https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9165

Kimaita v Teachers Service Commission & 6 others (Constitutional Petition E006 of 2026) [2026] KEHC 9165 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 9165 (KLR) Republic of Kenya In the High Court at Kiambu Constitutional Petition E006 of 2026 DO Chepkwony, J June 12, 2026 IN THE MATTER OF: THE SUPREMACY OF THE CONSTITUTION, THE PRESERVATION OF ITS VALUES AND PRINCIPLES, INCLUDING THE VALUE ON LEADERSHIP AND INTEGRITY AND PUBLIC SERVICE AND IN THE MATTER OF: THE CONSTITUTIONALITY OF THE ONGOING RECRUITMENT OF THE CHIEF EXECUTIVE OFFICER, TEACHERS SERVICE COMMISSION AND IN THE MATTER OF: UNCONSTITUTIONALITY OF SECTION 16(2) OF THE TEACHERS SERVICE COMMISSION ACT NO. 10 OF 2017 AND IN THE MATTER OF: ALLEGED VIOLATIONS AND/OR THREATENED VIOLATIONS OF ARTICLES 1, 2, 3(1), 10, 19, 20, 21, 22(1) AND (2)(c), 24, 27, 48, 50(1), 73, 75, 131(2)(a), 153(4), 159(1), 232(g), (h) AND (i), 258(1) AND (2)(c) OF THE CONSTITUTION AND IN THE MATTER OF: THE ALLEGED VIOLATION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 27, 41(1), 47 AND 56 OF THE CONSTITUTION AND IN THE MATTER OF: THE DOCTRINES OF LEGITIMATE EXPECTATION, RULE OF LAW AND VOID AB INITIO AND IN THE MATTER OF: THE LEADERSHIP AND INTEGRITY ACT AND THE PUBLIC OFFICERS ETHICS ACT Between Simon Kariu Kimaita Petitioner and The Teachers Service Commission 1st Respondent The National Assembly 2nd Respondent The Cabinet Secretary, Ministry Of Education 3rd Respondent The Honourable Attorney-General 4th Respondent and Jane Namachi 1st Proposed Interested Party Beatrice Achieng Ogallo 2nd Proposed Interested Party Lucas Odhiambo Ondiek 3rd Proposed Interested Party Ruling Introduction 1.There are, on the record of this Petition, other pending interlocutory applications and a preliminary objection touching on, among other questions, conservatory relief, jurisdiction, joinder of the proposed Interested Parties and the manner in which the Petition ought to proceed. Ordinarily, a court seized of several related interlocutory matters may consider them together where that course best serves proportionality, judicial economy and the expeditious disposal of proceedings. 2.However, the Notice of Motion dated 31st March, 2026 is of a different procedural character. It seeks the recusal of a Judge from further conduct of the proceedings. If the application were to succeed, it would affect the very authority of the Court, as presently constituted, to determine the remaining applications. It is therefore only practical, orderly and faithful to the demands of Article 50(1)of the Constitution that a recusal application be determined first, before the Court can consider the other pending matters before it. 3.This ruling is therefore confined to the 1st Respondent’s Notice of Motion dated 31st March 2026. Nothing stated herein should be read as a final determination of the pending applications, the preliminary objection, or the merits of the Petition. The Court’s only task at this stage is to determine whether the Applicant has established a lawful basis for recusal, stay of the orders issued on 13th March, 2026, and re-allocation of the file. The Application 4.The 1st Respondent’s Notice of Motion dated 31st March 2026 is expressed to be brought under Articles 10, 25(c), 50(1) and 159 of the Constitution of Kenya, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act; Regulation 21 of the Judicial Service (Code of Conduct and Ethics) Regulations; and all other enabling provisions of the law. The application seeks the following orders, reproduced as drawn:a.The Honourable Lady Justice Dorah Chepkwony be pleased to recuse herself from hearing this matter (Kiambu High Court Constitutional Petition No. E006 of 2026 Simon Kariu Kimaita Vs. Teachers Service Commission & 3 Others) forthwith.b.The proceedings in Kiambu High Court Constitutional Petition No. E006 of 2026 Simon Kariu Kimaita Vs. Teachers Service Commission & 3 Others and specifically the Orders issued on 13th March, 2026, to be stayed pending the hearing and determination of the Application herein.c.This matter be placed before the Presiding Judge of the Constitutional and Human Rights Division for re-allocation to another Judge of competent jurisdiction.d.Costs of this application be in the cause. Grounds In Support Of The Application 5.The application is premised on the following grounds appearing on the face of the Motion:a.That Article 50(1) of the Constitution guarantees every party the right to a fair hearing before an independent and impartial Court.b.The Honourable Lady Justice Dorah Chepkwony is manifestly biased against the 1st Respondent.c.The 1st Respondent is reasonably apprehensive that due to the apparent bias on the part of the learned Judge, it will not get justice before this Honourable Court.d.The Honourable Judge has expressly and/or impliedly taken a pre determined position with regard to the merits of this case hence incapable of adjudicating this matter impartially as ordained in the Constitution and the Judicial officers Code of Conduct and Ethics.e.That justice must not only be done but must manifestly and undoubtedly be seen to be done.f.That in the circumstances, a fair-minded and informed observer would reasonably apprehend that the Respondent may not receive an impartial and independent hearing.g.That it is in the interests of justice and public confidence in the administration of justice that the Honourable Judge recuses herself from further conduct of these proceedings. The Supporting Affidavit 6.The substantive Motion is supported by the affidavit of Dr. Jamleck Muturi John, the Chairperson of the Teachers Service Commission, sworn on 31st March 2026. He deposes that the Commission was served with the Petition, the Petitioner’s application and an order dated 3rd February 2026 suspending recruitment of the Commission Secretary/Chief Executive Officer pending further orders. 