A. Introduction
1. Few applications place a judge in as delicate a position as one that invites him to sit in judgment upon an allegation that he is not fit to judge. The temptation, on the one hand, is to react defensively; on the other, to recuse too readily simply to avoid controversy, however unmeritorious the allegation. Neither temptation serves the administration of justice. What is required, instead, is the same dispassionate, reasoned analysis this Court would bring to any other application — tested against settled principle, and against the record, rather than against personal sentiment on either side.
2. This Ruling determines the Petitioner/Applicant's Notice of Motion dated 15th June 2026, filed under a Certificate of Urgency of even date, by which he seeks, principally, an order that I recuse myself from any further conduct, hearing, determination and/or delivery of judgment in this Petition, together with an order staying the delivery of judgment that had been fixed for 2nd July 2026 pending the hearing and determination of the Application, and an order that the file be placed before the Principal Judge of this Court for directions and reallocation to another Judge.
3. The Application arises out of, and must be understood against, a Petition that has already occasioned two substantive interlocutory rulings of this Court: a Ruling delivered on 29th January 2026 dismissing the Respondents' preliminary objections to jurisdiction and, upon hearing the parties inter partes, vacating the ex parte conservatory orders earlier obtained by the Petitioner; and a Ruling delivered on 4th June 2026 declining the Petitioner's application for leave to withdraw the Petition, in which this Court made findings, adverse to the Petitioner, that his intended withdrawal amounted to forum shopping and an abuse of the process of this Court. It is those two rulings, and in particular the second, that the Petitioner says give rise to a reasonable apprehension that this Court has already formed, and cannot now discard, a concluded view adverse to him on matters that remain for determination in the substantive Petition.
4. Given the gravity that necessarily attaches to any suggestion, however framed, that a sitting judge is not to be trusted with the impartial determination of a cause properly before him, I have thought it right to address this Application with the fullest measure of care: to set out, at some length, the nature and limits of the judicial function in an adversarial system such as ours; the reasons why applications of this kind, though a legal entitlement of every litigant, ought as a matter of sound principle to be brought sparingly; the settled law, drawn from this jurisdiction and from other common law jurisdictions, on when a court may and may not properly recuse itself; and, finally, a critical and dispassionate assessment of the specific grounds advanced in this particular case. For completeness, and so that neither party may afterwards suggest that its position was not fully or fairly captured, I have set out the rival submissions in a distinct section of this Ruling before turning to my own analysis.
B. Background
5. The Petitioner instituted this Petition on 25th May 2025 in the public interest, challenging, inter alia, the constitutionality of Section 16(2) of the Teachers Service Commission Act, and the constitutionality of the ongoing recruitment process for the position of Secretary/Chief Executive Officer of the 1st Respondent, advertised on 6th May 2025. Contemporaneously with the Petition, the Petitioner filed a Notice of Motion application seeking, among other orders, a conservatory order staying the recruitment process pending the hearing and determination of the Petition, which orders he obtained ex parte on 27th May 2025 and enjoyed for a period of approximately eight months.
6. The 1st Respondent, together with the 2nd, 3rd and 4th Respondents, opposed the Petition and the interlocutory application, and additionally raised preliminary objections contending that this Court lacked jurisdiction to entertain either, principally on the ground that the dispute did not fall within the classes of matter and person contemplated by Section 12 of the Employment and Labour Relations Court Act, and that jurisdiction to pronounce upon the constitutionality of a statute lay exclusively with the High Court under Article 165(3)(d)(i) of the Constitution.
7. By a Ruling delivered on 29th January 2026, this Court dismissed the Respondents' preliminary objections, holding that it possessed the requisite jurisdiction to entertain the Petition and the constitutional question raised within it, that jurisdiction being neither ousted by the absence of an employer-employee relationship at the recruitment stage, nor confined, as the Respondents had urged, to matters falling squarely within Section 12 of the Act. In the same Ruling, however, and upon a full inter partes hearing of the merits of the conservatory application, the Court vacated the ex parte orders earlier obtained by the Petitioner, and directed that the Petition proceed to hearing and determination on its merits.
8. It bears emphasis, at the very outset, that the Ruling of 29th January 2026 was not, in substance, a ruling wholly or even predominantly adverse to the Petitioner. It vindicated the very forum the Petitioner had chosen to litigate his grievance, over the determined objection of four Respondents who sought to have the Petition struck out in limine for want of jurisdiction; it was only on the distinct and narrower question whether the ex parte conservatory orders should be continued that the Court ruled against him. I return to the significance of this fact in the critical analysis that follows.
9. Shortly after the delivery of that Ruling, the Petitioner filed a Notice of Withdrawal of the Petition, which withdrawal the Respondents did not oppose save as to the issue of costs. Pursuant to directions issued by this Court, the Petitioner thereafter filed a formal Application dated 10th April 2026 seeking leave to withdraw the Petition under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
10. The 1st Respondent opposed the withdrawal application, filing a Replying Affidavit sworn by its Chairperson, Dr. Jamleck Muturi John, on 18th May 2026, and written submissions of even date, in which it contended, inter alia, that the intended withdrawal formed part of a broader scheme connected to related proceedings pending before a court of concurrent jurisdiction — specifically, Kiambu Petition No. 006 of 2026 — and amounted to forum shopping and an abuse of the process of this Court. The 1st Respondent expressly framed, as one of the issues for the Court's determination, whether the withdrawal application had been brought in bad faith and constituted an abuse of process.
11. By a Ruling delivered on 4th June 2026, this Court dismissed the Petitioner's application for leave to withdraw the Petition. In doing so, the Court made findings, expressed in unambiguous terms, that “forum shopping is evident”, that “the court process is being abused”, and that the intended withdrawal of the Petition was aimed at aiding proceedings pending before another court. The Court simultaneously noted that in related proceedings before it, being ELRC Petition No. E022 of 2025, Peter Kibelesi Kukubo v Teachers Service Commission, National Assembly & 2 Others, an application by a different litigant seeking withdrawal of that petition had, on a materially similar basis, likewise been declined.
