https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2415

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI PETITION NO. 28 OF 2016 KENYA UNION OF POST PRIMARY EDUCATION TEACHERS......................................................................2ND RESPONDENT/APPLICANT VERSUS RONALD KIPROTICH TONUI.....................................................................................1ST RESPONDENT ROBERT NYABUTO OBWOCHA....................................................2ND RESPONDENT/PETITIONER CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. The applicant, Ronald Kiprotich Tonui filed application by way of Notice of Motion dated 21st July 2026 (Under Article 50(1) of the Constitution of Kenya, 2010; Section 12 of the Employment and Labour Relations Court Act, No. 20 of 2011; Order 51 Rule 1 of the Civil Procedure Rules, 2010, Judicial Service (Code of Conduct and Ethics) Regulations section 47, Employment and Labour Relations Rules 7,10, 26, 44, 47, 65, 68, 74, and all other enabling laws) for the following ORDERS: 2. THAT the Honourable Lady Justice Jemima Keli does recuse herself from further hearing and determination of Application pending in the Petition No. 28 of 2016. 3. THAT the ruling scheduled to be delivered on 20th August 2026 be stayed until this Recusal Application is determined and the pending application for a Cross examination of the KUPPET Secretary General is allowed under Employment and Labour Relations Court Rule 65(6). 4. THAT costs of this application be in the cause. GROUNDS OF THE APPLICATION 1. THAT the Applicant/1st Respondent has a constitutional right to a fair hearing before an impartial and independent Court under Article 50(1) of the Constitution of Kenya. 2. THAT the Honourable Judge has delivered a ruling in matters involving the 2nd Respondent/Applicant, KUPPET, in which she made determinations on issues that are central to the present Petition. 3. THAT the Judge in her rulings/judgments, the Honourable Judge dismissed Applications on grounds that depart from Article 159(2)(d) of the Constitution and Section 20(1) of the ELRC Act regarding technicalities and substantive justice and the Doctrine of Precedent. 4. THAT the pending Application for the cross -examination of Maurice Akelo Misori the Secretary General of KUPPET should be allowed under Employment and Labour Relations Court Rule 65(6) and in the interest of justice. 5. THAT the pattern of those decisions gives rise to a reasonable apprehension that the Honourable Judge has pre-determined issues that remain to be determined in this Petition/Application. 6. THAT a fair-minded and informed observer would conclude there is a real possibility of bias based on the grounds stated in my affidavit. 7. THAT it is in the interest of justice, fairness and public confidence in the Judiciary that the Honourable Judge recuses herself. 8. THAT the grounds are further set out in the Supporting Affidavit of RONALD KIPROTICH TONUI sworn on 21st July 2026 and filed herewith. The applicant, among others, to support the claim of bias, averred. 9. THAT the Judicial Service (Code of Conduct and Ethics) Regulations section 47 allows judges to recuse themselves in writing based on the grounds stated. 10. THAT this suit is pending before Hon. Justice Jemima Keli for full hearing and determination on the merits of the 2nd Respondent's Application and I am apprehensive about the ruling she will make based on the grounds stated below. 11. THAT Justice Jemima Keli heard the Application Nakuru ELRCJR002 of 2026 initially in filed in Nairobi, Elkana Kipkirui Rotich versus KUPPET and others, where the Advocate Jacqueline Akelo of the 2nd Respondent orally asked the judge to recuse herself and the judge appeared intimidated and timid. 12. THAT the Judge without bothering to ask for the grounds for recusal, recused herself and transferred the file to Mombasa and not to the principal judge for reassignment, occasioning delays in the hearing of the case and forcing the Applicant Elkana Rotich to follow up on the file for redirection to Nakuru court. 13. THE action of the judge to recuse herself without written Application and grounds of the oral recusal application contravened the Judicial Service Commission code of regulations section 47(2). 14. THAT it was surprising later to see the Judge hearing cases involving KUPPET without recusing herself as she had done before and appearing friendly with advocate Jacqueline Akelo representing the 2nd Respondent online, who had demanded her recusal. 15. THAT it should be noted that after resuming hearing cases involving KUPPET the 2nd Respondent, the judge has made all rulings and judgements in favour of KUPPET with very weak reasoning behind her decisions as demonstrated below. 