https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2422

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION ELRC PETITION NO. E023 OF 2026 IN THE MATTER OF: ARTICLES 1,2,10, 27, 28, 41,43, 47,55,162(2A),232,233, & 258 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA -AND- IN THE MATTER OF: SECTIONS 2, 3, 4, 7, 8, AND 9 OF THE FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015 -AND- IN THE MATTER OF: CONTRAVENTION OF THE ENGINEERING TECHNOLOGY ACT, 2016 -BETWEEN- INSTITUTION OF ENGINEERING TECHNOLOGY OF KENYA.......PETITIONER/APPLICANT =VERSUS= KENYA RURAL ROADS AUTHORITY…………………...…………………………...…..….1ST RESPONDENT THE ATTORNEY GENERAL…………………………….………………………........……...….2ND RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. Following the court's ruling of 27th February 2026, the petitioner filed an application by way of Notice of Motion dated 12th April 2026, seeking the following orders- 2. THAT Honourable Lady Justice Jemimah Wanza Keli do recuse herself from hearing this suit (the Petition). 3. THAT the file be referred to the Registry for reallocation before a different judge. 4. THAT the proceedings under the ELRCPET/E023/2026 be stayed until this Application is heard and determined. 5. THAT the costs of this Application be provided for. 6. The applicant filed an affidavit in support of the application sworn by BIBIYE MAHMOUD JUMA on the same date and raised the following grounds in support of the application - 7. On 27 the February 2026, Hon Lady Justice Wanza Keli delivered the Ruling on the Application dated 19th January 2026. 2. The said ruling was highly irregular, an act that points to bias and/or other conduct that may be clearly prejudicial to the Applicant/Petitioner herein. 8. The genesis of this matter is founded on the fact that the Appellant had filed an application dated 19th January 2026, to which the Applicant sought that; “ 9. THAT pending the hearing and determination of this Petition, this Honourable Court be pleased to issue an interim conservatory order directing the 1st Respondent to suspend the recruitment exercise in relation to the engineering job vacancies advertised by the 1st Respondent, in particular, vacancies for “Deputy Director Roads” (ref no. KeRRA/DDR/03/2025, “Assistant Director – Roads”, Grade 4 (ref no. KeRRA/ADR/11/2025), “Principal Engineer,” Grade 5 (ref no. KeRRA/PE/22/2025) “Senior Engineer,” Grade 6 (ref no. KeRRA/SE/32/2025) and “Engineer”, Grade 7 (ref no. KeRRA/E/47/2025).” 10. It is trite law that at this stage of the Application/Petition, the Honourable Court is called upon to exercise caution to avoid dealing with the matter with finality, and preserve the main petition by ensuring that it does not delve into issues that are in the realm of the main Petition. 11. The Honourable Court failed to take this caution in the determination of the application, and instead, the good judge determined the substratum of the Petition at the Application stage. 12. As such, the Honourable Court made a determination on the substantive issues prematurely before the matter was fully canvassed. 7. The main findings of the Court is to be found at paragraph 26 of the Ruling, where the Honourable Judge held that members of the Petitioner: “The court finds that the wording used by PSC in the sampled tasks meant the Engineering technologists could only WORK under engineers.” (please note that the Honourable judge even capitalized the word “work” in the above finding…) And she further held that; “I find that the members of 1st Applicant do not hold the same qualifications as the engineers, have their own professional body, and are not qualified to do the same work as engineers, and have their own career paths distinguished from those of engineers, as created by PSC….The court finds the differentiation in vacancies advertised by the respondent of the professions of engineering technologists and engineers is rational, lawful and objectively justifiable. The Applicant has not demonstrated that Engineering Technologists are legally qualified to perform functions reserved for EBK registered Engineers such as: Conceptual design, Sealing and approving drawings, Engineering certification, Statutory supervision of works (See career progressions guidelines for Engineers by PSC, JK1).” 13. The Court further determined the substantive issue on whether there was any discrimination, by conclusively finding that there was no discrimination. The Court held that: “Consequently, having so held, I find no discrimination against engineering technologists in the adverts by the Respondent published on 23rd December 2025 and 13th January 2026 of the 87 vacancies.” 14. The said Ruling shows that the Honourable judge already has a predetermined mind that the members of the Petitioners have not been discriminated and that they do not qualify for the jobs advertised for, indicating prejudice against their case. 15. The Petitioners have a reasonable apprehension that they will not be accorded a fair hearing before the judge since she has already determined the substance of the matter. 16. If the good judge continues to handle the matter, the applicants are apprehensive that there is no appearance of fairness in the said matter since the judge appears to 4 have committed to a conclusion without allowing the recusal issue to be decided first. 17. Further, no prejudice shall be suffered by the Respondent herein if the prayers sought herein are granted. 18. It is therefore just and fair, and this Application is granted as prayed. 19. The applicant in submission stated that the respondent filed a Reply Affidavit dated 10th June 2026 opposing the Application, but the court did not find it on perusal of the CTS. 20. The application was canvassed by way of written submission. Both parties filed. DECISION Whether the court ought to recuse itself from the proceedings 1. The application was founded on Rule 21 (1) (d) of the Judicial Service (Code of Conduct and Ethics) Regulations (Legal Notice 102 of 2020) provides as follows: - “A judge may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned, where the judge— ((d) has actual bias or prejudice concerning a party.” 