https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1831

Kenya Chemical & Allied Workers Union & 7 others v East African Portland Cement PLC (Cause 2119 of 2014) [2026] KEELRC 1831 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1831 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause 2119 of 2014 CN Baari, J June 30, 2026 Between Kenya Chemical & Allied Workers Union 1st Judgment Creditor Juliet Chepchumba Tuwot & 227 others 2nd Judgment Creditor Joseph Karithi Mithika & 209 others 3rd Judgment Creditor Daniel Lau Kitumbo & 141 others 4th Judgment Creditor Rosemary W. Mbuthia T/A Mbusera Auctioneers 5th Judgment Creditor Ken Karoga t/a First Choice Auctioneers 6th Judgment Creditor Enock Odira & 30 others 7th Judgment Creditor Sankara Auctioneers 8th Judgment Creditor and East African Portland Cement PLC Judgment debtor Ruling 1.Before Court is the Judgment debtor/Applicant’s Motion application dated 25th May, 2026, brought pursuant to Articles 25(c), 27, 47, 48, 50(1), 159, and 165 of the Constitution of Kenya, Sections 1A, 1B, and 3A of the Civil Procedure Act, Cap 21, Laws of Kenya, Order 51 Rule 1 of the Civil Procedure Rules, and the Bangalore Principles of Judicial Conduct, wherein the Applicant seeks orders THAT: -a.Spentb.The Honourable Lady Justice Baari Christine Noontatua be pleased to recuse herself from hearing and determining this matter.c.This matter be placed before the Presiding Judge/Principal Judge for re-allocation to another Judge of competent jurisdiction for hearing and disposal.d.The costs of this Application be in the cause. 2.The Motion is supported by the grounds on the face thereof, and the affidavit of Roseline Ominde, sworn on 25th May, 2026. 3.The Applicant contends that on 16th April 2026, the Court issued a Garnishee Order Nisi attaching funds in the Judgment Debtor's various bank accounts to recover an alleged decretal sum of Kshs. 3,176,431,039.14 arising from a decree issued on 6th July 2015, resulting in immediate and significant financial and operational consequences for the Judgment Debtor. 4.It avers that earlier on 13th April 2026, the Court issued Warrants of Attachment against the Judgment Debtor/Applicant’s movable assets to execute a decretal sum of Kshs. 3,238,849,310.68, thereby subjecting the Judgment Debtor to concurrent execution proceedings. 5.It is its position that in response to those orders, the Judgment Debtor filed an application dated 22nd April 2026 seeking, among other reliefs, a stay of execution and the lifting or setting aside of the Garnishee Order Nisi pending determination of the application, and which application it contends was supported by evidence showing that the attachment of funds across its operational accounts had severely disrupted and substantially paralyzed its operations, causing it significant financial and operational prejudice. 6.It is the Judgment debtor/Applicant’s position that despite the urgency and significant consequences of the execution proceedings, the Judgment Debtor's application dated 22nd April 2026 was scheduled for ruling on 30th June 2026, while the impugned garnishee and execution orders remained in force, causing it continuing financial and operational prejudice. 7.The Judgment Debtor contends that these circumstances have created a reasonable and genuine apprehension that it may not receive a hearing that is impartial and free from any appearance of pre-judgment. It contends further that the apprehension arises from the fact that close relatives of the presiding Judge were previously employed by the Judgment Debtor. 8.According to the Judgment Debtor, subsequent organizational restructuring and turnaround initiatives led to employee separations, and the former employees affected, including the Judge's siblings, were neither re-engaged nor considered for further employment. 9.The Judgment Debtor further argues that these circumstances, viewed objectively from the perspective of a fair minded and informed observer, are capable of giving rise to a perception of conflict of interest or apprehended bias. 10.The Judgment Debtor further states that the presiding Judge's spouse unsuccessfully participated in the 2024 recruitment process for the position of Managing Director/Chief Executive Officer of the Judgment Debtor. The Applicant avers that litigation arising from that recruitment process was subsequently handled by the same Judge. 11.The Judgment Debtor contends that, when these facts are considered together with the previous employment of the Judge's siblings, they give rise to a reasonable apprehension of bias. It argues that recusal is necessary to uphold the constitutional guarantee of an independent and impartial tribunal under Article 50(1) of the Constitution and the principle that justice must not only be done but must also be seen to be done. 12.It is the Judgment Debtor/Applicant’s case that it relies on the Bangalore Principles of Judicial Conduct, which require a judge to recuse themselves where their impartiality might reasonably be questioned by a fair minded observer. It argues that public confidence in the judiciary depends not only on actual impartiality but also on the appearance of impartiality. 