(On (i) the oral application made on 10th August 2026 for the recusal of the presiding Judge, and (ii) the Chamber Summons dated 3rd August 2026)
A. INTRODUCTION
1. This Ruling determines two applications that have, by the parties’ own submission and by the direction of this Court given on 10th August 2026, come to be argued and are now disposed of together. The first is an oral application, made from the Bar on 10th August 2026 by Mr Khisa, holding brief for the Applicant, that I recuse myself from the further hearing and determination of this Application and direct that the file be placed before the Principal Judge of this Court for reallocation to another Judicial Officer. The second is the substantive Chamber Summons dated 3rd August 2026, by which the Applicant, Benard Munga, a member of the Dock Workers Union, seeks a raft of preservatory, declaratory and consequential orders touching upon the composition and constitutional competence of the Election Board that this Court, by its Judgment delivered on 17th June 2026 in ELRC Petition No. E009 of 2026, directed to conduct fresh national elections for the Union.
2. It is necessary to say, at the very outset, why the two applications are addressed in a single Ruling and in the sequence that follows. Logic and precedent alike dictate that a challenge to the very competence of the Court to sit must be resolved before the Court proceeds to pronounce upon anything else; a judge who has been asked to recuse himself cannot properly determine the substantive merits of a cause without first determining whether he is the proper judge to do so at all. I therefore address the recusal application first, in Part I of this Ruling. Having determined that application, I proceed, in Part II, to determine the substantive Application dated 3rd August 2026 on its merits.
3. The matter has an unusually rich procedural history for an application of its kind, spanning an ex parte order issued by a Judge other than myself, a contested inter partes mention, an oral application for recusal, and written submissions filed under considerable time pressure. I set out that history in some detail in the section that follows, because it is against that full history, and not against any single episode extracted from it, that both the recusal application and the substantive Application fall to be fairly assessed.
4. I record, too, at this early stage, the spirit in which this Ruling is written. An allegation that a sitting judge has prejudged a matter, however informally raised, is a serious one, and this Court has not treated it lightly merely because it was raised orally and without the formality of a written notice of motion. Equally, a litigant’s genuine anxiety that a body directed by this Court’s own Judgment to conduct union elections may not be properly constituted is not to be brushed aside. Both concerns deserve, and have received, this Court’s full and dispassionate attention.
5. I turn first to the background against which both applications must be understood.
B. BACKGROUND: ELRC PETITION NO. E009 OF 2026
6. By a Judgment delivered on 17th June 2026 in ELRC Petition No. E009 of 2026 — Matano Omar Shakombo and Abdala Nuru Ali v Registrar of Trade Unions, Sulman Otieno Owuor and Others, a cause which this Court had, in the exercise of its case-management powers and having regard to the clear connection between that Petition and a related Cause, ordered to be heard together with the latter for a consolidated determination — this Court declared that the purported national elections of the Dock Workers Union conducted on 4th April 2026 were a sham, null and void, and nullified them accordingly. The Court found, upon a full trial and after a searching evaluation of the evidence on notice, quorum and venue, that the election had been conducted without proper or adequate notice to the general membership, in a manner inconsistent with the Union’s own established practice, and in violation of the constitutional and statutory safeguards designed to protect the democratic rights of trade union members.
7. Of central relevance to the two applications now before me, the Court made the following further orders, which I set out in the precise terms in which they were made:
“110. In the upshot; i. I declare that the purported election of 4th April 2026 was a sham, null and void. It is hereby nullified. ii. I hereby direct that the 1st Interested Party conduct fresh elections in accordance with its constitution, constitutional principles and values, and the relevant statutory stipulations, within 60 days of today. iii. The registration of the purportedly elected officials by the 1st Respondent is hereby nullified. iv. The Election Board that was in office before the sham elections will conduct and oversee the elections. v. Costs of the petition to be borne by the 1st and 2nd Respondents.”
8. That Judgment, and in particular order (iv) — anchoring the mandate to conduct the fresh elections to the Election Board “that was in office before the sham elections” — has proved to be the fertile ground from which no fewer than three subsequent proceedings before this Court have since sprung, each concerned, in one guise or another, with the question whether that same Election Board, as constituted immediately before 4th April 2026, remains lawfully and constitutionally competent to discharge the mandate this Court conferred upon it.
9. The first such proceeding was an application for a stay of execution of the Judgment pending an intended appeal, brought within ELRC Petition No. E009 of 2026 itself by the 2nd Respondent in that Petition, Sulman Otieno Owuor — the very individual whose purported election as General Secretary the Judgment nullified, and who appears before me in the present Application as the 1st Respondent. By a Ruling delivered on 20th July 2026, this Court dismissed that application in its entirety, holding that the orders made on 17th June 2026, including orders (i) to (iv) reproduced above, remained in force and binding upon all persons bound thereby. It was in the course of that same application, by way of a supplementary affidavit, that a dispute touching upon the composition of the Election Board was first raised before this Court — a dispute the Court noted but declined to determine at that stage, it not having been properly pleaded or ventilated in a form permitting its determination.
10. The second such proceeding was ELRC Cause No. E066 of 2026, Sulman Otieno Owuor v Mohammed Mwasera, Frederick Baya and 7 Others, brought by the very same Sulman Otieno Owuor, this time naming the nine individual members of the Election Board personally as respondents, and seeking, in substance, a declaration that the Board had ceased to exist in law because six of its nine members had, in the interim, been promoted into management positions with their employer, the Kenya Ports Authority, and had thereby ceased to be “unionisable” employees and qualified members of the Board. By a Ruling delivered on 31st July 2026, this Court dismissed the Notice of Motion filed in that Cause, holding, among other things, that the Judgment’s direction was deliberately and expressly backward-looking — anchored to the Board’s composition as it stood immediately before the impugned election of 4th April 2026, and not to a continuing, evolving test of each member’s personal circumstances — and that the claimant had, in any event, failed to establish a prima facie case with a probability of success sufficient to warrant the interlocutory relief sought.
