NAIROBI, Kenya, Aug 16 – A Nairobi chief magistrate’s court has dismissed an application by Director of Public Prosecutions Noordin Haji seeking the disqualification of the presiding magistrate in criminal facing former Kenya Bureau of Standards (KEBS) Managing Director Charles Ongwae.
Ongwae was last year charged with murder after he was accused of facilitating the clearance of substandard fertilizer which contained me5rcury exceeding permissible levels.
Senior Principal Magistrate Kennedy Cheruiyot on Thursday declined to recuse himself from the case, saying the DPP has not demonstrate that he will be biased or impartial during the trial.
“Sufficient reasons have not bene advanced before this court to have me disqualify myself from the hearing the matter,” he said.
The magistrate dismissed an argument that he was dealing with another KEBS file saying having a related matter does not constitute enough grounds for recusal.
In an urgent application, DPP Haji through Senior Assistant Director Alexander Muteti, said the trial magistrate had openly expressed bias.
“That the judicial officer has exhibited bias and made pronouncement outside the court that touch on the integrity of the case” Muteti said.
Lawyers representing Ongwae had strongly opposed the application by DPP seeking recusal of the presiding magistrate.
The advocates – Davis Osiemo, Signh Gitau and Edward Oonge – told court that the application is made in bad faith the same should be disallowed.
“The DPP’s application ought to be made when the plea was taken its coming after one year since Ongwae and four others were charged,” the lead lawyer said.
The prosecution cited a ruling in which Cheruiyot directed the re-testing of fertilizer that is the subject of the criminal case against Ongwae.
They submitted that the DPP was aggrieved with ruling and he appealed to the High Court and finally went to the Court of Appeal where the both appeals were dismissed.
Lawyers representing Ongwae contended that the DPP was on a forum shopping mission, which they asked the court to decline.
They told the court criminal and civil matters are purely decided on evidence provided adding that the DPP will still have a chance to appeal should he disagree with the final ruling of the magistrate’s court slated for September 13.
The DPP has made similar applications in the past with the most recent being in May when he applied for the disqualification of Senior Counsel Paul Muite from appearing for two of the accused in the KEBS case due to what he termed as conflict of interest.
The DPP said at the time that Muite held information pertaining to the criminal case facing the accused.