REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
PETITION NO. E019 OF 2025
(Before Hon. Justice Dr. Jacob Gakeri)
EXECUTIVE SECRETARIES OKISAI OMUNYIN MOFFAT………………….…………………………………...1ST PETITIONER
PETER OMONDI LUOCH………………………………….2ND PETITIONER
PAUL ROTICH ………………………………………………3RD PETITIONER
PAUL KIMETTO……………………………………………..4TH PETITIONER
ROBERT MIANO…………………………………………….5TH PETITIONER
MARY ROTICH ……………………………………………..6TH PETITIONER
MOSES KIMWERE …………………………………………7TH PETITIONER
CHARLES NGENO…………………………………..……..8TH PETITIONER
GENTRIX OGOLLA …………………………………..……9TH PETITIONER
MATHEW MERMUK ……………………………………..10TH PETITIONER
LEONARD SIELE……………………………………….…11TH PETITIONER
FAITH KEBUT……………………………………………..12TH PETITIONER
WILLIAM MUTUKU……………………………………….13TH PETITIONER
ZEF YEBET…………………………………………………14TH PETITIONER
ZABLON RONO…………………………………………….15TH PETITIONER
-VERSUS-
MOSES NTHURIMA……………….…………………….1ST RESPONDENT
HON. JEREMIAH OMBOKO MILEMBA……………2ND RESPONDENT
REGISRAR OF TRADE UNIONS……………………..3RD RESPONDENT
THE CS, MINISTRY OF LABOUR AND SOCIAL PROTECTION……………………………………………..4TH RESPONDENT
RULING
Before the court for determination is the 1st, 2nd and 10th petitioners Notice of Motion dated 29th May 2026 seeking orders that-:
1. The Honourable trial judge be pleased to recuse himself from the conduct of this matter.
2. The Honourable trial judge be pleased to order that the matter be heard and determined in a different and/or another court in the Division.
3. Costs of this application be provided for.
The Notice of Motion is expressed under Section 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, Section 21, 14 and 15 of the Judicial Service Code of Regulations and Rule 61 of the Employment and Labour Relations Court (Procedure) Rules and is based on the grounds set out on its face and the Supporting Affidavit of the 2nd Petitioner.
The Petitioners case is that the trial Judge heard NAIROBI PET. NO.E255 of 2025 Eros Wambui Wanjiku & 3 others v Hon. Omboko Millemba & KUPPEI and stayed the Petition pending the hearing and determination of ELRCC No253 of 2025 thereby denying the parties constitutional rights under Article 47, 48 and 50 the Constitution of Kenya or expeditious hearing, access to justice and fair hearing and the application was filed earlier than ELRCC No.E253 of 2025 and failed to apply Rule 61 of the ELRC Rules on consolidation of similar cases to delay justice thereby contravening Section 15 of the Judicial Service Commission Regulation on equality and non-discrimination.
The Petitioners further contend that the trial judge heard PET. No. E104 of 2026 Chelangat & Wesley Chelule v KUPPET & others and ruled in favour of KUPPET after accepting the doctrine of res judicata as urged by KUPPET citing NAIROBI ELRC PETITION No. e095 of 2025 Anthony Ndegwa Kinya v Secretary General KUPPET, & Registrar of Trade Unions were not identical and ignored the submissions of the petitioners and the earlier case was based on lack of jurisdiction of the court.
The Petitioners further contend that Section 30 of the Labour Relations Act mentions the Industrial Court which does not exist and was therefore inconsistent with the Constitution of Kenya and thus null and void.
That in NAIROBI ELRC PETITION No. E095 of 2025, the court pointed out that the application was shoddily drafted and thus unsuitable for purposes of reference let alone res judicata.
The affiant averred that the doctrine of horizontal precedent was not binding and as a consequence the trial court ought to have delt with the matter further.
That the judge commented that Judges had met and decided on how to deal with KUPPET cases contrary to the Judicial Service Commission Code of Regulations.
That the Judge decided KISUMU ELRC PET NO. E030 John Khadullo & another v Secretary General of KUPPET & Registrar of Trade Unions in favour of KUPPET as was the decision in Paul Kipchumba Rotich v KUPPET and imposed costs. That Kisumu ELRC PET No. E024 of 2024 was also in favour of KUPPET and an application for review was unsuccessful.
That according to a Report by the Ethics and Anti-Corruption Commission released on 8th April 2026 the Judiciary is a hot spot for corruption by judges and Magistrate who are shielded by the judiciary from accountability for negligence and the only recourse to litigants was recusal.
The 1st and 2nd Respondents filed Grounds of Opposition to the Petitioner’s Notice of Contending that it was misconceived, frivolous, vexatious and an abuse of court process founded on mere allegations, conjecture, speculation, suspicion innuendo and dissatisfaction from previous decisions of the trial judge.