11. The third such proceeding is the Application now before me, ELRC Miscellaneous Application No. E074 of 2026, filed on 3rd August 2026 by Benard Munga, a member of the Union who was not a party to either of the two proceedings just described, but who raises, in substance, precisely the same composition objection that had already been raised, and rejected, in the two proceedings preceding his.
12. I have thought it necessary to set out this background at some length, and before descending into the immediate procedural history of the present Application, because it is impossible to assess either the propriety of the recusal application or the merits of the substantive Application without a clear appreciation of how closely, and how repeatedly, this same underlying dispute — the lawful competence of the Election Board to conduct the elections this Court directed it to conduct — has already been placed before, and determined by, this Court.
13. It bears mention, too, that this Court is not oblivious to the practical stakes involved. The fresh elections directed by the Judgment of 17th June 2026 concern the governance of a registered trade union with a membership running into the thousands, whose right under Article 41(2)(c) of the Constitution to participate in free and fair elections for their union leadership was the very right the Judgment was designed to vindicate. Every day of delay in the conduct of those elections is a day in which that constitutional right remains unrealised. It is against that background, and mindful of that public interest, that the present Application must be assessed.
14. I turn now to the immediate history of the present Application.
C. THE PRESENT APPLICATION AND SUBSEQUENT PROCEEDINGS
15. By a Chamber Summons dated 3rd August 2026, brought under Order 53 Rule 1(2) of the Civil Procedure Rules, Rules 44, 45 and 47 of the Employment and Labour Relations Court (Procedure) Rules, 2024, and the inherent jurisdiction of this Court, the Applicant, Benard Munga, suing on his own behalf and “in a representative capacity on behalf of bona fide members of the Dock Workers Union,” moved this Court, in substance, for: a conservatory order restraining the 1st and 2nd Respondents and the Election Board from convening, conducting or otherwise implementing the Union’s national elections; a stay of the implementation of order (ii) of the Judgment of 17th June 2026 to the extent necessary to determine whether the Election Board remains constitutionally constituted; a declaration and determination that five named members of the Board — Yvonne Ngutu, Joshua Kasera, Marco Aden, Edwin Birech and Musa Rajab — had been rendered ineligible to serve on the Board by their intervening promotion into management positions with the Kenya Ports Authority; a finding that this constitutional issue was neither placed before nor determined by this Court in Petition No. E009 of 2026; a direction that the Union convene a Special Conference to elect a fresh Election Board; an enlargement of the period for implementation of the Judgment; and consequential orders.
16. The Application was accompanied by a Certificate of Urgency and was placed, that same day or shortly thereafter, before Hon. Justice M. Mbaru, sitting as duty Judge. By an Order dated 4th August 2026, Mbaru J. certified the Application urgent, directed that it be served upon all parties, including the parties in Mombasa Petition No. E009 of 2026, whose file was directed to be placed together with this one; suspended, in the interim, the Union’s national elections that had been scheduled for 13th August 2026, “pending the parties addressing the re-constitution of the Elections Board taking into account proceedings in Mombasa Petition No. E009 of 2026”; fixed the matter for mention on 14th August 2026; and directed that the Order be placed in the file of Petition No. E009 of 2026. I return to that Order, and to certain observations I consider it necessary, though not dispositive, to make about it, later in this Ruling.
17. The Application, upon service, attracted a Replying Affidavit from Matano Omar Shakombo, sworn on behalf of himself and Abdala Nuru Ali — respectively the 1st and 2nd Petitioners in ELRC Petition No. E009 of 2026 — opposing the Application as an abuse of the process of the Court; a Replying Affidavit from the 1st Respondent, Sulman Otieno Owuor, sworn on 11th August 2026, substantially supporting the Application; written submissions filed by counsel for the 1st Respondent in support of the Application; written submissions filed by the Applicant himself in support of his own Application; and written submissions filed jointly by the 2nd and 3rd Respondents in opposition to the Application.
18. The matter came up for mention before me on 10th August 2026. It is what transpired on that date, and the oral application for recusal made in the course of it, to which I now turn in Part I of this Ruling.
19. Before doing so, I record one further matter of context, material to both Parts of this Ruling. The 2nd and 3rd Respondents’ written submissions disclose that they have, in addition to opposing the present Application, filed their own Notice of Motion dated 7th August 2026, supported by the affidavit of Mwasera Juma Mohamed, seeking the review, discharge or setting aside of the ex parte order made by Mbaru J. on 4th August 2026. That application is not, on the terms of the directions given on 10th August 2026 recorded below, one of the two matters this Ruling has been asked to determine, and I say nothing further about its merits; I note its existence only because, as will become apparent, the disposition I reach on the Application dated 3rd August 2026 necessarily bears upon the continued efficacy of the ex parte order that application separately seeks to have discharged.
20. I record also, for completeness, that neither the 2nd Respondent’s own supporting material nor that of any other party before me discloses any application by the Applicant, Benard Munga, or by any party supporting him, to be joined or enjoined as a party to ELRC Petition No. E009 of 2026, notwithstanding that Petition’s manifest and undisputed relevance to every issue raised in the present Application.
21. With that context established, I turn to Part I of this Ruling.
D. PART I — THE ORAL APPLICATION FOR RECUSAL
(i) The Proceedings of 10th August 2026
22. The record of the proceedings of 10th August 2026 shows the following appearances: Mr Khisa, appearing for the Applicant; Mr Bunde, for the 2nd and 3rd Respondents; Mr Oduor, for the 1st and 2nd Petitioners in Petition No. E009 of 2026; Ms Kwamboka, for the 1st Respondent; and Mr Mwanzia, for the 5th Interested Party in Petition No. E009 of 2026.