13.The Applicant avers that it seeks the Court’s recusal to preserve the integrity of the proceedings, uphold public confidence in the administration of justice, and safeguard its constitutional right to a fair hearing before an independent and impartial court. It maintains that the application was made in good faith and solely to vindicate that constitutional right. 14.The application is opposed by the 2nd Judgment Creditor/Respondent vide a Replying affidavit sworn by Juliet Chepchumba Tuwot on 31st May, 2026, on behalf of 227 others, as well as the 3rd Judgment Creditor/Respondent vide a Replying affidavit sworn by Wario Dokata on 4th June, 2026, on his own behalf and on behalf of 209 others. 15.Ms. Juliet Chepchumba Tuwot, for the 2nd Respondent, depones that the Judge's spouse and siblings, whose past association with the Applicant is relied upon, are not parties to the proceedings. She argues that the present dispute concerns the enforcement of a Collective Bargaining Agreement, and not the termination or employment claims involving the Judge's relatives. Accordingly, the Respondent maintains that the alleged past employment relationship has no nexus with the issues before the Court and does not justify the Judge's recusal. 16.The 2nd Respondent further argues that there are no substantive proceedings remaining before the Court other than execution, and therefore the Judge's recusal would not affect the Applicant's liability under the decree. 17.It is their contention that the recusal application is misconceived, frivolous, an abuse of the court process, and brought solely to delay the execution of a lawful decree. They maintain that the allegations concerning the Judge's relatives are irrelevant to the execution proceedings, which concern only the enforcement of the decree and the pending application for stay of execution and the lifting of the Garnishee Order Nisi. 18.The 2nd Respondent further submits that the previous employment of the Judge's relatives by the Judgment Debtor, without more, does not establish bias, conflict of interest, partiality, or any other valid ground for recusal. 19.The 2nd Respondent submits that there is no evidence that the Judge has any personal, financial, or other interest in the outcome of the proceedings. 20.It contends that the allegations concerning the prior employment of the Judge's relatives and the Judge's spouse's participation in the Judgment Debtor's CEO recruitment process are speculative, remote, and unrelated to the issues before the Court. 21.According to the Respondent, there is no evidence that the Judge's spouse has any interest in, or stands to benefit from, or be prejudiced by, these proceedings. Consequently, these unrelated past events cannot reasonably establish actual bias or a reasonable apprehension of bias warranting the Judge's recusal. 22.The 2nd Respondent argues that the Judgment Debtor has failed to identify any conduct, statement, ruling, or action by the Judge demonstrating bias, hostility, or favouritism. They submit that dissatisfaction with judicial decisions, including the issuance of warrants of attachment, garnishee orders, and other execution related orders, does not constitute a valid ground for recusal, as these were lawful judicial acts undertaken in the exercise of the Court's jurisdiction. 23.The 2nd Respondent further contends that the Applicant’s allegations are based on speculation and conjecture rather than cogent evidence, and that applying the objective test of whether a fair minded and informed observer would perceive a real possibility of bias, it maintains that the alleged facts are too remote and unrelated to the issues before the Court to give rise to a reasonable apprehension of bias. 24.The 2nd Respondent also emphasizes that judicial officers are constitutionally presumed to act independently and impartially unless compelling evidence to the contrary is established. 25.The 2nd Respondent concludes that the Judgment Debtor has failed to adduce credible evidence to rebut the presumption of judicial impartiality. It contends that the recusal application is a tactic intended to delay the pending execution proceedings and deprive the Decree Holders of the fruits of a lawful judgment. 26.Accordingly, the 2nd Respondent urges the Court to dismiss the application for recusal dated 25th May 2026 with costs. 27.On its part, the 3rd Judgment debtor/Respondent argues that the recusal application is merely an attempt at forum shopping and delaying the execution of a lawful decree that has remained unsatisfied for over 11 years. 28.The Deponent states that there is no personal knowledge that Roselyn Tumpeyo Baari and Amos Ntalamia Baari are relatives of the Judge and, in any event, their previous employment is irrelevant. It avers that the exhibited records show that Roselyn resigned voluntarily after commendable service, while there is no evidence that Amos left employment under adverse circumstances or harboured any grievance against the Judgment Debtor. 29.The Deponent also states that there is no evidence that Charles Taleng'o Sunkuli is the Judge's spouse and argues that, even if such a relationship exists, participation in a recruitment process is immaterial, as every Kenyan is entitled to seek employment. 30.Further, the Deponent disputes the allegation that the Judge frustrated litigation relating to the CEO recruitment process, stating that the Judge initially granted ex parte orders in favour of the Board-recommended candidate, and referred the matter to the Presiding Judge, and that the petition was eventually withdrawn on 20th January 2025 before Justice Nduma Nderi, who thereafter marked the matter as closed. 