[2017] KEELRC 778 (KLR)
The court held that the application for recusal was unfounded and amounted to an abuse of the court process. The mere fact that Nduma J. participated in a previous bench that rendered an unfavorable decision to the applicant does not, in itself, establish bias or a reasonable apprehension of bias. The court...
Source-derived case information.
- Citation
- [2017] KEELRC 778 (KLR)
- Parties
- Applicant: Kenya Hotels and Allied Workers Union; Respondent: The Grand Regency Hotel; Interested Party: Kenya Union of Domestic, Hotels, Education Institutions, Hospitals and Allied Workers (KUDHEIHA); Interested Party: The Kenya Hotel Keepers and Caterers Association
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 39 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Recusal of Judge
- Outcome
- application for recusal refused
- Legal Topics
- Judicial Recusal, Union Recognition, Collective Bargaining, Allegation of Bias
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Hotels and Allied Workers Union
Applicant
The Grand Regency Hotel
Respondent
Kenya Union of Domestic, Hotels, Education Institutions, Hospitals and Allied Workers (KUDHEIHA)
Interested Party
The Kenya Hotel Keepers and Caterers Association
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application for Recusal of Judge
Legal Issues
- 1 Whether Nduma J. should recuse himself from hearing the matter due to prior involvement in a related case.
- 2 Whether the applicant's allegation of bias based on the judge's participation in Petition No. 5 of 2013 is valid.
Ratio Decidendi
The court held that the application for recusal was unfounded and amounted to an abuse of the court process. The mere fact that Nduma J. participated in a previous bench that rendered an unfavorable decision to the applicant does not, in itself, establish bias or a reasonable apprehension of bias. The court emphasized that the law on union recognition had already been settled by the superior court in Petition No. 5 of 2013, and the applicant's dissatisfaction with that outcome does not justify seeking the judge's recusal. The application was therefore refused.
Court Disposition
application for recusal refused
Orders
- The application for recusal of Nduma J. is dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 39 OF 2007
KENYA HOTELS AND
ALLIED WORKERS UNION …….………............................................................….….....… CLAIMANT
VERSUS
THE GRAND REGENCY HOTEL ………................................................................…….... RESPONDENT
KENYA UNION OF DOMESTIC, HOTELS,EDUCATION INSTITUTIONS, HOSPITALS
AND ALLIED WORKERS(KUDHEIHA) ……….....................................……. 1ST INTERESTED PARTY
THE KENYA HOTEL KEEPERS ANDCATERERS ASSOCIATION ……...... 2ND INTERESTED PARTY
Mr. John Simiyu for claimant/applicant
M/S Oyombe for respondents
Mr. Ongoto for interested parties
RULING
1. The application seeks to have Nduma J. recuse himself for the reason that he has determined a similar matter against the applicant in Petition No. 5 of 2013. In her Ruling dated 2nd June 2015, Hon. Lady Justice Hellen Wasilwa stayed the hearing of the Application dated 23rd August 2012 seeking orders to have the respondents cited for contempt of court pending the hearing and determination of Petition No. 5 of 2013, by a three Judge Bench comprising of Nduma J. presiding, Ndolo J. and Onyango J.
2. The Lady Justice opined that Petition No. 5 of 2013, will lay to rest this Cause No. 37/2007 concerning matters being argued in the notice of motion.
3. Petition No. 5 of 2013 was heard and determined by the three Judge Bench.
4. The Bench held inter alia that provided there was a recognition agreement between KUDHEIHA and Kenya Hotel Keepers and Caterers Association, the 1st interested party and 2nd interested party herein, the claimant/applicant could not force the Hotels that were members of the Kenya Hotel Keepers and Caterers Association, to forfeit their membership and recognize the claimant/applicant as the exclusive union permitted to negotiate a Collective Bargaining Agreement with the specific Hotel.
5. The claimant/applicant instead of abiding by the decision of the three (3) Judge Bench in Petition No. 5 of 2013, which is a decision of a superior court as opposed to the decision of the erstwhile Industrial Court, which was a tribunal at the time Hon. James Rika, made the decision, the applicant, now purports to use this as a reason to allege bias on the part of Nduma J. because, Nduma J. participated in the Bench in Petition No. 5 of 2013, which made a Judgment unfavourable to the claimant/applicant.
6. It is my considered view, that this application for recusal, is misconceived and an abuse of the process of the court.
7. The court stated the law on the issue of recognition between the claimant/applicant and members of the 2nd interested party in Petition No. 5 of 2013. The decision of the superior court, supersedes the position taken by Justice Rika in a Judgment of the erstwhile tribunal on 31st July 2008.
8. Accordingly, the application for recusal of Nduma J. for stated reasons is refused.
Dated, Signed and delivered at Nairobi this 25th day of August, 2017
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE