, filed their own Notice of Motion dated 7th August 2026, supported by the affidavit of Mwasera Juma Mohamed, seeking the review, discharge or setting aside of the ex parte order made by Mbaru J. on 4th August 2026. That application is not, on the terms of the directions given on 10th August 2026 recorded below, one of the two matters this Ruling has been asked to determine, and I say nothing further about its merits; I note its existence only because, as will become apparent, the disposition I reach on the Application dated 3rd August 2026 necessarily bears upon the continued efficacy of the ex parte order that application separately seeks to have discharged. 6. I record also, for completeness, that neither the 2nd Respondent’s own supporting material nor that of any other party before me discloses any application by the Applicant, Benard Munga, or by any party supporting him, to be joined or enjoined as a party to ELRC Petition No. E009 of 2026, notwithstanding that Petition’s manifest and undisputed relevance to every issue raised in the present Application. 21. With that context established, I turn to Part I of this Ruling. D. PART I — THE ORAL APPLICATION FOR RECUSAL (i) The Proceedings of 10th August 2026 1. The record of the proceedings of 10th August 2026 shows the following appearances: MrKhisa, appearing for the Applicant; Mr Bunde, for the 2nd and 3rd Respondents; Mr Oduor, for the 1st and 2nd Petitioners in Petition No. E009 of 2026; Ms Kwamboka, for the 1st Respondent; and Mr Mwanzia, for the 5th Interested Party in Petition No. E009 of 2026. 2. Mr Khisa addressed the Court on the state of service and compliance with prior directions, and then made the following oral application, which I reproduce, in substance, from the record: that the Applicant and those associated with him were apprehensive that certain views expressed by the Court — to the effect that the Application “amounts to” a matter that “is res judicata,” that “the Court does not have jurisdiction,” and that the Court had, in his submission, “summarily dismissed their application without a hearing, contrary to Article 50” — had been expressed in a manner that gave rise to “a reasonable doubt” that the Court had “prejudged” the matter. On that basis, Mr Khisa prayed “that the application be canvassed before another Judicial Officer” and that the matter “be mentioned before the Principal Judge.” 3. I pause to record, with the candour this Ruling requires throughout, precisely what did occur, so that the record is not left to speculation. In the course of case-managing this Application and the closely related matters pending before this Court touching the governance of the Dock Workers Union, I did, off the record, indicate to counsel appearing before me — as is a routine and, as I explain later in this Ruling, an increasingly expected incident of active case management — that the Application appeared, on its face, to raise questions as to whether the composition of the Election Board was a matter already the subject of determination in related proceedings before this Court, whether a miscellaneous application was the proper vehicle for the questions the Applicant sought to raise, and whether this Court retained jurisdiction to entertain the application in the circumstances. I did not, at any stage, purport to determine those questions; nor did I summarily dismiss the Application, which remains, until this Ruling, undetermined. I return to the significance of this distinction later in this Part. 4. Mr Bunde, for the 2nd and 3rd Respondents, responded to the oral application as follows. He informed the Court that his clients had filed an application dated 7th August 2026, which he asked the Court to treat as, in substance, a response to the Applicant’s application for recusal. He clarified that the statements of which complaint was made “were made off record,” and that the Court’s observation touching upon jurisdiction “was out of the fact that a notice of appeal has already been filed by the aggrieved party.” He further submitted that “consolidation cannot be done with a colluded matter.” 5. Ms Kwamboka, for the 1st Respondent, indicated that she would need to respond to the application and sought leave to do so, which the Court noted. 6. Mr Oduor, for the 1st and 2nd Petitioners in Petition No. E009 of 2026, raised a separate but related point: that the Applicant’s own application dated 3rd August 2026 had not, notwithstanding the Court’s earlier directions, been served upon his clients. 7. Mr Khisa, closing the exchange, submitted that the 2nd and 3rd Respondents’ application dated 7th August 2026 “has not been filed pursuant to the Vacation Rules” and that “there is no application before the Court” on that account, and indicated that a preliminary objection had been filed touching on the remarks made regarding service. 8. Having heard all counsel, the Court directed as follows: that the Respondents, and the parties in Petition No. E009 of 2026, be given up to 11th August 2026 to file responses to the Application dated 3rd August 2026, together with submissions limited to three pages; that the Court would render itself on both the application for recusal and the Application dated 3rd August 2026 at 4.00 p.m. on 11th August 2026; and that the recusal application would be determined on the oral submissions already on record, without further ventilation, “in light of the totality of the circumstances of the matter and the overriding objective of this Court.” It is that direction which this Ruling now fulfils. (ii) Issues Arising on the Recusal Application 30. From the foregoing, the following issues arise for determination in this Part: 1. what is the settled law on the circumstances in which a judge may and should recuse himself, and in what circumstances he should not; 2. what bearing, if any, does the doctrine of active case management have upon a judge’s entitlement, in the course of managing a cause, to flag procedural or jurisdictional concerns to the parties before a matter is finally argued; 3. whether, applying that law to the circumstances disclosed by the record of 10th August2026, the Applicant has demonstrated any proper basis for the recusal of the presiding Judge; and 4. what order should issue on the recusal application. (iii) The Settled Law on Recusal 1. This Court does not approach this question as one of first impression. I had occasion, in a Ruling delivered on the Petitioner/Applicant’s Notice of Motion dated 15th June 2026 in ELRC Petition No. E015 of 2025, Thomas Mosomi Oyugi v Teachers Service Commission & 3 Others, to consider at considerable length the settled law, drawn from this jurisdiction and from comparative common law authority, on the circumstances in which recusal is and is not warranted. Because that law is directly applicable here, and because I see no reason to depart from the reasoning there set out, I draw upon it substantially in what follows, while applying it afresh