BY SAM ALFAN.
Drama unfolded at the High Court in Milimani after a judge declined to recuse himself from a case amidst accusations bias and in a novel petition seeking to compel the Judiciary to embrace Kiswahili language it court sessions.
The petitioner, Joseph Aura had asked Justice Lawrence Mugambi to disqualify himself from the case after failing to certify the case as raising weighty issues and should be heard by a bench of three judges.
The activist had insisted that the matters should be handled by three Judges who are fluent in Kiswahili language, an application that was dismissed by Justice Mugambi.
The judge ruled that he, as a single judge, can handle the matter.
Through lawyer Harrison Kinyanjui, Aura had pointed out (among other complaints) that without complying with the Statutory Instruments Act the Chief Justice had unilaterally imposed on consumers of Judicial services to online Court sessions in violation of Article 50(2)(d) of the Constitution while maintaining empty Courthouses that are a waste of taxpayers’ money.
Kinyanjui immediately requested Justice Mugambi to recuse himself from the case and listed several grounds to support the recusal application as raised by Aura.
He stated that Aura who was on the online Court platform was unhappy that in spite of his Case being listed on the Judiciary Cause list among the top Cases as number 3 on the Judiciary’s Daily cause list on 13th June 2024, it was always called out last without any explanation or excuse from the Judge.
He lamented that this was a clear example of the Judge’s bias against him.
According to Aura, and given that no apology or excuse was offered by Justice Mugambi for this conduct, it demonstrated unmitigated discriminatory conduct against him.
He cited violations of Article 27(4) and 10(2)(a) and (b) of the Constitution to support his lamentations of discriminatory conduct against him.
He told Justice Mugambi that this was not a one off incident, but a repetitive, consistent pattern on every Court occasion the case had come up online before the same Judge.
He also lamented that when his application to have a 3 Judge Bench constituted had come up on 26th April 2024 there was no qualified translator in spite of Justice Mugambi ordering that at all times the case proceeds there must be a qualified translator proficient in the Kiswahili language.
Aura also lamented that Judge Mugambi had been acting in derision towards him by laughing derisively on 26th April 2024 when his case was ongoing online and the interpreter was unable to translate the proceedings effectively.
Aura complained that on the totality of Judge Mugambi’s conduct in his case, there was a display of open bias and conduct unbecoming of a fair minded objective arbiter such as the Judge was expected to be.
He complained that he had therefore lost faith in Judge Mugambi’s handling of his Kiswahili Constitutional Petition, and that it was apparent to him that Judge Mugambi was consciously clinging to the case to delay its conclusion for reasons best known to the Judge, but certainly against the cause of Justice.
Aura who was online throughout the Online Court session stated that in spite of his Kiswahili Petition having been certified as urgent in March 2023 by Justice Mugure Thande who was then handling the case, Judge Mugambi had delayed it well over a year and a half by giving dates that were far without hearing it.
Judge Mugambi declined to recuse himself from the case, and he directed Aura to file a formal application listing formally those grounds of recusal.
He gave a Mention date for 29th October 2024.
