Resident wants judge to recuse from Kisii-Nyamira boundary dispute case
Environment and Lands Court judge Mugo Kamau at the Nyamira Law courts.
A retired administrator from Keroka township has filed a petition seeking to have a judge in the Keroka boundary case between Kisii and Nyamira Counties recuse himself from hearing the matter.
The petitioner claims the judge had met the respondent in judge’s chambers for a cup of tea.
Mr Christopher Barare Nyang’au, a retired chief who is an interested party in the case, through his lawyer George Morara, wants the Nyamira Environment and Lands Court judge Mugo Kamau to disqualify himself from further handling the matter, saying he went against judicial service code of conduct and ethics.
According to the application filed on June 6, 2023, the Chairman of the National Land Commission (first respondent in the case) Gershom Otachi, walked into the court as the proceedings were in progress and was later invited by the judge to his chamber for a cup of tea.
In addition, the judge is also said to have asked one Caroline Sabiri Manyange, a manager at the Independent Electoral and Boundaries Commission (IEBC) in charge of boundaries to accompany Mr Otachi for the cup of tea.
When the court took a break, Mr Otachi and the trial judge spent a length of time in chambers before returning to the open court where other parties and their counsels were waiting.
Mr Barare said, when the court proceedings resumed, the trial judge made a confession in open court that the NLC Chairman is his good friend, having been a classmate since campus and that he was an astute academician who the trial judge could not compare himself with.
“It is therefore the applicants case that the court will not accord parties a fair hearing owing to the personal relationship between the trial judge and the first chairman of the first respondent, NLC, who are party to these proceedings,” said Mr Barare in his petition.
“The first respondent is a very crucial party to the proceedings and, therefore, the matter should be handled by a neutral court with no past affiliation with it or a person likely to influence the outcome.”
Mr Otachi attended the proceedings after Justice Mugo on May 11, 2023 summoned the NLC Chairman and Ms Sabiri to attend court physically on May 25, 2023.
On May 25, 2023 when the matter came up, Mr Otachi and Ms Sabiri did not attend court prompting the trial judge to make further orders requiring their physical attendance on June 6, 2023.
On the very date, according to the petitioner, the judge did also make comments that he was under pressure to conclude the matter from prominent sons and daughters of Nyamira County, one of them being Mr Otachi.
The petitioner noted that Mr Otachi hails from Nyamira County and the instant proceedings relate majorly to a boundary dispute between the counties of Nyamira and Kisii.
“The actions of ushering summoned parties in a case to chambers for a cup of tea amidst proceedings in the presence of other counsels and parties in court can only be defined as intention to defeat the cause of justice in the matter,” said the elder from Keroka.
When the matter came up on Friday, an altercation between Justice Mugo and lawyer Morara ensued in court with the judge accusing the latter of being disrespectful to him.
The court later proceeded with its scheduled visit to location of the disputed boundary to ascertain the boundary in Keroka between Kisii and Nyamira counties.
Justice Mugo had earlier cautioned litigants in the boundary dispute between Kisii and Nyamira Counties to be careful and avoid polarising residents of the two counties.
The judge informed the litigants that the matter before court was delicate and that the court will make a determination to avoid causing unnecessary antagonism and promote peaceful coexistence among residents.
“We do not want to solve this matter in a manner that might leave people fighting as members of different clans or counties. We want to leave the people of Keroka united as they have always been,” said Justice Mugo.
The judge advised the warring factions to not allow narrow political interests to trigger a bigger problem, if there was nothing major causing the perceived divisions.
Newly elected Rigoma MCA, Nyambega Gisesa, has been complaining that Kisii County had allegedly encroached on Nyamira boundary and that his residents were allegedly paying revenue to an outside entity that did not benefit them.
The MCA claims that a large junk of electoral areas of Kisii Municipality should be demarcated in Nyamira County, pointing out that Jogoo, Manga ridge and the entire Keroka town should be counted under Nyamira County.
Many residents of the two counties living along the electoral areas being disputed accuse politicians of stirring uncalled for tensions, with some of them pointing out that Abagusii are one people who share a common ancestor.
In 2014, Nyamira and Kisii counties agreed to jointly manage the town with Nyamira appointing an administrator and Kisii a deputy administrator.
They also agreed to come up with a joint management committee consisting of a chairman, vice-chairman and five members. However, this was not implemented.