to the distinct facts of the present case. 2. The first and most fundamental principle is that a court does not recuse itself automatically upon a party moving it to do so. Recusal is, as the Supreme Court held in Rawal & 2 others v Judicial Service Commission & 2 others [2016] KESC 1 (KLR), “indeed a judicial duty,” one discharged by the very judge whose impartiality is impugned, applying settled legal principle to the facts advanced, and reached only where those principles and facts justify that conclusion. Were it otherwise, the decision whether a particular judge should hear a particular matter would pass, in substance, from the judiciary to the litigants — an outcome the Supreme Court in Shollei v Judicial Service Commission & another [2018] KESC 42 (KLR) guarded against in affirming the “doctrine of the duty of a judge to sit,” holding that “recusal should not be used to cripple a judge from sitting to hear a matter,” and that a judge, having taken the judicial oath, “is capable of rising above any prejudices, save for those rare cases when he has to recuse himself.” 3. The objective standard by which those rare cases are to be identified was stated by the English House of Lords in Porter v Magill [2002] 2 AC 357, and has been consistently applied by the Kenyan courts, as the question whether “the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias” — a formulation to which the Court of Appeal gave further content in Philip K. Tunoi & Another v Judicial Service Commission & Another [2016] eKLR, holding that “in considering the possibility of bias, it is not the mind of the Judge which is considered but the impression given to reasonable people,” and one restated, in materially identical terms, in Kalpana H. Rawal v Judicial Service Commission & 2 others [2016] eKLR, adopting the East African Court of Justice’s formulation in Attorney General of Kenya v Prof Anyang’ Nyong’o & 10 Others, EACJ Application No. 5 of 2007: “do the circumstances give rise to a reasonable apprehension, in the mind of the reasonable, fair minded and informed member of the public that the judge did not (will not) apply his mind to the case impartially.” 4. Critically, that test does not ask whether the litigant himself sincerely apprehends bias; the mind to be consulted is that of the reasonable, fair-minded and informed observer, and not that of the disappointed party. Nor is that objective standard satisfied merely by a judge having, in the exercise of the ordinary adjudicative or case-management function, expressed a view on a question properly arising in the proceedings before him. This is the doctrine sometimes described as the requirement of an “extrajudicial source”: absent some influence originating outside the four corners of the litigation itself — a personal relationship, a financial interest, prior involvement as counsel, personal knowledge of disputed facts acquired outside the proceedings, or the like — a judge’s assessment of a matter properly before him, however firmly expressed, is not evidence of disqualifying bias; it is simply adjudication, or, as is directly relevant here, case management. The grounds recognised under Regulation 21 Part II of the Judicial Code of Conduct and Ethics, 2020, as warranting recusal are, without exception, of that extrajudicial character: that the judge is a party to the proceedings, was or is a material witness, has personal knowledge of disputed evidentiary facts, has actual bias or prejudice concerning a party, has a personal interest or relationship bearing on the outcome, had previously acted as counsel for a party in the same matter, or is precluded on account of some other sufficient reason of that kind. None of those grounds is engaged by a judge expressing, in the course of managing a cause, a preliminary view on a jurisdictional, procedural or res judicata question that the record itself puts squarely in issue. 5. It follows, and I restate the proposition for the avoidance of doubt, that a court is not obliged to recuse itself, and ought not to do so, merely because it is asked, nor merely because a party has formed the subjective impression, however sincerely held, that the Court has “prejudged” a matter by reason of observations made in the ordinary course of managing that matter toward hearing. (iv) The Doctrine of Active Case Management 6. I turn to a matter that bears directly upon the specific conduct of which complaint is made in this case, and which I consider it necessary to elaborate upon at some length, because it lies at the very heart of why the observations attributed to this Court on 10th August 2026 cannot, on any fair view, found a proper apprehension of bias. 7. The adversarial model of civil litigation inherited by this jurisdiction from the common law tradition was, historically, one in which the court’s function was almost entirely reactive: the parties framed the dispute, controlled the pace and scope of the proceedings, and the judge intervened only to rule upon the questions the parties chose, in their own time, to place before him. That model has, over the last three decades, undergone a significant and well-documented shift, both in England, from which our procedural law substantially derives, and in Kenya itself. 8. The catalyst for that shift in England was Lord Woolf’s Access to Justice reforms of themid-1990s, which culminated in the Civil Procedure Rules of 1998 and their now-famous “overriding objective” of enabling courts to deal with cases justly, at proportionate cost, and — critically for present purposes — through “active case management,” a term of art encompassing the court’s duty to identify the issues at an early stage, to decide promptly which issues need full investigation and trial and which do not, to encourage the parties to cooperate with one another, and to help the parties settle the whole or part of the case. The animating insight of those reforms was that a judiciary confined to a purely passive, reactive role was ill-equipped to control cost, delay and the proliferation of unmeritorious or misconceived proceedings, and that the public interest in the efficient administration of justice required judges to take a more active hand in shaping the course of litigation before it reached, or in some cases before it needlessly reached, a full hearing. 9. Kenya has not been untouched by that shift. Sections 1A and 1B of the Civil Procedure Act, No. 21 of 1922 (as amended), now expressly enshrine the “overriding objective” of the civil courts of Kenya as being to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes, and impose upon the court an express duty to further that objective, in the exercise of its powers, by, among other things, ensuring that the parties are on an equal footing, saving expense, dealing with cases in ways proportionate to their complexity and importance, and — in terms directly apposite here — ensuring that a case is dealt with expeditiously and fairly. The Employment and Labour Relations Court (Procedure) Rules, 2024, under which the present Application is expressly brought, are cast in the same spirit, and this Court, as a specialised court dealing routinely with disputes bearing upon the livelihoods and associational rights of working people, has particular reason to take that overriding objective seriously. 