12. Upon delivery of the Ruling of 4th June 2026, the Court fixed the Petition for delivery of judgment on 2nd July 2026. It is a matter of record, and one to which I return later in this Ruling, that the Petitioner, being dissatisfied with that Ruling, sought and was granted leave to appeal against it.
13. Rather than pursue that avenue of appeal to its conclusion, the Petitioner instead filed, on 15th June 2026, the Certificate of Urgency, Notice of Motion and Supporting Affidavit that are the subject of this Ruling, seeking, in substance, the recusal of the presiding Judge from any further conduct of this Petition and a stay of the delivery of judgment pending the determination of that request.
14. Mindful of the gravity that attaches to any pending recusal application, and consistently with prudent judicial practice, I did not proceed to deliver judgment on 2nd July 2026 as earlier scheduled. I instead directed that the Application be canvassed by way of written submissions, which directions the parties have complied with: the 1st Respondent filing a Replying Affidavit and submissions in opposition, and the Petitioner filing submissions in support, the last of which was filed on 9th July 2026. It is that Application which now falls for determination, and upon whose determination the future conduct of this Petition, including the fixing of a fresh date for delivery of judgment, depends.
C. The Application for Recusal and the Grounds Advanced
15. By the Notice of Motion dated 15th June 2026, expressed to be brought under Articles 25(c), 27, 50(1), 159(2)(a), (b) and (e), and 259 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Rule 17 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, the Judicial Code of Conduct and Ethics, 2020, the Bangalore Principles of Judicial Conduct, and all other enabling provisions of the law, the Petitioner/Applicant seeks orders, in summary, that:
(a) the Application be certified urgent and service thereof be dispensed with in the first instance;
(b) there be a stay of the delivery of the judgment scheduled for 2nd July 2026 pending the hearing and determination of the Application;
(c) Hon. Justice Ocharo Kebira be pleased to recuse himself from any further conduct, hearing and determination of this Petition;
(d) the Court file be placed before the Principal Judge of this Court for directions and reallocation to another Judge of competent jurisdiction; and
(e) costs of the Application be provided for.
16. The Application is premised on the grounds set out on its face and elaborated in the Applicant's Supporting Affidavit sworn on 15th June 2026. Reduced to their essence, and read together with his subsequent submissions, the grounds may be summarised as follows.
17. First, the Applicant avers that the Ruling of 4th June 2026 contained “definitive findings and conclusions” regarding his conduct, motives and intentions, including the findings that “forum shopping is evident”, that “the court process is being abused”, and that his intended withdrawal was aimed at aiding proceedings pending before another court, and that these findings were not confined to the procedural question of withdrawal but extended to contested matters touching on his motives, credibility and the legitimacy of the proceedings generally.
18. Second, he avers that in the related proceedings in ELRC Petition No. E022 of 2025, Peter Kibelesi Kukubo v Teachers Service Commission, National Assembly & 2 Others, an application by a different litigant seeking withdrawal of that petition was similarly declined, and contends that this successive pattern of refusal, considered together with the definitive findings made against him personally, demonstrates that this Court has formed “a settled view regarding the propriety, purpose and legitimacy of the related proceedings”, thereby giving rise to a reasonable apprehension of prejudgment.
19. Third, he avers that the effect of the foregoing is that a fair-minded and informed observer, considering the cumulative dismissal of the interlocutory application, the refusal to permit withdrawal of the present Petition, the refusal to permit withdrawal in the related matter, and the definitive findings concerning forum shopping and abuse of process, would reasonably apprehend a real possibility that this Court has already formed a concluded view on matters remaining for determination in the substantive Petition.
20. Fourth, he avers, and I record this expressly because it is to his credit that he says so, that his apprehension does not arise merely from adverse rulings as such, but from what he characterises as the cumulative effect of those rulings together with the unequivocal findings made concerning his motives, conduct and intentions — a distinction to which the law, as will be seen, attaches real significance.
21. Fifth, he avers that unless the delivery of judgment, fixed for 2nd July 2026, is stayed pending the hearing and determination of this Application, the Application will be rendered nugatory and he will suffer grave prejudice through the loss of an opportunity to have his concerns regarding judicial impartiality properly adjudicated.
22. On that basis, the Applicant urges that it is necessary, expedient and in the interests of justice that I recuse myself from any further conduct, hearing, determination and/or delivery of judgment in this Petition, and that the file be placed before the Principal Judge for reallocation to another Judge.
D. Submissions
23. Because an allegation of this character calls for particular transparency in how it has been met, I set out in this section, at some length and in a manner distinct from my own analysis, the rival submissions filed by the parties, so that it is beyond doubt that both positions were fully considered before this Ruling was arrived at.
(i) The Petitioner/Applicant's Submissions (filed 9th July 2026)
24. Counsel for the Petitioner, Prof. Tom Ojienda & Associates, opens by making plain that the Application “is not premised on dissatisfaction with adverse orders or decisions made by the Honourable Court”, and that the Applicant “appreciates that a judicial officer is entitled to make determinations against a party and that an unfavourable decision, without more, cannot form the basis for recusal.” The grievance, it is submitted, arises instead from “the cumulative effect of the proceedings herein, the circumstances surrounding the refusal to permit withdrawal of the Petition and the definitive findings made by the Honourable Court concerning the Applicant's conduct, motives and intentions.”
25. Counsel submits that the constitutional guarantee of a fair hearing under Articles 25(c), 27 and 50(1) encompasses not only actual impartiality but also its appearance, and that the issue for determination is “whether, in the circumstances of this matter, a fair-minded and informed observer would reasonably apprehend that there exists a real possibility that the Honourable Court may not approach the remaining proceedings with an open and impartial mind.”
