High Court judge George Odunga has declined to disqualify himself from hearing an application by Wiper governor aspirant for Machakos, Wavinya Ndeti. Independent Electoral and Boundaries Commission (IEBC) wanted the judge to recuse himself from hearing the petition which challenges its decision to bar Wavinya from vying for the seat.
However, Odunga refused to recuse himself, saying the issues raised by IEBC do not meet the test for the recusal or disqualification of a judge. IEBC wanted him to refer the matter to another judge on grounds he had heard a similar matter regarding Wiper and Chama Cha Uzalendo—the parties for which Wavinya is accused of simultaneously belonging to.
IEBC claimed that though it did not doubt the courts impartiality, competence and objectivity, justice would be served if the case was to be dealt with by another judicial officer with fresh mind.
IEBC claimed whereas it was appreciated that the court is obliged to determine the case, the perception of justice is paramount as it is the same that makes decision palatable.
“It is the responsibility of this court to manage that perception and in this case as the court has determined that Wavinya is a member of CCU and there is a decree to that effect, the court ought to consider the perception of justice and refer the matter to another judge for hearing,” Odunga was told.
He, however, declined to allow the application, saying to seek the recusal of a judge from hearing a matter simply on the ground he has determined a matter with similar facts is an implication that there is a likelihood another judge will arrive at a different decision.
He said instead of subjecting another judge of concurrent jurisdiction to an embarrassing situation of arriving at a different decision, parties ought to be advised by their lawyers to appeal the decision.
According to Odunga, if the matter were to be heard by a different judge and a different decision arrived at, there would be two conflicting decisions of the same court.
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