31.The Deponent further argues that the recusal application is an abuse of process brought to delay the execution of a lawful decree after repeated unsuccessful attempts to obtain a stay. 32.It maintains that the allegations of bias are unsupported, as the Judge's alleged relatives are not parties to the proceedings and no objective evidence of partiality has been presented. The Deponent contends that recusal cannot be founded on dissatisfaction with judicial decisions or mere suspicion, and that the Applicant, being in contempt of court, should not be heard. 33.It is the 3rd Respondent’s position that the recusal application is a deliberate attempt to frustrate the garnishee proceedings and delay execution, thereby enabling the Judgment Debtor to dissipate the attached funds. It argues that further delay would undermine the administration of justice, particularly as the 2015 decree remains unsatisfied due to numerous applications by the Judgment Debtor. 34.It further maintains that the Judge's orders were lawful and justified, and that the allegations of bias are unfounded, as the previous employment of the Judge's relatives or her spouse's job application bears no connection to the issues before the Court. 35.The Deponent submits that the Applicant has failed to establish any objective basis for questioning the Judge's impartiality or integrity. It contends that the application discloses no evidence of bias, impropriety, or conflict of interest and is instead an attempt to intimidate the Court and prolong execution of a decree that has remained unsatisfied for over 11 years. 36.The 3rd Respondent prays that the application be dismissed with costs. 37.Parties canvassed the motion through written submissions, which have been duly considered. Analysis and Determination 38.The sole issue for determination is whether the Applicant has established sufficient grounds to warrant my recusal from further handling of this matter on the basis of reasonable apprehension of bias. 39.The right to a fair hearing before an independent and impartial court is guaranteed under Article 50 (1) of the Constitution. Equally, Article 160(1) safeguards judicial independence by providing that judges are subject only to the Constitution and the law. 40.The principles governing judicial recusal are now well settled. The leading authority being the Court of Appeal’s decision in Kaplana H. Rawal v Judicial Service Commission & 2 Others [2016] KECA 717 (KLR), where the Court adopted the objective test in the following words:-“The question is whether a reasonable, fair minded and informed member of the public would conclude that there exists a real possibility that the Judge would not bring an impartial mind to bear on the resolution of the dispute.” 41.Further, the Supreme Court in Rai & 3 others v Rai & 4 others [2013] KESC 20 (KLR), held that judges have both a duty to recuse where circumstances warrant it, and an equally important duty not to recuse merely because an unsuccessful litigant raises speculative allegations. The Court went on to observe that recusal cannot be founded upon conjecture, unfounded suspicion, dissatisfaction with previous rulings, or attempts at forum shopping. 42.The Judgment debtor/Applicant advances two principal grounds on which it premises its presumption of bias. The first is the previous employment of my siblings, where it asserts that my close relatives were formerly employees of the Judgment Debtor and were later separated following restructuring. 43.For starters, I do confirm that the persons mentioned by the Judgment debtor are indeed my siblings, and it is also true that both previously worked for the judgment debtor. 44.It is, however, not true that any of them left the service of the judgment debtor following retrenchment. It is evident from the documents shared by the Judgment debtor in support of this application that Roseline voluntarily resigned from the service of the judgment debtor more than 13 years ago. Secondly, Amos was employed by the judgment on a term contract, and he separated from the judgment debtor when his contract ended by effluxion of time. 45.It is also not in dispute that these individuals are not parties to these proceedings and have no legal or beneficial interest, direct or indirect, in the outcome of the present execution proceedings. 46.I further consider it appropriate to observe, for the avoidance of doubt, that Roselyne and Amos are gainfully employed by other reputable institutions, and harbour no grievance against the Judgment Debtor whatsoever. 47.The Applicant, through this application, merely invites the Court to infer that, because my relatives once worked for the Applicant, bias should automatically be presumed. Such an inference, in my view, cannot satisfy the objective test threshold established in the case of Kaplana H. Rawal (supra). Relationships, without evidence connecting them to the dispute before court, are, in my view, insufficient. 48.The Applicant has equally based its apprehension of bias upon the allegation that my spouse unsuccessfully applied for the position of Managing Director. For the record, this allegation is untrue. My spouse has never applied for or been interested in working for the Judgment debtor, and the purported shortlist is nothing but a computer printout. 