26. In support of that formulation, counsel invokes the celebrated English authority of Porter v Magill [2002] 2 AC 357, as recited with approval by the Kenyan courts, for the proposition that the applicable test is “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias.” Counsel further relies on Rono (Suing as the Executrix of the Estate of the Late David Rono) v Almer Farm Limited [2025] KEELC 4403 (KLR), and, through it, on Philip K. Tunoi & Another v Judicial Service Commission & Another [2016] eKLR, for the enumeration of circumstances in which a judge may properly recuse himself, and for the further proposition, drawn from the same authority, that “it is not the mind of the Judge which is considered but the impression given to reasonable people.”
27. Counsel places particular reliance on Rawal & 2 others v Judicial Service Commission & 2 others; Okoiti (Interested Party); International Commission of Jurists & 2 others (Amicus Curiae) [2016] KESC 1 (KLR), quoting the Supreme Court's statement that “recusal is indeed a judicial duty and it does not amount to a judge abrogating his/her duty. Apart from personally recusing to safeguard one's integrity and the sanctity of proceedings, recusal also helps protect the integrity and dignity of the bigger institution, that is, the judiciary and aids in championing its independence.”
28. Counsel also draws attention to Thugi River Estate Limited & another v National Bank of Kenya Ltd & 2 others [2014] KEHC 8278 (KLR), in which the Honourable L.N. Gacheru, J. recused himself notwithstanding an express finding that the apprehension of bias raised before him was “far-fetched”, reasoning that “I would not hesitate to recuse myself, if only my recusal would give the applicant the confidence to approach the Court for arbitration of this matter and also to remain assured that justice would indeed be done”, and to Rai & 3 others v Rai & 4 others [2007] KECA 21 (KLR), for the proposition that the issue of recusal is founded on the need to maintain public confidence in the impartiality of the judiciary.
29. On that basis, counsel submits that the Applicant has met the threshold for recusal; that the delivery of judgment ought to be stayed pending determination of the Application, failing which the Application would be rendered nugatory; and that the matter should be placed before the Principal Judge for reallocation, an order which, it is submitted, would occasion no prejudice to any party and would instead safeguard confidence in the eventual determination of the Petition.
(ii) The 1st Respondent's Submissions in Opposition (filed 8th July 2026)
30. The 1st Respondent, through Mr. Cavin Anyuor, Advocate, opens its submissions by acknowledging that judicial impartiality is a fundamental pillar of justice under Article 50(1) of the Constitution, but submits that this must be balanced with a judge's duty to sit, citing Shollei v Judicial Service Commission & another [2018] KESC 42 (KLR), where the Supreme Court held:
“Tied to the constitutional argument above is the doctrine of the duty of a judge to sit. Though not profound in our jurisdiction, every judge has a duty to sit, in a matter which he duly should sit. So that recusal should not be used to cripple a judge from sitting to hear a matter. This duty to sit is buttressed by the fact that every judge takes an oath of office: 'to serve impartially; and to protect, administer and defend the Constitution.' It is a doctrine that recognizes that having taken the oath of office, a judge is capable of rising above any prejudices, save for those rare cases when he has to recuse himself. The doctrine also safeguards the parties' right to have their cases heard and determined before a court of law.”
31. Counsel submits that recusal is an exceptional remedy which must be considered with great caution, and that the Applicant bears the burden of demonstrating, on objective and reasonable grounds, that a fair-minded and informed observer would conclude that there exists a real possibility of bias. He relies on Kaplana H. Rawal v Judicial Service Commission & 2 others [2016] eKLR, concurring with the decision of the East African Court of Justice in Attorney General of Kenya v Prof Anyang' Nyong'o & 10 Others, EACJ Application No. 5 of 2007, for the proposition 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.”
32. Counsel further relies on the Supreme Court's decision in Rawal & 2 others v Judicial Service Commission & 2 others (the same authority relied upon, for a different proposition, by the Applicant), for its adoption of the test articulated in Jasbir Singh Rai & 7 Others v Tarlochan Singh Rai & Others: “Perception of fairness, of conviction, of moral authority to hear the matter, is the proper test of whether or not the non-participation of the judicial officer is called for”, and submits that the question is therefore whether the Applicant “has demonstrated real likelihood of bias or prejudice”, noting the definitions in Black's Law Dictionary, 7th Edition, that bias is “inclination, prejudice; Judge's bias usually must be personal or based on some extrajudicial reasons”, while prejudice means “a preconceived judgment formed without a factual basis, a strong bias.”
33. Applying that standard to the facts, counsel submits that the Applicant's case for recusal is built solely upon the Ruling of 4th June 2026, and that a fair-minded and informed observer, having regard to the fact that the impugned findings were made in answer to an issue the 1st Respondent itself had expressly framed for the Court's determination — namely, whether the withdrawal application was made in bad faith and amounted to an abuse of process — would conclude that those findings were reasoned judicial findings stemming from pleaded facts, and not evidence of bias. Counsel relies on Hassan Omar Hassan & another v Independent Electoral & Boundaries Commission & 2 others [2018] KEHC 8854 (KLR), where the High Court held that an application amounting to “a critique of the decisions of the Court which have gone against him” is properly pursued in “the appellate arena”, and that “the decisions of the Court per se do not amount to evidence of bias.”
