https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1600

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET** **PETITION NO. E003 OF 2026** **KIBII KOECH SIMON…....................................PETITIONER** **VERSUS** **KENYA NATIONAL UNION OF** **NURSES AND MIDWIVES………………………….…1ST RESPONDENT** **SETH PANYAKO………………………………………..2ND RESPONDENT** **AND** **THE REGISTRAR OF TRADE UNIONS.…1ST INTERESTED PARTY** **THE HON. ATTORNEY GENERAL………..2ND INTERESTED PARTY** **RULING NO. 2** 1. Vide an application dated 6th February 2026, **SETH PANYAKO,** the 2nd Respondent herein seeks the following orders:- 2. Spent 3. This Honourable Court be pleased to order the recusal of the Honourable Judge Maureen Onyango from hearing and determining this cause 4. This Honourable Court be pleased to order the recusal of the Honourable Judge from hearing and determining all other related matters involving the Applicant’s Union that have been administratively placed before her, regarding the current issues therein being substantially similar arising from the same factual matrix. 5. This matter and the related matters be placed before the Presiding Judge of the Court for directions and re-allocation. 6. There be production of certified transcription of proceedings for the hearing of the Petitioner’s application on 4th February 2026. 7. Pending the hearing and determination of this application, there be a stay of further proceedings in this cause and the related matters. 8. Costs of this application be in the cause. 9. The application is supported by the grounds on the face thereof and the affidavit of SETH PANYAKO, the 2nd Respondent/Applicant sworn on 6th February, 2026. It is his contention that Article 50(1) of the Constitution guarantees every party the right to have disputes determined by an independent and impartial court and that the circumstances surrounding the conduct of these proceedings have given rise to a reasonable apprehension of bias on the part of this Court. 10. The Applicant avers that the Petition herein relates the conduct of the Kenya National Union of Nurses and Midwives' elections which had been scheduled for 6th February 2026 and that, following oral submissions on the Petitioner's Notice of Motion dated 29th January 2026, the Court issued a series of interlocutory orders suspending the scheduled elections, suspending certain provisions of the Union Constitution and directing the manner in which fresh elections were to be conducted. 11. According to the Applicant, the impugned orders were issued at an interlocutory stage but substantially determined the issues in dispute, thereby rendering the hearing of the Petition largely academic. The Applicant further contends that although the Court directed that the ruling containing the reasons for the orders would be delivered or uploaded within seven days, the Respondents remained bound by the orders in the meantime, thus limiting their ability to pursue appellate relief before the scheduled elections. 12. The Applicant further asserts that the orders granted by the Court went beyond the reliefs sought in the Notice of Motion and included the suspension of various provisions of the Union Constitution that had not been specifically challenged by the Petitioner. It is the Applicant's case that the grant of such orders at an interlocutory stage demonstrates that the Court had effectively determined substantive issues in the dispute before hearing the Petition on its merits. 13. The Applicant also contends that the orders issued by the Court did not provide directions regarding the future conduct of the matter and, in effect, amounted to a final determination of the dispute. In addition, it is alleged that certain aspects of the orders were internally inconsistent and incapable of implementation, particularly in relation to the role of the Independent National Electoral Commission of the Union (INEC) and the suspension of constitutional provisions governing the electoral process. 14. The Applicant further maintains that the impugned orders were contrary to the Union Constitution and that the Court assumed jurisdiction in a matter which ought properly to have been pursued either as an appeal against the decision of the Registrar of Trade Unions or as an election petition under the applicable statutory framework. 15. The Applicant avers that the continued conduct of the matter by the same Court, viewed against the backdrop of the impugned orders and previous disputes involving the 1st Respondent Union, gives rise to a reasonable apprehension of bias. It is contended that the Court has consistently rendered decisions adverse to the interests of the Union and its officials and that such conduct undermines the Respondents' confidence in the impartial determination of the dispute. In support of this contention, the Applicant cited several previous matters involving the 1st Respondent , including Petition No. 50 of 2012, Seth Panyako & 5 Others v Attorney General & 2 Others, ELRC Cause No. E321 of 2021, Kenya National Union of Nurses v Central Organization of Trade Unions (COTU) Kenya, Kenya National Union of Nurses v County Government of Kisii & Another [2025] KEELRC 429 (KLR), Agnes Wangeci Munderu & 6 Others v Seth Panyako, General Secretary, Kenya National Union of Nurses & 2 Others [2022] KEELRC 1417 (KLR), County Government of Vihiga & 6 Others v Kenya National Union of Clinical Officers & 15 Others; Ministry of Labour & Social Protection & 2 Others (Interested Parties) [2024] KEELRC 2595 (KLR), and ELRC No. 181 of 2016, Stephen Kaburia Ruteere v Kenyatta National Hospital. 16. The Applicant contends that the manner in which those matters were handled demonstrates a pattern of conduct that would lead a reasonable, fair-minded and informed observer to apprehend that the continued conduct of this matter and related disputes by the same Court may compromise the appearance of impartiality. 