https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10068

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E283 OF 2026** **BENARD BARASA WAKWABUBI……………………...1ST PETITIONER** **KENNEDY WAFULA WEKUNDA……………………...2ND PETITIONER** **GEORGE NG’ANG’A MOCHUMBE NG’ANG’A……..3RD PETITIONER** **PROF FREDRICK ONYANGO OGOLA………………..4TH PETITIONER** **VERSUS** **ROBA S. DUBA GENERAL SECRETARY KENYA** **COUNTY GOVERNMENT WORKERS UNION……...1ST RESPONDENT** **AND 26 OTHERS** **AND** **THE LAW SOCIETY OF KENYA.1ST INTENDED INTERESTED PARTY & 14 OTHER INTENDED INTERESTED PARTIES** **RULING** 1. To every issue, there is a cause. As I write this short ruling arising from matters that arose in court this morning, I must set out the background, clearly, from the onset. 2. Vide their petition dated 27th April, 2026 and filed under certificate of urgency together with a Notice of motion of even date seeking among other reliefs, urgent exparte conservatory orders, the four petitioners seek 33 reliefs, among them are: 3. ***A declaration that the proceedings, judgment, decree and all consequential orders in Bungoma ELRC Petition No.1 of 2019 were procured through fraud, misinterpretation and concealment of material facts and are therefore unconstitutional, null and void ab initio and of no legal effect whatsoever.*** 4. ***A declaration that all appointments, confirmations and or absorption into the Bungoma County Public Service arising from or connected to the impugned judgment are illegal, unconstitutional and hereby invalidated in their entirety*** 5. ***A declaration that any payments, emoluments or public funds expended pursuant to the impugned proceedings constitute unlawful expenditure and are recoverable in accordance with Article 226(5) of the Constitution and applicable statutory frameworks*** 6. ***An order of certiorari hereby issued quashing, setting aside, and nullifying the judgment, decree and all consequential orders in Bungoma ELRC Petition No. 1 of 2019.*** 7. ***An order nullifying and setting aside all administrative payroll and human resource actions including actions by the Bungoma County Public Service Board (CPSB) and or Public Service Commission undertaken pursuant to or in reliance upon the said judgment.*** 8. ***An order of permanent prohibition restraining the County Government of Bungoma, its agents, or person acting under its authority from:*** 9. ***Implementing or giving effect to the impugned judgment;*** 10. ***Retaining or maintaining in payroll any persons irregularly appointed pursuant thereto; and*** 11. ***Authoring or effecting any further payments arising therefrom*** 12. ***That this Honourable Court be please d to issue a permanent injunction restraining the County Government of Bungoma, the County Public Service Board and the Public Service Commission (PSC) whether by themselves, their officers, agents or any person acting under their authority from:*** 13. ***Re-inserting, maintaining or retaining the names of the 463 individuals listed in the impugned Schedule (Annexture BWB);*** 14. ***Issuing, reactivating, or recognizing any personal numbers (Check-off/IPPD numbers) associated with the said 463 individuals in relation to any alleged employment with the County Government of Bungoma;*** 15. ***Processing, approving or disbursing any further payments, salaries, allowances, arears or benefits including the contested sum of Kshs 3,026,000,000 to the said individuals*** 16. ***Remitting any Union dues or statutory deductions to the Kenya County Government Workers Union (KVGWU) or COTU(K) in respect of the said 463 individuals, the said parties having been declared non-bonafide members.*** 17. ***An order directing the Public Service Commission*** ***to exercise its constitutional oversight mandate and supervise compliance by the Bungoma County Public Service Board with constitutional recruitment standards, public service values and lawful human resource practices and to file a compliance report before this Honourable Court within such period as the Court shall direct.*** 1. ***A declaration that the Hon. Justice David Nderitu, Judge, has breached the Judicial Code pf Conduct and his constitutional oath by facilitating a fraudulent syndicate and a consequential order referring the matter to the Judicial service Commission (JSC) for the conclusion of removal proceedings.*** 2. ***A declaration declaring Moses Maelo Muyundi a vexatious litigant and restraining him from instituting any further proceedings against the petitioners or the respondents without the express leave of the High Court.