Judge urges applicant to instead appeal court decisions she doesn't agree with
Malindi High Court Judge Reuben Nyakundi has declined a request to recuse himself from hearing a multi-million property dispute case.
Nyakundi on Monday ruled that the application by Joyce Jepleting Reinhard lacked merit and dismissed it with costs.
Joyce asked the judge to recuse himself, citing bias, compromised and unfairness.
Through lawyer Amos Kiprop Songok, Joyce had also sought orders declaring the succession case a res judicata.
Res judicata implies the matter has been adjudicated by a competent court and therefore may not be pursued further by the same parties. She also claimed the court had no jurisdiction to entertain a matter of land title.
Joyce is locked in a succession battle for a family property that is said to have been sold to third parties. The property includes Mawimbi Lodges in Watamu and Swahili rental houses in the town. She has filed a complaint against justice Nyakundi at the Judicial Service Commission.
Joyce is married to the son of Daniel Bernhard Hefti, a German who owned the properties. He gave her the power of attorney before his death.
Initially, the property was being managed by Damaris Nthenya who collected rent on behalf od the family. She rented out the premised to Maurizio Marino.
However, the Reinhard family filed an application against Joyce and listed Nthenya and Marino as interested parties.
Justice Nyakundi allowed the two to be enjoined in the case much to the chargrin of Joyce.
''The applicant is of the view that the learned judge has been compromised in this matter, is bias, heartless and indeed the applicant had written a complaint letter against the trial judge,'' Slngok said.
Joyce said the judge will be impartial in the matter basing on his previous orders.
She claimed Nyakundi was unfit to hear the matter and should recuse himself.
"This matter be allocated before another judge within the area of jurisdiction in this matter for further orders pertaining to this matter, the applicant feels that there has been ex-parte communication between the judge and intended interested party hence granting controversial orders," Joyce said in the December 24, 2019 application.
On Monday, Nyakundi said the applicant has no right to choose their own judges.
"I'm not seeing in this case which is a civil proceeding, documentary or otherwise evidence which shows this court was either involved in secret communication, received any kind of bribe or compromised by either of the parties in this case," Nyakundi said.
The judge said he was ready to submit himself to the agencies because he was not above the law. He said there were other avenues to seek an appeal or a review of the case if the applicant was dissatisfied with the orders of the court.
Such avenues, Nyakundi said, did not include seeking recusal for the court on the basis of unsubstantiated allegations that the court had been compromised and tainted with bias.
"Such an inappropriate recusal may encourage fishing expedition that harasses judges to the detriment of judicial independence and the administration of justice," Nyakundi said.
He said the court process does not work on the basis of feelings, predictions and allegations adding that each system believes in the rule of law and constitutionalism.
"So, therefore, any personal attack against a judicial officer as if they do not enjoy the constitutional protection is extremely inappropriate."
"This motion for recusal is therefore dismissed, the matter shall, therefore, proceed as per previous directions," Nyakundi ordered.
edited by peter obuya