10. Active case management, so understood, is not a departure from judicial impartiality; itis one of its modern expressions. A judge who identifies, at the earliest practicable stage, that a matter before him may be barred by res judicata, may have been brought in the wrong form, or may raise a live question as to the court’s own jurisdiction, and who says so to the parties so that they may address those questions squarely rather than at the last moment or not at all, is not thereby prejudging the cause; he is discharging the very case management duty the overriding objective imposes upon him. Indeed, it would be a curious and self-defeating conception of judicial impartiality that required a judge to withhold, until final judgment, a threshold concern of that kind that he had already identified — obliging the parties to expend further time and cost litigating a matter that may, in the event, founder on a threshold objection the judge could have flagged at the outset. Article 159(2)(d) of the Constitution, which requires that justice be administered without undue regard to procedural technicalities, and Article 159(2)(a) and (b), which require the exercise of judicial authority to be guided by the values of the Constitution and of ensuring justice is done to all irrespective of status, are, on a proper reading, entirely consistent with, and indeed positively support, this more active conception of the judicial role. 11. It follows, and I hold, that it is not improper — nor is it an indication of prejudgment —for a court, in the exercise of active case management and in furtherance of the overriding objective, to indicate to the parties, whether off the record in the course of directions or on the record in a formal ruling, that in its preliminary view an application or matter before it may be res judicata, may not have been properly initiated by way of the procedural vehicle chosen, may raise a genuine question as to the court’s own jurisdiction, or may, by the manner in which it has been couched, give rise to an impression of forum shopping. Such an indication is not a determination; it is an invitation to the parties to address the very questions upon which the ultimate determination will turn, made in the interest of ensuring that the eventual hearing, if one is required at all, is focused, efficient, and fair to all concerned. A judge who did not so alert the parties, and who instead sprang a dispositive finding on an issue never squarely canvassed with them, would have far more to answer for than one who candidly flagged the difficulty in advance. (v) Application to the Facts 1. Applying the foregoing to the record of 10th August 2026, I am satisfied that the Applicant has fallen well short of demonstrating any proper basis for recusal. 2. First, the observations of which complaint is made were, on Mr Bunde’s uncontroverted explanation, made off the record in the ordinary course of case-managing this Application and its closely related matters, and were addressed to precisely the kind of threshold questions — res judicata, the propriety of the procedural vehicle chosen, and jurisdiction — that active case management both permits and, in the circumstances of this multiply litigated dispute, positively calls for a court to raise. They were not, on any account before me, expressed as concluded findings; they were expressed, as Mr Khisa’s own account of them makes plain, as the Court’s “views,” offered for the parties’ attention before the matter was argued. 3. Second, and importantly, the observation touching upon jurisdiction was not free floating or extraneous; it arose, as Mr Bunde explained without contradiction, “out of the fact that a notice of appeal has already been filed by our aggrieved party” — that is, out of a fact squarely on the record of these related proceedings. An observation grounded in the litigation record itself, rather than in some matter extraneous to it, falls squarely within the “extrajudicial source” doctrine discussed above: it is not evidence of bias, but of a judge who is alive to the procedural posture of the related matters before him. 4. Third, the observation touching upon res judicata was, again on the uncontested account before me, directed at the substantial overlap between the present Application and the two proceedings — the stay application determined on 20th July 2026, and Cause No. E066 of 2026, determined on 31st July 2026 — in which the identical question of the Election Board’s composition had already been argued and determined. As will become apparent in Part II of this Ruling, that observation has, on a full and considered analysis, proved to be well founded. A judge cannot be said to have improperly prejudged a matter merely because a preliminary concern he flagged for the parties’ attention is subsequently vindicated, after full argument, on the merits. 5. Fourth, I note that the Applicant’s own account of the matter, as advanced by Mr Khisa, does not allege any extrajudicial source of bias of the kind the authorities require — no personal relationship, no financial or proprietary interest, no prior involvement as counsel, no personal knowledge of disputed facts acquired outside these or the related proceedings. The entirety of the complaint rests upon the Court’s own case-management observations on matters squarely arising from the record of related proceedings before it. On the authorities reviewed above, that is not a sufficient basis for recusal. 6. Fifth, I have also had regard to the practical consequences that would follow were recusal to be granted on so slender a basis. This dispute concerning the governance of the Dock Workers Union has now generated, across Petition No. E009 of 2026 and its associated applications, Cause No. E066 of 2026, and the present Application, a substantial and continuous body of interlocutory and final determinations, all made by this Court and all closely interconnected. A change of judge at this stage would require an incoming judge to familiarise himself afresh with that entire history, at real cost in time and delay to a matter in which — as I have already observed — the constitutional rights of thousands of union members to timeous, free and fair elections are directly at stake. That is precisely the kind of cost against which the authorities discussed above caution when recusal is sought too readily. 