34. Counsel places particular reliance on Kidero & 13 others v Ethics and Anti-Corruption Commission [2023] KEHC 3363 (KLR), citing with approval Attorney General v Anyang' Nyong'o & Others [2009] IEA 21, for the observation that:
“The court must guard against litigants who all too often blame their losses in court cases on bias on the part of the Judge. Success or failure of the government or any other litigant is neither ground for praise nor for condemnation of a court. What is important is whether the decisions are good in law, and whether they are justifiable in relation to the reasons given for them. There is a fundamental tendency for the decisions of the courts with which there is a disagreement to be attacked by impugning the integrity of the Judges, rather than by examining the reasons for the judgment......” and that “a 'suspicious mind' in the literal sense will suspect even where no cause for suspicion exists and unfortunately this is a common phenomenon among unsuccessful litigants and that is why the mind envisaged in the test to determine perception of possible or likely bias on the part of the Judge is a reasonable, fair and informed mind. While litigants have the right to apply for the recusal of judicial officers where there is a reasonable apprehension that they will not decide a case impartially, this does not give them the right to object to their cases being heard by particular judicial officers merely because they believe that such persons will be less likely to decide the case in their favour.”
35. Counsel also cites this Court's own decision in Macharia & 13 others v Gichana & another [2022] KEELRC 12809 (KLR), where it was observed that:
“……Applications for the court to recuse itself have become increasingly fashionable of late, regrettably often with no factual or legal justification. It may be tempting for a client to want to recuse the court when he perceives his case if failing, but that is no justification for counsel to make the application … it is for counsel to satisfy himself that there are reasonable grounds for making such an application.”
36. On the strength of the foregoing, and on the further facts deposed to in the Replying Affidavit of Dr. Jamleck Muturi John — including that the Applicant, upon delivery of the Ruling of 4th June 2026, sought and was granted leave to appeal against it but elected instead to pursue recusal, and that neither the petitioner in the related ELRC Petition No. E022 of 2025 nor his counsel has taken issue with the analogous finding made in that matter — the 1st Respondent urges that the Applicant has failed to place before the Court any objective facts capable of establishing actual bias or a reasonable apprehension of bias, and that the Application, being an abuse of the court process brought to delay the Petition and to secure a judicial officer perceived to be more favourable, ought to be dismissed with costs.
37. It is right to record that the 2nd, 3rd and 4th Respondents, and the Intended Interested Party, did not file any response to, or otherwise participate in, this Application, and that the determination that follows has therefore been arrived at on the basis of the submissions of the Petitioner/Applicant and the 1st Respondent alone.
E. Issues for Determination
38. Having considered the Application, the grounds advanced, and the rival submissions summarised above, I am satisfied that the following issues arise for determination:
(a) what is the nature and proper scope of the judicial function in an adversarial system such as ours, and what bearing does that function have on how allegations of bias are to be assessed;
(b) why, as a matter of sound principle, ought applications for recusal to be brought only sparingly, and what are the likely effects, in the larger scheme of the administration of justice, of such applications being brought too readily;
(c) what is the applicable law on recusal, whether recusal follows automatically upon a party moving for it, and in what circumstances a court may or should recuse itself;
(d) whether, on a critical assessment of the grounds advanced, the Applicant has demonstrated a proper basis for the recusal of the presiding Judge in this matter; and
(e) what orders should issue in the result, including as to the delivery of judgment and costs.
F. The Role of a Judge in an Adversarial System
39. It is necessary, before descending into the specific grounds advanced in this case, to pause and reflect on the nature of the office whose occupant is here accused, and on the character of the system within which that office is exercised, for it is only against that background that the present Application can be properly understood and fairly assessed.
40. Kenya, like the great majority of common law jurisdictions, operates an adversarial, rather than an inquisitorial, system of civil and constitutional adjudication. Under that system, it is the parties, and not the court, who frame the dispute: they identify the issues, marshal the evidence, and advance the arguments; the judge's function is to adjudicate between the positions so presented, applying the law to the facts as pleaded and proved, and to decide, as between the parties, who is right and who is wrong on each question properly placed before him. That is not a peripheral or optional feature of the office; it is its very essence. A judge who declined to decide, or who decided every close question by splitting the difference so as to avoid ever ruling squarely against either side, would not be discharging the judicial function at all.
41. It follows, ineluctably, from the nature of that function, that in the ordinary course of any protracted litigation — and this Petition, spanning multiple interlocutory applications over more than a year, is protracted by any measure — a court will be called upon, repeatedly, to rule for one party and against the other. Where, as here, a litigant has himself invoked the jurisdiction of the court through successive applications — first for conservatory orders, then for withdrawal — each application necessarily invites a ruling either in his favour or against him. There is nothing irregular, still less anything suggestive of bias, in a litigant experiencing a run of rulings that do not go his way; it is, on the contrary, a perfectly ordinary incident of adversarial litigation, especially where, as the record here shows, the same litigant has in fact also succeeded on at least one substantial and consequential question — the jurisdiction of this Court to hear his own Petition at all.
42. Nor is it any answer to say that a judge ought to moderate the language of his rulings, or decline to record clear findings on issues squarely raised by the parties, so as to avoid the risk that a disappointed litigant may later characterise firm findings as evidence of prejudgment. An adversarial system depends, for its integrity, on judges being willing to decide, plainly and without equivocation, in favour of one party and against another, on the basis of the law, the pleadings and the record before them — including, where the parties have themselves put in issue a litigant's good or bad faith, to make a clear finding on that very question. A judiciary too anxious to appear even-handed by softening its findings, or by declining to preside further once a pattern of adverse rulings has emerged against a particular litigant, would not be more impartial; it would be less so, having substituted a concern for appearances over a concern for the correct and honest application of the law to the facts of each application as it arises.
43. It is against this understanding of the judicial function — an adjudicator bound to decide each application as framed by the parties, according to law, and without regard to whether the same litigant has previously succeeded or failed before the same court on other, distinct applications — that the propriety of the present Application for recusal must be assessed.
