Judge disqualifies himself from Muchai murder case

A High Court judge has disqualified himself from hearing the murder case of former Kabete MP MP George Muchai.

The MP was killed alongside his three aides in Nairobi in 2015.

Justice James Wakiaga directed the case file to be placed before the presiding judge of the criminal division for re-allocation to another judge for trial and determination.

The judge made the decision after five of the seven suspects charged with the murders claimed he was biased after he dismissed their request for review of bail application and asked him to recuse himself.

But the judge dismissed the recusal application saying there was no evidence that he had exhibited biasness or proper grounds for withdrawal. He said the application was aimed at delaying the determination of the case.

"The applicants’ main ground is that they were not granted bail. I find that there is no ground that can support the applicants’ appeal for recusal and the application is misplaced with the sole purpose of derailing the path of justice," Justice Wakiaga said.

But, he said due to prevailing circumstances and behaviour of the five accused persons it will not be possible for the court to conduct a meaningful trial against them without the same being excluded from attending their trial against their constitutional right.

When sending the file for allocation to another judge, Justice Wakiaga noted that the five accused persons had walked out of his court on May 30, 2019 during trial immediately he rejected their bond review application.

They also shouted at the court and indicated that they would never be attending any further hearing before the same court.

"Since the said date of the walk out, this court has not been able to conduct any meaningful trial in this matter due to the conduct of the accuse persons, as the record shows," said the judge.

The five had also written a letter of complaint against the Judge to the Judicial Service Commission (JSC). They had also written another letter to the Presiding Judge of the Criminal Division stating that they prefer their matter to be handled by any other Judge except Wakiaga.

In their letter to JSC, the accused persons said were feeling unsafe in being tried by justice Wakiaga and asked the commission to institute a tribunal to investigate him on the basis of incompetence and gross misconduct.

The judge added that the five had also shown remarkable disrespect to the court and made false and unfounded allegations against the character of the court which are defamatory in nature.

The five are Eric Mungera Isabwa alias Chairman, Raphael Kimani Gachii alias Kim Butcher, Mustafa Kimani Anyoni alias Musto, Stephen Astiva Lipopo alias Chokore and Simon Wambugu Gichamba.

Their two co-accused Jane Wanjiru Kamau alias Shiro and Margaret Njeri Wachiuri were not associated with the recusal application.

The prosecution side led by State Counsel Charles Okeyo had opposed the recusal application on grounds that so far 14 witnesses had testified before the court and only technical witnesses were remaining.

According to the prosecutor, the application was a ploy by the accused persons to delay its completion of the matter hence causing injustice to the victims’ family.

Mr Okeyo added that the decision to deny or allow bail is based on the circumstances underlying each case and cannot form a basis for recusal.