7. For the avoidance of any doubt, I do not find, and nothing in this Ruling should be understood to suggest, that the Application for recusal was brought in bad faith; counsel was plainly instructed to raise a genuine anxiety on the part of his client, and it was right that the anxiety be ventilated and addressed rather than dismissed out of hand. Having now addressed it fully, however, I am satisfied that it does not withstand the settled legal standard. (vi) Conclusion on Recusal 1. In the totality of the circumstances set out above, I find that the Applicant has not demonstrated any objective, fact-specific basis upon which this Court could properly recuse itself from the further hearing and determination of this Application. The application for recusal, and the associated prayer that the file be placed before the Principal Judge for reallocation, accordingly fails and is hereby dismissed. 2. I turn, in Part II of this Ruling, to the substantive merits of the Application dated 3rdAugust 2026. E. PART II — THE SUBSTANTIVE APPLICATION (i) The Applicant’s Case 1. The Application dated 3rd August 2026 is founded on the following grounds, elaborated in the Applicant’s Supporting Affidavit sworn the same day and in his written submissions. The Applicant, a bona fide member of the Union and an employee of the Kenya Ports Authority, states that he does not oppose, and indeed fully supports, the Judgment of 17th June 2026 and the conduct of fresh elections pursuant to it; his complaint, he says, is confined to the lawful competence of the body directed to conduct those elections. 2. He avers that, subsequent to the delivery of the Judgment, it came to his attention that five members of the nine-member Election Board established under Article 15 of the Union’s Constitution — Yvonne Ngutu, Joshua Kasera, Marco Aden, Edwin Birech and Musa Rajab — had, on dates ranging between 1st July 2018 and 10th July 2025, been elevated into management positions with the Kenya Ports Authority, and had thereby, on his submission, ceased to be union members qualified to serve on the Board. On that footing, he contends that only four of the Board’s nine members — Frederick Baya, Karim Mwendo, James Kazungu Wanje and Fatuma Shaffi — remained constitutionally qualified immediately before the impugned elections of 4th April 2026, that the Board therefore stood in law reduced below the threshold prescribed by Article 15(1)(b) of the Union’s Constitution, and that this constitutional infirmity was neither placed before nor determined by this Court during the hearing of Petition No. E009 of 2026. 3. On that basis, the Applicant seeks, in substance: preservatory orders halting the electoral process pending determination of the constitutional question he raises; a judicial determination of that question; a direction that the Union convene a Special Conference, under Articles 10, 11 and 15 of its Constitution, to elect a fresh, constitutionally compliant Election Board; an enlargement of the sixty-day period fixed by the Judgment for the conduct of fresh elections; and, in the body of his Supporting Affidavit — though, as I note below, not among the fourteen numbered prayers of the Chamber Summons itself — a request that the Application be consolidated with Petition No. E009 of 2026 and heard by the Judge who delivered that Judgment. 4. The Applicant’s written submissions frame seven issues for determination, ranging from whether a prima facie constitutional question has been established to whether the Court should exercise its supervisory jurisdiction to facilitate lawful implementation of its own Judgment, and rely upon a substantial body of authority on the requirements for interlocutory injunctive relief and on the principle that a trade union’s registered constitution governs the conduct of its elections, including Giella v Cassman Brown & Co. Ltd [1973] EA 358, Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, and Masika & 2 Others v Registrar of Trade Unions & 3 Others [2026] KEELRC 144 (KLR). 5. It is a matter of significance, to which I return below, that at no point in either the Applicant’s Supporting Affidavit or his seventeen-page written submissions is any reference made to ELRC Cause No. E066 of 2026, to the Ruling delivered therein on 31st July 2026, or to this Court’s Ruling of 20th July 2026 dismissing the stay-of-execution application in Petition No. E009 of 2026 itself. Indeed, the Applicant’s second and fifth framed issues affirmatively assert that the composition question “has never been determined” by this Court and “was not determined in Petition No. E009 of 2026” — assertions that, as will become apparent, do not withstand scrutiny of the Court’s own record. (ii) The 1st Respondent’s Position 56. The 1st Respondent, Sulman Otieno Owuor — General Secretary of the Union, the very individual whose purported election the Judgment of 17th June 2026 nullified, and the unsuccessful claimant in Cause No. E066 of 2026 — has filed a Replying Affidavit and written submissions expressly in support of the Applicant’s Application. He deposes that he “substantially supports” the Application and the constitutional questions it raises, while professing that he does not seek to review, undermine or circumvent the Judgment. His submissions, filed through the same firm that acted for him in the earlier Cause No. E066 of 2026, adopt substantially the same factual premise — the promotion of the same five (in his account, six) Board members into KPA management — advanced in that earlier, unsuccessful Cause. Like the Applicant’s own papers, neither the 1st Respondent’s Replying Affidavit nor his submissions make any mention of Cause No. E066 of 2026 or of the Ruling of 31st July 2026 dismissing his own, materially identical application, notwithstanding that Ruling having been delivered only eleven days before his Replying Affidavit was sworn. (iii) The Grounds of Opposition 1. The Application is opposed by the 1st and 2nd Petitioners in Petition No. E009 of 2026,Matano Omar Shakombo and Abdala Nuru Ali, and by the 2nd and 3rd Respondents, Mohammed Mwasera and the Dock Workers Union. 2. Matano Omar Shakombo’s Replying Affidavit is brief but pointed: he deposes that the Application “is an abuse of the court process,” that it is “vexatious,” that it has “been brought with ulterior motives to defeat justice in the Election Petition No. E009 of 2026,” and that the Applicant, being aware of the pendency of that Petition, “went ahead to file a Misc. Application instead of requesting to be enjoined” in it. 3. The 2nd and 3rd Respondents’ written submissions, filed by Bunde Mangaro & Co. Advocates, frame four issues: whether the Application was obtained in breach of the duty of full and frank disclosure; whether it circumvents the subsisting determination in Cause No. E066 of 2026 and is thereby an abuse of process; whether the wider controversy is sub judice; and where the balance of convenience lies. On disclosure, counsel submits, citing R v Kensington Income Tax Commissioners Ex Parte Princess Edmond de Polignac [1917] 1 KB 486, that the Applicant’s papers “wholly omitted the existence of ELRC Cause No. E066 of 2026 and the Ruling delivered therein