G. Why Recusal Applications Should Be Brought Sparingly
44. I turn next, and I do so in the same courteous spirit in which the Applicant has, through counsel, expressly disclaimed any suggestion that this Application is brought out of mer
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1. Few applications place a judge in as delicate a position as one that invites him to sit in judgment upon an allegation that he is not fit to judge. The temptation, on the one hand, is to react defensively; on the other, to recuse too readily simply to avoid controversy, however unmeritorious the allegation. Neither temptation serves the administration of justice. What is required, instead, is the same dispassionate, reasoned analysis this Court would bring to any other application — tested against settled principle, and against the record, rather than against personal sentiment on either side.
2. This Ruling determines the Petitioner/Applicant's Notice of Motion dated 15th June 2026, filed under a Certificate of Urgency of even date, by which he seeks, principally, an order that I recuse myself from any further conduct, hearing, determination and/or delivery of judgment in this Petition, together with an order staying the delivery of judgment that had been fixed for 2nd July 2026 pending the hearing and determination of the Application, and an order that the file be placed before the Principal Judge of this Court for directions and reallocation to another Judge.
3. The Application arises out of, and must be understood against, a Petition that has already occasioned two substantive interlocutory rulings of this Court: a Ruling delivered on 29th January 2026 dismissing the Respondents' preliminary objections to jurisdiction and, upon hearing the parties inter partes, vacating the ex parte conservatory orders earlier obtained by the Petitioner; and a Ruling delivered on 4th June 2026 declining the Petitioner's application for leave to withdraw the Petition, in which this Court made findings, adverse to the Petitioner, that his intended withdrawal amounted to forum shopping and an abuse of the process of this Court. It is those two rulings, and in particular the second, that the Petitioner says give rise to a reasonable apprehension that this Court has already formed, and cannot now discard, a concluded view adverse to him on matters that remain for determination in the substantive Petition.
4. Given the gravity that necessarily attaches to any suggestion, however framed, that a sitting judge is not to be trusted with the impartial determination of a cause properly before him, I have thought it right to address this Application with the fullest measure of care: to set out, at some length, the nature and limits of the judicial function in an adversarial system such as ours; the reasons why applications of this kind, though a legal entitlement of every litigant, ought as a matter of sound principle to be brought sparingly; the settled law, drawn from this jurisdiction and from other common law jurisdictions, on when a court may and may not properly recuse itself; and, finally, a critical and dispassionate assessment of the specific grounds advanced in this particular case. For completeness, and so that neither party may afterwards suggest that its position was not fully or fairly captured, I have set out the rival submissions in a distinct section of this Ruling before turning to my own analysis.
B. Background
5. The Petitioner instituted this Petition on 25th May 2025 in the public interest, challenging, inter alia, the constitutionality of Section 16(2) of the Teachers Service Commission Act, and the constitutionality of the ongoing recruitment process for the position of Secretary/Chief Executive Officer of the 1st Respondent, advertised on 6th May 2025. Contemporaneously with the Petition, the Petitioner filed a Notice of Motion application seeking, among other orders, a conservatory order staying the recruitment process pending the hearing and determination of the Petition, which orders he obtained ex parte on 27th May 2025 and enjoyed for a period of approximately eight months.
6. The 1st Respondent, together with the 2nd, 3rd and 4th Respondents, opposed the Petition and the interlocutory application, and additionally raised preliminary objections contending that this Court lacked jurisdiction to entertain either, principally on the ground that the dispute did not fall within the classes of matter and person contemplated by Section 12 of the Employment and Labour Relations Court Act, and that jurisdiction to pronounce upon the constitutionality of a statute lay exclusively with the High Court under Article 165(3)(d)(i) of the Constitution.
7. By a Ruling delivered on 29th January 2026, this Court dismissed the Respondents' preliminary objections, holding that it possessed the requisite jurisdiction to entertain the Petition and the constitutional question raised within it, that jurisdiction being neither ousted by the absence of an employer-employee relationship at the recruitment stage, nor confined, as the Respondents had urged, to matters falling squarely within Section 12 of the Act. In the same Ruling, however, and upon a full inter partes hearing of the merits of the conservatory application, the Court vacated the ex parte orders earlier obtained by the Petitioner, and directed that the Petition proceed to hearing and determination on its merits.
8. It bears emphasis, at the very outset, that the Ruling of 29th January 2026 was not, in substance, a ruling wholly or even predominantly adverse to the Petitioner. It vindicated the very forum the Petitioner had chosen to litigate his grievance, over the determined objection of four Respondents who sought to have the Petition struck out in limine for want of jurisdiction; it was only on the distinct and narrower question whether the ex parte conservatory orders should be continued that the Court ruled against him. I return to the significance of this fact in the critical analysis that follows.
9. Shortly after the delivery of that Ruling, the Petitioner filed a Notice of Withdrawal of the Petition, which withdrawal the Respondents did not oppose save as to the issue of costs. Pursuant to directions issued by this Court, the Petitioner thereafter filed a formal Application dated 10th April 2026 seeking leave to withdraw the Petition under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
10. The 1st Respondent opposed the withdrawal application, filing a Replying Affidavit sworn by its Chairperson, Dr. Jamleck Muturi John, on 18th May 2026, and written submissions of even date, in which it contended, inter alia, that the intended withdrawal formed part of a broader scheme connected to related proceedings pending before a court of concurrent jurisdiction — specifically, Kiambu Petition No. 006 of 2026 — and amounted to forum shopping and an abuse of the process of this Court. The 1st Respondent expressly framed, as one of the issues for the Court's determination, whether the withdrawal application had been brought in bad faith and constituted an abuse of process.
11. By a Ruling delivered on 4th June 2026, this Court dismissed the Petitioner's application for leave to withdraw the Petition. In doing so, the Court made findings, expressed in unambiguous terms, that “forum shopping is evident”, that “the court process is being abused”, and that the intended withdrawal of the Petition was aimed at aiding proceedings pending before another court. The Court simultaneously noted that in related proceedings before it, being ELRC Petition No. E022 of 2025, Peter Kibelesi Kukubo v Teachers Service Commission, National Assembly & 2 Others, an application by a different litigant seeking withdrawal of that petition had, on a materially similar basis, likewise been declined.
