[2013] KEELRC 724 (KLR)
The court held that the Respondent had not demonstrated any factual basis or objective circumstances that would give rise to a reasonable apprehension of bias on the part of Makau J. The mere fact that Makau J had previously handled other matters involving the same parties and advocates did not, without more,...
Source-derived case information.
- Citation
- [2013] KEELRC 724 (KLR)
- Parties
- Claimant: Erastus Safari Kenga; Respondent: Awanand Enterprises Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 137 of 2013
- Procedural Posture
- Employment Cause / Application for Recusal of Judge
- Outcome
- Application for recusal dismissed; matter to proceed before Makau J.
- Judges
- MSA Makhandia
- Legal Topics
- Judicial Recusal, Apprehension of Bias, Forum Shopping
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erastus Safari Kenga
Claimant
Awanand Enterprises Limited
Respondent
Procedural Posture
Employment Cause / Application for Recusal of Judge
Legal Issues
- 1 Whether the circumstances warranted the recusal of Makau J from hearing the Cause.
- 2 Whether the apprehension of bias by the Respondent was reasonable and objectively justified.
Ratio Decidendi
The court held that the Respondent had not demonstrated any factual basis or objective circumstances that would give rise to a reasonable apprehension of bias on the part of Makau J. The mere fact that Makau J had previously handled other matters involving the same parties and advocates did not, without more, justify recusal. The court emphasized that with only two judges at the station, requiring recusal on such grounds would paralyze the administration of justice. The application for recusal was therefore found to be unsubstantiated and was rejected.
Court Disposition
Application for recusal dismissed; matter to proceed before Makau J.
Orders
- The Cause is to be placed before Makau J for further directions as to when the trial can commence.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT MOMBASA
CAUSE NO. 137 OF 2013
ERASTUS SAFARI KENGA.....................................................CLAIMANT
v
AWANAND ENTERPRISES LIMITED................................. RESPONDENT
RULING
This Cause came up for hearing on 26 July 2013 before Makau O. N. J and Mr. Koech appeared for the Claimant while Mr. Katete held brief for Mr. Amuga for the Respondent.
Mr.Katete orally sought that the Cause be heard before another judge. The reason given by Mr. Katete was that Makau J had dealt with a similar matter between the same parties and lawyers.
Mr. Koech opposed the application because, he submitted, it would amount to forum shopping which would be bad for administration of justice. The reason given by Mr. Katete, he further submitted was not a valid reason.
Makau J thereafter referred the Cause to me to give directions.
As Makau J observed in his short ruling what in essence Mr. Katete was seeking was that he recuse himself from hearing the Cause.
The Cause was therefore brought before me and Mr. Amuga was now present for the Respondent while Mr. Koech appeared for the Claimant. Mr. Amuga informed me that Makau J was handling 4 other matters involving the Respondent and that the Respondent was apprehensive that most of the cases were going to the same Court and this could prejudice the Respondent’s case.
For a judge to recuse himself there must be an apprehension of bias on the part of the judge. The apprehension of bias must be a reasonable one and the test must be objective. In my mind there are no events or factual situation demonstrated by the Respondent that give rise to a reasonable apprehension that Makau J is likely to be biased or impartial against the Respondent.
The Respondent through its counsels did not argue that Makau J had any relationship with any of the parties or has any financial interest in the outcome of any of the Causes involving the Respondent or any of its (former) employees for that matter.
There are only two judges of the Industrial Court in Mombasa. Many of the cases we deal with emanate from employment relationship of certain employers within Mombasa County.
If any of the Judges will have to recuse themselves from any Cause because they have handled other Causes relating to the said employers then within a very short time no cases will proceed in this station unless new judges are posted. In any case the cycle would only commence afresh. I say so because the possibility of the Respondent, as an employer being sued before this Court in more than one Cause are there. The question therefore is whether I will also be asked to recuse myself after dealing with one or two Causes involving the Respondent.
What was presented before the Court are unsubstantiated perceptions of bias but this alone cannot suffice for a judge to recuse from a matter. From the material presented I am not able to discern that the Respondent will not get a fair trial before Makau J.
I therefore direct that this Cause be placed before Makau J today so that he can give further directions as to when the trial can commence before him.
Delivered, dated and signed in Court on this 28th day of August 2013.
Justice Radido Stephen
Judge