on 31st July 2026, only four days before” the ex parte order was obtained. On abuse of process, counsel relies on Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR for the proposition that it is an abuse of process to use judicial proceedings to re-open, defeat or circumvent a subsisting determination, and submits that “courts of coordinate jurisdiction, sitting within the same registry, should not be placed in the position of issuing conflicting directions over the identical electoral process.” Counsel prays, among other things, that the Application be dismissed with costs and that the ex parte order of 4th August 2026 be discharged. (iv) Issues for Determination 60. Having considered the Application, the rival positions of the parties, and the wider record of related proceedings before this Court, I am satisfied that the following issues arise for determination: (a) whether the Application is, in substance, an application for the review of the Judgment delivered on 17th June 2026 in Petition No. E009 of 2026, which ought properly to have been brought under Order 45 of the Civil Procedure Rules within that Petition itself; (b) whether the Application raises matters of such contentiousness and factual complexity that they could not properly be determined on a miscellaneous application, but only in a substantive suit; 1. whether the question the Application raises — the constitutional competence of the Election Board, given the intervening promotion of certain of its members — is res judicata, having already been raised and determined in related proceedings before this Court; 2. whether the Application, and in particular the manner in which it seeks consolidation with Petition No. E009 of 2026 while proceeding as a freestanding cause, constitutes an abuse of the process of this Court; and 3. what, if any, bearing the ex parte Order of 4th August 2026 has upon the foregoing, and what final orders should issue. The Application Is, in Substance, One for Review Properly Belonging in Petition No. E009 of 2026 61. I begin with the true character of the relief sought. Stripped of its framing as a fresh, freestanding Application, what the Applicant in substance asks this Court to do is to revisit and qualify order (iv) of its own Judgment of 17th June 2026 — the direction that “the Election Board that was in office before the sham elections will conduct and oversee the elections” — on the footing that a fact said not to have been before the Court when that direction was made (the intervening promotion of certain Board members) ought now to lead the Court to a different disposition as to who may lawfully conduct the fresh elections. 62. That is, precisely, the office of an application for review. Order 45 Rule 1(1) of the Civil Procedure Rules, applicable to proceedings of this Court save as modified by its own Procedure Rules, provides that any person considering himself aggrieved by a decree or order, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order. The Applicant’s own case is framed in precisely those terms: he asserts that the composition of the Election Board was “neither brought to the attention of this Honourable Court nor determined during the hearing of Petition No. E009 of 2026,” and that this newly discovered matter ought now to qualify the manner in which order (iv) of the Judgment is implemented. 1. The rule is emphatic that such an application “may apply for a review of judgment to the court which passed the decree or made the order” — that is, within the very suit in which the decree or order was made, and not by way of a fresh, differently numbered cause naming, as here, individual respondents who were neither parties to nor even necessarily aware of that original suit. That this is the procedurally correct course is confirmed, rather than merely asserted, by this Court’s own record: when the identical composition question was first raised, by way of a supplementary affidavit filed within Petition No. E009 of 2026 itself, this Court entertained it as part of that Petition and determined it — adversely to the position the Applicant now advances — by the Ruling of 20th July 2026. That is precisely the procedural course Order 45 contemplates, and precisely the course the Applicant, and before him the 1st Respondent in Cause No. E066 of 2026, chose not to follow. 2. I am fortified in this view by the observations this Court had occasion to make in its Ruling of 31st July 2026 in Cause No. E066 of 2026, where, addressing the very same procedural anomaly, it held: “That observation was not, and should not be read as, an invitation to commence an entirely fresh and free-standing cause of action, naming the nine individual Board members personally as Respondents, and raising, in substance, the identical composition objection already flagged, and left open, in the earlier proceedings. The law provides a range of avenues through which such a dispute could, and in my view more appropriately should, have been ventilated: by a focused application within ELRC Petition No. E009 of 2026 itself, invoking this Court’s continuing jurisdiction to give effect to, and resolve difficulties arising in the implementation of, its own Judgment; or through the Union’s own internal dispute resolution mechanisms established under its Constitution.” 1. That reasoning applies with undiminished force to the present Application. If anything, the present Application is procedurally further removed from the correct course than the one considered in Cause No. E066 of 2026, for it does not even purport to be a substantive cause of action against the Board members in their personal capacities, but a miscellaneous application, brought under provisions of the Civil Procedure Rules and this Court’s own Procedure Rules ordinarily reserved for interlocutory or incidental relief ancillary to an existing cause, seeking what is, in substance, a variation of a final order made in a different, already-concluded Petition. 2. I find, accordingly, that the Application is, properly characterised, an application for there view of order (iv) of the Judgment delivered on 17th June 2026 in Petition No. E009 of 2026, and that it ought to have been brought, if at all, by way of an application for review under Order 45 of the Civil Procedure Rules within that Petition, and not as a freestanding Miscellaneous Application naming new parties. (vi) The Application Raises Contentious Matters Unsuitable for Determination on a Miscellaneous Application 1. Closely related to the foregoing, but conceptually distinct from it, is the question whether the matters the Application seeks to raise are, in any event, of a character requiring determination in a substantive suit, with the benefit of full pleadings, discovery and, if necessary, viva voce evidence, rather than on the affidavit evidence and summary procedure of a chamber summons or notice of motion. 