23. Mr Khisa addressed the Court on the state of service and compliance with prior directions, and then made the following oral application, which I reproduce, in substance, from the record: that the Applicant and those associated with him were apprehensive that certain views expressed by the Court — to the effect that the Application “amounts to” a matter that “is res judicata,” that “the Court does not have jurisdiction,” and that the Court had, in his submission, “summarily dismissed their application without a hearing, contrary to Article 50” — had been expressed in a manner that gave rise to “a reasonable doubt” that the Court had “prejudged” the matter. On that basis, Mr Khisa prayed “that the application be canvassed before another Judicial Officer” and that the matter “be mentioned before the Principal Judge.”
24. I pause to record, with the candour this Ruling requires throughout, precisely what did occur, so that the record is not left to speculation. In the course of case-managing this Application and the closely related matters pending before this Court touching the governance of the Dock Workers Union, I did, off the record, indicate to counsel appearing before me — as is a routine and, as I explain later in this Ruling, an increasingly expected incident of active case management — that the Application appeared, on its face, to raise questions as to whether the composition of the Election Board was a matter already the subject of determination in related proceedings before this Court, whether a miscellaneous application was the proper vehicle for the questions the Applicant sought to raise, and whether this Court retained jurisdiction to entertain the application in the circumstances. I did not, at any stage, purport to determine those questions; nor did I summarily dismiss the Application, which remains, until this Ruling, undetermined. I return to the significance of this distinction later in this Part.
25. Mr Bunde, for the 2nd and 3rd Respondents, responded to the oral application as follows. He informed the Court that his clients had filed an application dated 7th August 2026, which he asked the Court to treat as, in substance, a response to the Applicant’s application for recusal. He clarified that the statements of which complaint was made “were made off record,” and that the Court’s observation touching upon jurisdiction “was out of the fact that a notice of appeal has already been filed by the aggrieved party.” He further submitted that “consolidation cannot be done with a colluded matter.”
26. Ms Kwamboka, for the 1st Respondent, indicated that she would need to respond to the application and sought leave to do so, which the Court noted.
27. Mr Oduor, for the 1st and 2nd Petitioners in Petition No. E009 of 2026, raised a separate but related point: that the Applicant’s own application dated 3rd August 2026 had not, notwithstanding the Court’s earlier directions, been served upon his clients.
28. Mr Khisa, closing the exchange, submitted that the 2nd and 3rd Respondents’ application dated 7th August 2026 “has not been filed pursuant to the Vacation Rules” and that “there is no application before the Court” on that account, and indicated that a preliminary objection had been filed touching on the remarks made regarding service.
29. Having heard all counsel, the Court directed as follows: that the Respondents, and the parties in Petition No. E009 of 2026, be given up to 11th August 2026 to file responses to the Application dated 3rd August 2026, together with submissions limited to three pages; that the Court would render itself on both the application for recusal and the Application dated 3rd August 2026 at 4.00 p.m. on 11th August 2026; and that the recusal application would be determined on the oral submissions already on record, without further ventilation, “in light of the totality of the circumstances of the matter and the overriding objective of this Court.” It is that direction which this Ruling now fulfils.
(ii) Issues Arising on the Recusal Application
30. From the foregoing, the following issues arise for determination in this Part:
(a) what is the settled law on the circumstances in which a judge may and should recuse himself, and in what circumstances he should not;
(b) what bearing, if any, does the doctrine of active case management have upon a judge’s entitlement, in the course of managing a cause, to flag procedural or jurisdictional concerns to the parties before a matter is finally argued;
(c) whether, applying that law to the circumstances disclosed by the record of 10th August 2026, the Applicant has demonstrated any proper basis for the recusal of the presiding Judge; and
(d) what order should issue on the recusal application.
(iii) The Settled Law on Recusal
31. This Court does not approach this question as one of first impression. I had occasion, in a Ruling delivered on the Petitioner/Applicant’s Notice of Motion dated 15th June 2026 in ELRC Petition No. E015 of 2025, Thomas Mosomi Oyugi v Teachers Service Commission & 3 Others, to consider at considerable length the settled law, drawn from this jurisdiction and from comparative common law authority, on the circumstances in which recusal is and is not warranted. Because that law is directly applicable here, and because I see no reason to depart from the reasoning there set out, I draw upon it substantially in what follows, while applying it afresh to the distinct facts of the present case.
32. The first and most fundamental principle is that a court does not recuse itself automatically upon a party moving it to do so. Recusal is, as the Supreme Court held in Rawal & 2 others v Judicial Service Commission & 2 others [2016] KESC 1 (KLR), “indeed a judicial duty,” one discharged by the very judge whose impartiality is impugned, applying settled legal principle to the facts advanced, and reached only where those principles and facts justify that conclusion. Were it otherwise, the decision whether a particular judge should hear a particular matter would pass, in substance, from the judiciary to the litigants — an outcome the Supreme Court in Shollei v Judicial Service Commission & another [2018] KESC 42 (KLR) guarded against in affirming the “doctrine of the duty of a judge to sit,” holding that “recusal should not be used to cripple a judge from sitting to hear a matter,” and that a judge, having taken the judicial oath, “is capable of rising above any prejudices, save for those rare cases when he has to recuse himself.”
33. The objective standard by which those rare cases are to be identified was stated by the English House of Lords in Porter v Magill [2002] 2 AC 357, and has been consistently applied by the Kenyan courts, as the question whether “the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias” — a formulation to which the Court of Appeal gave further content in Philip K. Tunoi & Another v Judicial Service Commission & Another [2016] eKLR, holding that “in considering the possibility of bias, it is not the mind of the Judge which is considered but the impression given to reasonable people,” and one restated, in materially identical terms, in Kaplana H. Rawal v Judicial Service Commission & 2 others [2016] eKLR, adopting the East African Court of Justice’s formulation in Attorney General of Kenya v Prof Anyang’ Nyong’o & 10 Others, EACJ Application No. 5 of 2007: “do 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 did not (will not) apply his mind to the case impartially.”
