REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT MOMBASA
APPEAL NO.E002 OF 2024
FINSBURY TRADING LIMITED …………………………………….……. CLAIMANT
VERSUS
AMOS KITONGA KINAMA ………………………………………..…. RESPONDENT
RULING
Several applications are filed by persons represented by the firm of Mung’oma & Company Advocates all generic and seeking similar orders. There is a ruling in each such file but the issues raised being identical, a similar ruling is hereon found necessary save for differences in the affidavits filed and submissions made under each file.
These files include this file together with Mombasa ELRCA No.E038 of 2024, ELRCA E136 of 2023, ELRCA E012 of 2024, and ELRCA E002 of 2024
In this file, the subject application is dated 22 March 2024 supported by the respondent’s affidavit and under the provisions of Sections 50(1) and 47 of the Constitution, Sections 1A and 1B of the Civil Procedure Act and Section 3 of the Employment and Labour Relations Court Act and seeking orders;
- This court be pleased to stay any further proceedings in this matter pending the hearing and determination of this application.
- The Honourable Justice Monica Mbaru be pleased to recuse and or disqualify herself from hearing and determining this suit.
- Costs of this application be in the course [cause].
The application is supported by the affidavit of the respondent who avers that in this case, he is represented by the firm of Mung’oma & Company Advocates which has represented other parties before this court. He is aware that where such claims have been allowed or succeeded partially the award is reviewed insignificantly even where the court finds there was unfair termination. He has reasonable doubt about the fairness of the administration of justice before this court.
He avers in his affidavit that the continued hearing of this matter by this court would be a violation of his constitutional right to a fair hearing by an independent court and impartial court. The firm of Mung’oma Mungo’ma & Company Advocates has served protest letters to the Judicial Service Commission (JSC) against the conduct of this court. The protest letters have equally been served to this court and the JSC is yet to respond. There is the likelihood that this court shall be biased against the respondent and infringe on his rights to a fair hearing as enshrined under Article 50(1) of the Constitution for being represented by the firm of Mung’oma Mung’oma & Company Advocates his preferred advocate
He avers that he is apprehensive that serious prejudice shall be occasioned if the orders sought are not granted since justice must not only be done but also seen to be done. There is a need for the court to recuse itself to allow another court to hear the matter on merit without any form of bias.
In response, the appellant filed the Replying Affidavit of Yusuf Mohamed Ebrahim an accountant of the appellant and avers that the application by the respondent is based on assumptions, lacks merit and should be dismissed. The application is based on complaints addressed to the Judicial Service Commission over the court’s decisions in other matters which have no bearing or relevance in this case.
Mr. Ebrahim avers that the application is couched in the respondent’s advocates’ dissatisfaction with previous decisions of this court and consequent complaints against the previous decisions which cannot be held to be evidence of bias or impartiality. The applicant has failed to lay any factual or reasonable basis for the recusal of the judge and his apprehension on the judge’s conduct towards him because of his advocate’s actions is but a figment of his imagination, which cannot form a basis for recusal.
The applicant has not met the objective test for real bias and he is jumping the gun and making blanket assumptions by presuming this court will be biased against him because of complaints lodged by his advocate. By referring to the complaints against the judge’s decisions which complaints are yet to be addressed and stating that he is apprehensive that owing to the said complaints the judge shall not be at terms with the firm of Mung’oma and Co. Advocates the respondent is mistakenly alluding that the judge will take the matter personally something which is unproven and cannot be the reasons the applicant anticipates that the court will be biased in hearing this matter.
Ebrahim aver that the respondent is seeking to be heard by a judge who is more likely to decide the case in his favour, thus defeating the purpose of the parties’ right to a fair, just and impartial hearing.
Both parties attended and agreed to file written submissions.
The respondent as the applicant submitted that under Article 50(1) of the Constitution, every person is guaranteed the right to a fair trial by an independent and impartial court. Where the judicial officer exhibits bias or impartiality, this constitutional right is eroded.
Under Rule 5 of the Judicial Code of Conduct, the circumstances that warrant recusal have been outlined as whether a judicial officer has personal biases or prejudice concerning a party before the court, has served as a lawyer in the matter in controversy or has close family or financial relations or any interest in the matter, in this case, the allegations that the respondent contents is that there exists bias concerning his advocates. The firm of Mung’oma Mung’oma & Company Advocates has represented several parties before this court and has expressed reservations over the quality of judgments they obtained. The court has unfairly treated the litigants.