2. The question whether an Election Board reduced, on the Applicant’s account, from nine members to four remains “constitutionally competent” under Article 15 of the Union’s Constitution is not a question that admits of easy or summary resolution. It requires, at a minimum, a considered construction of the Union’s Constitution as a whole — including, as this Court observed in its Ruling of 31st July 2026, provisions such as Article 15(1)(e), which expressly contemplates service on the Board by persons who are not even members of the Union, a provision that sits uneasily with the premise that ordinary loss of “unionisable” status automatically disqualifies a sitting Board member. It requires findings of fact, properly tested, as to precisely when and in what circumstances each of the five (or six) named individuals was promoted, whether that promotion was communicated to and accepted by the Union, and whether it was ever treated, by the Union itself or by the Board, as terminating that individual’s Board membership. And it requires the participation, as parties with a full and fair opportunity to be heard, of the individual Board members themselves, whose personal legal status is what is directly impugned, and of the wider membership of the Union, whose constitutional right under Article 41(2)(c) to timeous, free and fair elections stands to be directly and substantially affected by whatever determination is reached. 3. None of that is well served by a miscellaneous application procedure that proceeds, as this one has, largely on the say-so of affidavits filed by a self-represented applicant and a sympathetic respondent, within a compressed timetable dictated by an impending election date, and without the individual Board members whose competence is impugned having been made parties or heard at all. This Court’s own Ruling of 31st July 2026 makes the same point in the context of the analogous Cause No. E066 of 2026, where, notwithstanding that the nine Board members had there at least been named and served as respondents, the Court was careful to observe that its findings on the merits were made only “as a matter of prima facie likelihood for purposes of the interlocutory relief” sought, and expressly left the question “for determination at the trial of the suit, upon a full evidentiary record and after the Respondents have had the opportunity, which they retain, to be heard.” If that caution was warranted even in a properly constituted substantive Cause naming the affected individuals, it applies with still greater force to the present Application, in which those individuals are not parties at all. 4. I accordingly find that the constitutional question the Applicant seeks to have determined — whether the Election Board, as affected by the alleged promotions, remains competent to discharge the mandate conferred upon it by the Judgment of 17th June 2026 — is a matter of such contentiousness, factual complexity, and consequence to persons not before the Court, that it is not amenable to determination on a miscellaneous application, and could properly be resolved, if at all, only in a substantive suit properly constituted and in which all directly affected persons are joined and heard. (vii) Res Judicata 1. I turn to what I consider the most consequential of the issues before me: whether the very question the Application seeks to have determined is res judicata, having already been raised and determined in the related proceedings I have described. 2. Section 7 of the Civil Procedure Act provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit, and has been heard and finally decided by such court. The Court of Appeal, in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] KECA 472 (KLR), distilled the ingredients of the doctrine as being, “firstly, that the issue in dispute in the former suit between the parties must be directly or substantially be in dispute between the parties in the suit where the doctrine is pleaded as a bar[;] secondly, that the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title[;] and lastly that the court or tribunal before which the former suit was litigated was competent and determined the suit finally.” 3. Applying those ingredients to the present case, I am satisfied that each is met. 4. As to the identity of the matter in issue, the question raised by the present Application —whether the Election Board, given the intervening promotion into management of five or six of its nine members, remains constitutionally competent under Article 15 of the Union’s Constitution to conduct and oversee the fresh elections directed by the Judgment of 17th June 2026 — is, in every material particular, the identical question already raised: first, by way of the supplementary affidavit filed within the stay-of-execution application in Petition No. E009 of 2026 itself, determined by the Ruling of 20th July 2026, which dismissed that application in its entirety and confirmed that orders (i) to (iv) of the Judgment remained in force and binding; and second, by the substantive Notice of Motion filed in Cause No. E066 of 2026, determined by the Ruling of 31st July 2026, which likewise declined to restrain the Board from proceeding with the elections on the basis of the identical composition objection, naming, in substance, the same individuals said to have been improperly promoted. 5. As to identity of parties, or of persons litigating under the same title, I recognise that the Applicant, Benard Munga, was not by name a party to either of those earlier proceedings. That, however, is not the end of the enquiry. The Applicant sues, by his own pleading, “in a representative capacity on behalf of bona fide members of the Dock Workers Union” — that is, precisely the class of persons, and precisely the interest, on whose behalf Sulman Otieno Owuor purported to act when he brought Cause No. E066 of 2026, and it is that very individual, the 1st Respondent in the present Application, who has come forward to depose in substantial and enthusiastic support of the Applicant’s case, relying on the identical factual premise he had already, and unsuccessfully, advanced in his own name only weeks earlier. Where, as here, a party who was fully heard and lost on a given issue is found actively supporting a fresh application by a different nominal applicant, raising the identical issue, represented in material part by the same interests and, in the 1st Respondent’s case, the same advocates, this Court is entitled to look to the substance rather than the form of the litigation, and to treat the second application as brought by a person litigating under the same title as, and in privity with, the party bound by the earlier determination. To hold otherwise would be to permit the doctrine of res judicata to be defeated by the simple expedient of recruiting a nominal applicant to reargue, in a fresh cause, precisely what a previous litigant has already lost. 6. As to the competence of the court and finality of the determination, both the Ruling of20th July 2026 and the Ruling of 31st July 2026 were delivered by this Court, a court of unquestionable competence to determine the questions in issue, and both determinations, though interlocutory in character, finally and conclusively disposed of the specific and discrete question then, as now, in issue — namely, whether the Election Board, as presently constituted, may lawfully proceed to conduct and oversee the fresh elections pending final determination of the wider composition dispute. Neither Ruling has been set aside, and this Court is informed, without contradiction, that at least one of them is the subject of a pending notice of appeal, a fact which itself confirms that the appropriate avenue for challenging those determinations is appellate, not by way of a fresh application before a court of first instance. 