Kenya Council of Employment and Migration Agencies & Jane Kerubo Mogire v Teachers Service Commission, Nancy Njeri Macharia, Paul Ongera Onsongo, Jane Kerubo Mogire of Masabo Primary School & Attorney General [2021] KEELRC 210 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

PETITION NO 112 OF 2016

KENYA COUNCIL OF EMPLOYMENT

AND MIGRATION AGENCIES...............................................................1ST PETITIONER

JANE KERUBO MOGIRE........................................................................2ND PETITIONER

VERSUS

TEACHERS SERVICE COMMISSION.................................................1ST RESPONDENT

NANCY NJERI MACHARIA................................................................2ND RESPONDENT

PAUL ONGERA ONSONGO.................................................................3RD RESPONDENT

JANE KERUBO MOGIRE

OF MASABO PRIMARY SCHOOL TSC No xxxxxx.........................4TH RESPONDENT

HON ATTORNEY GENERAL............................................................5TH RESPONDENT

RULING

1.  I first handled this matter in 2016 and on 21st April 2017, I delivered a ruling in an interlocutory application. Thereafter, I left Nairobi Station in January 2018 and the matter was taken over by my successor, O.N Makau J.

2.  As fate would have it, I came back to Nairobi in September 2021 and took over from O.N Makau J. This matter is part of what I took over from my brother Judge.

3.  On 30th September 2021, the matter came up for mention before me with Mr. Rakoro appearing for the 2nd Petitioner and Mr. Mulaku for the 1st Respondent. There was no appearance for the 1st Petitioner.  Counsel appearing on that date sought time to file their submissions on the main Petition. The Court was informed that the 1st Petitioner had already filed its submissions.

4.  I directed the 1st Respondent to file and serve its submissions by close of business on 30th September 2021. I also allowed the Petitioners to file supplementary submissions within seven (7) days and set down the matter for further mention on 19th October 2021.

5.  On 19th October 2021, Mr. Evans Akuma, appearing for the 1st Petitioner informed the Court that he had filed an application for my recusal. It is that application which is the subject of this ruling.

6.  The 1st Respondent opposed the application by a Replying Affidavit sworn by Patrick Mulaku, Advocate on 25th October 2021.

7.  Recusal of a Judge or Judicial Officer ought to be on the basis of some verifiable reason drawn from an objective criterion. Indeed, it is a form of misconduct to walk out of proceedings without such justifiable cause.

8.  In its written submissions, the 1st Petitioner cited the decision in Republic v Independent Electoral & Boundaries Commission & another Ex Parte Coalition for Reform and Democracy (CORD) [2017] eKLR where Odunga Jheld that a party cannot successfully pursue an application for recusal on the basis of what they perceive as the probable outcome of a case.

9.  In its application, the 1st Petitioner makes a litany of accusations against me ranging from re-opening litigation and sitting on appeal over decisions of my predecessor to outright misconduct on my part. The only thing I will say regarding these accusations, which quite unfortunately have taken the character of a personal attack against me, is that they are untrue, unsupported and unverified. They cannot therefore be the basis for my recusal.

10. However, being a conveyor of justice, I have gone through the record to check whether there may be an objective ground for my recusal beyond the unfounded allegations made by the 1st Petitioner.

11.    In my ruling delivered on 21st April 2017, I stated the following:

“In my estimation, the 2nd Petitioner’s complaint, which in my view was administrative has been addressed. There is therefore no dispute pending before the Court.”

12.   Having found that there was no dispute at the interlocutory stage, the 1st Petitioner could well argue that I had determined the main Petition. This, I think, would be a valid ground for me to recuse myself from handling this matter any further.

13.  I therefore direct that the file be placed before the Principal Judge of the Court for further directions.

14.  The costs of this application will be in the Petition.

15.  Orders accordingly.

DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF  DECEMBER 2021

LINNET NDOLO

JUDGE

APPEARANCE:

MR. EVANS AKUMA FOR THE 1ST PETITIONER

MR. MULAKU FOR THE 1ST RESPONDENT