34. Critically, that test does not ask whether the litigant himself sincerely apprehends bias; the mind to be consulted is that of the reasonable, fair-minded and informed observer, and not that of the disappointed party. Nor is that objective standard satisfied merely by a judge having, in the exercise of the ordinary adjudicative or case-management function, expressed a view on a question properly arising in the proceedings before him. This is the doctrine sometimes described as the requirement of an “extrajudicial source”: absent some influence originating outside the four corners of the litigation itself — a personal relationship, a financial interest, prior involvement as counsel, personal knowledge of disputed facts acquired outside the proceedings, or the like — a judge’s assessment of a matter properly before him, however firmly expressed, is not evidence of disqualifying bias; it is simply adjudication, or, as is directly relevant here, case management. The grounds recognised under Regulation 21 Part II of the Judicial Code of Conduct and Ethics, 2020, as warranting recusal are, without exception, of that extrajudicial character: that the judge is a party to the proceedings, was or is a material witness, has personal knowledge of disputed evidentiary facts, has actual bias or prejudice concerning a party, has a personal interest or relationship bearing on the outcome, had previously acted as counsel for a party in the same matter, or is precluded on account of some other sufficient reason of that kind. None of those grounds is engaged by a judge expressing, in the course of managing a cause, a preliminary view on a jurisdictional, procedural or res judicata question that the record itself puts squarely in issue.
35. It follows, and I restate the proposition for the avoidance of doubt, that a court is not obliged to recuse itself, and ought not to do so, merely because it is asked, nor merely because a party has formed the subjective impression, however sincerely held, that the Court has “prejudged” a matter by reason of observations made in the ordinary course of managing that matter toward hearing.
(iv) The Doctrine of Active Case Management
36. I turn to a matter that bears directly upon the specific conduct of which complaint is made in this case, and which I consider it necessary to elaborate upon at some length, because it lies at the very heart of why the observations attributed to this Court on 10th August 2026 cannot, on any fair view, found a proper apprehension of bias.
37. The adversarial model of civil litigation inherited by this jurisdiction from the common law tradition was, historically, one in which the court’s function was almost entirely reactive: the parties framed the dispute, controlled the pace and scope of the proceedings, and the judge intervened only to rule upon the questions the parties chose, in their own time, to place before him. That model has, over the last three decades, undergone a significant and well-documented shift, both in England, from which our procedural law substantially derives, and in Kenya itself.
38. The catalyst for that shift in England was Lord Woolf’s Access to Justice reforms of the mid-1990s, which culminated in the Civil Procedure Rules of 1998 and their now-famous “overriding objective” of enabling courts to deal with cases justly, at proportionate cost, and — critically for present purposes — through “active case management,” a term of art encompassing the court’s duty to identify the issues at an early stage, to decide promptly which issues need full investigation and trial and which do not, to encourage the parties to cooperate with one another, and to help the parties settle the whole or part of the case. The animating insight of those reforms was that a judiciary confined to a purely passive, reactive role was ill-equipped to control cost, delay and the proliferation of unmeritorious or misconceived proceedings, and that the public interest in the efficient administration of justice required judges to take a more active hand in shaping the course of litigation before it reached, or in some cases before it needlessly reached, a full hearing.
39. Kenya has not been untouched by that shift. Sections 1A and 1B of the Civil Procedure Act, No. 21 of 1922 (as amended), now expressly enshrine the “overriding objective” of the civil courts of Kenya as being to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes, and impose upon the court an express duty to further that objective, in the exercise of its powers, by, among other things, ensuring that the parties are on an equal footing, saving expense, dealing with cases in ways proportionate to their complexity and importance, and — in terms directly apposite here — ensuring that a case is dealt with expeditiously and fairly. The Employment and Labour Relations Court (Procedure) Rules, 2024, under which the present Application is expressly brought, are cast in the same spirit, and this Court, as a specialised court dealing routinely with disputes bearing upon the livelihoods and associational rights of working people, has particular reason to take that overriding objective seriously.
40. Active case management, so understood, is not a departure from judicial impartiality; it is one of its modern expressions. A judge who identifies, at the earliest practicable stage, that a matter before him may be barred by res judicata, may have been brought in the wrong form, or may raise a live question as to the court’s own jurisdiction, and who says so to the parties so that they may address those questions squarely rather than at the last moment or not at all, is not thereby prejudging the cause; he is discharging the very case-management duty the overriding objective imposes upon him. Indeed, it would be a curious and self-defeating conception of judicial impartiality that required a judge to withhold, until final judgment, a threshold concern of that kind that he had already identified — obliging the parties to expend further time and cost litigating a matter that may, in the event, founder on a threshold objection the judge could have flagged at the outset. Article 159(2)(d) of the Constitution, which requires that justice be administered without undue regard to procedural technicalities, and Article 159(2)(a) and (b), which require the exercise of judicial authority to be guided by the values of the Constitution and of ensuring justice is done to all irrespective of status, are, on a proper reading, entirely consistent with, and indeed positively support, this more active conception of the judicial role.
41. It follows, and I hold, that it is not improper — nor is it an indication of prejudgment — for a court, in the exercise of active case management and in furtherance of the overriding objective, to indicate to the parties, whether off the record in the course of directions or on the record in a formal ruling, that in its preliminary view an application or matter before it may be res judicata, may not have been properly initiated by way of the procedural vehicle chosen, may raise a genuine question as to the court’s own jurisdiction, or may, by the manner in which it has been couched, give rise to an impression of forum shopping. Such an indication is not a determination; it is an invitation to the parties to address the very questions upon which the ultimate determination will turn, made in the interest of ensuring that the eventual hearing, if one is required at all, is focused, efficient, and fair to all concerned. A judge who did not so alert the parties, and who instead sprang a dispositive finding on an issue never squarely canvassed with them, would have far more to answer for than one who candidly flagged the difficulty in advance.