*** 3. ***A declaration that the network of law firms associated with the 19th to 25th respondents characterized by overlapping proprietorships, shared operational structures and the use of multiple legal entities to receive and execute instructions from public bodies constitutes a proxy and or sham and unethical professional arrangement, purpose and effect of which is to obscure accountability, evade regulatory oversight and facilitate conflicted and non-transparent legal engagements and is therefore unlawful, unconstitutional and in violation of the Advocates Act, the Law Society of Kenya Act and Articles 10, 73, 201(d) and 232 of the Constitution.*** 4. ***……*** 5. ***…..33*** 6. In the notice of motion dated 27th April, 2026, the petitioners sought for 23 conservatory orders among them: 7. ***That the application be certified urgent and service of the same be dispensed with in the first instance*** 8. ***That the Court be pleased to join the 1st to 15th indented Interested Parties as parties to this petition;*** 9. ***That an order be and is hereby issued directing the Law Society of Kenya to immediately suspend operations of:*** 10. ***Roba & Associates Advocates LLP;*** 11. ***Mwiti Abdirizak and Odero Company Advocates;*** 12. ***James Oketch and Company Advocates and*** 13. ***Mwaura Benedict Njuguna and company Advocates*** ***16.That Bungoma ELRC Petition E001 of 2019 be transferred to the Chief Justice for purposes of audit and scrutiny of proceedings therein;*** ***17.Stay of proceedings in the said ELRC Petition on account that the judgment sought to be set aside by this court was founded on fraud, among other prayers affecting the office of Controller of Budget, law firms, County Government of Bungoma, Auditor General, CECM Finance of Bungoma County Government among others.*** 1. The application was filed in court on 4th May 2026 and on the same day, i acted on the certificate of urgency by giving directions declining to certify the matter as urgent and directing the petitioners to serve all the other parties with the petition and the notice of motion for mention on 15th June, 2026 for interpartes directions. 2. Later, on 15th June, 2026, the petitioner’s counsel informed the Court that the matter was very urgent because a consent was about to be recorded and payment made from the public coffers. 3. Other Counsel on record, Mr. Miiri, Mr. Oruko all informed the Court that there was an issue of jurisdiction and an application had also been filed under certificate of urgency by Mr. Miiri to bar Mr. Odero from representing the petitioners in the petition and that this Court had no jurisdiction, Mr. Mola associated himself with the submissions by other counsel and so was Mr. Korir. 4. Some Counsel indicated to court that they were filing other applications on jurisdiction and the court gave directions for compliance, indicating that the issue of jurisdiction was paramount as observed from the pleadings and I further directed that the jurisdictional issues be heard orally on 10th July 2026. I declined to grant any interim conservatory order stating that as a court, on its own motion, it had equally raised the question of jurisdiction of the Court and until the court was satisfied that it had jurisdiction to entertain the petition, it could not issue the conservatory orders sought. 5. Today, all parties’ counsel appeared in open Court upon request on the 15th June, 2026 by the petitioners’ counsel, for oral submissions on the issue of jurisdiction of the Court. 6. Mr. Odero Advocate being the Petitioner’s counsel was accorded the priority to address the Court and he exasperatedly in the glare of the court filled media, started accusing the court of having made up its mind on the matter and that one of the advocates had made comments that the court had already made a decision on jurisdiction so, the petitioners were alert and had decided to file an application to ask this Judge to recuse herself from hearing the petition, on account of impartiality. Mr. Odero urged the court to hear the recusal application first because it was essential to the right to a fair hearing. 7. Counsel for the respondents protested and contended that the issue of jurisdiction had to be determined first. It was after hearing all counsel on that issue of which issue should first be determined by the Court, that I now write this ruling on what next. 8. As I write this ruling, I am mindful that, at an earlier stage of these proceedings, I invited counsel to address the question whether this Court is the competent Court to hear and determine the issues raised in the petition, the reason that I was hesitant to certify the matter as urgent and or grant interim conservatory orders in the first instance. This is because, it is not a secret that the question of jurisdiction is a threshold issue and must be determined by a judge at the threshold stage. Further, it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court is then obliged to decide on the matters and where it does not have jurisdiction it should down its tools. This is the established law and it matters not that a party wishes that the court should not raise any jurisdictional issue at the outset on its own motion. See **Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48 and Macharia & another v Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling).** 9. Before that question of jurisdiction of the Court could be heard and a determination reached, the petitioners filed the present application dated 9th July 2026 and filed this morning, seeking my recusal on the ground of an alleged impartiality for questioning the jurisdiction of the Court to hear and determine the petition. 10. The respondents’ counsel, however, argued that, having already raised the issue of jurisdiction, the Court is obliged to determine that question before considering the application for recusal. I disagree. 11. An application for recusal strikes at the heart of the adjudicative process itself. It concerns not the merits of the dispute nor the substantive jurisdiction of the Court, but the alleged impartiality of the Judge who is called upon to exercise that jurisdiction. It is therefore a threshold issue and therefore, bbefore the Judge embarks upon determining any substantive question, including one relating to jurisdiction of the Court and not of the Judge, the Court must first be satisfied that there exists no reasonable apprehension that the matter will be heard otherwise than by an independent and impartial tribunal as stipulated in Article 50(1) of the Constitution. 12. The mere fact that this Court directed parties to address jurisdictional issued observed in the petition or has expressed concern regarding its competence to entertain the petition, does not in itself, deprive the Court of jurisdiction to determine an application challenging the Judge's continued participation in the proceedings. 13. In my view, to hold otherwise, would undermine, rather than promote, public confidence in the administration of justice. 14. It is therefore appropriate that the court first hears allegations of impartiality and makes a decision on the same because, the jurisdiction to determine an application for recusal is incidental to the Court's constitutional duty to ensure that proceedings are conducted impartially 15. This is a jurisdiction that must be exercised whenever a properly constituted application is presented before the Court. 16. The proper sequence is therefore clear, that the Court must first determine whether the application for recusal discloses facts from which a fair-minded and informed observer would conclude that there exists a reasonable apprehension of impartiality and if the application succeeds, the Judge takes no further step in the proceedings and the matter is placed before another Judge. If the application fails, the Court, being satisfied that no legal impediment exists to its continued participation, will proceed to determine the outstanding jurisdictional question and thereafter such other issues as may properly arise. 17. In this Court's view, this approach ensures that questions touching upon the legitimacy of the decision-maker are resolved before the Court embarks upon questions concerning the legitimacy of the proceedings themselves. 18. Accordingly, I direct that the application filed by the petitioners seeking the Judges’ recusal from hearing these proceedings shall take precedence. 19. The respondents are granted 14 days of service of the application dated 9th July 2026 upon them, to file and serve their responses. 20. The Petitioners will have 14 days of date of service to file and serve further affidavit(s) if need arises, together with brief written submissions not exceeding 5 pages. 21. The respondents will have 14 days of the date of service of the further affidavits and submissions by the petitioners, to file and serve supplementary affidavits, if need arises, together with their brief written submissions not exceeding 5 pages. 22. The court will give a ruling date on the said application based on the written submissions filed by the respective parties’ counsel. 23. The matter shall be mentioned on 28th September, 2026 at 8.am to fix a ruling date on the application dated 9th July 2026. 24. Those are the orders of the Court. **Dated, Signed and Delivered virtually at Nairobi this 10th Day of July, 2026** **R.E. ABURILI** **JUDGE**