• Property Mawimbi Lodges in Watamu subject of debate alongside Swahili houses and several parcels of prime land.
• Woman has filed a complaint against the Judge to the Judiciary Service Commission.
A woman battling a succession case at the Malindi High Court has challenged the ruling of a judge who refused to recuse himself from hearing the matter.
Joyce Jepleting Reinhard, through lawyer James Ogero Ogeto, told Justice Reuben Nyakundi that she was seeking orders of stay for hearing the proceedings of the case until the appeal is heard.
Ogeto, who was standing in court on behalf of Amso Kiprop Songok, said the appeal was filed on February 19 and was yet to be heard.
The court had come for highlighting of submissions after the judge dismissed the application asking him to recuse himself from the matter on February 3.
"The application has been placed before the Deputy Registrar and for that reason, Songok is requesting an adjournment pending the hearing of the appeal," he said.
Jepleting is battling a succession case of a multi-million family property Mawimbi Lodges in Watamu together with Swahili houses and several parcels of prime land.
The suit was filed by Damaris Nthenya as an interested party, Maurizio Marino, an intended Interested party, Alfred Andreas Keller and the Reinhard family.
She has since filed a complaint against the Judge to the Judiciary Service Commission.
Lawyers representing the other parties opposed the application for adjournment and asked the judge to order the court to continue with highlighting of submissions.
Nyakundi said Jepleting had a right to exhaust the machinery of the Judiciary system.
The Judge said he would issue a ruling on March 26 on whether he had jurisdiction to hear and determine the matter.
In the application, Songok said his client filed and prosecuted the grant to Daniel Hefti (deceased) in accordance with the power of attorney donated to her by Elsabeth Bernard Hefti and Daniel Bernard Reinhard.
He said the judge was unfit and should recuse himself from the matter based on the orders he was giving in the matter as he had given controversial orders to strange parties to the suit.
The application is dated December 24.
The judge said the avenue which the applicant ought to have pursued did not include seeking recusal for the court on the basis of unsubstantiated allegations that the court had been compromised and tainted with bias.
He said by applying for receding of a judge by applicants encourages that they will have their case tried by someone "holier" than the judge who would have been disqualified.
"Such an inappropriate recusal may encourage a fishing expedition that harasses judges to the detriment of judicial independence and the administration of justice," he said.
Nyakundi said the mere fact that the applicant claims to have no confidence in that court shows fairness in the court is insufficient.
He said the court process does not work on the basis of feelings, predictions and allegations adding that each system of the country believes in the rule of law and the constitutionalism.
"So, therefore, any personal attack against a judicial officer as if they do not enjoy the constitutional protection is extremely inappropriate," he said.
The judge said the matter, which has also been filed as a complaint to the JSC if allowed, would be manipulation of the justice system by threatening every decision-maker assigned to their cases whenever they feel their case will not turn out as expected.
He said allowing such an application shall also cause delays which will make the matter difficult to try or put witnesses at a much greater risk.
"In my view, such unpleasant manipulation should not be allowed to subvert the rule of law."
Nyakundi said he was ready to submit himself to any independent constitutional organisation so the matter can be put to rest.
Edited by R.Wamochie