16. THAT Justice Jemima Keli made a ruling on 3rd July 2026 on my application seeking a signed consent agreement by the KUPPET, Applicant/2nd Respondent and others to be allowed as part of the records and dismissed it with costs. (The ruling is part of this file). 17. THAT the judge dismissed my Application on the grounds that she did not see the relevance and meant to delay the Application. KUPPET had 3 Members of Parliament serving in KUPPET and the signed consent agreement sought to protect two of the MPs who are still serving in KUPPET and exclude the 1st Respondent. 18. THAT even though the signed consent agreement was not adopted by the court, the intention was clear that it was meant to counter my pleading in my response that the other two Members of Parliament had benefitted from the impugned court consent of 2021 and their presence in KUPPET leadership is pursuant to the consent order. The applicant, in the affidavit annexed, my decision dated 22nd May 2026 which he alleged the application was struck out on technicalities and the decisions by Justice Ruto and Justice Rika to effect that they overlooked procedural technicalities and allowed the suits. The response 1. The respondents filed grounds of opposition dated 27th July 2026 to the application for recusal. Among others the respondent stated - 1. THAT the Applicant's grievances concern the correctness, legality and merits of previous judicial determinations, which issues properly lie before an appellate court by way of appeal or review and cannot lawfully be converted into grounds for judicial recusal. 2. THAT the Supreme Court of Kenya in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate & 4 Others, Supreme Court Petition No. 4 of 2012; [2013] KESC 20 (KLR) authoritatively held that the applicable test for judicial recusal is whether a fair-minded and informed observer, having considered all the relevant facts, would conclude that there exists a real possibility or reasonable apprehension of bias, and not the subjective perception of a dissatisfied litigant. 3. THAT the Supreme Court further held in the Rai decision that judicial officers enjoy a strong presumption of impartiality and integrity, which presumption may only be displaced by cogent, credible and objective evidence demonstrating a real likelihood of bias. 4. THAT the Supreme Court in Kalpana H. Rawal, Philip K. Tunoi & David A. Onyancha v Judicial Service Commission & 2 Others [2016] eKLR reaffirmed that the burden of proving bias rests upon the party alleging it and that allegations founded upon conjecture, suspicion, dissatisfaction or speculation do not meet the constitutional threshold for recusal. 5. THAT the Applicant has failed to rebut the constitutional presumption of judicial impartiality and has not demonstrated any personal interest, pecuniary interest, relationship, conflict of interest or other legally recognized circumstance capable of giving rise to a reasonable apprehension of bias. 6. THAT no objective facts have been placed before this Honourable Court from which a fair-minded and informed observer would reasonably conclude that the Honourable Judge is unable to determine the present proceedings impartially and independently. 7. THAT the Applicant's allegation that the Honourable Judge has previously rendered decisions favourable to the 2nd Respondent does not, without more, constitute evidence of bias but merely reflects dissatisfaction with judicial outcomes. 8. THAT the Applicant's reliance upon previous judicial decisions allegedly differing from those rendered by other Judges amounts to a collateral challenge to the merits of those decisions and not evidence of judicial bias. THAT permitting recusal merely because a litigant disagrees with previous judicial decisions would undermine the constitutional principle of judicial independence guaranteed under Articles 160 and 50 of the Constitution and would expose judicial officers to unwarranted intimidation and pressure from dissatisfied litigants. 9. THAT the Applicant sought the recusal of Hon.Justice Nduma Nderi in this matter and the same was granted on the 21st day of January 2026 and the file thus reallocated to the learned judge. On the 20th day of July 2026, when the Applicant sought the recusal of the learned Judge, in the interest of fairness and justice, granted the Applicant leave to file a formal application seeking her recusal. 10. THAT the Applicant's allegation that the Honourable Judge previously recused herself in ELRCPET E003 of 2026, Elkana Kipkirui Rotich v Teachers Service Commission and Kenya Union of Post Primary Education Teachers (KUPPET) is false, misleading, and intended to misdirect this Honourable Court. 