7. I find, accordingly, that the question raised by the present Application is res judicata, both by reason of the Ruling delivered on 20th July 2026 in Petition No. E009 of 2026 itself, and, independently, by reason of the Ruling delivered on 31st July 2026 in Cause No. E066 of 2026. I further find, and consider it important to state expressly, that this conclusion holds true regardless of the procedural form in which the present Application was brought: whether framed, as it in fact was, as a Miscellaneous Application, or framed instead as a properly constituted Petition or Claim naming the individual Board members as respondents, the substance of the matter it seeks to re-litigate would remain identical to that already finally determined, and the bar of res judicata would apply with equal force. The label attached to a pleading cannot immunise its substance from a doctrine concerned, precisely, with substance over form. (viii) Abuse of the Process of the Court 8. I turn to the fourth issue, namely whether the Application, considered in its totality, constitutes an abuse of the process of this Court. 9. The doctrine of abuse of process is well settled. In Muchanga Investments Limited vSafaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, cited by the 2nd and 3rd Respondents, the Court of Appeal recognised that it is an abuse of the process of the court to use that process for a purpose other than that for which it exists, including to re-litigate, defeat, or circumvent a matter already the subject of a subsisting judicial determination. More broadly, Kenyan courts have consistently held that the hallmark of an abuse of process is the use of the court’s machinery, not to obtain a genuine and independent adjudication, but to achieve an object collateral to, or inconsistent with, the proper purpose of the proceeding invoked — whether by multiplying suits over the same subject matter, by seeking through one proceeding what has already been refused in another, or by pursuing litigation in a form calculated to obscure, rather than candidly disclose, its true relationship to other pending or concluded proceedings. 10. Several distinct features of the present Application, considered cumulatively, satisfy that description. 11. First, and most tellingly, the Applicant’s own Supporting Affidavit, at the paragraphs headed “Consolidation,” expressly asks that “this Application be consolidated with the said Petition [No. E009 of 2026] and be heard by the learned Judge who delivered the Judgment” — a request that, on cross-checking against the Application’s own prayers, does not in fact appear among the fourteen numbered prayers of the Chamber Summons itself, but nonetheless discloses, in the clearest terms, that the Applicant is fully aware that Petition No. E009 of 2026 is the proper and available forum in which the very relief he seeks could, and in this Court’s view should, have been sought. A litigant who recognises, in the body of his own affidavit, that the relevant Petition is the appropriate forum, and who nonetheless elects to proceed by way of a freestanding Miscellaneous Application naming new parties, cannot be heard to say that the choice of forum was innocent. 12. Second, the manner in which the Application has been conducted bears several of the hallmarks this Court considers indicative of an intention to circumvent, rather than to engage candidly with, the subsisting determinations already made on this very issue. Neither the Applicant’s Supporting Affidavit nor his written submissions disclose the existence of Cause No. E066 of 2026 or the Ruling of 31st July 2026 dismissing it — a Ruling delivered only days before the present Application was filed, addressing the identical composition objection, and involving, as claimant, the very individual who has since come forward as the 1st Respondent in enthusiastic support of this Application. Nor do those papers disclose the Ruling of 20th July 2026 in Petition No. E009 of 2026 itself, notwithstanding that the Applicant’s own Annexure “BM-7” — the Registrar of Trade Unions’ letter upon which he relies — expressly discloses the existence of that Ruling and its outcome. A party who has himself annexed a document disclosing an adverse prior determination, and who then characterises that same document in his affidavit solely as a “reiteration” of compliance obligations, without any mention of the adverse ruling it discloses, has not met the standard of full and candid disclosure this Court is entitled to expect, particularly of a party who sought, and initially obtained, ex parte relief. 13. Third, the Application seeks, in substance, to achieve through a fresh, differently framed proceeding precisely what was sought and refused in Cause No. E066 of 2026 only days earlier — a restraint upon the Election Board’s continued conduct of the fresh elections, founded upon the identical factual premise. Pursuing that object through a nominally different applicant, in a nominally different form of proceeding, while the substance of the relief sought and the factual foundation relied upon remain unchanged, is a further hallmark of abuse recognised in the authorities. 14. I find, accordingly, applying the principles drawn from Muchanga Investments Limited and the wider body of Kenyan authority on the subject, that the Application, considered in the totality of the circumstances outlined above — its recognition, in substance though not in formal prayer, of Petition No. E009 of 2026 as the proper forum; its material nondisclosure of directly relevant and recently determined adverse rulings on the identical issue; and its pursuit, through a fresh applicant and a fresh form of proceeding, of relief already refused to a closely aligned party — constitutes an abuse of the process of this Court. (ix) The Ex Parte Order of 4th August 2026 1. There remains one further matter upon which I consider it necessary, though not dispositive of the Application before me, to comment, and I do so in language I intend to be measured and collegial, as befits observations concerning an order made by a fellow Judge of this Court in the exercise of a jurisdiction properly hers to exercise as duty Judge. 2. The Order made by Mbaru J. on 4th August 2026, in the ordinary and proper exercise of the urgent, ex parte jurisdiction available to a duty Judge, suspended, in the interim and pending inter partes hearing, the Union’s national elections that had been scheduled for 13th August 2026. What gives this Court pause, and what I consider it right to record, is the wider effect the Order appears, on its face, to have had, made as it was without notice to, and without the participation of this court, the parties to Petition No. E009 of 2026, or the individual Board members whose competence stood impugned. 3. That Order had the practical effect of suspending the very electoral process that this Court’s Judgment of 17th June 2026 had directed be completed, that this Court’s Ruling of 20th July 2026 had confirmed remained fully in force notwithstanding an application for stay of execution pending appeal, and that this Court’s Ruling of 31st July 2026 in Cause No. E066 of 2026 had, only four days earlier, expressly declined to restrain. Whatever the intention behind it — and this Court has no reason to doubt that it was made in good faith, upon the material then placed before the duty Judge and without the benefit of the fuller history I have set out in this Ruling — its practical effect was to achieve, ex parte and without a hearing of the affected parties, precisely the relief that this Court, after full inter partes argument, had already twice declined to grant on the identical factual premise. 4. It is a basic and well-understood incident of our judicial architecture that courts of concurrent, or coordinate, jurisdiction — including, self-evidently, individual Judges of the same Court sitting on matters touching the same subject and, indeed, the same parties or their privies — do not sit in appeal or in supervision, the one over the other. A Judge exercising the ordinary duty-Judge jurisdiction to grant urgent interim relief in a newly filed application does not thereby acquire the power to vary, suspend, or overtake determinations already made, after full hearing, by another Judge of concurrent jurisdiction in related and closely connected proceedings. That is a task reserved, under our constitutional and statutory architecture, to the appellate courts, or, in the limited circumstances the law permits, to the very Judge or court that made the original determination, acting upon a proper application for review, variation or discharge. 5. I make these observations not to impugn the propriety of the Order of 4th August 2026 on its own, narrow terms — it was, after all, expressly made only “in the interim,” pending fuller inter partes argument, and it is that fuller argument, in significant part, that this Ruling now provides — but to record, with respect and in a collegial spirit, that an order made ex parte, without notice to the affected parties or to this Court, and without the benefit of the history I have set out above, could not, and did not, have the effect of setting aside, superseding or otherwise disturbing the Judgment delivered in Petition No. E009 of 2026, the Ruling of 20th July 2026 declining to stay its execution, or the Ruling of 31st July 2026 dismissing the materially identical challenge in Cause No. E066 of 2026. Those determinations remain, in law, fully valid, binding and in force. 6. I record, finally on this point, that the suspension effected by paragraph 3 of the Order of 4th August 2026 was, by its own express terms, granted only “pending the parties addressing the re-constitution of the Elections Board” in the present Application. That Application having now, for the reasons set out in this Ruling, been finally determined and dismissed, the condition upon which the interim suspension was predicated has been spent, and the suspension falls away by the ordinary operation of its own terms, without any need for this Court to purport to set aside an order made by a Judge of concurrent jurisdiction — a course this Court is, for the reasons already given, in any event not entitled to take. F. DISPOSITION 1. For the detailed reasons set out in Part I of this Ruling, I find that the Applicant has failed to establish any proper basis for the recusal of the presiding Judge [this Court], and the oral application for recusal made on 10th August 2026 is hereby dismissed. 2. For the detailed reasons set out in Part II of this Ruling, I find that the Application dated3rd August 2026 is, in substance, a disguised application for the review of the Judgment delivered on 17th June 2026 in Petition No. E009 of 2026, improperly brought as a freestanding Miscellaneous Application rather than under Order 45 of the Civil Procedure Rules within that Petition; that it raises matters of such contentiousness and consequence to persons not before the Court as to be unsuitable for determination on a miscellaneous application; that the question it raises is, in any event, res judicata by reason of this Court’s Rulings of 20th July 2026 and 31st July 2026; and that it constitutes an abuse of the process of this Court. The Application accordingly lacks merit in its entirety and is hereby dismissed. 3. For the avoidance of any doubt, and as more fully explained in paragraphs 85 to 90 above, the Order made by Hon. Justice M. Mbaru on 4th August 2026 has, and had, no effect upon, and did not and could not disturb, the validity, finality or continuing binding force of the Judgment delivered on 17th June 2026 in ELRC Petition No. E009 of 2026, or of this Court’s subsequent Rulings of 20th July 2026 and 31st July 2026 confirming and giving effect to that Judgment. 4. I accordingly make the following orders: 5. The oral application made on 10th August 2026 for the recusal of the presiding Judge is hereby dismissed. 6. The Chamber Summons dated 3rd August 2026 is hereby dismissed in its entirety.(c) For the avoidance of doubt, the interim suspension of the Dock Workers Union’s national elections effected by paragraph 3 of the Order made on 4th August 2026, having been granted only pending the determination of the Application now dismissed, is spent and of no further effect. 7. For the avoidance of doubt, nothing in the Order made on 4th August 2026 affects, or shall be taken to affect, the validity, finality or binding force of the Judgment delivered on 17th June 2026 in ELRC Petition No. E009 of 2026, or of this Court’s Rulings delivered on 20th July 2026 and 31st July 2026. 8. The Election Board that was in office immediately before the elections of 4th April 2026 remains, in law, seized of the mandate conferred upon it by order (iv) of the Judgment of 17th June 2026, and may proceed to conduct and oversee the fresh national elections of the Dock Workers Union accordingly. 9. The costs of this Application shall be borne by the Applicant. 10. It is so ordered. **DATED, SIGNED AND DELIVERED AT MOMBASA THIS 11TH DAY OF AUGUST 2026.** **OCHARO KEBIRA** **JUDGE**