17. It is therefore the Applicant's position that, in order to preserve public confidence in the administration of justice and uphold the principle that justice must not only be done but must also be seen to be done, the Court ought to recuse itself from the matter and all related proceedings involving the 1st Respondent Union. 18. The Petitioner opposed the application through Grounds of Opposition dated 17th February 2026 on grounds that: - 19. The Applicant had failed to demonstrate any real likelihood of bias or reasonable apprehension of bias on the part of the Court 20. A Judge has a constitutional and statutory duty to hear and determine matters allocated to the Court unless legally disqualified 21. Dissatisfaction with prior judicial decisions does not constitute bias and cannot form a legitimate basis for recusal 22. The Applicant had failed to establish any personal interest, relationship, conflict of interest or other extraneous factor capable of influencing the Court's impartiality 23. The application was an abuse of the court process intended to delay proceedings and facilitate forum shopping; 24. The Applicant had failed to satisfy the objective fair-minded and informed observer test 25. The application lacked specific particulars and evidentiary support capable of establishing bias 26. Judicial independence and the institutional integrity of the Court ought to be protected from unwarranted attacks founded on speculation and dissatisfaction with judicial outcomes 27. The Applicant had acquiesced in the proceedings and only sought recusal after adverse interim orders had been issued 28. Interlocutory orders and case management directions issued in the lawful exercise of judicial discretion do not constitute valid grounds for recusal; and 29. The interests of justice and efficient case management militated against the grant of the orders sought. 30. On the first ground, the Petitioner contends that the Applicant has failed to demonstrate any factual basis capable of establishing bias on the part of the Court. According to the Petitioner, the applicable test is objective and requires the Court to determine whether a fair-minded and informed observer, having considered all the relevant facts, would conclude that there exists a real possibility of bias. It is the Petitioner's position that the allegations advanced by the Applicant are speculative, generalized and unsupported by any verifiable factual foundation. 31. On the second ground, the Petitioner submits that a judicial officer is obligated to hear and determine matters allocated to the Court unless legally disqualified. The Petitioner further contends that recusal should not be resorted to lightly as unwarranted withdrawal from a matter undermines the administration of justice and encourages forum shopping and bench manipulation. 32. With regard to the third ground, the Petitioner argues that dissatisfaction with previous judicial decisions cannot form a legitimate basis for recusal. According to the Petitioner, judicial determinations are subject to review and appellate processes and the mere fact that previous decisions were adverse to the Applicant does not establish partiality. 33. On the fourth ground, the Petitioner contends that the Applicant has failed to demonstrate any pecuniary interest, personal relationship, prior involvement in the dispute or other extraneous factor capable of influencing the Court's impartiality. 34. On the fifth ground that the application is an abuse of the court process intended to delay proceedings and facilitate forum shopping, the Petitioner submits that the application was brought in bad faith and is intended to derail the proceedings so as to secure a different judicial officer perceived to be more favourable to the Applicant. 35. On the ground that the Applicant has failed to satisfy the objective fair-minded and informed observer test, the Petitioner maintains that the apprehension of bias alleged by the Applicant is purely subjective and founded on dissatisfaction with judicial orders and case management directions. 36. On the seventh ground, the Petitioner argues that allegations of bias must be supported by clear, specific and verifiable facts. According to the Petitioner, the supporting affidavit is devoid of concrete evidence and consists largely of generalized allegations and speculative assertions. 37. Regarding the eighth ground, the Petitioner submits that allowing recusal in the absence of lawful grounds would embolden litigants to intimidate judicial officers and undermine public confidence in the Judiciary. 38. On the ninth ground, the Petitioner contends that the Applicant actively participated in the proceedings and only sought recusal after adverse interim orders had been issued. It is therefore argued that the application is an afterthought motivated by dissatisfaction with the course of the proceedings. 39. On the ground that interlocutory orders and case management directions do not justify recusal, the Petitioner submits that the orders complained of were issued in the lawful exercise of judicial discretion and that any dissatisfaction therewith ought to be pursued through review or appeal rather than recusal. 40. Lastly, on whether the interests of justice and efficient case management militate against the orders sought, the Petitioner contends that granting the application would occasion delay, duplication of proceedings, increased costs and a waste of judicial resources. The Petitioner therefore urges the Court to dismiss the application with costs. 