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Former senior lands officer Andrew Aseri Kirungu (left) and former Nairobi Deputy Provincial Commissioner Davis Nathan Chelogoi before the Milimani Law Courts on May 29, 2024.
The trial of a former provincial commissioner accused of fraudulently acquiring a Sh1.3 billion parcel of land in Loresho, Lower Kabete area will resume in March after the High Court rejected his bid to have the magistrate hearing the case, removed.
Mr Davis Nathan Chelogoi suffered a setback after the High Court dismissed his application seeking a review of a ruling in which the trial magistrate declined to recuse herself from the matter.
In its decision, the High Court held that the former administrator had failed to establish any valid grounds to justify the recusal of the magistrate.
Mr Chelogoi had argued that he was unlikely to receive a fair trial, but the court found that he did not discharge the burden of proving bias.
“Upon careful perusal of the application and the ruling by the honourable magistrate, this court has come to the conclusion that the desire to dispose of the matter expeditiously was unfortunately misconstrued by the applicant to mean a predetermined intention to convict,” the court said.
The court added that placing an accused person on their defence does not automatically imply that a conviction will follow.
“It would therefore be prejudicial to order the transfer of this matter from the trial magistrate currently hearing it to another court in the absence of any evidence of bias,” the court ruled.
Mr Chelogoi is jointly charged with Mr Andrew Aseri Kirungu, an assistant deputy director at the Lands Administration Office, over the alleged fraudulent acquisition of the land.
Former senior lands officer Andrew Aseri Kirungu (left) and former Nairobi Deputy Provincial Commissioner Davis Nathan Chelogoi before the Milimani Law Courts on May 29, 2024.
According to the charge sheet, the two are accused of conspiring to defraud Ashok Rupshi Shah and Hitenkumar Amritlal Raja of a 7.39-hectare parcel of land located along Lower Kabete Road. Mr Kirungu is separately accused of causing the fraudulent registration of a certificate of title in abuse of his office.
The alleged offences are said to have been committed on diverse dates between December 9, 2020, and June 4, 2021.
A total of 19 witnesses had testified by the time Mr Chelogoi applied for the magistrate’s recusal, an application that was dismissed in October last year. Dissatisfied with that decision, he moved to the High Court seeking a review.
He claimed that the trial magistrate had on several occasions failed to properly and accurately record court proceedings, forcing his lawyer to raise objections. He argued that a complete and accurate record is fundamental to a fair trial under Article 50 of the Constitution.
Mr Chelogoi further alleged that during the testimony and cross-examination of key witnesses whose evidence he said favoured his case, the magistrate failed to record proceedings. He also claimed that the defence team was repeatedly prevented from fully cross-examining witnesses, particularly on documents presented by the prosecution, suggesting the court had adopted a preconceived position.
Mr Kirungu opposed the application, stating that the magistrate had conducted the trial fairly and had not exhibited any bias. He maintained that the allegations were unfounded and that the case should proceed to its logical conclusion.
In its ruling, the High Court noted that Mr Chelogoi had made broad claims regarding failures in recording proceedings without providing specific details.
“He has not informed the court what the trial magistrate allegedly omitted from the record, the witnesses whose evidence was not properly captured, or the specific objections that were not recorded,” the court said.
Delays in the proceedings
The court added that it was insufficient for an applicant to make general allegations of selective recording without concrete evidence, particularly when such claims were raised at the tail end of the trial after the accused persons had already been placed on their defence.
Judicial officers, the court observed, take an oath to faithfully discharge their duties and administer justice without fear or favour.
When the matter came up for mention on Friday, Mr Kirungu protested after the file was placed before a different magistrate. He said he had suffered prejudice due to prolonged delays in the proceedings.
Mr Kirungu stated that following his arrest and the commencement of the case in 2023, he was interdicted from his position at the Ministry of Lands while nearing retirement.
“Due to the interdiction, he has been unable to process his retirement benefits and has suffered a significant reduction in salary, causing severe financial and personal strain,” he said in a protest letter to the Chief Magistrate at Milimani.
