High Court Judge Nixon Sifuna on Thursday declined recuse himself from presiding over a suit seeking to review a lower court’s ruling on the corruption case involving former Kenya Pipeline Managing Director Charles Tanui and two others.
The application stemmed from a ruling by trial magistrate Victor Wakumile who declined an application by the Director of public prosecution (DPP) to drop charges against the former Kenya Pipeline MD and co accused.
Justice Sifuna faulted the DPP for pursuing a change of judge instead of pursuing a change of law.
“I dare say that this Application is among its other intentions, a forum shopping scheme that should not find glorification of whatever colour,” ruled the court.
The DPP had objected to Justice Sifuna hearing the review of trial magistrate Wakumile’s decision due to his previous dismissal of a similar case related to the same criminal matter.
The court heard that two formal applications had been filed.
One sought Sifuna’s recusal and the other requesting an expanded bench to hear the review.
In declining to recuse himself from hearing the application, the judge said that recusal cannot be used for “intimidation, insubordination, blackmail, arm twisting, capture or the boxing of a judge into conforming with a litigant’s whims or for throwing him into panic, subservience or dishonor”.
“The extravagantly devious and mischievous dispatch of judicial recusal will be the death bed of the authority and dignity of judiciaries.”
“Where the plea for recusal is based on apprehension such as in this application, the apprehension must be reasonable, honest, logical and objective and must be based on solid facts,” read the ruling.
According to the court, granting DPP the wish will “spell doom for the judicature and will be a death knell for judicial independence and judicial integrity.”
The application to have the matter be heard by a three- judge bench was also dismissed with the judge stating that an application for review does not require “extra pairs of eyes or extra minds or additional wisdom.”
“Honestly a revision application is will, honestly ill require additional pairs of eyes or additional minds and wisdom not posed by a single judge,” ruled Sifuna.
In rejecting the prosecution’s application for withdrawal of charges Wakumile stated that the case should run its full course owing to the fact that it had been in court for almost four years.
Furthermore, he said “whereas the DPP has in the exercise of his prosecutorial powers a wide latitude, those powers must be exercised in a manner that takes into account, the public interest”.
So far 26 prosecution witnesses have testified with only one witness remaining – the investigating officer from the Ethics and Anti Corruption Commission.
Tanui alongside Elias Maina Karumi (Former Chief Manager- Technical) and Josephat Kipkoech Sirma (Former Chief Electrical Engineer) were in 2020 charged with failing to comply with the law relating to procurement by authorizing payment of Euros 261,070 (Sh31,987,584) to Redline Limited for three autotransformers on February 18, 2014.
The court heard that Karumi used his office to improperly confer a benefit to Redline Limited by authorising payment of Euros 8,695 (Sh1,065,354) on the same date.
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