BY SAM ALFAN.
High Court judge Nixon Sifuna has lashed out at the Director of Public Prosecutions Renson Ingonga over an application seeking his recusal from a graft case.
While dismissing the application for his recusal, the judge said such applications should not be used by litigants for intimidation, insubordination, blackmail, arm-twisting, capture or even boxing of a judge into conforming to their whims.
The judge said recusal of a judicial officer from a case should be based on conflict of interest, bias or lack of impartiality but that it cannot be on the basis of a litigant’s mere displeasure, whim or unfounded apprehension.
The judge said such ulterior motives, if allowed, have the undesirable consequence of chipping away on the authority, dignity, integrity and independence of courts.
“That to me is not only an absurdity, but is also oppressive and an affront to judicial function. I liken my situation in this Application, to a situation in soccer, where some team after losing the march, has resorted to beating up the referee. Granting this wish will spell doom for the judicature and will be a death knell for judicial independence and judicial integrity. Prosecutors unlike ordinary litigants are also advocates of this court, “said the judge.
The judge made the observation in an application for review, sought by the DPP in a graft case against former Kenya Pipeline Company managing director Charles Tanuia, Josephat Kipkoech Sirma and Elias Maina Karumi.
The three are facing charges related to procurement irregularities and the DPP had applied to withdraw the case under section 87(a) of the criminal procedure code but it was rejected by senior principal magistrate Victor Wakhumile.
The plans to drop the case was opposed by the EACC, which investigated the matter.
In rejecting the application, the magistrate said the matter has been in court for almost four years and it should run its full course so that it can be resolved conclusively.
The magistrate said the DPP, while exercising his powers, should do it in a manner that takes into account the public interest.
Mr Wakhumile had noted that 25 witnesses had testified in the trial and the only remaining witness was the investigating officer, from Ethics and Anti-Corruption Commission (EACC) and was ready to take the witness stand and give his testimony and conclude the prosecution’s case.
The DPP through Alexander Muteti moved to the High Court but before the case was heard, he asked the judge to recuse himself from the case, noting that the judge had dismissed a similar application, to withdraw charges against Mr Sirma, before.
Mr Muteti also asked for the case to be determined by a bench of three judges.
The former KPC officials are accused of failing to comply with the law relating to procurement by authorising payment of Euros 261,070 (about Sh40.3 million) to Redline Limited for three autotransformers on February 18, 2014.
Justice Sifuna said any litigant dissatisfied with a judge’s ruling or judgment, has the option of either living with it, or appealing to a higher court. “But not to insist that the judge should in the remainder his of his judicial career never handle similar cases,” he said.
