A magistrate who has been hearing the 63 billion Kimwarer Arror Dams graft has dealt a blow to the DPP after she refused to disqualify herself from the case.
Senior Principal Magistrate Eunice Nyutu on Thursday dismissed the application by the prosecution for her to recuse herself saying it lacked merit.
“It is my finding that the application for recusal was calculated to compel the court to grant an adjournment in the case and this amounts to abuse of the court process. The upshot is that the application for recusal does not meet the legal threshold and the same is dismissed in entirety,” court ruled
Nyutu said that a recusal application should not be used by litigants for intimidation, insubordination, blackmail, or arm twisting of a judge or magistrate in conforming with a litigant’s whims or to throw him or her into a panic.
She said such motives if allowed would have disabled consequences of shipping away the independence and integrity of the court.
She said that all the court is informed time and again is that there are verbal instructions requiring the trial to be suspended awaiting further directions from the DPP.
“These directions have not been placed before the court in the formal application and neither have the verbal instructions been registered in court’s writing,” Nyutu said.
Nyutu said she was not under the direction of any other authority adding that nothing prevents the DPP from reviewing the case at any stage of the trial unless and until a formal application under Article 157 of the constitution is placed before the court.
“A denial of an adjournment automatically shifts the ball to the prosecution’s court. What they choose to do with the ball is totally up to them however the prosecution cannot purport the court compelled them to proceed on a hearing date that was taken by consent,” court ruled.
In the case, Former CS Henry Rotich has been charged alongside others with fraud in relation to the Kimwarer Arror scandal.