(v) Application to the Facts
42. Applying the foregoing to the record of 10th August 2026, I am satisfied that the Applicant has falle
[...truncated]
A. INTRODUCTION
1. This Ruling determines two applications that have, by the parties’ own submission and by the direction of this Court given on 10th August 2026, come to be argued and are now disposed of together. The first is an oral application, made from the Bar on 10th August 2026 by Mr Khisa, holding brief for the Applicant, that I recuse myself from the further hearing and determination of this Application and direct that the file be placed before the Principal Judge of this Court for reallocation to another Judicial Officer. The second is the substantive Chamber Summons dated 3rd August 2026, by which the Applicant, Benard Munga, a member of the Dock Workers Union, seeks a raft of preservatory, declaratory and consequential orders touching upon the composition and constitutional competence of the Election Board that this Court, by its Judgment delivered on 17th June 2026 in ELRC Petition No. E009 of 2026, directed to conduct fresh national elections for the Union.
2. It is necessary to say, at the very outset, why the two applications are addressed in a single Ruling and in the sequence that follows. Logic and precedent alike dictate that a challenge to the very competence of the Court to sit must be resolved before the Court proceeds to pronounce upon anything else; a judge who has been asked to recuse himself cannot properly determine the substantive merits of a cause without first determining whether he is the proper judge to do so at all. I therefore address the recusal application first, in Part I of this Ruling. Having determined that application, I proceed, in Part II, to determine the substantive Application dated 3rd August 2026 on its merits.
3. The matter has an unusually rich procedural history for an application of its kind, spanning an ex parte order issued by a Judge other than myself, a contested inter partes mention, an oral application for recusal, and written submissions filed under considerable time pressure. I set out that history in some detail in the section that follows, because it is against that full history, and not against any single episode extracted from it, that both the recusal application and the substantive Application fall to be fairly assessed.
4. I record, too, at this early stage, the spirit in which this Ruling is written. An allegation that a sitting judge has prejudged a matter, however informally raised, is a serious one, and this Court has not treated it lightly merely because it was raised orally and without the formality of a written notice of motion. Equally, a litigant’s genuine anxiety that a body directed by this Court’s own Judgment to conduct union elections may not be properly constituted is not to be brushed aside. Both concerns deserve, and have received, this Court’s full and dispassionate attention.
5. I turn first to the background against which both applications must be understood.
B. BACKGROUND: ELRC PETITION NO. E009 OF 2026
6. By a Judgment delivered on 17th June 2026 in ELRC Petition No. E009 of 2026 — Matano Omar Shakombo and Abdala Nuru Ali v Registrar of Trade Unions, Sulman Otieno Owuor and Others, a cause which this Court had, in the exercise of its case-management powers and having regard to the clear connection between that Petition and a related Cause, ordered to be heard together with the latter for a consolidated determination — this Court declared that the purported national elections of the Dock Workers Union conducted on 4th April 2026 were a sham, null and void, and nullified them accordingly. The Court found, upon a full trial and after a searching evaluation of the evidence on notice, quorum and venue, that the election had been conducted without proper or adequate notice to the general membership, in a manner inconsistent with the Union’s own established practice, and in violation of the constitutional and statutory safeguards designed to protect the democratic rights of trade union members.
7. Of central relevance to the two applications now before me, the Court made the following further orders, which I set out in the precise terms in which they were made:
“110. In the upshot; i. I declare that the purported election of 4th April 2026 was a sham, null and void. It is hereby nullified. ii. I hereby direct that the 1st Interested Party conduct fresh elections in accordance with its constitution, constitutional principles and values, and the relevant statutory stipulations, within 60 days of today. iii. The registration of the purportedly elected officials by the 1st Respondent is hereby nullified. iv. The Election Board that was in office before the sham elections will conduct and oversee the elections. v. Costs of the petition to be borne by the 1st and 2nd Respondents.”
8. That Judgment, and in particular order (iv) — anchoring the mandate to conduct the fresh elections to the Election Board “that was in office before the sham elections” — has proved to be the fertile ground from which no fewer than three subsequent proceedings before this Court have since sprung, each concerned, in one guise or another, with the question whether that same Election Board, as constituted immediately before 4th April 2026, remains lawfully and constitutionally competent to discharge the mandate this Court conferred upon it.
9. The first such proceeding was an application for a stay of execution of the Judgment pending an intended appeal, brought within ELRC Petition No. E009 of 2026 itself by the 2nd Respondent in that Petition, Sulman Otieno Owuor — the very individual whose purported election as General Secretary the Judgment nullified, and who appears before me in the present Application as the 1st Respondent. By a Ruling delivered on 20th July 2026, this Court dismissed that application in its entirety, holding that the orders made on 17th June 2026, including orders (i) to (iv) reproduced above, remained in force and binding upon all persons bound thereby. It was in the course of that same application, by way of a supplementary affidavit, that a dispute touching upon the composition of the Election Board was first raised before this Court — a dispute the Court noted but declined to determine at that stage, it not having been properly pleaded or ventilated in a form permitting its determination.
10. The second such proceeding was ELRC Cause No. E066 of 2026, Sulman Otieno Owuor v Mohammed Mwasera, Frederick Baya and 7 Others, brought by the very same Sulman Otieno Owuor, this time naming the nine individual members of the Election Board personally as respondents, and seeking, in substance, a declaration that the Board had ceased to exist in law because six of its nine members had, in the interim, been promoted into management positions with their employer, the Kenya Ports Authority, and had thereby ceased to be “unionisable” employees and qualified members of the Board. By a Ruling delivered on 31st July 2026, this Court dismissed the Notice of Motion filed in that Cause, holding, among other things, that the Judgment’s direction was deliberately and expressly backward-looking — anchored to the Board’s composition as it stood immediately before the impugned election of 4th April 2026, and not to a continuing, evolving test of each member’s personal circumstances — and that the claimant had, in any event, failed to establish a prima facie case with a probability of success sufficient to warrant the interlocutory relief sought.