11. THAT upon the filing of ELRCPET E003 of 2026, Elkana Kipkirui Rotich v Teachers Service Commission and Kenya Union of Post Primary Education Teachers (KUPPET, the matter was placed before the Honourable judge who transferred the same to Nakuru due to jurisdiction. That prior to transfer of the file, no order of recusal had been made by the Honourable judge. 12. THAT the Applicant has also not presented any evidence showing the said recusal, in his supporting affidavit. THAT to allow the present Application would encourage forum shopping, erode public confidence in the independence of the Judiciary and undermine the orderly administration of justice contrary to the Constitution and the binding jurisprudence of the Supreme Court. 13. THAT the Applicant has failed to establish any actual bias, apparent bias or reasonable apprehension of bias as contemplated under Articles 50 and 160 of the Constitution, the Judicial Service (Code of Conduct and Ethics) Regulations and the binding decisions of the Supreme Court. 14. THAT the Applicants prayer seeking the cross-examination of the 2nd Respondent's Secretary General is res judicata, the matter having been conclusively determined by a court of competent jurisdiction. The Applicant previously filed a similar application before Hon. Justice Byram Ongaya, which was allowed on the 8th day of May 2025, and the resultant cross-examination was duly conducted on the 2nd day of July 2025. 15. THAT there is no application before this court setting aside the orders of Hon Justice Byram Ongaya or of the proceedings of the 2nd day of July 2025 under Rule 46 of the Employment and Labour Relations Court (Procedure) Rules. The Applicant is thus approaching this Court with unclean hands. 16. THAT the Application constitutes an impermissible collateral attack upon previous judicial determinations through recusal proceedings instead of the appellate mechanisms established by law. It is calculated to delay, obstruct and derail the hearing and determination of the pending proceedings and is therefore an abuse of the process of this Honourable Court. 17. THAT the Application is devoid of merit, discloses no legally sustainable ground for the recusal of the Honourable Lady Justice Jemima Keli and ought to be dismissed with costs to the 2nd Respondent.. Decision 1. The applicant filed an affidavit in support of the application and annexed my decision dated 22nd May 2026, in which I held that the application by way of Notice of Motion seeking leave of the court to file a judicial review application was incompetent, because leave is sought by chamber summons under Order 53 of the Civil Procedure Rules. It is contemptible for the applicant to insinuate that the decision was based on extraneous reasons. Indeed, the applicant purported to sit on appeal against my decisions. He had no authority to do so. That is the preserve of higher courts. No iota of evidence was placed before the court of any alleged corruption within KUPPET to influence judges, including myself. The affidavit was full of scandalous allegations, which I will not give credence to by reproducing them in the ruling. To his credit, the applicant did not say that I was influenced in the decision by corruption. Nothing is easier than for an aggrieved party to move the higher court, in this case the Court of Appeal, for a second opinion. Judges make mistakes, and the hierarchy of the courts is meant to correct any mistakes of the lower courts. The court noted with concern that the applicant explained that the matter had been delayed because 2 other judges had to recuse themselves. I took over the matter after the directions for filing submissions in the pending application. The directions of the court issued on the 2nd July 2025 by Justice Ongaya were as follows- *‘(1) The Applicant to file and serve submissions by 1st August 2025 and the 1st Respondent to file and serve further submissions by 15th September 2025.* *(2) Issues for determination to include:* *(a)Whether parties consent can vary or even set aside a judgment or court decision in civil* *proceedings;* *(b) Whether authority of counsel duly on record can be challenged with respect to conclusion of a consent;* *(c) Whether previous counsel not being party to the suit or proceedings was nevertheless* *required to respond to the application; and* *(d) Whether the application has met the threshold for setting aside or varying a consent order.* *(3) Mention on 14th October 2024, 9:30 am for directions on delivery of ruling.* *f) The preliminary objection dated 3rd April 2025 is deemed part application to the application to be determined concurrently as the application and parties submissions to address issues* *accordingly.