Former Nairobi Town Clerk John Gakuo and three others, who were jailed over a cemetery scam, have lost their bid for the disqualification of a judge hearing their appeal.
Mr Gakuo, former Local Government Permanent Secretary Sammy Kirui, Mary Ng’ethe and Alexander Musee had wanted Justice John Onyiego to disqualify himself from the case. This was after the judge rejected their application to be released on bail, pending the appeal.
QUESTIONS
The former state officials wanted the file taken to Chief Justice David Maraga for him to appoint another judge to hear their appeal.
The prosecution wondered why they changed their minds yet they were ready to argue the appeal.
Senior prosecution counsel Jemima Aludah also accused them of forum-shopping a court of their choice, especially after losing the application to be freed on bail.
In his ruling, Justice Onyiego said an application for recusal of a judge must be based on real, actual or proven bias, influence or prejudice.
“Therefore, an application for recusal should not be made as a matter of course based on perception, hearsay, imagination, fear of the unknown, speculation or probabilities, but rather on serious interrogation of reasons cited for recusal and its likely effect on the substantive justice if proved or established,” the judge said.
Judge Onyiego further said the best the four convicts could have done was appeal against his decision, not “cast an omnibus negative perception on the impartiality of the court”.
He had refused to set them free pending the appeal, saying they had failed to provide sufficient reasons.
ILL-HEALTH
The judge said the issue of age and a medical condition that were raised by Mr Gakuo were insufficient for release as he can get medical services in prison.
Mr Gakuo pleaded to be freed owing to his age and ill-health and promised to abide by all conditions given by the court.
In the court papers, he said the case forced him in and out of hospital and that he has been “suffering intermittently from high blood pressure, hypertension and chest problems”.
He and the others argued that they would have suffered long in custody, in case their appeal failed.
SENTENCES
The four former civil servants are serving three years in jail over the irregular purchase of cemetery land for Nairobi.
Mr Gakuo and Mr Kirui were found guilty of abuse of office in connection to the purchase of cemetery land valued at Sh283 million. They were sentenced to three years in jail each and fined Sh1 million each.
Ms Ng’ethe was also fined Sh52 million with the alternative of a fourth year in jail while Mr Musee was fined Sh32 million with the same condition.
The four were found guilty of giving a misleading report purporting that the committee agreed to buy the controversial 120-acre plot in Mavoko town. They also used a false valuation report to award the tender.
The court said they ought to have stopped the payment of Sh283 million to Naen Rech Limited, which received the money for the irregular purchase of cemetery land.
The hearing of the appeal was slated for October 22.