Narc-Kenya leader Martha Karua wants Chief Justice David Maraga to constitute a fresh election court to hear her petition against election of Kirinyaga governor Anne Waiguru.
Ms Karua through lawyer Gitobu Imanyara accused the Kerugoya High Court judge Lucy Gitari of biasness in her ruling dated November 15, 2017 in which she dismissed the petition.
Mr Imanyara indicated that the judge should disqualify herself from hearing the petition again or even participating in its proceedings.
In a four-page application, the lawyer said the judge’s continuation to hear the petition by will result to a miscarriage of justice and that Ms Karua would be gravely prejudiced.
“Justice will not be seen to have been done in the light of the strong and disparaging comments judge Gitari made in relation to the petitioner. In the light of Court of Appeal judgment, a fair hearing cannot take place before judge Gitari,” said lawyer Imanyara.
He was making reference to the judge Gitari’s decision to dismiss the petition, in which she termed the petition as “hopeless, defective and incurable”.
Mr Imanyara indicated that the judge used intemperate language in her conduct and the ruling and that she was biased in the case and was applying double standards.
“It is for the interest of justice that judge Gitari recuse herself from the case. She ignored the petitioner’s pleadings which were appreciated by the Court of Appeal,” Mr Imanyara added.
He also argued that the judge refused to accurately record Ms Karua’s submissions while she fully recorded those of the lawyers representing Governor Waiguru and IEBC.
“The record captures the court and the Respondents’ responding to points raised by Ms Karua but which are not recorded,” stated Mr Imanyara.
Ms Karua, in her affidavit dated March 9, 2018, said judge Gitari should not hear the petition again after she dismissed it on November 15, 2017 and ordered her to pay a legal fee of Sh10 million which the Court of Appeal found to be excessively high and punitive.
The Court of Appeal remitted the case back to the High Court.
“Judge Gitari disparaged the petition by repeatedly terming it hopeless defective, dead pleading and beyond salvage. The judge expressed view that my petition was taking the Respondents on a tiring, aimless journey,” Ms Karua noted.
In response, Governor Waiguri through lawyer Paul Nyamondi opposed Ms Karua’s application saying it does not disclose enough grounds to have the judge disqualify herself from hearing the petition again.
Mr Nyamondi said the court also does not have jurisdiction to entertain the application.
“The issues raised were considered and determined by the Court of Appeal. The application is tantamount to an appeal from the judgment of the Appellate Court,” said the lawyer.
Justice Gitari will hear the application of March 16, 2018 and later decide whether she will disqualify herself from the case or is the same judge who will hear and determine it again.