The respondent submitted that in the case of Kalpana Rawal v Judicial Service Commission & 2 others [2016] eKLR the court held that;
… An application for recusal of a judge is a necessary evil. On the one hand, it calls into question the fairness of a judge who has sworn to do justice impartially, in accordance with the Constitution without any fear, favour, bias, affection, ill-will, prejudice, political, religious, or other influence. In such applications, the impartiality of the judge is called into question and his independence is impugned. On the other hand, the oath of office notwithstanding, the judge is all too human and above all the Constitution does guarantee all litigants the right to a fair hearing by an independent and impartial judge. When reasonable basis for requesting a judge to recuse himself or herself exists, the application has to be made, unpleasant as it may be. That is the lesser of two evils. The alternative is to risk violating a cardinal guarantee of the Constitution, namely the right to a fair trial, upon which the entire judicial edifice is built. Allowing a judge who is reasonably suspected of bias to sit in a matter would be in violation of the constitutional guarantee of a trial by an independent and impartial court. We would, with respect, agree with the Constitutional Court of South Africa when it stated as follows in The President of the Republic of South Africa v. The South African Rugby Football Union & Others, Case CCT16/98:
“At the very outset we wish to acknowledge that a litigant and her or his counsel who find it necessary to apply for the recusal of a judicial officer has an unenviable task and the propriety of their motives should not lightly be questioned. Where the grounds are reasonable it is counsel\'s duty to advance the grounds without fear. On the part of the judge whose recusal is sought there should be a full appreciation of the admonition that she or he should not be unduly sensitive and ought not to regard an application for his [or her] recusal as a personal affront.” [Emphasis added].”
There is a need for the judge to recuse herself and pave the way for another court to hear the appeal on merit without any form of bias.
The appellant submitted that the respondent alleges that he has been represented by the firm of Mung’oma Mung’oma & Company Advocates and is likely to face bias as his advocates have previously raised concerns over the quality of judgments rendered against other parties before this court. His contention is that by virtue of being represented by his advocates of choice, he is likely to face bias and prejudice. In the case of R. v Gough (1993) AC the House of Lords adopted the real likelihood of bias test. Meaning that the question to ask is whether there was a real danger that a fair trial was likely to be denied.
In the case of Attorney General of Kenya v Prof. Anyang’ Nyong’o & 10 others EACJ Application No. 5 of 2007 the court adopted the reasonable apprehension of bias by a reasonable person test and held that each case must be addressed based on its unique circumstances.
In this case, the respondent has not addressed these tests of any likelihood of bias or reasonable apprehension. His case is unlike that of other parties, even though represented by the same advocates. It would seem that the advocate is apprehensive, not the respondent. The complaint letters attached to the respondent’s affidavit date back to June 2023, way before the trial court delivered judgment.
The appellant submitted that a judge’s decision is subject to appeal and should not form a good basis for recusal. In the case of Rachuonyo and Rachuonyo Advocates v National Bank of Kenya Limited [2021] eKLR, the court held that judges are required by the constitution and the Judiciary Code of Conduct to be impartial, objective and ethical. In this case, there is no likelihood of bias and the application should be dismissed.
Determination
The case by the respondent is that there should be recusal of the judge since he has been made aware that the firm of Mung’oma Mung’oma & Company Advocate has represented other respondents before this court and that these appeals have been allowed thus dismissing a claimant’s case and where the appeals succeed partially the award is reviewed insignificantly even where the court finds there was unfair termination. The case is also that the respondent has reasonable doubt about the fairness of the administration of justice before this court. The continued hearing of this matter would be a violation of the respondent’s constitutional right to a fair hearing by an independent and impartial court. The claimant further asserts that the firm of Mung’oma Mung’oma and Company Advocates has represented other respondents before this court who have expressed their reservations over the quality of judgments they obtained from this court.
The applicant has a right to be represented by an advocate of his choice. This right is secured under Section 20 of the Employment and Labour Relations Court Act read together with Article 48 of the Constitution on access to justice.
The apprehension in this appeal is that the respondent\'s chosen advocates have made him aware that they have represented other parties whose claims and appeals have been allowed, thus dismissing a claimant’s case. Where the appeals succeed partially, the award is reviewed insignificantly even where the court finds there was unfair termination of employment. The apprehension is also that if the matter proceeds before this court, there will be a violation of the respondent’s right to a fair hearing.
In the case of Kalpana Rawal v Judicial Service Commission & 2 others [2016] eKLR, cited by the applicant, the case related to allegations by the applicant that she had learnt from a confidential source that on the night of 5th and 6th February 2016 the presiding judge in a case where she was the applicant had held a meeting with the Attorney General, at which they discussed a pending appeal. There was agreement that the appeal would be dismissed hence, in light of the said information, the applicant was apprehensive that the judge would not be fair and ought to recuse himself from hearing the appeal.
The Court of Appeal in the above-cited matter defined what constitutes “reasonable apprehension of bias” and relied on the case of Attorney General of Kenya v Prof Anyang’ Nyong’o & 10 Others EACJ Application No. 5 of 2007 that;
We think that the objective test of “reasonable apprehension of bias” is good law. The test is stated variously, but amounts to this: 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. Needless to say,
(a)litigant who seeks disqualification of a judge comes to court because of his own perception that there is appearance of bias on the part of the judge. The court however, has to envisage what would be the perception of a member of the public who is not only reasonable but also fair minded and informed about all the circumstances of the case.