49.On the litigation on the said position, I indeed handled an application on the appointment of the Judgment debtor’s Managing Director in my capacity as the duty Judge in the Court’s Christmas recess in the year 2024. Further, the said suit having been filed as a petition, while I sit in the Labour and Claims division of the ELRC, I issued the appropriate directions and listed the matter for hearing and determination before the Judge in the relevant division at the time. 50.I have no knowledge of how the matter progressed since then, as I had no need to follow up on the same. 51.Again, I find no objective nexus between that recruitment exercise, the resulting litigation, and the issues presently before me. 52.The Applicant further refers to the issuance of warrants of attachment, issuance of Garnishee Order Nisi, and the scheduling of the stay application for ruling on a future date. 53.On the issuance of warrants of attachment, it is not the mandate of this court to issue warrants of attachment, and if any were issued, it could only have been issued by the Deputy Registrar whose role it is to issue such warrants. 54.Further, the order nisi and a ruling slated for 30th June, 2026, are complaints that relate exclusively to judicial case management and judicial decisions. It is also prudent to mention that the ruling date of 30th June, 2026, was for both the garnishee application dated 16th April, 2026, the Judgment debtor’s application dated 22nd April, 2026, and the two preliminary objections filed by the decree holders, and which date was fixed on 13th May, 2026, well within the statutory timelines. 55.It is trite that adverse rulings cannot constitute evidence of bias. In Philip K. Tunoi & another v Judicial Service Commission & another [2016] KECA 715 (KLR), the Court reiterated that dissatisfaction with judicial decisions should be addressed through appellate procedures and not through recusal applications. 56.Having said all these, the issue before the Court is not whether the Court is actually biased, but whether, in the circumstances of this case, a reasonable, fair minded and informed observer would reasonably apprehend that the Court's impartiality might be brought into question. 57.Upon careful consideration of the material placed before this Court, I am satisfied that none of the matters raised establishes actual bias, prejudice, or any personal interest on the part of this Court in the proceedings herein. I have no pecuniary, proprietary, or other interest in the outcome of these proceedings, and there is nothing before me that would displace the presumption of judicial impartiality. 58.Equally, I am satisfied that the matters relied upon by the Applicant, viewed objectively, are remote from the issues falling for determination and would not, in the ordinary course, constitute sufficient legal grounds for recusal. Nevertheless, the Court is equally mindful that public confidence in the administration of justice depends not only upon the reality of judicial independence and impartiality but also upon the perception that justice is administered free from any appearance of favour or prejudice. (See R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256). Justice should not only be done but should manifestly and undoubtedly be seen to be done. 59.I remain entirely satisfied that I am able to determine this matter fairly, independently, and strictly in accordance with the law. However, in the particular and unusual circumstances of this case, where allegations touching on members of my immediate family have been raised, however unfounded they may be, I consider that the interests of preserving public confidence in these proceedings would be better served if the matter were heard by another Judge of concurrent jurisdiction. 60.I am also of the view that it is undesirable for persons who are strangers to these proceedings, and who have no legal or beneficial interest in their outcome, to be unnecessarily drawn into continuing litigation through allegations concerning their past employment or personal affairs. In order to avoid any further unwarranted intrusion into their private affairs, and in the broader interests of maintaining confidence in the administration of justice, I direct that this file be placed before the Presiding Judge, Claims and Labour division for hearing or reallocation to another Judge of concurrent jurisdiction for the hearing and determination of the pending applications and Preliminary Objections. 61.Accordingly, and for the reasons foregone, I hereby recuse myself from any further conduct of these proceedings. The file shall forthwith be placed before the Presiding Judge, Hon. Justice Onesmus Makau, for further directions. 62.It is so ordered. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 3OTH DAY OF JUNE, 2026.C. N. BAARIJUDGEAppearance:Mr. Ahmednasir SC & Mr. Lesaigor present for the Judgment debtor/ApplicantMr. Nyabena present for the Claimant Decree holder/1st RespondentMr. Mirie & Mr. King’ara present for the 3rd Respondent/Decree holdersMs. Mary Lengues present for Juliet & 228 OthersMr. Musue & Mr. Sichangi present for Violet & 19 Others.Mr. Mureithi h/b for Mr. Ondieki for the 1st, 2nd & 4th GarnisheesMs. Gathari present for the 5th GarnisheeMr. Kimeu Auctioneer/6th Interested Party.Ms. Esther -C/A