7.Being aggrieved by the ex parte conservatory orders, the Commission filed the application dated 5th February, 2026 seeking to set aside, vary, vacate or discharge the orders, or in the alternative to have the inter partes hearing brought forward. 8.In support of the Respondent’s application, Dr. Jamleck Muturi John avers that in the application dated 5th February 2026 the Commission brought to the Court’s attention matters which, in its view, went to the root of the Petition, including res judicata, sub judice and lack of jurisdiction. The Commission’s complaint is that the Court did not accord them the said application the urgency the Commission thought it deserved, but instead gave directions that the application be heard together with the Petitioner’s application on 5th March 2026. 9.He further deposes that on 27th February, 2026 the Commission filed a Preliminary Objection raising, among other issues the issue of jurisdiction. According to the deponent, jurisdiction should have been heard first. He complains that on 5th March, 2026, the Court heard parties and directed that it would issue directions on 12th March, 2026, instead of immediately prioritising the Preliminary Objection as requested by the Commission. 10.The deponent also complains that the Court did not sit on 12th March 2026 and that on 13th March, 2026, the Court delivered or uploaded a ruling on the Case Tracking System. According to him, the ruling demonstrated bias because, among other reasons, the Court allegedly extended the ex parte conservatory orders indefinitely and allegedly allowed the proposed Interested Parties to participate in the proceedings by filing responses and submissions before determining their joinder application. 11.The affidavit further asserts that by fixing the matter for judgment on 5th May 2026, the Court had effectively allowed the Petitioner’s application for conservatory orders and compromised the Commission’s application dated 5th February 2026 without hearing the Commission. The Commission further contends that the ex parte orders had exceeded the time limits applicable to temporary injunctions under Order 40 Rule 4 of the Civil Procedure Rules. 12.Dr. Jamleck Muturi John also avers that the Court had indicated an intention to proceed with the matter under the Constitutional and Human Rights Division despite the objection on jurisdictional, and that the Court had allegedly been quoted in the local dailies expressing a position on jurisdiction while the same issue was pending before the Court. He therefore asserts that there exists a reasonable apprehension that the Commission will not receive a fair hearing before an impartial court as guaranteed by Article 50(1) of the Constitution. The Petitioner’s Grounds Of Opposition 13.The Petitioner opposed the Motion through Grounds of Opposition dated 8th April, 2026. The Petitioner’s position is that the application is incompetent, misconceived and an abuse of the Court process. He contends that a recusal application ought to be determined by the particular Judge whose recusal is sought, because that Judge is best placed to assess the allegations of bias or prejudice made against the Court. 13.The Petitioner further argues that the prayer for stay of the orders of 13th March, 2026 is a second attempt to vary or set aside lawful court orders through the back door, the first attempt having been made through the application dated 5th February,2026. The Petitioner also contends that the application is intended to arrest or hijack the ruling or judgment that had been scheduled for 5th May, 2026, and that re-allocation of the file would delay the Petition and prejudice the parties who had complied with the Court’s directions. 14.The Petitioner’s further position is that the Judge has a duty to sit equal to the duty to recuse where lawful grounds exist, and that a Judge should not be intimidated into abandoning judicial duty by baseless allegations of bias. It is also contended that the Applicant’s allegations are founded on subjective apprehension rather than the objective test required by law, and that dissatisfaction with case management directions cannot, without more, rebut the presumption of judicial impartiality. The Petitioner’s Replying Affidavit 15.The Petitioner, Simon Kariu Kimaita, also swore a Replying Affidavit on 14th April, 2026 wherein He deposes that the application is misconceived, legally untenable and a blatant attempt to delay conclusion of the matter. He states that the application does not meet the legal threshold for recusal, stay of existing orders or re-allocation of the file. 16.He avers that the Court had already issued clear directions with which the parties complied, culminating in the matter being slated for judgment on 5th May, 2026. According to the Petitioner, if the Applicant was aggrieved by the said directions, the proper course of action was to appeal or apply for review, not to invite the Court to recuse itself on the basis of ordinary judicial and administrative directions. 17.The Petitioner further deposes that the application was filed after unreasonable and unexplained delay, because the matters relied upon were known to the Applicant earlier. He states that the Applicant actively participated in the proceedings and cannot approbate and reprobate by impugning the integrity of the Court only after receiving directions that it considers unfavourable. He invokes the doctrines of waiver, acquiescence and estoppel. 