Kawira Mwangaza ouster motion: County assembly accuse judge of bias
The county assembly of Meru wants the judge handling a petition by Meru Governor Kawira Mwangaza seeking to block a fourth impeachment motion to recuse himself, claiming he is biased.
Assembly clerk Jacob Kirari, on behalf of the assembly, claims past rulings by Justice Linus Phogon Kassan had left the MCAs apprehensive that a ruling slated for August 20, 2024, would favour Ms Mwangaza.
In an application made under a certificate of urgency by lawyer Ndegwa Njiru, he alleges that the judge had granted “extraordinary and undeserved reliefs” to the Njuri Ncheke Council of Elders who made an application on 26, July 2024 and ignored the MCAs’ made on July 21.
Mr Kirari claims that the Njuri Ncheke had not sought to be enjoined in the matter thus the judge erred by referring the matter to them for arbitration.
The Ward Reps claim that the chronology of rulings that culminated in the July 29 decision was skewed against them.
The MCAs hold that the judge was “openly biased in favour of the petitioner (Ms Mwangaza)” for failure to rule on their preliminary objection to the court’s jurisdiction to hear the petition.
Mr Njiru recounted that Justice Kassan had on July 24 issued directions that he would need to peruse the volumes of documents filed by both sides and deliver a ruling on July 29, 2024.
In the meantime, the judge halted the impeachment process pending delivery of his ruling.
The MCAs said they were appalled when Justice Kassan failed to address issues in the initial application and referred the matter for arbitration by the Njuri Ncheke.
“Instead of delivering the ruling on 29, July 2024 as scheduled, the learned judge, in his ruling/amended order/directions issued on Monday, 29th July 2024, joined Njuri Ncheke as amicus curiae pursuant to an Application that was filed on Friday, 26th July 2024 at 7 p.m., and directed that Njuri Ncheke resolve the dispute between the parties herein and submit a resolution as directed by the President,” lamented Mr Njiru.
The MCAs accuse the judge of abdicating judicial authority vested in him to determine constitutional matters by delegating the same to Njuri Ncheke.
“The honourable judge has in the most unconstitutional manner desecrated judicial independence by yielding to a purported presidential directive in the performance of judicial functions.
“…The honourable judge has disregarded binding precedent from the supreme court and the court of appeal on how to deal with applications for conservatory orders in impeachment proceedings,” says Mr Njiru.
In his ruling, Justice Kassan explained that he had referred the matter for arbitration by the elders since they had alerted the court to an ongoing reconciliation exercise between Ms Mwangaza and the MCAs.
The elders had claimed that the arbitration exercise instituted by President William Ruto was nearing conclusion and requested to be enjoined as amicus curiae, promising to furnish the court on its progress.
In his ruling, Justice Kassam observed that the judiciary was rolling out the Alternative Justice System (AJS) countrywide and courts were encouraging citizens to embrace it.
He cited the crucial roles mediation had played in the country, citing the dialogue between Raila Odinga and Mwai Kibaki during the 2007 electoral dispute.
“The decision by Njuri Ncheke will not in any way control the finality of my decision. It will not be equivalent in donating High court powers to Njuri Ncheke and finally, parties are not bound to submit themselves to Njuri Ncheke’s entire proceedings,” he noted.
However, the MCAs insist that Justice Kassam must disqualify himself from the matter before it comes for ruling on August 20.
“The applicant is legitimately apprehensive that if the ruling is delivered by the Honourable Judge as scheduled, the outcome will be prejudicial to it because of the Honourable Judge’s open and apparent bias against the Applicant.
“The Applicant has lost confidence in the Honourable Judge’s ability to render a fair, honest, and just determination of the matter herein,” says lawyer Njiru.
The lawyer also wrote a complaint letter to the Meru Presiding Judge, the High Court of Meru, threatening to pull out of the matter.
“Our client has lost confidence in the ability of the judge to do justice in this matter and considers its further participation in the proceedings an academic exercise, as they can only get a meaningless or pyrrhic victory if the court were to dismiss the application or the petition.
“Consequently, our client has resolved not to participate in the hearing and determination of the application and the petition,” lashed the letter.
The High Court will rule on the matter on Tuesday, August 6, 2024. However, the MCAs have since withdrawn the motion and tabled a fifth one.
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