In an application such as herein, an applicant bears the duty of establishing the facts upon which the inference is to be drawn that a fair minded and informed observer will conclude that the judge is biased. It is not enough to just make a bare allegation. Reasonable grounds must be presented from which an inference of bias may be drawn. What has the judge done or failed to do to create such a perception of the applicant$1
The applicant has never been before this court and in the exercise of his right to representation has been made aware that others before him had their appeals succeed and if not successful, the award was not substantial. Is this a proper foundation for bias on the part of the judge or a bias of the legal representative agitated by the applicant$2
In Rachuonyo and Rachuonyo Advocates v National Bank of Kenya Limited [2021] eKLR an application such as herein was filed for recusal of the presiding judge. The applicant highlighted five (5) other matters that the judge had presided over and was likely to be biased. The judge dismissed this application on the basis that the applicant had failed to demonstrate that the applicant was a party in the cited matters so as to form a basis or perception that there would be bias in his case.
Indeed, judges in their judicial role are regulated by standards of conduct enacted in the Judicial Service (Code of Conduct and Ethics) Regulations 2020. Under Regulation 21 Part II, a Judge can recuse herself in any of the proceedings in which her impartiality might reasonably be questioned where the Judge;
(a) Is a party to the proceedings;
(b) Was, or is a material witness in the matter in controversy;
(c) Has personal knowledge of disputed evidentiary facts concerning the proceedings;
(d) Has actual bias or prejudice concerning a party;
(e) Has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter;
(f) Had previously acted as a counsel for a party in the same matter;
(g) Is precluded from hearing the matter on account of any other sufficient reason; or
(h) Or a member of the Judge’s family has economic or other interest in the outcome of the matter in question.
The applicant has not addressed himself to these principles save to urge the court that he has been made aware by his advocate that other respondents succeeded in their appeals and where the appeals were not successful, the awards were not substantial.
I agree with the applicant that although the advocates representing him are the same in other cases, each case is separate and distinct and based on its facts and any party dissatisfied with the decision is entitled to appeal. Indeed, there are appeals lodged from the cases cited and to go on any analysis of the findings would not aid justice. Further, merely because this court decided any of these cited cases does not automatically form a basis for recusal.
It would be improper for me to justify my decisions in these cases. Each case is addressed on the merits and the applicable law. A right to be heard or file an appeal is constitutional and lawful.
In determining a similar application as herein, the court in Republic v Independent Electoral & Boundaries Commission & Another ex parte Coalition for Reforms and Democracy (CORD) HC NRB Misc. Appl. No. 648 of 2016 [2017] eKLR held that;
[74] To seek the recusal of a Judge from hearing a matter simply on the ground that he has determined a matter with similar facts is an implication that there is a likelihood that another Judge will arrive at a different decision. In my view, instead of subjecting another Judge of concurrent jurisdiction to an embarrassing situation of arriving at a different decision, parties ought to be advised by their legal counsel to appeal the decision instead and the law provides for a mechanism for the protection of a party while it is pursuing an appeal. By asking another Judge to hear the matter, based on recusal there would be an expectation that that other Judge may arrive at a decision different from the decision arrived at by the Court referring the matter. Whereas a Judge of the High Court is not bound by a decision of a Court of concurrent jurisdiction, to deliberately set out to have another Judge arrive at a different decision is in my view a manifestation of bad faith. If the matter were to be heard by a different Judge of concurrent jurisdiction and a different decision is arrived at there would be two conflicting decisions of the Court and the perception created would be that the Respondent chose a Judge who was sympathetic to its cause. If that were to happen the citizens of this Country would be led to believe that justice depends on a particular Judge rather than the rule of law and that belief would bring the whole judicial process into disrepute and embarrassment.
Concerning whether this file should be reassigned to another court of competent jurisdiction, I rely on the case of Gladys Boss Sholei v The JSC & Another (2018) eKLR the Supreme Court relied on the case of Simonson v General Motor Corporation USDCP 425 RSupp574,578(1978) and held that;
Recusal and reassignment is not a matter to be lightly undertaken by a Distinct Judge, while in proper cases, we have a duty to recuse ourselves, in cases such as the one before us, we have a concomitant obligation not to recuse ourselves; absent valid reasons for recusal their remains what has been termed as a “duty to sit”.
From the above it is clear that the requirements of independence and impartiality of the judge must be counterbalanced by the judge’s duty to sit where no grounds of disqualification exist in fact or law as the duty in itself helps to protect the independence of our courts against manoeuvring by parties hoping to improve their chances of having a matter determined by a particular Judge as to gain forensic and strategic advantage through delay and interpretation of proceedings as was pointed by the supreme court in the holding by the Newzeland court of appeal in Mnir-versus-Commissioner of Inland Revenue(2007)3NZLR 495.
The court finds no factual or legal basis established for its recusal or reassignment of the matter to another court. The application dated 22 March 2024 is equivalent to seeking to stop this court from the conduct of judicial function and I consequently dismiss the same with no orders on costs.
There is an application dated 11 April 2024 which will be addressed separately and in the interim orders are hereby extended. Hearing directions to issue.
Delivered in open court at Mombasa on this 3 day of October 2024.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet
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