18.The Petitioner also contends that the application is a tactical manoeuvre and a litigation gimmick intended to engage in forum shopping. He avers that the mere expression of a preliminary view on a matter of law does not amount to bias and that a party aggrieved by a ruling should appeal. He has also responded to the allegations of res judicata, sub judice and lack of jurisdiction by stating that the other cited matters had been withdrawn or were materially distinct, and that the Petition is a constitutional matter within the High Court’s jurisdiction under Article 165(3)(d) of the Constitution. 19.On the specific issue of case management, the Petitioner deposes that the Court acted within its discretion by certifying the Commission’s application urgent and giving an early inter partes hearing date. He states that allocation of hearing dates is guided by the Court’s diary and caseload and not the preference of litigants. He further contends that a party cannot transform dissatisfaction with timelines into a case of bias. The Proposed Interested Parties’ Replying Affidavit 20.The proposed Interested Parties also opposed the recusal Motion through a replying affidavit sworn by Jane Namachi. They contend that the application had been overtaken by events because the Court had issued comprehensive directions which the parties had complied with and the matter had been scheduled for judgment. They state that the reliefs sought would upset the orderly progress of the Petition and occasion delay. 21.It is a further position of the proposed Interested Parties’ that the allegations of bias are speculative and unsubstantiated. They contend that ordinary case management directions on the taking of a view on the order in which applications should be heard, and the fixing of timelines cannot amount to actual or apparent bias. The Further Affidavit By The 1st Respondent 22.in rejoinder, Dr. Jamleck Muturi John swore a Further Affidavit in support of the recusal application. In that affidavit, the Commission repeats its earlier allegation that the Court is manifestly biased against the Commission and incapable of conducting an independent and impartial trial. The affidavit has introduced further complaints arising after the initial application. 23.Firstly, the Commission contends that following the Judge’s transfer from Kiambu High Court to Murang’a Law Courts, the Judge ought not to have continued handling this particular file. According to the Commission, the file should have remained in Kiambu to be handled by the incoming Judge, and the continued handling of this matter by the transferred Judge shows conflict, personal interest or partiality. 24.Secondly, the Commission alleges that the Court publicly and directly expressed itself to a third party, extra-judicially, on the question of the Court’s jurisdiction while that issue was pending for determination. The Commission further maintains that jurisdiction ought to have been determined first and that failure to prioritise it was further evidence of bias. 25.Thirdly, the Commission alleges that the Court issued or extended interim orders without the participation of the Respondents, upon a letter written by the Petitioner’s advocates on 13th March 2026. The Commission characterises the said letter as irregular communication with the Court and alleges that the Court was acting in concert with the Petitioner. It further complains that a statement was posted on the Case Tracking System indicating that interim orders were extended. 28.Fourthly, the Commission challenges what it describes as an addendum or clarification to the ruling of 13th March 2026. It argues that a court cannot alter a ruling after delivery, save as permitted by law, and that the alleged addendum amounted to manipulation of the Court record in favour of the Petitioner. The affidavit also complains that the Commission’s application dated 5th February 2026 had been rendered useless without hearing, while the Petitioner had allegedly obtained the benefit of conservatory orders. The Petitioner’s Supplementary Affidavit 29.Pursuant to leave granted on 19th May, 2026, the Petitioner filed a Supplementary Affidavit responding to the further affidavit of Dr. Jamleck Muturi John. The Petitioner states that the further affidavit introduced fresh issues and indirectly sought to amend the recusal application by making allegations which were unfounded, speculative and malicious. 30.In response to the allegation that the Judge clung to the file after transfer, the Petitioner deposes that it was the incoming Judge, Honourable Justice Bahati Mwamuye, MBS, who on 9th April, 2026 directed that the file be taken to Murang’a where the Judge had been transferred to. He states that the file had been left in Kiambu and that the Judge did not personally move with it. He also avers that there were notices showing that the Judge and other transferred Judges were still handling certain pending Kiambu matters. 31.The Petitioner further deposes that the physical movement or assignment of the file was done through formal registry channels and administrative protocol and not through the personal whim of the Judge. He states that no official record, directive or evidence has been produced to show that the Judge deliberately retained this one file, returned all others, or had any personal interest in the outcome of this matter. 32.On the allegation that orders were extended without participation of the Commission, the Petitioner states that the matter had come up on 16th April 2026 and a mention was scheduled for 20th April 2026 in the presence of counsel. According to the Petitioner, the Applicant failed to attend Court on 20th April 2026 despite knowledge of the date and cannot thereafter complain that orders were made in its absence. 