Court dismisses recusal petition against magistrate, terms move as an intimidation tactic

A Nairobi court has thrown out an application by an accused person seeking to have a magistrate step aside from his ongoing criminal case, terming the move a ploy to intimidate the bench and stall proceedings.

Milimani Chief Magistrate Dolphina Alego dismissed the recusal request filed by an accused person, Andrew Kirungu in a criminal suit before her.

In the case, where the state is the complainant, Kirungu is listed as the first accused person alongside his accomplice the first accused Davis Chelogoi.

The application was filed and argued by their lawyer identified as Asa who sought to have the matter reassigned to another court.

In her ruling, Magistrate Alego described the application as “speculative, unsubstantiated and deliberately timed to derail justice.”

She noted that the claims arose only after the prosecution had closed its case and the accused had been placed on his defence.

“Was the court expected to acquit at this stage?” the magistrate posed, questioning the motive behind the belated application.

The defence had accused the magistrate of exhibiting bias through her “writings, body language, and conduct,” and claimed the case had been prejudiced by its mention in Parliament and media reports.

Magistrate Alego, however, dismissed these assertions, terming them “a narrative built on conjecture and paranoia.”

She recounted that the court had previously accommodated the accused, including reducing his bond on humanitarian grounds due to ill health, only to now face what she termed an attempt to intimidate the bench.

She also questioned why the application was made by only one of the two accused persons, remarking that the selective approach suggested ulterior motives.

In her ruling, Alego relied on established principles guiding judicial recusal, citing the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, which require withdrawal only in specific situations such as where a judicial officer is a party or witness in the case.

She further referenced key precedents, including the Kenyan case of Philip K. Tunoi & another v Judicial Service Commission and the South African case President of the Republic of South Africa and Others v South African Rugby Football Union, which define the test for bias as whether a “reasonable, objective and informed person” would apprehend partiality.

Acknowledging that “absolute neutrality” is impossible, the magistrate emphasised that judges must instead maintain “judicial impartiality.”

Alego condemned the application as “an affront to the independence of the judiciary” and reaffirmed her duty to uphold her oath of office.

“The application is properly executed to intimidate,” she stated, adding that judicial officers must not yield to such tactics. She also made reference to her recent promotion to Chief Magistrate and nomination for judicial awards, rhetorically asking whether those recognitions too had been “compromised” as alleged by the defence.

With the application dismissed, the court moved to schedule the continuation of the defence hearing.

By consent of all parties the cross-examination of the first accused was set for October 16, 17, and 18, 2025.

The case will now proceed to the defence stage, bringing the long-running trial closer to conclusion.