1.The instant suit was filed on August 30, 2023 under Certificate of Urgency and directions were given that service be effected and the file placed before the trial court on September 20, 2023.
2.When the matter was placed before me for inter partes hearing on September 20, 2023, I was surprised to learn that the parties are persons I have associated with for a long time and are well known to me.
3.As neither the respondent nor the Interested Party had responded, I directed that they do so within 10 days and the file be placed before the Acting Principal Judge on October 4, 2023 for re-allocation as I informed the counsels present that I would disqualify myself from hearing and determining the suit.
4.As decipherable from the foregoing, the suo motu disqualification or recusal is actuated by the reality that I was a long serving Senior Lecturer at the respondent’s Faculty of Law until fairly recently and the position accorded me an opportunity to interact with the respondent’s management and colleagues serving the institution.
5.While being a member of staff perse is not a strong ground for disqualification, it is significant to underscore the fact that I was an active member of the Universities Academic Staff Union (UASU), University of Nairobi, Chapter for the entire duration of employment by the Respondent and my views were often sought on various issues affecting the union.
6.Finally, prior to appointment as a judge of the Employment and Labour Relations Court on June 3, 2021, and while serving at the Council of Legal Education, I had interactions with the management of the Respondent severally and many of them are known to me.
7.From the foregoing, it is evident that the likelihood of being seen as biased or partial in my determination, irrespective of the outcome would be difficult to rule out.
8.The instant recusal is intended to obviate such perception by counsels or their clients or both and is necessary to protect the independence of the court.
9.The foregoing is consistent with the overarching principle that just must not only be done but manifestly and undoubtedly be seen to be done as held in R v Sussex Justices ex parte Mccarthy (1924) 1 KB 256.
10.Similarly, the foregoing in my view meets the threshold of reasonable apprehension of bias.
12.This principle was explained by the Supreme Court of Canada in R v S.C.R.D (1977) 3 SCR 484 as follows;
13.For the foregoing reasons, I am persuaded that right thing to do in the circumstances of this case is to recuse myself from hearing and determining the suit herein.