11. The third such proceeding is the Application now before me, ELRC Miscellaneous Application No. E074 of 2026, filed on 3rd August 2026 by Benard Munga, a member of the Union who was not a party to either of the two proceedings just described, but who raises, in substance, precisely the same composition objection that had already been raised, and rejected, in the two proceedings preceding his.
12. I have thought it necessary to set out this background at some length, and before descending into the immediate procedural history of the present Application, because it is impossible to assess either the propriety of the recusal application or the merits of the substantive Application without a clear appreciation of how closely, and how repeatedly, this same underlying dispute — the lawful competence of the Election Board to conduct the elections this Court directed it to conduct — has already been placed before, and determined by, this Court.
13. It bears mention, too, that this Court is not oblivious to the practical stakes involved. The fresh elections directed by the Judgment of 17th June 2026 concern the governance of a registered trade union with a membership running into the thousands, whose right under Article 41(2)(c) of the Constitution to participate in free and fair elections for their union leadership was the very right the Judgment was designed to vindicate. Every day of delay in the conduct of those elections is a day in which that constitutional right remains unrealised. It is against that background, and mindful of that public interest, that the present Application must be assessed.
14. I turn now to the immediate history of the present Application.
C. THE PRESENT APPLICATION AND SUBSEQUENT PROCEEDINGS
15. By a Chamber Summons dated 3rd August 2026, brought under Order 53 Rule 1(2) of the Civil Procedure Rules, Rules 44, 45 and 47 of the Employment and Labour Relations Court (Procedure) Rules, 2024, and the inherent jurisdiction of this Court, the Applicant, Benard Munga, suing on his own behalf and “in a representative capacity on behalf of bona fide members of the Dock Workers Union,” moved this Court, in substance, for: a conservatory order restraining the 1st and 2nd Respondents and the Election Board from convening, conducting or otherwise implementing the Union’s national elections; a stay of the implementation of order (ii) of the Judgment of 17th June 2026 to the extent necessary to determine whether the Election Board remains constitutionally constituted; a declaration and determination that five named members of the Board — Yvonne Ngutu, Joshua Kasera, Marco Aden, Edwin Birech and Musa Rajab — had been rendered ineligible to serve on the Board by their intervening promotion into management positions with the Kenya Ports Authority; a finding that this constitutional issue was neither placed before nor determined by this Court in Petition No. E009 of 2026; a direction that the Union convene a Special Conference to elect a fresh Election Board; an enlargement of the period for implementation of the Judgment; and consequential orders.
16. The Application was accompanied by a Certificate of Urgency and was placed, that same day or shortly thereafter, before Hon. Justice M. Mbaru, sitting as duty Judge. By an Order dated 4th August 2026, Mbaru J. certified the Application urgent, directed that it be served upon all parties, including the parties in Mombasa Petition No. E009 of 2026, whose file was directed to be placed together with this one; suspended, in the interim, the Union’s national elections that had been scheduled for 13th August 2026, “pending the parties addressing the re-constitution of the Elections Board taking into account proceedings in Mombasa Petition No. E009 of 2026”; fixed the matter for mention on 14th August 2026; and directed that the Order be placed in the file of Petition No. E009 of 2026. I return to that Order, and to certain observations I consider it necessary, though not dispositive, to make about it, later in this Ruling.
17. The Application, upon service, attracted a Replying Affidavit from Matano Omar Shakombo, sworn on behalf of himself and Abdala Nuru Ali — respectively the 1st and 2nd Petitioners in ELRC Petition No. E009 of 2026 — opposing the Application as an abuse of the process of the Court; a Replying Affidavit from the 1st Respondent, Sulman Otieno Owuor, sworn on 11th August 2026, substantially supporting the Application; written submissions filed by counsel for the 1st Respondent in support of the Application; written submissions filed by the Applicant himself in support of his own Application; and written submissions filed jointly by the 2nd and 3rd Respondents in opposition to the Application.
18. The matter came up for mention before me on 10th August 2026. It is what transpired on that date, and the oral application for recusal made in the course of it, to which I now turn in Part I of this Ruling.
19. Before doing so, I record one further matter of context, material to both Parts of this Ruling. The 2nd and 3rd Respondents’ written submissions disclose that they have, in addition to opposing the present Application, filed their own Notice of Motion dated 7th August 2026, supported by the affidavit of Mwasera Juma Mohamed, seeking the review, discharge or setting aside of the ex parte order made by Mbaru J. on 4th August 2026. That application is not, on the terms of the directions given on 10th August 2026 recorded below, one of the two matters this Ruling has been asked to determine, and I say nothing further about its merits; I note its existence only because, as will become apparent, the disposition I reach on the Application dated 3rd August 2026 necessarily bears upon the continued efficacy of the ex parte order that application separately seeks to have discharged.
20. I record also, for completeness, that neither the 2nd Respondent’s own supporting material nor that of any other party before me discloses any application by the Applicant, Benard Munga, or by any party supporting him, to be joined or enjoined as a party to ELRC Petition No. E009 of 2026, notwithstanding that Petition’s manifest and undisputed relevance to every issue raised in the present Application.
21. With that context established, I turn to Part I of this Ruling.
D. PART I — THE ORAL APPLICATION FOR RECUSAL
(i) The Proceedings of 10th August 2026
22. The record of the proceedings of 10th August 2026 shows the following appearances: Mr Khisa, appearing for the Applicant; Mr Bunde, for the 2nd and 3rd Respondents; Mr Oduor, for the 1st and 2nd Petitioners in Petition No. E009 of 2026; Ms Kwamboka, for the 1st Respondent; and Mr Mwanzia, for the 5th Interested Party in Petition No. E009 of 2026.
