Court Rejects Bid to Oust Magistrate, Terms Application an Intimidation Tactic.
A Nairobi court has thrown out an application by an accused person seeking to have a magistrate step aside from an ongoing criminal case, terming the move a ploy to intimidate the bench and stall proceedings.
Chief Magistrate Dolphina Alego, sitting at the Milimani Magistrate Courts, dismissed the recusal request filed by Davis Nathan Chelogoi, the second accused in the case Republic vs Andrew Kirungu and Davis Chelogoi. The application, argued by Advocate Asa on behalf of the first accused, Andrew Kirungu, sought to have the matter reassigned to another court.
In a detailed ruling, Magistrate Alego described the application as “speculative, unsubstantiated and deliberately timed to derail justice.” She noted that the claims arose only after the prosecution had closed its case and the accused had been placed on their defence.
“Was the court expected to acquit at this stage?” the magistrate posed, questioning the motive behind the belated application.
The defence had accused the magistrate of exhibiting bias through her “writings, body language, and conduct,” and claimed the case had been prejudiced by its mention in Parliament and media reports. Magistrate Alego, however, rejected these assertions, terming them “a narrative built on conjecture and paranoia.”
She recalled that the court had previously accommodated the accused, including reducing bond for one on humanitarian grounds due to ill health, only to now face what she termed an attempt to intimidate the bench.
In her ruling, Magistrate Alego relied on established principles guiding judicial recusal, citing the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, which require withdrawal only in specific situations such as where a judicial officer is a party or witness in the case.
She further referenced key precedents, including the Kenyan case of Philip K. Tunoi & another v Judicial Service Commission and the South African case President of the Republic of South Africa and Others v South African Rugby Football Union, which define the test for bias as whether a “reasonable, objective and informed person” would apprehend partiality.
Acknowledging that “absolute neutrality” is impossible, the magistrate emphasized that judges must instead maintain “judicial impartiality.”
Magistrate Alego condemned the application as “an affront to the independence of the judiciary” and reaffirmed her duty to uphold her oath of office.
“The application is properly executed to intimidate,” she stated, adding that judicial officers must not yield to such tactics.
She also made reference to her recent promotion to Chief Magistrate and nomination for judicial awards, rhetorically asking whether those recognitions too had been “compromised” as alleged by the defence.
With the application dismissed, the court moved to schedule the continuation of the defence hearing. By consent of all parties the cross-examination of the first accused, Andrew Kirungu, was set for October 16, 17, and 18.
The case will now proceed to the defence stage, bringing the long-running trial closer to conclusion.
