[2018] KEELRC 2284 (KLR)
The court held that while Senior Counsel may enjoy certain privileges, these do not usurp the court's authority to manage its own proceedings or to determine the order of hearing. The judiciary's independence is paramount and is not subject to direction from any external body, including the Law Society of Kenya. The...
Source-derived case information.
- Citation
- [2018] KEELRC 2284 (KLR)
- Parties
- Applicant: Republic; Respondent: County Secretary, County Government of Tharaka Nithi; Respondent: County Government of Tharaka Nithi; Applicant: Kenneth Ntwiga Kanga; Respondent: Mr. Kariuki
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 3 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Recusal of Judge
- Outcome
- application for recusal dismissed
- Judges
- AN Makau
- Legal Topics
- Judicial Recusal, Senior Counsel Privileges, Court Independence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
County Secretary, County Government of Tharaka Nithi
Respondent
County Government of Tharaka Nithi
Respondent
Kenneth Ntwiga Kanga
Applicant
Mr. Kariuki
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Recusal of Judge
Legal Issues
- 1 Whether the judge should recuse himself for not giving Senior Counsel precedence over other advocates in court.
- 2 Whether the privileges of Senior Counsel override the court's discretion in managing its proceedings.
Ratio Decidendi
The court held that while Senior Counsel may enjoy certain privileges, these do not usurp the court's authority to manage its own proceedings or to determine the order of hearing. The judiciary's independence is paramount and is not subject to direction from any external body, including the Law Society of Kenya. The Advocates Act does not diminish the court's power to render justice impartially. No evidence of bias or unfairness was demonstrated, and all litigants are to be treated equally regardless of the status of their counsel. Therefore, the application for recusal was found to have no basis and was declined.
Court Disposition
application for recusal dismissed
Orders
- The application for recusal is declined.
- The court will proceed to hear the matter as previously constituted.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NYERI
MISC. APPLICATION NO. 3 OF 2017 (J.R.)
IN THE MATTER OF AN APPLICATION BY KENNETH NTWIGA
KANGA
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
ORDERS OF CERTIORARI AND MANDAMUS
AND
IN THE MATTER OF SECTION 58(1) (C) AND SECTION
58(5) OF THE COUNTY GOVERNMENTS ACT
AND
IN THE MATTER OF ARTICLE 20, 22(1), 27, 28, 29,
41 AND 47 CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES 2010
AND
IN THE MATTER OF THE LAW REFORM ACT, CAP. 26 LAWS OF KENYA
AND
REPUBLIC......................................................................APPLICANT
VERSUS
THE COUNTY SECRETARY COUNTY
GOVERNMENT OF THARAKA NITHI...........1ST RESPONDENT
COUNTY GOVERNMENT
OF THARAKA NITHI........................................2ND RESPONDENT
EX PARTE KENNETH NTWIGA KANGA
RULING
1. The application for recusal was made on file 457 of 2017 and during his submissions Dr. Kuria mentioned this file. He asked for the court to recuse itself for not giving him as Senior Counsel Precedence over the rest of the advocates in court. The arguments advanced are reduced into some degree of consistency in the Cause 457 of 2017 Ruling delivered shortly before this.
2. I will note that Mr. Kariuki in opposing the application for my recusal submitted that a privilege is not a right and that the Court had been fair in taking charge of matters before it and mentioned the causes for purposes of settling the cause list and that no person had been given a hearing before Dr. Kuria. He submitted that no bias has been shown and that in his view the application for recusal should be rejected as it had no basis.
3. Dr. Kuria in his reply stated that the Court can only take charge within the law and not outside it. He said that he was in the Court of Appeal yesterday and was given precedence and that he should have been accorded similar treatment in my court.
4. Whereas there is the role of Senior Counsel and certain privileges ascribed to the members on the role, it is clear that the title of Senior Counsel is not intended to usurp the role of courts in settling lists or disputes of cases. The Judiciary is independent and is not under the direction of any arm of Government and most definitely not from the Law Society of Kenya. In my considered view, the Rules under the Advocates Act do not reduce the power of courts to render justice. There is no litigant before me who is grater that any other. They are all equal in the eyes of the law and I decline the invitation to raise some litigants merely because they retain counsel with the title S.C. I decline to accede to the request to recuse myself as there is no basis whatsoever for such recusal.
It is so ordered.
Dated and delivered at Nyeri this 25th day of January 2018
Nzioki wa Makau
JUDGE