The Malindi High Court Judge, Reuben Nyakundi on Monday declined to disqualify himself from a succession case involving a tourist’s property in Watamu, Kilifi County.
Justice Nyakundi dismissed the motion asking him to disqualify himself from the case as one that lacked merit and dismissed it with costs.
He was making a ruling in which Joyce Jepleting Reinhard had asked the judge to step down from hearing the case on the grounds that he had been compromised by the respondent in the main case.
Jepleting is involved in a legal tussle over the inheritance of Mawimbi Lodges, three Swahili Houses and several land parcels, which have been at the centre of a dispute between her and the Reinhard’s family, Ms Damaris Nthenya and Maurizio Marino.
Jepleting successfully wrestled the property out of the hands of Ms. Nthenya and Marino in the Environment and Land Court last year, but her late husband’s family moved to court seeking to disinherit her. Nthenya and Marino are interested parties.
Jepleting, through lawyer Amos Kiprop Songok, however made an application asking Mr. Justice Nyakundi to recuse himself from the case saying he would not give a fair judgment of the matter since he had allegedly been compromised.
She also said since the matter involved land property, the court did not have jurisdiction to hear and determine it and asked Mr. Justice Nyakundi to terminate any further proceedings before him so that an appropriate judge could handle it.
The lawyer told the judge that her client had successfully filed and prosecuted the case in which the Environment and Land Court had granted her late husband Daniel Bernhard Hefti ownership of the property in accordance with the power of attorney donated to her by Elsbeth Bernard Hefti and Daniel Bernhard Reinhard.
The lawyer said that the applicant (Jepleting) had written a complaint to the Judicial Service Commission against the judge following his conduct while handling the matter.
“The applicant is of the view that the learned judge has been compromised in this matter, is biased, heartless and indeed the applicant had written a complaint letter against the trial judge,” said the application.
Jepleting said she predicts that the judge will be impartial in the matter based on the orders he has been giving since the case before him commenced.
She claimed that Justice Nyakundi had been giving controversial orders regarding the case to “strange parties” without regard to the fact that the case falls under the jurisdiction of the environment and land court.
“We pray that this matter be allocated before another judge with jurisdiction for further orders pertaining to this matter because the applicant feels that there has been exparte communication between the judge and intended interested party hence granting controversial orders,” said the application dated December 24.
In his ruling delivered, Justice Nyakundi said although the applicant was entitled to object to the case being heard by a biased or otherwise compromised judge, she had no right to choose her own judges.
He said the applicant had not produced documentary evidence showing that the judge had been involved in secret communication, received any kind of bribe or was compromised by any of the parties in the case.
“If the applicant is dissatisfied with the orders or decisions of this court, there are other avenues readily available to seek an appeal or review of the case on record,” he said.
He said granting orders on an application seeking the recusal of a judge encourages so sought would mean that the case would be tried by someone holier than the disqualified judge.
“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.
By Emmanuel Masha