33.The Petitioner also states that correspondence addressed to the Court through the Deputy Registrar is not private communication with the Judge, but an ordinary and recognised administrative channel. He denies any improper alliance or communication with the Court and contends that the allegations are intended to scandalize the Court and derail the Petition. The Proposed Interested Parties’ Supplementary Affidavit 34.The proposed Interested Parties filed a supplementary affidavit sworn by Jane Namachi in response to the Applicant’s further affidavit. They state that the allegation that the Judge improperly clung to the matter after transfer is speculative, malicious and founded on a misunderstanding of the Judiciary’s internal administrative and case allocation processes. 35.They also contend that the Applicant has not placed before the Court any transcript, recording, official communication or independent evidence to prove that the Judge made extra-judicial statements, predetermined the jurisdictional objection, manipulated the record or had a personal interest in the outcome of the Petition. The proposed Interested Parties therefore urge that the application be dismissed as an attempt to delay and obstruct determination of the Petition. Submissions The Applicant’s submissions 36.The Applicant submits that judicial impartiality is a fundamental pillar of justice and the rule of law, and that Article 50(1) of the Constitution guarantees each litigant a hearing before an independent and impartial court. It also relies on the Bangalore Principles of Judicial Conduct and the Judicial Service (Code of Conduct and Ethics) Regulations to submit that a judge should disqualify herself where her impartiality may reasonably be questioned. 37.The Applicant relies on the cases of Kalpana H. Rawal v Judicial Service Commission & 2 Others [2016] eKLR and Attorney General of Kenya v Prof. Anyang’ Nyong’o & 10 Others, EACJ Application No. 5 of 2007, for the objective test of reasonable apprehension of bias. It submits that the question is not merely whether the Judge is actually biased, but whether a fair-minded and informed member of the public, considering all the circumstances, would apprehend that the Judge may not bring an impartial mind into a matter. 38.The Applicant submits that the Court’s conduct demonstrates bias and favouritism. Its complaints include the Judge’s continued handling of the file after transfer from Kiambu to Murang’a; the alleged public expression of a view on jurisdiction; the alleged failure to accord equal priority to the Commission’s application dated 5th February 2026; the alleged extension of ex parte conservatory orders; the alleged use of an addendum to the ruling; and the alleged participation of the proposed Interested Parties before determination of their joinder application. 39.The Applicant further relies on Practice Directions relating to transfer of Judges and Order 18 Rule 1 of the Civil Procedure Rules to argue that, upon transfer, pending matters should ordinarily remain at the station and be handled by successors. It cites In re Estate of Wasilwa Kisembe (Deceased) [2023] KEHC 3220 (KLR) for the proposition that transferred judicial officers generally cease to be seized of matters domiciled at the station they are leaving. The Applicant therefore submits that the continued handling of this file by the transferred Judge is suspicious and raises a reasonable apprehension of bias. 40.The Applicant finally submits that the application has not been overtaken by events, was filed timeously, and raises matters going to the integrity of the proceedings. It urges the Court to allow the application, stay the orders issued on 13th March, 2026 and refer the file for re-allocation. The Petitioner’s submissions 41.The Petitioner submits that the application is misconceived, frivolous, vexatious and an abuse of the Court process. He argues that the application is not supported by demonstrable evidence of actual bias, prejudice, impropriety or conflict of interest, but by dissatisfaction with judicial directions and interlocutory rulings by the Applicant/Respondent. 42.The Petitioner relies on the objective test of a fair-minded and informed observer, citing authorities including the cases of Rono (Suing as Executrix of the Estate of the late David Rono) v Almer Farm Limited [2025] KEELC 4403 (KLR), Republic v Jackson Mwalulu & Others, Civil Application No. 310 of 2004, Philip K. Tunoi & Another v Judicial Service Commission & Another [2016] eKLR, Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2013] eKLR and Gladys Boss Shollei v Judicial Service Commission & Another [2018] eKLR. He submits that a Judge is presumed impartial, and that recusal cannot be granted on conjencture, suspicion, tactical dissatisfaction or the desire to avoid an unfavourable outcome. 43.The Petitioner further submits that a Judge has not only a duty to recuse where proper grounds exist, but also a duty to sit where no valid ground for recusal is established. He urges that allowing recusal on the basis of routine case management would encourage judge-shopping and weaken judicial independence under Article 160 of the Constitution. 44.On the allegation that the Judge clung to the file, the Petitioner submits that the record shows that the incoming Judge directed that the file be taken to Murang’a. He submits that the Applicant has not provided any evidence that the Judge personally retained the file, returned all other files or had personal interest in the outcome. On the alleged private communication, the Petitioner submits that the letter dated 13th March, 2026 was addressed to the Court through the Deputy Registrar, which is the proper administrative channel, and cannot be elevated into evidence of clandestine communication with the Judge. 