Justice Odek opts out of Martha Karua election appeal case

A Court of Appeal judge has disqualified himself from hearing an appeal filed by Narc-Kenya leader Martha Karua challenging High Court's decision to dismiss her petition against the election of Kirinyaga Governor Anne Waiguru.

Ms Karua through lawyer Gitobu Imanyara sought for Justice Otieno Odek’s recusal citing “perceived bias”.

'NO FAITH'

Mr Imanyara told a three-judge bench of Mohamed Warsame, Daniel Musinga and Odek that his client has no faith in the judge to preside over her appeal.

“I have an application to make with great hesitation. It is related to disqualification of one member of the bench. One of you judges spoke publicly the merits of this appeal and express the way you will rule,” alleged Mr Imanyara.

Justice Warsame who was the presiding judge intercepted Mr Imanyara from making further submission directing him to name the judge he was referring to, which he replied as Justice Odek.

The judge further asked lawyers Paul Nyamodi appearing for Governor Waiguru and Joe Gathungu for the Independent Electoral and Boundaries Commission to make their replies.

The two lawyers told the court that it is prudent for Mr Imanyara to make his formal application to seek the judge withdrawal instead of merely making such grave allegations.

However, the three judges conversed for a few minutes before Justice Warsame said that the case will be heard at a later date by a new bench without Justice Odek.

Ms Karua appealed against Justice Lucy Gitari’s decision to dismiss her election petition challenging Ms Waiguru’s victory in August last year election at  the Nyeri High Court.

However the matter was transferred to Nakuru and later to Nairobi for Justice Kihara Kariuki to give direction as how the appeal will proceed.

Ms Karua filed the appeal last December saying the judge was biased in the matter and applied double standards.

The former Justice and Constitutional minister faulted the judge for capping the costs of the suit at Sh10 million to her, saying the move and the figure was punitive since the case had not proceeded to hearing.

On Justice Gitari’s decision to term the petition “hopeless, defective and incurable” Ms Karua said the judge used intemperate language in her conduct and ruling.

She argues that the judge imported extraneous matters to the petition adding that the judge blundered by striking out the case after conducting a pre-trial conference and fixed dates for hearing of the main suit.

Through lawyer Imanyara, Ms Karua says the judge ignored results of electoral materials scrutiny conducted pursuant to her orders issued on October 23, 2017.

In the disputed poll, Ms Waiguru garnered 161,373 votes while Ms Karua got 122,091 votes.