• Attempting to arm twist judges and the courts into gaining rulings seems common practice.
• The push back by some lawyers can be attributed to the fact that the EACC has successfully won cases against them in the anti-corruption courts.
In a seemingly partial win, Nairobi Governor Mike Sonko managed to convince two out of three judges to recuse themselves from hearing his graft case brought by the EACC.
Petition 38 of 2019 sought orders that included a request that justices Mumbi Ngugi, Grace Ngenye and John Onyiego recuse themselves from hearing or participating in any bench constituted to hear the case.
For Justice Mumbi, Sonko argued that because she upheld a decision barring Samburu Governor Lenolkulal from accessing his office during proceedings of his graft case, she would be similarly inclined to do the same in his case.
Judge Ngenye’s recusal was sought on similar grounds. Sonko said in the cases against now-former Kiambu Governor Ferdinand Waititu, judge Ngenye upheld the decision by the lower courts barring the county boss from accessing his offices during the proceedings of the case.
In Justice Onyiego’s recusal, Sonko argued that the judge is handling a matter also brought by him against the DPP and the Inspector General of Police at the High Court. He said it would not be unreasonable to anticipate it would be prejudicial to him to be subjected to double jeopardy given the two petitions are now pending.
Sonko thus argued that the judges had displayed a lack of impartiality based on the grounds he brought forward in his petition.
Even before Justice Onyiego’s ruling on Sonko’s petition, both Justice Mumbi and Ngenye recused themselves from his case.
In his ruling on the matter, Justice Onyiego points out a critical factor. "To demand my recusal and that of Justice Mumbi, being the only two judges mandated to hear anti-corruption related matters in the High Court is, to say the least, an act of forum shopping.
"A reasonable man faced with a set of facts presented before this court cannot find an iota of evidence or reasons to warrant my recusal. Instead, such a reasonable ordinary person will read malice, a litigant hell bent to arm-twist courts, and an abuse of the court process.”
Indeed, attempting to arm-twist judges and the courts into gaining rulings seems common practice. The push back by some lawyers can be attributed to the fact that the EACC has successfully won cases against them in the anti-corruption courts.
Similarly, the directors of Hardi Enterprises Ltd and Toddy Engineering limited, who are charged alongside Governor Sonko, filed a petition challenging search warrants obtained by the EACC during investigations.
The lawyer for the directors of the companies is seeking disqualification of Justice Mumbi Ngugi from hearing the case on account that she has pronounced herself on a similar issue of law in a previous case.
It is noteworthy that Hardi and Toddy are also implicated in the Stanley Amuti case for inducing him to award contracts. Amuti is a former Finance manager for the National Water Conservation and Pipeline Corporation and was forced to forfeit Sh41 million after being found to have unexplained wealth.
Sonko's reputation and that of his lawyers is in line with their conduct in these cases. Indeed, some senior lawyers, who are notably representing high-profile and politically exposed clients, are going so far as to post disparaging remarks on Twitter, casting aspersions on the conduct and character of Justice Mumbi.
This is largely because her rulings on corruption cases go against their interests, and they have been consistently losing cases.
These appear to be coordinated public attacks, whereby senior lawyers take to social media to rant. Twitter bigwigs such as Ahmednasir Abdullahi SC in one of his tweets appeared to question the partiality of Justice Ngugi’s court by insinuating that the state, through the ODPP and the EACC, appear to be winning all cases presented before her.
"The lawyers for the DPP, AG and the Anti-Corruption Commission who represent them before Justice Mumbi's court are so GOOD and AMAZING that they haven't lost a single case so far before the gracious lady justice...AMAZING!" he tweeted.
LSK president Nelson Havi has himself been engaged in such public rants. On June 10, Havi tweeted, "Executive is a beneficiary of questionable orders made in the weaponised war against corruption. There is no such genuine war but the settling of political scores. How else do you explain EACC celebrating Mumbi Ngugi’s orders and AG claiming she is not fit for Court of Appeal?’’
Havi also tweeted, “John Waluke and Grace Wakhungu contracted with NCPB. NCPB breached the contract. Arbitrator ordered payment. Award was enforced by High Court. NCPB lost before High Court and Court of Appeal and paid the decree. How can that be a crime? Do not celebrate fraudulent convictions.”
Havi is on record as representing Sirisia MP John Waluke in the case where he was accused of having irregularly received Sh300 million from the National Cereals and Produce Board, despite not delivering a single grain.
On July 19, he insinuated that not only should judges and magistrates of the Anti-Corruption and Economic Crimes division be compared to murder suspects, they ought to have their heads checked.
“We often subject murder suspects to mental fitness tests before taking plea. Perhaps it is time we subjected some judges and magistrates to similar tests. What is happening at the Ethics and anti-Corruption division of the chief magistrate and the High Court is appalling. ADioS”.
Although what’s said on social media may have no nexus with judicial decisions, one would imagine what’s said in court is worse and more intimidating. The escalation of these tactics to include social media rants against unfavourable rulings brings sheer embarrassment and sullies the profession.
Even though you can’t fetter free speech, what can at the very minimum be considered a lack of decorum ought not to receive fanfare. The LSK needs to ask themselves if their leadership truly represents their views through not only their actions but their utterances as well.
LSK members ought to step in and rein in the conduct of their fellows, if only for the consideration of justice. If there are only two judges sitting in the Anti-Corruption and Economic Crimes Division and every accused person uses disparaging claims in an attempt to get them to recuse themselves, Kenya will never win in the fight against graft.