High Court Judge Nixon Sifuna has declined to bow out from hearing an application filed by the DPP that seeks to review orders blocking them from withdrawing the Sh30 million graft case facing former Kenya Pipeline Company boss Charles Tanui and two others.
The Judge based at the Milimani Law Courts said issues of bias on the court must be reasonable and not speculative.
“A judicial officer presiding in a case will have no difficulty recusing himself where he knows or it is sufficiently demonstrated that he is biased, likely to be biased or unlikely to be impartial,” Sifuna said.
The DPP was opposed to the matter being handled by the Judge claiming he previously dismissed a similar application arising from the same criminal case.
The DPP was also opposed to the Judge handling the case because of the numerous times he has pronounced himself regarding their practice of withdrawing cases in court.
The judge has in the recent past called them out for withdrawing most of their cases in court.
"Regrettably, this practice is increasingly gaining notoriety and becoming fashionable among Kenya prosecutors. This practice is not only unorthodox but also a vice that the prosecutors need to urgently start disabusing themselves of," Sifuna said.
The issue arose when the DPP made an application before the trial Magistrate Victor Wakhumile when he declined a request by the DPP to withdraw the case.
What followed was the DPP moving to the High Court and obtaining an order before Justice Lilian Mutende who temporarily suspended the trial.
The trial was suspended as the DPP pursued the review application.
The matter was then taken to Justice Sifuna. It was here that the DPP filed two other applications. One seeking his recusal and another to have the whole matter handled by an uneven number of judges.
But Sifuna dismissed the application by the DPP saying “It is a forum shopping scheme that should not find the glorification of whatever colour.”
He pronounced himself saying applications seeking to have judges disqualify themselves from hearing matters should not be used as a sword for attacking Judges but as a shield for safeguarding the integrity of the judiciary.
He said how the DPP argued and presented its case was akin to ‘judicial capture’
“A party cannot be permitted to use a judge's ruling or decision to intimidate, blackmail or victimize the judge or use a judge's previous ruling to debar him from handling similar matters as was being done by the DPP,” he ruled.
He also dismissed the application seeking to have the matter heard by one Judge saying such empanelments should be done sparingly and in deserving cases only.
This only means that the DPP will argue their review application before Justice Sifuna.
In this review they want the case against Tanui terminated after reviewing the evidence against them.
They argue that after reviewing the matter, no public money was lost.
Tanui was charged in court in 2020 with alleged irregular payment of Sh40 million for the supply of three transformers when he was in office.
He was charged alongside Elias Maina who was the chief manager in charge of the technical department and Josphat Sirima who was the Chief engineer.