* *SIGNED* *BYRAM ONGAYA* *JUDGE* *02.07.2025’’* 1. The Court agreed with the respondents that the Applicant's prayer for the cross-examination of the 2nd Respondent's Secretary General is res judicata, the matter having been conclusively determined by a court of competent jurisdiction. The Applicant previously filed a similar application before Hon. Justice Byram Ongaya, which was allowed on the 8th day of May 2025, and the resulting cross-examination was duly conducted on the 2nd day of July 2025. There is no application before this Court seeking to set aside the order/directions of Hon. Justice Byram Ongaya in the proceedings of the 2nd day of July 2025 under Rule 46 of the Employment and Labour Relations Court (Procedure) Rules. The Applicant is thus approaching this Court with unclean hands. After compliance with the above directions, the next step was the writing and delivery of the ruling. It is apparent to the Court that the instant application is a tactic to delay the decision in the application, if not forum shopping. 2. The legal basis for recusal is found in the Constitution of Kenya (2010), specifically Article 50(1), which guarantees every person the right to a fair and public hearing before an independent and impartial court or tribunal. The Judicial Service (Code of Conduct and Ethics) Regulations, 2020, under Regulation 21, mandate that a judge must disqualify themselves in any proceeding where their impartiality might reasonably be questioned. Kenyan courts (notably the Supreme Court in *Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others [2013]*) apply an **objective test** rather than a subjective one. **The Question:** Would a reasonable, fair-minded, and informed member of the public, knowing all the facts, have a reasonable apprehension that the judge would not be impartial? It is not enough for a litigant to simply feel the judge is biased; there must be a "legitimate basis" for that fear. The Supreme Court stated as follows in Rai case-‘The object in view, in the recusal of a judicial officer, is that justice as between the parties be uncompromised; that the due process of law be realized, and be seen to have had its role; that the profile of the rule of law in the matter in question, be seen to have remained uncompromised.’’ Further the Supreme Court relied on an American case, Perry v. Schwarzenegger, 671 F. 3d 1052 (9th Circ. February 7, 2012) where it was held that the test for establishing a Judge’s impartiality is the perception of a reasonable person, this being a “well-informed, thoughtful observer who understands all the facts”, and who has “examined the record and the law”; and thus, “unsubstantiated suspicion of personal bias or prejudice” will not suffice. The Supreme Court stated that such a broad test is adopted too in South African Defence Force and Others v. Monnig and Others (1992) (3) SA 482 (A), p.491:“The recusal right is derived from one of a number of rules of natural justice designed to ensure that a person accused before a court of law should have a fair trial.” I have found no allegation demonstrating even the slightest bias on my part in the instant case. Each case is decided on its own merits. The applicant's apprehension of a predetermined mind on the part of the court is totally baseless. The applicant has not attached any evidence to prove bias in the instant case. In Kalpana H. Rawal, Philip K. Tunoi & David A. Onyancha v Judicial Service Commission & 2 Others [2016] eKLR, and Philip K. Tunoi & Another v Judicial Service Commission & Another [2016] eKLR, the Supreme Court underscored the constitutional imperative of judicial independence and cautioned against unfounded attacks upon judicial officers that would undermine the administration of justice. More recently, the Court of Appeal in Rigathi Gachagua & 5 Others v Charles Maingi & 80 Others [2025] KECA 790 (KLR) reaffirmed the principles in Rai, holding that litigants have no right to choose the judge who hears their dispute and that recusal applications must never become instruments of forum shopping or collateral attacks upon previous judicial decisions. The court is aggrieved by the applicant's unsupported insinuations, which are offensive, to say the least. The applicant has demonstrated total disrespect for the court. The court sets its tools aside for that reason and in the interest of justice being seen to be done. The matter is referred to the Principal Judge of the Court for further directions. I make no order as to costs in the application. Mention before the Principal Judge on the 22nd September 2026. 3. 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 Applicant: absent 2nd Respondent: Ms Akello