23. Mr Khisa addressed the Court on the state of service and compliance with prior directions, and then made the following oral application, which I reproduce, in substance, from the record: that the Applicant and those associated with him were apprehensive that certain views expressed by the Court — to the effect that the Application “amounts to” a matter that “is res judicata,” that “the Court does not have jurisdiction,” and that the Court had, in his submission, “summarily dismissed their application without a hearing, contrary to Article 50” — had been expressed in a manner that gave rise to “a reasonable doubt” that the Court had “prejudged” the matter. On that basis, Mr Khisa prayed “that the application be canvassed before another Judicial Officer” and that the matter “be mentioned before the Principal Judge.”
24. I pause to record, with the candour this Ruling requires throughout, precisely what did occur, so that the record is not left to speculation. In the course of case-managing this Application and the closely related matters pending before this Court touching the governance of the Dock Workers Union, I did, off the record, indicate to counsel appearing before me — as is a routine and, as I explain later in this Ruling, an increasingly expected incident of active case management — that the Application appeared, on its face, to raise questions as to whether the composition of the Election Board was a matter already the subject of determination in related proceedings before this Court, whether a miscellaneous application was the proper vehicle for the questions the Applicant sought to raise, and whether this Court retained jurisdiction to entertain the application in the circumstances. I did not, at any stage, purport to determine those questions; nor did I summarily dismiss the Application, which remains, until this Ruling, undetermined. I return to the significance of this distinction later in this Part.
25. Mr Bunde, for the 2nd and 3rd Respondents, responded to the oral application as follows. He informed the Court that his clients had filed an application dated 7th August 2026, which he asked the Court to treat as, in substance, a response to the Applicant’s application for recusal. He clarified that the statements of which complaint was made “were made off record,” and that the Court’s observation touching upon jurisdiction “was out of the fact that a notice of appeal has already been filed by the aggrieved party.” He further submitted that “consolidation cannot be done with a colluded matter.”
26. Ms Kwamboka, for the 1st Respondent, indicated that she would need to respond to the application and sought leave to do so, which the Court noted.
27. Mr Oduor, for the 1st and 2nd Petitioners in Petition No. E009 of 2026, raised a separate but related point: that the Applicant’s own application dated 3rd August 2026 had not, notwithstanding the Court’s earlier directions, been served upon his clients.
28. Mr Khisa, closing the exchange, submitted that the 2nd and 3rd Respondents’ application dated 7th August 2026 “has not been filed pursuant to the Vacation Rules” and that “there is no application before the Court” on that account, and indicated that a preliminary objection had been filed touching on the remarks made regarding service.
29. Having heard all counsel, the Court directed as follows: that the Respondents, and the parties in Petition No. E009 of 2026, be given up to 11th August 2026 to file responses to the Application dated 3rd August 2026, together with submissions limited to three pages; that the Court would render itself on both the application for recusal and the Application dated 3rd August 2026 at 4.00 p.m. on 11th August 2026; and that the recusal application would be determined on the oral submissions already on record, without further ventilation, “in light of the totality of the circumstances of the matter and the overriding objective of this Court.” It is that direction which this Ruling now fulfils.
(ii) Issues Arising on the Recusal Application
30. From the foregoing, the following issues arise for determination in this Part:
(a) what is the settled law on the circumstances in which a judge may and should recuse himself, and in what circumstances he should not;
(b) what bearing, if any, does the doctrine of active case management have upon a judge’s entitlement, in the course of managing a cause, to flag procedural or jurisdictional concerns to the parties before a matter is finally argued;
(c) whether, applying that law to the circumstances disclosed by the record of 10th August 2026, the Applicant has demonstrated any proper basis for the recusal of the presiding Judge; and
(d) what order should issue on the recusal application.
(iii) The Settled Law on Recusal
31. This Court does not approach this question as one of first impression. I had occasion, in a Ruling delivered on the Petitioner/Applicant’s Notice of Motion dated 15th June 2026 in ELRC Petition No. E015 of 2025, Thomas Mosomi Oyugi v Teachers Service Commission & 3 Others, to consider at considerable length the settled law, drawn from this jurisdiction and from comparative common law authority, on the circumstances in which recusal is and is not warranted. Because that law is directly applicable here, and because I see no reason to depart from the reasoning there set out, I draw upon it substantially in what follows, while applying it afresh to the distinct facts of the present case.
32. The first and most fundamental principle is that a court does not recuse itself automatically upon a party moving it to do so. Recusal is, as the Supreme Court held in Rawal & 2 others v Judicial Service Commission & 2 others [2016] KESC 1 (KLR), “indeed a judicial duty,” one discharged by the very judge whose impartiality is impugned, applying settled legal principle to the facts advanced, and reached only where those principles and facts justify that conclusion. Were it otherwise, the decision whether a particular judge should hear a particular matter would pass, in substance, from the judiciary to the litigants — an outcome the Supreme Court in Shollei v Judicial Service Commission & another [2018] KESC 42 (KLR) guarded against in affirming the “doctrine of the duty of a judge to sit,” holding that “recusal should not be used to cripple a judge from sitting to hear a matter,” and that a judge, having taken the judicial oath, “is capable of rising above any prejudices, save for those rare cases when he has to recuse himself.”
33. The objective standard by which those rare cases are to be identified was stated by the English House of Lords in Porter v Magill [2002] 2 AC 357, and has been consistently applied by the Kenyan courts, as the question whether “the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias” — a formulation to which the Court of Appeal gave further content in Philip K. Tunoi & Another v Judicial Service Commission & Another [2016] eKLR, holding that “in considering the possibility of bias, it is not the mind of the Judge which is considered but the impression given to reasonable people,” and one restated, in materially identical terms, in Kaplana H. Rawal v Judicial Service Commission & 2 others [2016] eKLR, adopting the East African Court of Justice’s formulation in Attorney General of Kenya v Prof Anyang’ Nyong’o & 10 Others, EACJ Application No. 5 of 2007: “do 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 did not (will not) apply his mind to the case impartially.”