2. The applicant submitted as follows- The impugned application came before Hon Lady Justice Wanza Keli for orders seeking conservatory orders inter alia as follows: - “THAT pending the hearing and determination of this Petition, this Honourable Court be pleased to issue an interim conservatory order directing the 1st Respondent to suspend the recruitment exercise in relation to the engineering job vacancies advertised by the 1st Respondent, in particular, vacancies for “Deputy Director Roads” (ref no. KeRRA/DDR/03/2025, “Assistant Director – Roads”, Grade 4 (ref no. KeRRA/ADR/11/2025), “Principal Engineer,” Grade 5 (ref no. KeRRA/PE/22/2025) “Senior Engineer,” Grade 6 (ref no. KeRRA/SE/32/2025) and “Engineer”, Grade 7 (ref no. KeRRA/E/47/2025).” 3. The Honourable judge delivered a Ruling on the said application on the 27th Day of February 2026. In the said Ruling, the Honourable Judge held that the Applicant did not disclose a prima facie case of violation of the Constitution and vacated the conservatory orders previously issued by the Court. The Court further held on paragraph 26 of the said Ruling as follows: - “The Court finds that the wording used by PSC in the sampled tasks meant the Engineering technologists could only WORK under engineers. Conversely, the Respondent filed in court the PSC career progression guidelines for Engineers (JK1). The impugned vacancies were for the positions of Deputy Director Roads, Assistant Director Roads, Principal Engineer, and Assistant Engineer. The PSC has created jobs called Engineers Roads in the said cadres, and these are not in the Engineering technologist cadres. The court found a major distinction in job requirements for the 2 professions. Only Engineers could come up with designs for road constructions etc which are implemented by the technologists. I find that the members of 1st Applicant do not hold the same qualifications as the engineers, have their own professional body, and are not qualified to do the same work as engineers, and have their own career paths distinguished from those of engineers, as created by PSC. The court finds that Article 27 of the Constitution does not prohibit differentiation based on professional qualification and provides grounds of discrimination as-‘27(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.’’ The court finds the differentiation in vacancies advertised by the respondent of the professions of engineering technologists and engineers is rational, lawful, and objectively justifiable. Consequently, having so held, I find no discrimination against engineering technologists in the adverts by the Respondent published on 23rd December 2025 and 13th January 2026 of the 87 vacancies. The Application dated 19th January 2026 is held not to disclose a prima facie case of violation of the Constitution and is dismissed.” In determining the application, the Honourable judge went beyond the determination of whether the Petitioners had a prima facie case and proceeded to give judgement on the substantive issues that were reserved for determination at the hearing of the Petition. In short, if we were to proceed with this matter under the same Judge, then there is nothing remaining to litigate for or against since the Judge has already pronounced herself on the substantive issue. The applicant relied on the decision in Muslims for Human Rights (MUHURI) & 2 others v Attorney General & 2 others [2011] KEHC 4291 (KLR) whereby the Court held as follows: - “In an application for interim orders of the nature of Conservatory Orders or even one for an injunction, the court is not hearing and/or being called upon to determine the main Petition. The Constitutional Court is being called upon to preserve the status quo pending the hearing of the Constitutional Petition or motion. The court does not have to take and hear all the evidence and delve into the entire case on its merits. The hearing of the Petition and determination of all issues and questions in dispute will be done at the “trial” and upon completion thereof, when a final judgment is to be delivered. The good judge in this case failed to exercise caution at this stage in the determination of the application; instead, the good judge determined the case on the substance of the matter. 4. Conversely, the respondent in opposition to the application submitted that the law relating to judicial recusal is now settled. A judicial officer is presumed to be impartial, and the burden rests upon the party alleging bias to rebut that presumption through cogent, credible and objective evidence. The test for recusal is the objective test. The question is not whether the Applicant genuinely believes that the Court is biased, but whether a reasonable, fair-minded and informed observer, having considered all the relevant facts, would conclude that there exists a real possibility that the Court will not bring an impartial mind to the determination of the dispute. In Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2013] eKLR, the Supreme Court held that recusal is warranted only where there exists a reasonable apprehension of bias founded upon objective facts and not on conjecture, speculation or subjective perceptions. Similarly, in Kalpana H. Rawal v Judicial Service Commission & 2 Others [2016] eKLR, the Court of Appeal stated that the proper inquiry is whether the circumstances would give rise, in the mind of a reasonable, fair-minded and informed member of the public, to a reasonable apprehension that the Judge would not determine the matter impartially. Justice L. Gacheru in Mama Millers Limited vs Sunrise Synthetic Limited (2020)eKLR held that: "An unfounded and unreasonable apprehension concerning a Judicial Officer is not a justifiable basis for such application. The apprehension of the reasonable person must be assessed in the light of the true facts as they emerge at the hearing of the Application." It follows that mere dissatisfaction with