“I cannot avoid phone calls from good friends or meeting them. One friend called me saying he wanted to talk to me. We met and he spoke about this case. My conscience does not allow me to sit in this case. I am not impressed,” he told a packed Nyeri courtroom on June 5, 2018.
“It was an unholy and inappropriate approach," the soft-spoken judge said, adding he felt uncomfortable to hear the case.
In the Kirinyaga case, Justices Kantai and Sichale recused themselves citing their close relationships with Narc Kenya party leader Martha Karua, who challenged Governor Anne Waiguru’s election validity.
They said they were uncomfortable hearing the matter so they deemed it appropriate to disqualify themselves.
Ms Sichale said her long friendship with Ms Karua dated back to decades ago when they were working together at the Federation of Women Lawyers (Fida).
Justice Kantai said he and Ms Karua became friends as she practiced at the High Court and got closer when she was the Justice and Constitutional Affairs Cabinet Minister in former President Mwai Kibaki’s government.
The judges alluded to the possibility of bias.
The petition was transferred from Nyeri to the Nairobi Court of Appeal.
In Nairobi, Justice Odek disqualified himself from the Kirinyaga petition after Ms Karua complained that she had no faith in him.
“I have an application to make with great hesitation. It is related to the disqualification of one member of the bench. One of you spoke publicly about the merits of this appeal and expressed the way you will rule,” sMs Karua’s lawyer, Gitombu Imanyara, said during a hearing in February 2018.
The professor was also in the news early this year in a case concerning Prof Tom Ojienda, who is to be charged with falsely obtaining money from Mumias Sugar Company.
The Director of Public Prosecutions Noordin Haji said the judge would be turned into a prosecution witness.
On December 28, Mr Haji said the Directorate of Criminal Investigations looked into fake court proceedings on Mumias Sugar and found that they were used by several legal service providers to obtain money, in the form of legal fees, from the company.
The statement stated that about Sh89 million was paid through fraudulent schemes.
On February 4, CJ Maraga announced the transfer of five judges including Chacha Mwita, who left the Constitutional and Human Rights Division to be the Presiding Judge at the Kajiado High Court.
The others who were moved were Wilfrida Okwany, James Aaron Makau, Weldon Korir and Reuben Nyakundi.
The changes the CJ has made have followed a pressure pile-up amid the war on corruption.
Some members of the Judiciary have been accused of hindering the war through the granting of prayers for anticipatory bail and release from custody on lenient terms.
Mr Maraga has said several times that most critical is the presentation of cases with sufficient evidence against the accused for the sake of convictions.