41. The application was canvassed by way of written submission. The 2nd Respondent’s submissions are dated 18th March 2026 while the Petitioners submissions are dated 27th April 2026. ***The 2nd Respondent’s submissions*** 1. The 2nd Respondent submits that he has lost confidence in the Court's ability to impartially determine the dispute and is apprehensive that he will suffer a miscarriage of justice should the Court continue presiding over the matter. Relying on the dictum of Lord Hewart CJ in ***R v Sussex Justices, Ex parte McCarthy* [1924] 1 KB** 256 that justice must not only be done but must also be seen to be done, the 2nd Respondent submits that judicial officers must not only be impartial but must also be seen to be impartial in their conduct, speech and decisions. 2. On the issue of alleged bias, the 2nd Respondent contends that the Court exhibited favouritism towards the Petitioner and departed from its role as an impartial arbiter. According to the 2nd Respondent, the Court failed to appreciate the sequential nature of the Union's electoral process, whereby branch elections are conducted first and are followed by the Quinquennial Conference at which national elections are held. It was further submitted that the Court failed to appreciate that branch officials constitute the Quinquennial Conference and consequently erred in stating that branch and national elections could be conducted on the same day. 3. The 2nd Respondent further submits that the alleged bias is evident from the orders issued by the Court on 11th February 2026. In particular, it is contended that the Court suspended various provisions of the Union Constitution despite no such relief having been sought in either the application or the Petition. The 2nd Respondent submits that by granting orders which had not been pleaded, the Court departed from the parties' pleadings and thereby demonstrated bias. In support of this position, reliance was placed on the decision in Ndiritu ***(Suing as Administrator of the Estate of George Ndiritu Kariamburi (Deceased)) v Ropkoi & Another* [2004] KECA 65 (KLR)**. 4. The 2nd Respondent further submits that the grant of what he terms as final orders at an interlocutory stage, particularly orders that had not been sought by the Petitioner, violated the Respondents' right to a fair hearing under Article 50(1) of the Constitution. Reliance was also placed on the case of ***Evans Odhiambo Kidero & 4 Others v Ferdinand Ndungu Waititu & 4 Others [2014] eKLR.*** 5. The 2nd Respondent maintained that the impugned orders had the effect of condemning the Respondents unheard and denying them an opportunity to fully ventilate their case. 6. In the end, the 2nd Respondent therefore surged the Court to recuse itself in order to uphold the ends of justice. ***Petitioner’s submissions*** 1. On its part, the Petitioner identified the issues for determination to be: - 2. Whether the Applicant has established a real likelihood or reasonable apprehension of bias 3. Whether the dissatisfaction with prior or interlocutory orders constitutes a basis for recusal 4. Whether the application meets the objective fair minded observer test 5. Whether the application is an abuse of the court process meant to delay proceedings and facilitate forum shopping 6. Whether the interests of justice favour dismissal of the recusal application 7. On the first issue, the Petitioner submitted that the Applicant has failed to demonstrate any factual basis capable of establishing bias. According to the Petitioner, the allegations are founded on subjective dissatisfaction with interlocutory orders and case management directions rather than objective evidence of partiality. The Petitioner contends that no evidence has been presented demonstrating personal interest, relationship, extraneous influence or improper conduct on the part of the Court. 8. On the second issue, the Petitioner submitted that judicial determinations, even where unfavorable to a party, do not amount to bias and cannot constitute a lawful basis for recusal. It was argued that judicial officers determine matters on the basis of the pleadings, evidence and applicable law and that the proper recourse available to an aggrieved party is review, appeal, clarification or stay of orders rather than recusal of the presiding Judge. 9. On whether the instant application meets the objective fair-minded observer test, the Petitioner submits that an observer would note that the impugned orders were issued after hearing the parties, were interlocutory in nature and intended to preserve the substratum of the Petition, and that the Applicant actively participated in the proceedings without objection until adverse orders were issued. The Petitioner therefore contends that a fair-minded observer would conclude that there is no real possibility of bias. 10. The Petitioner further submits that the Applicant's assertion that the impugned orders were final orders is erroneous as the orders were conservatory and interlocutory in nature and were intended to preserve the substratum of the dispute pending the hearing and determination of the Petition. It is the Petitioner’s submission that the Court has not made any final determination regarding the constitutionality of the impugned provisions of the Union Constitution. 11. On the fourth issue, the Petitioner submits that the Applicant actively participated in the proceedings, filed responses and only sought recusal after adverse interim orders had been issued. It is submitted that the application is therefore an afterthought motivated by dissatisfaction with the direction of the proceedings rather than any genuine apprehension of bias. The Petitioner submits that the timing of the application is intended to delay the hearing of the Petition while securing a different judicial officer perceived to be more favourable. It is the Petitioner’s submission that allowing such applications would encourage forum shopping and undermine public confidence in the administration of justice. 12. Lastly, on the issue whether the interests of justice favour dismissal of the recusal application, the Petitioner submits that granting the application would occasion unnecessary delay, duplication of proceedings, increased costs and wastage of scarce judicial resources. 