12. Upon delivery of the Ruling of 4th June 2026, the Court fixed the Petition for delivery of judgment on 2nd July 2026. It is a matter of record, and one to which I return later in this Ruling, that the Petitioner, being dissatisfied with that Ruling, sought and was granted leave to appeal against it.
13. Rather than pursue that avenue of appeal to its conclusion, the Petitioner instead filed, on 15th June 2026, the Certificate of Urgency, Notice of Motion and Supporting Affidavit that are the subject of this Ruling, seeking, in substance, the recusal of the presiding Judge from any further conduct of this Petition and a stay of the delivery of judgment pending the determination of that request.
14. Mindful of the gravity that attaches to any pending recusal application, and consistently with prudent judicial practice, I did not proceed to deliver judgment on 2nd July 2026 as earlier scheduled. I instead directed that the Application be canvassed by way of written submissions, which directions the parties have complied with: the 1st Respondent filing a Replying Affidavit and submissions in opposition, and the Petitioner filing submissions in support, the last of which was filed on 9th July 2026. It is that Application which now falls for determination, and upon whose determination the future conduct of this Petition, including the fixing of a fresh date for delivery of judgment, depends.
C. The Application for Recusal and the Grounds Advanced
15. By the Notice of Motion dated 15th June 2026, expressed to be brought under Articles 25(c), 27, 50(1), 159(2)(a), (b) and (e), and 259 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Rule 17 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, the Judicial Code of Conduct and Ethics, 2020, the Bangalore Principles of Judicial Conduct, and all other enabling provisions of the law, the Petitioner/Applicant seeks orders, in summary, that:
(a) the Application be certified urgent and service thereof be dispensed with in the first instance;
(b) there be a stay of the delivery of the judgment scheduled for 2nd July 2026 pending the hearing and determination of the Application;
(c) Hon. Justice Ocharo Kebira be pleased to recuse himself from any further conduct, hearing and determination of this Petition;
(d) the Court file be placed before the Principal Judge of this Court for directions and reallocation to another Judge of competent jurisdiction; and
(e) costs of the Application be provided for.
16. The Application is premised on the grounds set out on its face and elaborated in the Applicant's Supporting Affidavit sworn on 15th June 2026. Reduced to their essence, and read together with his subsequent submissions, the grounds may be summarised as follows.
17. First, the Applicant avers that the Ruling of 4th June 2026 contained “definitive findings and conclusions” regarding his conduct, motives and intentions, including the findings that “forum shopping is evident”, that “the court process is being abused”, and that his intended withdrawal was aimed at aiding proceedings pending before another court, and that these findings were not confined to the procedural question of withdrawal but extended to contested matters touching on his motives, credibility and the legitimacy of the proceedings generally.
18. Second, he avers that in the related proceedings in ELRC Petition No. E022 of 2025, Peter Kibelesi Kukubo v Teachers Service Commission, National Assembly & 2 Others, an application by a different litigant seeking withdrawal of that petition was similarly declined, and contends that this successive pattern of refusal, considered together with the definitive findings made against him personally, demonstrates that this Court has formed “a settled view regarding the propriety, purpose and legitimacy of the related proceedings”, thereby giving rise to a reasonable apprehension of prejudgment.
19. Third, he avers that the effect of the foregoing is that a fair-minded and informed observer, considering the cumulative dismissal of the interlocutory application, the refusal to permit withdrawal of the present Petition, the refusal to permit withdrawal in the related matter, and the definitive findings concerning forum shopping and abuse of process, would reasonably apprehend a real possibility that this Court has already formed a concluded view on matters remaining for determination in the substantive Petition.
20. Fourth, he avers, and I record this expressly because it is to his credit that he says so, that his apprehension does not arise merely from adverse rulings as such, but from what he characterises as the cumulative effect of those rulings together with the unequivocal findings made concerning his motives, conduct and intentions — a distinction to which the law, as will be seen, attaches real significance.
21. Fifth, he avers that unless the delivery of judgment, fixed for 2nd July 2026, is stayed pending the hearing and determination of this Application, the Application will be rendered nugatory and he will suffer grave prejudice through the loss of an opportunity to have his concerns regarding judicial impartiality properly adjudicated.
22. On that basis, the Applicant urges that it is necessary, expedient and in the interests of justice that I recuse myself from any further conduct, hearing, determination and/or delivery of judgment in this Petition, and that the file be placed before the Principal Judge for reallocation to another Judge.
D. Submissions
23. Because an allegation of this character calls for particular transparency in how it has been met, I set out in this section, at some length and in a manner distinct from my own analysis, the rival submissions filed by the parties, so that it is beyond doubt that both positions were fully considered before this Ruling was arrived at.
(i) The Petitioner/Applicant's Submissions (filed 9th July 2026)
24. Counsel for the Petitioner, Prof. Tom Ojienda & Associates, opens by making plain that the Application “is not premised on dissatisfaction with adverse orders or decisions made by the Honourable Court”, and that the Applicant “appreciates that a judicial officer is entitled to make determinations against a party and that an unfavourable decision, without more, cannot form the basis for recusal.” The grievance, it is submitted, arises instead from “the cumulative effect of the proceedings herein, the circumstances surrounding the refusal to permit withdrawal of the Petition and the definitive findings made by the Honourable Court concerning the Applicant's conduct, motives and intentions.”
25. Counsel submits that the constitutional guarantee of a fair hearing under Articles 25(c), 27 and 50(1) encompasses not only actual impartiality but also its appearance, and that the issue for determination is “whether, in the circumstances of this matter, a fair-minded and informed observer would reasonably apprehend that there exists a real possibility that the Honourable Court may not approach the remaining proceedings with an open and impartial mind.”