a judicial decision, however strongly held, cannot satisfy this objective test. The Applicant has not alleged, nor demonstrated, that the learned Judge has any personal, financial, professional, institutional or other relationship with the 1st Respondent, the Public Service Commission, the Engineers Board of Kenya or any party to these proceedings. Equally, the Applicant has not pointed to any communication, conduct, statement or extraneous circumstance suggesting hostility, favouritism, prejudice or predisposition against it. The Applicant's grievance is confined entirely to the reasoning and conclusions reached by the Court in its ruling of 27th February 2026. Those findings were reached after the Court considered the pleadings, affidavits, submissions, statutory provisions, applicable guidelines and authorities placed before it by all parties. In determining whether conservatory orders ought to issue, the Court was obligated to evaluate whether the Applicant had established a prima facie case and satisfied the applicable legal threshold. Such evaluation necessarily involves consideration of both facts and law. The fact that the Court concluded that Engineers and Engineering Technologists constitute distinct professional cadres was a judicial determination of an issue presented for consideration. It cannot, without more, be transformed into evidence of bias. The Applicant has therefore failed to identify any objective fact from which a reasonable observer would conclude that the learned Judge is incapable of fairly determining the substantive Petition. Further, It is a cardinal principle of judicial administration that disagreement with a judicial decision does not constitute proof of bias. Courts exercise judicial discretion daily in granting or refusing interlocutory relief. The mere fact that such discretion is exercised against one party cannot, by itself, found an application for recusal. If every unsuccessful litigant were permitted to seek the recusal of a judicial officer merely because the Court reached an adverse conclusion, the administration of justice would be seriously undermined and judicial independence compromised. In A.G. v Anyang' Nyong'o & Others (2007) EA 12, the Court cautioned that courts must guard against litigants who habitually attribute adverse judicial decisions to bias on the part of the Judge instead of pursuing the remedies provided by law. The proper remedy available to a party dissatisfied with a judicial ruling is review or appeal where permitted by law. Recusal is not an appellate mechanism through which litigants may avoid the legal consequences of unfavourable decisions. 5. The court at the outset finds that the applicant has not met the threshold under on Rule 21 (1) (d) of the Judicial Service (Code of Conduct and Ethics) Regulations (Legal Notice 102 of 2020) which provides as follows: - “A judge may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned, where the judge— ((d) has actual bias or prejudice concerning a party.” 6. Indeed, the court agreed with the submissions of the respondent. The court did not discern any indication of bias or prejudice from the pleadings. The only fault was the court having determined whether or not there was a prima facie case as outlined by the applicant, which the court agreed to some extent determined the merit of the petition on some aspects. In my opinion, that is not an indication of bias or prejudice, and the recourse was to appeal against the findings if aggrieved. That said, it is the court’s view that the applicant is apprehensive and convinced it will not get justice from this court in view of the preliminary decision. There is nothing the court can do to assuage the Applicant of getting justice in the cause before it than grant his wish for justice to be seen to be done in this case. The court was persuaded by the decisions in Musyoki -vs- Kenya Airways Limited [2024] KEELRC 1788 (KLR), whereby the Applicant was apprehensive that the judge would not be impartial, having ruled against him before. The Honourable Justice Dr Jacob Gakeri, in recusing himself, stated: - “In the court’s view, the Applicant appears convinced that he is unlikely to get justice in court and unpersuaded that the Judge handling the case will determine the same fairly if the last ruling is anything to go by and being a self-litigant, and having talked to him severally in light of the numerous applications he has made since the suit was filed in 2021, the court is persuaded that there is nothing more it can do to assuage the Applicant than grant his wish for justice to be seen to be done in this case.” Further in Thugi River Estate Limited & another v National Bank of Kenya Ltd & 2 others [2014] KEHC 8278 (KLR), where Justice L. Gacheru, in recusal, stated as follows: “The court notes that it issued a Ruling which could have been in disfavour of the applicant herein. The applicant is aggrieved by that decision and to my mind, the best recourse would be to apply for a review or appeal against that Ruling. It is a settled principle that Justice must not only be done but must also be seen to have been done. The applicant herein feels that justice may not be done if I continue to handle this matter. Much as I find that apprehension far-fetched, I would not hesitate to recuse myself, if only my recusal would give the applicant the confidence to approach the Court for arbitration of this matter and also to remain assured that justice would indeed be done. The parties do approach the Court seeking justice and it is my believe that all parties in this matter are in court seeking for Justice. I would therefore not wish to stand as an obstacle on the way of any litigant who is in pursuit of justice.” 7. The court recuses itself from the matter in the interest of justice and refers the matter to the Division Presiding Judge for re-allocation. I make no order as to costs. Mention on 22nd September 2026. 8. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner/Applicant: Jerop 1st Respondent: absent 2nd respondent -absent