13. Consequently, the Petitioner urges the Court to dismiss the application with costs. **Determination** 1. I have carefully considered the Notice of Motion dated 6th February 2026, the supporting affidavit, the grounds of opposition, the rival submissions of the parties and the applicable law. The issue falling for determination is whether the Applicant has established sufficient grounds to warrant my recusal from further conduct of these proceedings and related matters. 2. The principles governing judicial recusal are now well settled. The test is an objective one: whether a fair-minded and informed observer, having considered all the relevant facts, would conclude that there exists a real possibility or reasonable apprehension that the Judge may not bring an impartial mind to bear on the resolution of the dispute. It is not enough for a party to subjectively perceive bias; the apprehension must be reasonable, supported by cogent facts and capable of being objectively justified. 3. The Court of Appeal in the case of ***Philip K. Tunoi & another versus Judicial Service Commission & another [2016] eKLR*** held: *“The test in R v. Gough was subsequently adjusted by the House of Lords in Porter v. Magill [2002] 1 All ER 465 when the House of Lords opined that the words “a real danger” in the test served no useful purpose and accordingly held that-* *“[T]he question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”* *In determining the existence or otherwise of bias, the test to be applied is that of a fair- minded and informed observer who will adopt a balanced approach and will neither be complacent nor be unduly sensitive or suspicious in determining whether or not there is a real possibility of bias.* *In Taylor v. Lawrence [2003] QB 528 at page 548, in which an application was made to reopen an appeal on the ground that the Judge was biased, the Judge having instructed the plaintiffs’ solicitors many years previously the House of Lords in the judgment of Lord Woolf CJ reiterated:* *“... we believe the modest adjustment in R V. Gough is called for which makes it plain that it is, in effect, no different from the test applied in most of the commonwealth and in Scotland.” “The Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”* 1. In the instant case, the Applicant's complaint as can be deduced from the application herein is founded on the interlocutory orders issued by this Court on 4th February 2026. The Applicant contends that the impugned orders substantially determined the dispute, granted reliefs that had not been sought and demonstrate that the Court has already formed a concluded view on the issues in controversy. 2. It is trite that dissatisfaction with judicial decisions, whether interlocutory or final, does not of itself constitute evidence of bias. A judicial officer is required to determine matters placed before the Court and, in doing so, may issue orders that are favourable to one party and adverse to another. The mere fact that a litigant disagrees with those orders cannot form a basis for recusal. The proper remedy available to an aggrieved party is review or appeal, not the disqualification of the judicial officer who rendered the decision. 3. Additionally, allegations founded on previous decisions rendered against a litigant do not, without more, establish bias. Were the position otherwise, any party dissatisfied with a court's previous decisions would readily secure the recusal of the judicial officer whenever a subsequent dispute arose. Such an approach would undermine judicial independence and encourage forum shopping. 4. I have further considered the Applicant's assertions regarding previous matters involving the 1st Respondent Union and the allegation that this Court has consistently rendered decisions adverse to the Union. Those allegations relate to judicial determinations made in the exercise of the Court's mandate. No evidence has been placed before the Court demonstrating personal animosity, extraneous influence, pecuniary interest, relationship with any party, or any other circumstance capable of giving rise to a reasonable apprehension of bias. 5. I also note that the Applicant actively participated in the proceedings and only sought recusal after the impugned interlocutory orders were issued. While this fact is not, by itself, determinative, it lends credence to the Petitioner's contention that the application is substantially driven by dissatisfaction with the orders issued by the Court rather than by any objectively demonstrable apprehension of bias. 6. Having considered all the circumstances of this case, I am unable to find that a fair-minded and informed observer would conclude that there exists a real possibility of bias on the part of the Court. The allegations advanced by the Applicant are largely directed at the correctness, legality and propriety of judicial orders already made. Those are matters that properly fall within the province of an appellate court and not a recusal application. 7. The Court is mindful that justice must not only be done but must also be seen to be done. At the same time, a Judge has a duty to sit and determine matters allocated to him or her unless a proper basis for recusal has been established. Recusal should not be granted on the basis of speculation, conjecture or dissatisfaction with judicial outcomes, lest the administration of justice be exposed to manipulation by litigants seeking a different forum. 8. In the circumstances, I find that the Applicant has failed to establish a real likelihood of bias or a reasonable apprehension of bias sufficient to warrant recusal. 9. Accordingly, the Notice of Motion dated 6th February 2026 is devoid of merit and is hereby dismissed. 10. Costs of the application shall abide the outcome of the Petition. **DATED, DELIVERED AND SIGNED** **ON THIS 8TH DAY OF JUNE 2026.** **M. ONYANGO** **JUDGE**