26. In support of that formulation, counsel invokes the celebrated English authority of Porter v Magill [2002] 2 AC 357, as recited with approval by the Kenyan courts, for the proposition that the applicable test is “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias.” Counsel further relies on Rono (Suing as the Executrix of the Estate of the Late David Rono) v Almer Farm Limited [2025] KEELC 4403 (KLR), and, through it, on Philip K. Tunoi & Another v Judicial Service Commission & Another [2016] eKLR, for the enumeration of circumstances in which a judge may properly recuse himself, and for the further proposition, drawn from the same authority, that “it is not the mind of the Judge which is considered but the impression given to reasonable people.”
27. Counsel places particular reliance on Rawal & 2 others v Judicial Service Commission & 2 others; Okoiti (Interested Party); International Commission of Jurists & 2 others (Amicus Curiae) [2016] KESC 1 (KLR), quoting the Supreme Court's statement that “recusal is indeed a judicial duty and it does not amount to a judge abrogating his/her duty. Apart from personally recusing to safeguard one's integrity and the sanctity of proceedings, recusal also helps protect the integrity and dignity of the bigger institution, that is, the judiciary and aids in championing its independence.”
28. Counsel also draws attention to Thugi River Estate Limited & another v National Bank of Kenya Ltd & 2 others [2014] KEHC 8278 (KLR), in which the Honourable L.N. Gacheru, J. recused himself notwithstanding an express finding that the apprehension of bias raised before him was “far-fetched”, reasoning that “I would not hesitate to recuse myself, if only my recusal would give the applicant the confidence to approach the Court for arbitration of this matter and also to remain assured that justice would indeed be done”, and to Rai & 3 others v Rai & 4 others [2007] KECA 21 (KLR), for the proposition that the issue of recusal is founded on the need to maintain public confidence in the impartiality of the judiciary.
29. On that basis, counsel submits that the Applicant has met the threshold for recusal; that the delivery of judgment ought to be stayed pending determination of the Application, failing which the Application would be rendered nugatory; and that the matter should be placed before the Principal Judge for reallocation, an order which, it is submitted, would occasion no prejudice to any party and would instead safeguard confidence in the eventual determination of the Petition.
(ii) The 1st Respondent's Submissions in Opposition (filed 8th July 2026)
30. The 1st Respondent, through Mr. Cavin Anyuor, Advocate, opens its submissions by acknowledging that judicial impartiality is a fundamental pillar of justice under Article 50(1) of the Constitution, but submits that this must be balanced with a judge's duty to sit, citing Shollei v Judicial Service Commission & another [2018] KESC 42 (KLR), where the Supreme Court held:
“Tied to the constitutional argument above is the doctrine of the duty of a judge to sit. Though not profound in our jurisdiction, every judge has a duty to sit, in a matter which he duly should sit. So that recusal should not be used to cripple a judge from sitting to hear a matter. This duty to sit is buttressed by the fact that every judge takes an oath of office: 'to serve impartially; and to protect, administer and defend the Constitution.' It is a doctrine that recognizes that having taken the oath of office, a judge is capable of rising above any prejudices, save for those rare cases when he has to recuse himself. The doctrine also safeguards the parties' right to have their cases heard and determined before a court of law.”
31. Counsel submits that recusal is an exceptional remedy which must be considered with great caution, and that the Applicant bears the burden of demonstrating, on objective and reasonable grounds, that a fair-minded and informed observer would conclude that there exists a real possibility of bias. He relies on Kaplana H. Rawal v Judicial Service Commission & 2 others [2016] eKLR, concurring with the decision of the East African Court of Justice in Attorney General of Kenya v Prof Anyang' Nyong'o & 10 Others, EACJ Application No. 5 of 2007, for the proposition 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.”
32. Counsel further relies on the Supreme Court's decision in Rawal & 2 others v Judicial Service Commission & 2 others (the same authority relied upon, for a different proposition, by the Applicant), for its adoption of the test articulated in Jasbir Singh Rai & 7 Others v Tarlochan Singh Rai & Others: “Perception of fairness, of conviction, of moral authority to hear the matter, is the proper test of whether or not the non-participation of the judicial officer is called for”, and submits that the question is therefore whether the Applicant “has demonstrated real likelihood of bias or prejudice”, noting the definitions in Black's Law Dictionary, 7th Edition, that bias is “inclination, prejudice; Judge's bias usually must be personal or based on some extrajudicial reasons”, while prejudice means “a preconceived judgment formed without a factual basis, a strong bias.”
33. Applying that standard to the facts, counsel submits that the Applicant's case for recusal is built solely upon the Ruling of 4th June 2026, and that a fair-minded and informed observer, having regard to the fact that the impugned findings were made in answer to an issue the 1st Respondent itself had expressly framed for the Court's determination — namely, whether the withdrawal application was made in bad faith and amounted to an abuse of process — would conclude that those findings were reasoned judicial findings stemming from pleaded facts, and not evidence of bias. Counsel relies on Hassan Omar Hassan & another v Independent Electoral & Boundaries Commission & 2 others [2018] KEHC 8854 (KLR), where the High Court held that an application amounting to “a critique of the decisions of the Court which have gone against him” is properly pursued in “the appellate arena”, and that “the decisions of the Court per se do not amount to evidence of bias.”