45.The Petitioner also submits that the Applicant’s complaints about orders, timelines, the extension of interim relief and the sequencing of applications are matters for review or appeal and not grounds for recusal. He urges the Court to dismiss the application with costs and proceed to determine the remaining matters. The proposed Interested Parties’ submissions 46.The proposed Interested Parties oppose the application. They submit that an application for recusal should in the first instance be heard by the Judge against whom the allegations are made, and that the present application is therefore properly before this Court for determination. 47.They submit that the Applicant has failed to meet the objective legal threshold for recusal. Relying on the authorities on apparent bias and the fair-minded observer test, they argue that an allegation of bias must be supported by cogent, specific and credible evidence. Mere dissatisfaction with judicial directions, case management, timelines or interim orders does not meet the threshold. 48.They further submit that the application was filed late, has been overtaken by events, constitutes an abuse of process and is contrary to public interest. They state that the Petition raises issues of public importance touching on recruitment of persons to a constitutional commission and that the Court should not permit the proceedings to be derailed through unproven allegations of bias. Analysis And Determination 49.Having considered the application, the supporting affidavit, the grounds of opposition, the replying and supplementary affidavits, the further affidavit and the written submissions, the following issues arise for determination:a.Whether the recusal application is properly before this Court and whether it ought to be determined before the other pending applications;b.What is the applicable legal threshold for recusal?c.Whether the Applicant has established actual bias or a reasonable apprehension of bias;d.Whether the Applicant is entitled to stay of proceedings and re-allocation of the file; ande.What orders should issue? 50.Whether the recusal application should be determined first, this is straightforward. A recusal application goes to the authority of the particular judicial officer to continue handling a matter he or she is seized of. Where such an application is brought, prudence requires that it be determined at the earliest reasonable opportunity so that the parties know whether the Court, as presently constituted, may proceed to determine the other pending applications before it 51.I therefore find that it is proper and practical to determine the Notice of Motion dated 31st March, 2026 first before considering the other pending applications including the Preliminary Objection. The approach is consistent with the provisions under Article 50(1) of the Constitution and with the need to maintain confidence in the administration of justice. 52.I also find that the application is properly before this Court. The general principle is that a recusal application should, in the first instance, be made before the Judge whose recusal is sought. The Judge is required to assess the facts, apply the objective test and decide whether continued participation would undermine impartiality or the appearance of impartiality. It would be disorderly for another Judge of concurrent jurisdiction to sit as an appellate or disciplinary body over another Judge’s conduct in the guise of determining his/her recusal. This Court is therefore properly seized of the application dated 31st March,2026 seeking its recusal in this matter. The applicable threshold for recusal 53.Article 50(1) of the Constitution guarantees every person the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, where appropriate, another independent and impartial tribunal or body. Article 160(1) further protects the independence of the Judiciary and provides that in the exercise of judicial authority the Judiciary shall be subject only to the Constitution and the law and shall not be subject to the control or direction of any person or authority. 54.The right to an impartial court is not a decorative phrase; it is a foundational beam of the administration of justice. At the same time, judicial independence also requires that a Judge should not recuse himself/herself merely because a party is displeased with a ruling, direction, tone, pace or case management decision. The law must guard both sides of the gate. It must remove a Judge where impartiality is reasonably in doubt, but it must equally prevent litigants from selecting their preferred forum through accusations that are not prove. 55.The applicable test is objective. In the case Attorney General of Kenya v Prof. Anyang’ Nyong’o & 10 Others, the East African Court of Justice stated the test as whether the circumstances give rise to a reasonable apprehension, in the mind of the reasonable, fair-minded and informed member of the public, that the Judge may not apply her mind to the case impartially. The Supreme Court and Court of Appeal have applied the same objective standard in cases such as Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, Kalpana H. Rawal v Judicial Service Commission & 2 Others, Philip K. Tunoi & Another v Judicial Service Commission & Another, and Republic v Jackson Mwalulu & Others. 56.The test is not the personal suspicion of the litigant. It is not the anxiety of counsel. It is not the sting that follows an unfavourable direction. It is the conclusion that would be reached by a fair-minded and informed observer who knows the facts, understands the litigation context and appreciates that Judges routinely make decisions that may favour one party at one stage and another party at another stage. 