The Respondents contended that adverse findings, dismissal of suit striking gout of proceedings or award of costs against a litigant did not without more constitute evidence of bias or lack of impartiality and the Petitioners had failed to establish existence of personal interest, pecuniary interest, relationship, prejudice, extraneous influence or other circumstances capable of giving rise to a reasonable apprehension of bias on the part of the judge.
That the allegations by the Petitioners were an invitation to the court to sit on appeal over decisions made by a court of concurrent jurisdiction contrary to established principles of law and all the allegations related to prior rulings by the Judge on KUPPET.
That courts have consistently held that disagreement with a judicial decision is a matter for appeal not recusal and the allegations that previous rulings were in favour of KUPPET were legally untenable and incapable of sustaining an application for recusal as they are challenging the merits of the decision.
The Respondents contended that the generalized allegations concerning the Judiciary, Judicial Service Commission and alleged corruption within the Judiciary were scandalous, irrelevant and without supportive evidence and if the application was granted it would set a bad precedent where litigants would routinely seek recusal on the basis of adverse rulings.
In determining this application, the court is guided by inter alia the sentiments of the Constitutional Court of South Africa in The President of the Republic of South Africa v The South African Rugby Football Union & others case CCT 16/98 cited by the Court of Appeal with approval in Rawal v Judicial Service Commission & another: Okoiti (Interested Party) International Commission of Jurist (Amicus Curiae (2016) KECA 717 (KLR) as follows;
“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)
In Rawal v Judicial Service Commission (Supra), the Court of Appeal expressed itself as follows:
“An application for recusal of a judge in which actual bias is established on the part of the judge hardly poses any difficulties: the judge must without more, recuse himself. Such is the situation where a judge is a party to the suit or has a direct financial or proprietary interest in the outcome of the case. In that scenario bias is presumed to exist and the judge is automatically disqualified. The challenge however arises where, like in the present case, the application is founded on appearance of bias attributable to behaviour or conduct of the judge”
As regards the test applicable in R v S (R.D) (1977) 13 SCR, the Supreme Court of Canada as follows:
“The apprehension of bias must be a reasonable one held by a reasonable and right mind persons applying themselves to the question and obtaining thereon the required information. The test is what would an informed person viewing the matter realistically an practically and having thought the matter through conclude. This test contains a two-fold objective element: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further, the reasonable person must be an infirmed person with knowledge of all relevant circumstances including the traditions of integrity and impartiality that form part of the background and appraised also of the fact that impartially is one of the duties the judges swear to uphold. The reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community. The jurisprudence indicates that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence.”
The Court of Appeal adopted the foregoing test in Rawal v Judicial Service Commission (Supra). See also R v Jackson Mwalulu & others Civil Appeal No. 310 of 2004.
Regulation 21 of the Judicial Service Code of Conduct and Ethics. Regulations 2020 sets out the circumstances in which a judge can recuse himself or herself in any proceedings in which the judge’s impartiality might reasonably be questioned. Where the judge is either a party to the proceedings, is a witness in the matter in controversy or had personal knowledge of the disputed proceedings or has actual bias or prejudice concerning a party or has a personal interest or in a relationship with a person who has a personal interest in the outcome of the matter or has previously acted as counsel for a party in the same matter or a member of the judges family has economic or other interest in the outcome of the matter in question or for any other sufficient reason.
As observed in Rawal v Judicial Service Commission (Supra), the Constitution of Kenya guarantees every litigant an independent and impartial court and the right to be heard by an independent and impartial judge or judicial officer.
The foregoing is fortified by Regulation 9 of the Code of conduct which underlines in mandatory tone that a Judge shall at all times carry out the duties of the office with impartiality and objectivity in accordance with Article, 10, 27, 73(2) (b) and 232 of the Constitution and shall not practice favouritism, nepotism, tribalism, cronyism, religious and cultural bias or engage in corrupt or unethical practice.
Based on the grounds relied upon and the affidavit of Peter Omondi Oluoch, the 2nd Petitioner the Petitioners appear convinced that by reason of the trial Judge having ruled previous application in different cases filed by different parties against KUPPET and others in a particular manner, the court is biased and they were unlikely to secure the orders sought against KUPPET.
It is trite that each case filed in court is based on its own peculiar facts and any decision arrived at must be grounded on the facts and the relevant law, be it procedural, substantive or both.
Contrary to the Applicant’s averments that when a case is dismissed at whatever stage it is the party suing that loses the case. The other party or parties do not win or loose for the simple reason that they were taken to court by the other party.
It is trite law that similar fact evidence or pattern generates more heat than light. However, it may be construed as indicative of a possible outcome irrespective of the circumstances and the technical nature of law.
In the instant case, the court is however persuaded that the Petitioner/Applicants have demonstrated that they were apprehensive that should the trial Judge continue with the matter, there was a likelihood that there would be doubt about fairness in the administration of justice.
Consequently, the Applicants Notice of Motion dated 29th May 2026 is allowed.
Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 14TH JULY, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
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