34. Counsel places particular reliance on Kidero & 13 others v Ethics and Anti-Corruption Commission [2023] KEHC 3363 (KLR), citing with approval Attorney General v Anyang' Nyong'o & Others [2009] IEA 21, for the observation that:
“The court must guard against litigants who all too often blame their losses in court cases on bias on the part of the Judge. Success or failure of the government or any other litigant is neither ground for praise nor for condemnation of a court. What is important is whether the decisions are good in law, and whether they are justifiable in relation to the reasons given for them. There is a fundamental tendency for the decisions of the courts with which there is a disagreement to be attacked by impugning the integrity of the Judges, rather than by examining the reasons for the judgment......” and that “a 'suspicious mind' in the literal sense will suspect even where no cause for suspicion exists and unfortunately this is a common phenomenon among unsuccessful litigants and that is why the mind envisaged in the test to determine perception of possible or likely bias on the part of the Judge is a reasonable, fair and informed mind. While litigants have the right to apply for the recusal of judicial officers where there is a reasonable apprehension that they will not decide a case impartially, this does not give them the right to object to their cases being heard by particular judicial officers merely because they believe that such persons will be less likely to decide the case in their favour.”
35. Counsel also cites this Court's own decision in Macharia & 13 others v Gichana & another [2022] KEELRC 12809 (KLR), where it was observed that:
“……Applications for the court to recuse itself have become increasingly fashionable of late, regrettably often with no factual or legal justification. It may be tempting for a client to want to recuse the court when he perceives his case if failing, but that is no justification for counsel to make the application … it is for counsel to satisfy himself that there are reasonable grounds for making such an application.”
36. On the strength of the foregoing, and on the further facts deposed to in the Replying Affidavit of Dr. Jamleck Muturi John — including that the Applicant, upon delivery of the Ruling of 4th June 2026, sought and was granted leave to appeal against it but elected instead to pursue recusal, and that neither the petitioner in the related ELRC Petition No. E022 of 2025 nor his counsel has taken issue with the analogous finding made in that matter — the 1st Respondent urges that the Applicant has failed to place before the Court any objective facts capable of establishing actual bias or a reasonable apprehension of bias, and that the Application, being an abuse of the court process brought to delay the Petition and to secure a judicial officer perceived to be more favourable, ought to be dismissed with costs.
37. It is right to record that the 2nd, 3rd and 4th Respondents, and the Intended Interested Party, did not file any response to, or otherwise participate in, this Application, and that the determination that follows has therefore been arrived at on the basis of the submissions of the Petitioner/Applicant and the 1st Respondent alone.
E. Issues for Determination
38. Having considered the Application, the grounds advanced, and the rival submissions summarised above, I am satisfied that the following issues arise for determination:
(a) what is the nature and proper scope of the judicial function in an adversarial system such as ours, and what bearing does that function have on how allegations of bias are to be assessed;
(b) why, as a matter of sound principle, ought applications for recusal to be brought only sparingly, and what are the likely effects, in the larger scheme of the administration of justice, of such applications being brought too readily;
(c) what is the applicable law on recusal, whether recusal follows automatically upon a party moving for it, and in what circumstances a court may or should recuse itself;
(d) whether, on a critical assessment of the grounds advanced, the Applicant has demonstrated a proper basis for the recusal of the presiding Judge in this matter; and
(e) what orders should issue in the result, including as to the delivery of judgment and costs.
F. The Role of a Judge in an Adversarial System
39. It is necessary, before descending into the specific grounds advanced in this case, to pause and reflect on the nature of the office whose occupant is here accused, and on the character of the system within which that office is exercised, for it is only against that background that the present Application can be properly understood and fairly assessed.
40. Kenya, like the great majority of common law jurisdictions, operates an adversarial, rather than an inquisitorial, system of civil and constitutional adjudication. Under that system, it is the parties, and not the court, who frame the dispute: they identify the issues, marshal the evidence, and advance the arguments; the judge's function is to adjudicate between the positions so presented, applying the law to the facts as pleaded and proved, and to decide, as between the parties, who is right and who is wrong on each question properly placed before him. That is not a peripheral or optional feature of the office; it is its very essence. A judge who declined to decide, or who decided every close question by splitting the difference so as to avoid ever ruling squarely against either side, would not be discharging the judicial function at all.
41. It follows, ineluctably, from the nature of that function, that in the ordinary course of any protracted litigation — and this Petition, spanning multiple interlocutory applications over more than a year, is protracted by any measure — a court will be called upon, repeatedly, to rule for one party and against the other. Where, as here, a litigant has himself invoked the jurisdiction of the court through successive applications — first for conservatory orders, then for withdrawal — each application necessarily invites a ruling either in his favour or against him. There is nothing irregular, still less anything suggestive of bias, in a litigant experiencing a run of rulings that do not go his way; it is, on the contrary, a perfectly ordinary incident of adversarial litigation, especially where, as the record here shows, the same litigant has in fact also succeeded on at least one substantial and consequential question — the jurisdiction of this Court to hear his own Petition at all.
42. Nor is it any answer to say that a judge ought to moderate the language of his rulings, or decline to record clear findings on issues squarely raised by the parties, so as to avoid the risk that a disappointed litigant may later characterise firm findings as evidence of prejudgment. An adversarial system depends, for its integrity, on judges being willing to decide, plainly and without equivocation, in favour of one party and against another, on the basis of the law, the pleadings and the record before them — including, where the parties have themselves put in issue a litigant's good or bad faith, to make a clear finding on that very question. A judiciary too anxious to appear even-handed by softening its findings, or by declining to preside further once a pattern of adverse rulings has emerged against a particular litigant, would not be more impartial; it would be less so, having substituted a concern for appearances over a concern for the correct and honest application of the law to the facts of each application as it arises.
43. It is against this understanding of the judicial function — an adjudicator bound to decide each application as framed by the parties, according to law, and without regard to whether the same litigant has previously succeeded or failed before the same court on other, distinct applications — that the propriety of the present Application for recusal must be assessed.
G. Why Recusal Applications Should Be Brought Sparingly
44. I turn next, and I do so in the same courteous spirit in which the Applicant has, through counsel, expressly disclaimed any suggestion that this Application is brought out of mer
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