57.The Judicial Service (Code of Conduct and Ethics) Regulations also speak to impartiality, propriety and avoidance of circumstances in which a Judge’s impartiality may reasonably be questioned. The regulations, however, do not convert every complaint against a judicial act into proof of bias. A party alleging bias bears the burden of placing before the Court specific, cogent and credible material capable of satisfying the objective test. 58.The Supreme Court in the case of Jasbir Singh Rai also emphasized the countervailing duty to sit. A Judge must recuse himself where lawful grounds exist. Equally in the absence of valid grounds, a Judge has a duty to sit. The judicial robe is not a revolving door to be turned by tactical pressure. The question is therefore whether the Applicant’s had placed material before this court that establishes a reasonable apprehension of bias when assessed objectively. The Complaint on the handling of the application dated 5th February 2026 59.The Applicant’s first substantial complaint is that the Court dealt with the Petitioner’s ex parte application quickly but took six days to certify the Commission’s application dated 5th February 2026 as urgent. The record as presented by the parties shows that the Commission’s application was certified urgent and was set for inter partes hearing on 5th March 2026, with liberty to parties to file responses and submissions. 60.A difference in the timing of administrative or judicial action on two applications does not, without more, establish bias. Courts deal with certificates of urgency against the realities of daily lists, chambers work, registry processes, judicial diaries and the nature of the relief sought. The Applicant has not shown that the Court deliberately delayed its application for an improper purpose or that the alleged delay was motivated by hostility to the Commission. I find this complaint insufficient to found my recusal from this matter. 61.Nevertheless, the Applicant’s dissatisfaction with the date given, or with the Court’s refusal to deal with its application ex parte, may be a ground for review or appeal if the law permits. It is not, without cogent evidence of partiality, a ground for any party to seek recusal of a judicial officer. Complaint on the Preliminary Objection and jurisdiction 62.The Applicant argues that jurisdiction was raised and ought to have been determined first. It is true that jurisdiction is fundamental and that a court must down its tools where it lacks jurisdiction, as was stated in the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. It is equally true that parties often raise jurisdictional objections in circumstances where the factual or legal substratum of the objection requires structured directions, responses and submissions. The Court has the discretion to give directions on how such matters will be canvassed, provided the objection is ultimately determined. 63.The fact that the Court did not adopt the Applicant’s preferred sequence does not demonstrate bias. A case management decision on whether to hear a preliminary objection alone, or together with related applications, is a judicial act. If the Applicant considered the directions erroneous, its recourse lay in an application for review or appeal. It cannot be transmuted into proof that the Judge had predetermined on the mind on the jurisdiction or the merits of the Petition. 64.at this stage, I must be careful I must avoid determining the Preliminary Objection in this ruling. It suffices to state that no material has been placed before me showing that the Court finally determined jurisdiction before hearing the parties, or that any prior judicial observation crossed the line from case management into prejudgment. The Complaint on ex parte conservatory orders and their extension 65.The Applicant complains that ex parte conservatory orders were issued for an extended period and later extended, allegedly indefinitely, without hearing the Commission. The Court notes that the Petition is a constitutional petition and the interlocutory relief sought was conservatory in nature. Conservatory orders are public law remedies intended to preserve the substratum of litigation and the authority of the Court pending determination. They are not always to be treated as ordinary private law injunctions, although principles of fairness and proportionality remain central. 66.Even assuming, for argument’s sake, that the Applicant considered the orders irregular, excessive or erroneous, the existence of an arguable error in a judicial order is not the same thing as bias. Courts decide. Sometimes they decide wrongly. The remedy for a wrong decision is appeal an application for review or setting aside of an impugned order or decision in appropriate proceedings, not an automatic recusal of the Judge who made the decision. 67.The Applicant’s submissions that the orders were extended indefinitely, or that they consumed pending applications, are matters that can be addressed within the pending applications. They do not, without evidence of personal interest, hostility, collusion or extraneous influence, prove actual or apparent bias. The Complaint on the participation of the proposed Interested Parties 68.The Applicant has also complained that the proposed Interested Parties were allowed to participate before the determination of their joinder application. The record shows that the proposed Interested Parties had filed a joinder application. In constitutional litigation, especially where proceedings are said to affect public offices, classes of persons or public administration, courts often receive preliminary application for participation in proceedings from persons claiming a stake so as to determine whether they should be formally joined or heard. 