34. Critically, that test does not ask whether the litigant himself sincerely apprehends bias; the mind to be consulted is that of the reasonable, fair-minded and informed observer, and not that of the disappointed party. Nor is that objective standard satisfied merely by a judge having, in the exercise of the ordinary adjudicative or case-management function, expressed a view on a question properly arising in the proceedings before him. This is the doctrine sometimes described as the requirement of an “extrajudicial source”: absent some influence originating outside the four corners of the litigation itself — a personal relationship, a financial interest, prior involvement as counsel, personal knowledge of disputed facts acquired outside the proceedings, or the like — a judge’s assessment of a matter properly before him, however firmly expressed, is not evidence of disqualifying bias; it is simply adjudication, or, as is directly relevant here, case management. The grounds recognised under Regulation 21 Part II of the Judicial Code of Conduct and Ethics, 2020, as warranting recusal are, without exception, of that extrajudicial character: that the judge is a party to the proceedings, was or is a material witness, has personal knowledge of disputed evidentiary facts, has actual bias or prejudice concerning a party, has a personal interest or relationship bearing on the outcome, had previously acted as counsel for a party in the same matter, or is precluded on account of some other sufficient reason of that kind. None of those grounds is engaged by a judge expressing, in the course of managing a cause, a preliminary view on a jurisdictional, procedural or res judicata question that the record itself puts squarely in issue.
35. It follows, and I restate the proposition for the avoidance of doubt, that a court is not obliged to recuse itself, and ought not to do so, merely because it is asked, nor merely because a party has formed the subjective impression, however sincerely held, that the Court has “prejudged” a matter by reason of observations made in the ordinary course of managing that matter toward hearing.
(iv) The Doctrine of Active Case Management
36. I turn to a matter that bears directly upon the specific conduct of which complaint is made in this case, and which I consider it necessary to elaborate upon at some length, because it lies at the very heart of why the observations attributed to this Court on 10th August 2026 cannot, on any fair view, found a proper apprehension of bias.
37. The adversarial model of civil litigation inherited by this jurisdiction from the common law tradition was, historically, one in which the court’s function was almost entirely reactive: the parties framed the dispute, controlled the pace and scope of the proceedings, and the judge intervened only to rule upon the questions the parties chose, in their own time, to place before him. That model has, over the last three decades, undergone a significant and well-documented shift, both in England, from which our procedural law substantially derives, and in Kenya itself.
38. The catalyst for that shift in England was Lord Woolf’s Access to Justice reforms of the mid-1990s, which culminated in the Civil Procedure Rules of 1998 and their now-famous “overriding objective” of enabling courts to deal with cases justly, at proportionate cost, and — critically for present purposes — through “active case management,” a term of art encompassing the court’s duty to identify the issues at an early stage, to decide promptly which issues need full investigation and trial and which do not, to encourage the parties to cooperate with one another, and to help the parties settle the whole or part of the case. The animating insight of those reforms was that a judiciary confined to a purely passive, reactive role was ill-equipped to control cost, delay and the proliferation of unmeritorious or misconceived proceedings, and that the public interest in the efficient administration of justice required judges to take a more active hand in shaping the course of litigation before it reached, or in some cases before it needlessly reached, a full hearing.
39. Kenya has not been untouched by that shift. Sections 1A and 1B of the Civil Procedure Act, No. 21 of 1922 (as amended), now expressly enshrine the “overriding objective” of the civil courts of Kenya as being to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes, and impose upon the court an express duty to further that objective, in the exercise of its powers, by, among other things, ensuring that the parties are on an equal footing, saving expense, dealing with cases in ways proportionate to their complexity and importance, and — in terms directly apposite here — ensuring that a case is dealt with expeditiously and fairly. The Employment and Labour Relations Court (Procedure) Rules, 2024, under which the present Application is expressly brought, are cast in the same spirit, and this Court, as a specialised court dealing routinely with disputes bearing upon the livelihoods and associational rights of working people, has particular reason to take that overriding objective seriously.
40. Active case management, so understood, is not a departure from judicial impartiality; it is one of its modern expressions. A judge who identifies, at the earliest practicable stage, that a matter before him may be barred by res judicata, may have been brought in the wrong form, or may raise a live question as to the court’s own jurisdiction, and who says so to the parties so that they may address those questions squarely rather than at the last moment or not at all, is not thereby prejudging the cause; he is discharging the very case-management duty the overriding objective imposes upon him. Indeed, it would be a curious and self-defeating conception of judicial impartiality that required a judge to withhold, until final judgment, a threshold concern of that kind that he had already identified — obliging the parties to expend further time and cost litigating a matter that may, in the event, founder on a threshold objection the judge could have flagged at the outset. Article 159(2)(d) of the Constitution, which requires that justice be administered without undue regard to procedural technicalities, and Article 159(2)(a) and (b), which require the exercise of judicial authority to be guided by the values of the Constitution and of ensuring justice is done to all irrespective of status, are, on a proper reading, entirely consistent with, and indeed positively support, this more active conception of the judicial role.
41. It follows, and I hold, that it is not improper — nor is it an indication of prejudgment — for a court, in the exercise of active case management and in furtherance of the overriding objective, to indicate to the parties, whether off the record in the course of directions or on the record in a formal ruling, that in its preliminary view an application or matter before it may be res judicata, may not have been properly initiated by way of the procedural vehicle chosen, may raise a genuine question as to the court’s own jurisdiction, or may, by the manner in which it has been couched, give rise to an impression of forum shopping. Such an indication is not a determination; it is an invitation to the parties to address the very questions upon which the ultimate determination will turn, made in the interest of ensuring that the eventual hearing, if one is required at all, is focused, efficient, and fair to all concerned. A judge who did not so alert the parties, and who instead sprang a dispositive finding on an issue never squarely canvassed with them, would have far more to answer for than one who candidly flagged the difficulty in advance.
(v) Application to the Facts
42. Applying the foregoing to the record of 10th August 2026, I am satisfied that the Applicant has falle
[...truncated]