69.Whether such participation was procedurally ideal is not the issue in this ruling. The issue is whether it demonstrates bias. I find that it does not. A court’s decision to receive material from proposed Interested Parties pending consideration of joinder is an ordinary case management decision. It does not, in itself, show partiality for the Petitioner or hostility against the Commission. Complaint that the Judge retained the file after transfer 70.The further affidavit introduced the allegation that upon transfer from Kiambu to Murang’a, the Judge “clung” to this particular file and thereby demonstrated personal interest in the matter. This is a grave allegation. It required credible evidence. However, the Applicant has not availed an administrative directive, registry communication, transfer list, correspondence from the Presiding Judge, or any other material showing that the Judge personally selected this file, retained it, or prevented its being handled by the incoming Judge. 71.The Petitioner’s supplementary affidavit, on the other hand, states that on 9th April,2026 the incoming Judge, Honourable Justice Bahati Mwamuye, MBS, directed on that the file be placed before this Court at Murang’a. The Petitioner has also annexed material to show that this was not the only Kiambu matter being handled by a transferred Judge. The proposed Interested Parties similarly state that the Applicant’s allegation misunderstands the Judiciary’s internal administrative and case allocation processes. 72.It is not unusual for a Judge who has issued directions in a matter, heard parties, reserved a ruling or become substantially seized of a matter to continue handling aspects of it after transfer, where administrative directions so permit, particularly to avoid delay or duplication. Practice directions cited by the Applicant themselves contemplate the forwarding of pending judgments or rulings for delivery. They do not establish an inflexible rule that continued handling of a transferred file is evidence of bias. Furthermore, following the transfer of Judges which affected me, there were direction from the Principal Judge issued vide an internal that all the Judges on transfer should write and deliver the Rulings and Judgments of any matters that were fully heard by them or in which they issued directions on determination of application or any other matter. Therefore, even if I had moved with the matter, it would not have been our of order. 73.On the material before me, a fair-minded and informed observer would not conclude that the Judge has personal interest in the Petition merely because the file was administratively placed before her after transfer. This ground therefore fails. The Complaint on alleged extra-judicial comment on jurisdiction 74.The Applicant alleges that the Judge expressed herself in the local dailies on the question of jurisdiction while the issue was pending. Such an allegation, if proven, would be serious, because judicial officers are required to avoid public commentary on matters pending before them in a manner that may compromise actual or perceived impartiality. 75.However, the Applicant is still required to prove the factual foundation of this claim or allegation. A newspaper report, without more, may be insufficient where it is not clear whether the words were directly spoken by the Judge, whether they were a paraphrase by a reporter, whether they referred to this matter specifically, or whether they merely reflected a court order already made on the record. The Court record remains the authoritative account of what the Court has decided or opined. 76.in this regard, I find that the Applicant has not placed before the Court a transcript, recording, affidavit by the reporter, or any independent material proving that this Judge made an extra-judicial pronouncement determining the jurisdictional issue in this matter in advance. The allegation therefore remains insufficient to satisfy the objective test for recusal. The Complaint on the letter of 13th March 2026 and alleged irregular communication 77.The Applicant’s further affidavit alleges active and irregular communication between the Court and the Petitioner arising from a letter dated 13th March, 2026. The Petitioner responds that the letter was addressed to the Court through the Deputy Registrar and was therefore within established administrative channels. 78.The administration of a court necessarily occurs through registries, Deputy Registrars and electronic case systems. A letter addressed to the Court through the Deputy Registrar is not, merely by that fact, private communication with the Judge. If a party writes to the registry without copying other parties, that may raise a concern on procedural propriety by that party. But the misconduct of a party or counsel, if any, cannot be imputed to the Judge without proof that the Judge engaged in private communication, considered undisclosed material for an improper purpose, or acted outside the record. 79.The serious descriptions used by the Applicant, including suggestions of collusion, unholy alliance and manipulation, have not been supported by cogent evidence. The Court must decide recusal applications on evidence, not volcanic language. I therefore find that this ground does not establish actual bias or a reasonable apprehension of bias. The Complaint on the addendum or clarification to the ruling 80.The Applicant also complains that the Court issued an addendum or clarification to the ruling of 13th March, 2026, and argues that a court cannot alter a ruling once delivered save within the narrow limits of the law. On this, the Applicant invokes the principle of functus officio and Order 21 Rule 3 of the Civil Procedure Rules. 81.The Court need not determine, within this recusal ruling, the legal correctness of the alleged addendum or clarification. The law provides mechanisms for correcting accidental slips and errors, and also provides remedies where a party considers that a court has substantively altered a ruling without jurisdiction. Those remedies include review or appeal, depending on the circumstances of the superior. The question before me is whether the act complained of demonstrates bias. 82.I am not satisfied that it does. An alleged procedural error, even if arguable, is not automatically evidence of partiality. The Applicant has not demonstrated that the alleged addendum was made to favour the Petitioner out of personal interest, prejudice against the Commission, or improper communication. Therefore, this complaint cannot justify recusal of a judicial officer or judge. The allegation/claim of Delay, waiver and abuse of process 83.The Petitioner and proposed Interested Parties argue that the application was delayed and filed to derail a matter that was approaching determination. The Applicant responds that recusal may be raised once the facts constituting apprehension of bias become known and that there is no rigid time limit. 84.I accept that there is no absolute time bar to a recusal application. A party should not be shut out merely because the facts giving rise to apprehension emerge late. However, delay is relevant where the matters complained of were known earlier and the party participated in the proceedings without protest, only to seek recusal when the matter is ripe for determination or when prior directions appear unfavourable. 85.In the present case, a significant part of the Applicant’s complaint relates to orders and directions made in February and March, 2026. The application was filed on 31st March, 2026, and further allegations were added in May 2026. While the timing alone is not fatal, it reinforces the Court’s duty to scrutinize the application carefully to ensure that recusal is not being used as a disguised appeal or a tool of forum shopping. 86.Having scrutinized the record, I find that the Applicant’s complaints are, in substance, challenges to judicial directions, interim orders, sequencing of applications, registry communications and administrative file allocation. Those matters may be raised through appropriate legal mechanisms where necessary. They do not, on the material before the Court, prove bias or apparent bias. Whether the objective test has been met 87.The fair-minded and informed observer is not a casual spectator in the public gallery, nor a partisan dressed in borrowed neutrality. Such an observer is presumed to know the record, the nature of constitutional proceedings, the power of a court to manage its docket, the difference between judicial error and judicial bias, and the fact that courts must sometimes preserve the subject matter of litigation before finally deciding the merits of it. 88.Considering all the facts placed before the Court that observer would see a party who is strongly aggrieved by case management directions and interim orders. The observer would also see serious allegations made against the Court, but without the evidentiary anchors required to convert suspicion into reasonable apprehension. What is missing is proof of personal interest, close relationship with either party, financial or proprietary interest, prior involvement as counsel, private communication either partly with by the Judge, hostility, predetermination or any other sufficient reason showing that the Judge cannot bring an impartial mind to bear on the pending issues. 89.I therefore find that the Applicant has not established actual bias. I further find that the Applicant has not established facts from which a fair-minded and informed observer would conclude that there is a real possibility or reasonable apprehension of bias. The legal threshold for recusal of a Judge or judicial has not been met nor the grounds raised by the Applicant/Respondent. Stay and re-allocation 90.Prayer 2 seeks stay of the proceedings and specifically the orders issued on 13th March, 2026 pending hearing and determination of the recusal application. Since this ruling determines the recusal application, the prayer for stay pending its determination is spent. To the extent that the Applicant seeks stay as a consequential relief, that prayer collapses with the failure of proof of the prayer for my the recusal. 91.Prayer 3 seeks that the file be placed before the Presiding Judge of the Constitutional and Human Rights Division for re-allocation. Re-allocation is a consequential order dependent on a finding that the Judge should recuse herself. Having found no basis has been demonstrated for my recusal, there is no legal foundation for re-allocation. Disposition 92.For the reasons set out above, I find that the 1st Respondent’s Notice of Motion dated 31st March, 2026 is not merited as the Applicant has not demonstrated actual bias, apparent bias, reasonable apprehension of bias, or any sufficient reason warranting recusal of the Court from further conduct of these proceedings. 93.Accordingly, I make the following orders:a.The 1st Respondent’s Notice of Motion dated 31st March 2026 is hereby dismissed.b.A ruling on the remaining pending applications and the Preliminary Objection shall be issued on 2nd July,2026.c.Given that the application concerned the constitutional right to an impartial tribunal, costs of the application shall be in the cause. DATED, SIGNED AND DELIVERED AT KIAMBU THIS 12TH DAY OF JUNE, 2026.............................................................DORAH CHEPKWONYJUDGE