Two Judicial officers are on the spot for allegedly misrepresenting rulings in a case where a city businesswoman is charged with theft of Ksh2.5 million from her overseas former boyfriend.
Asking Milimani Chief Magistrate Lucas Onyina to allocate the case against Pheny Okwaro Owino to a new magistrate, defence lawyer Ochieng Oduor accused the court officers of bias and giving orders that are not on record.
"I wish to bring to the attention of this court that Senior Principal Magistrate Martha Nanzushi has been reading rulings in open court which are not in her certified court records," Ochieng told Onyina.
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He further accused another magistrate Esther Kimilu of compelling the accused to repay the funds she allegedly received from her ex-boyfriend Alfred Omondi Achar.
Protesting the conduct of the two magistrates, Oduor said he has complained to the Judicial Service Commission (JSC) to investigate them and have them removed from office for falsification of court records and bias.
"Your honour we have lodged a complaint to the JSC and sought the removal of the two magistrates for judicial misconduct, tampering with the court record, falsification of records, bias, prejudice and lack of decisional independence," Oduor informed Onyina
In the letter received by the JSC on June 9, 2023, from Triple OK Law Advocates, the two magistrates have been accused of bias and siding with the prosecution and the complainant Alfred Omondi Achar who is based in the United States of America.
In her part, Nanzushi is accused that on June 6, 2023, she delivered a ruling where she stated that the theft case against Okwaro was to start afresh while in her court file record, she indicated that the matter will proceed from where it had reached.
Okwaro had sought to have the case start afresh and Achar recalled to testify again in the case but Nanzushi declined according to her court record.
Okwaro's lawyer Ochieng also protested the conduct of Nanzushi calling a partner in his law firm Muthoni Matu through her personal cell phone to inform her that the mention of the case.
"My associate Muthoni received a call from Nanzushi informing her to attend court on June 9, 2023. Muthoni informed her that she was unavailable for the mention as requested. Nanzushi rescheduled the mention for Monday, June 12, 2023. When Muthoni inquired about the purpose of the mention, Nanzushi informed her that the mention was regarding her ruling of June 6, 2023," Ochieng states.
"We believe that Nanzushi mischievously sought to correct or temper with the court record after having delivered a different ruling from that which she read in open court. Nanzushi's conduct is not singular but has been influenced by her fellow magistrate Hon. Esther Kimilu who has since recused herself from the matter on serious grounds," Ochieng added.
Kimilu disqualified herself from the case on grounds that the Okwaro felt she was biased after she openly told her to repay the Ksh2.5 million she allegedly received from her ex-boyfriend.
"During proceedings of May 4, 2021, Magistrate attempted to instruct Okwaro to agree to a payment plan to refund the sums in question that my client is allegedly accused of obtaining through false pretences," Ochieng stated.
In the case, Okwaro claims that the complainant is her former boyfriend who used to give her money during their relationship and currently prosecution is malicious since he used to give her money which he now purports to be a fraud.
"The complainant is my ex-boyfriend who resided in the US and instituted the charges maliciously over monetary gifts which he had given me over the court of our relationship," Okwaro states in pleadings to the JSC.
Achar who has since testified in the case told the court that his estranged girlfriend (Okwaro) put into person use the monies he had sent her to purchase properties for him.
State prosecutor Anderson Gikunda in his response said that the issues raised by the accused lawyer are weighty and called for the matter to be re-allocated to another magistrate for hearing and determination.
Achar on his side told the court that allegations by the accused can be adequately addressed by the High Court via a judicial review or appeal application.
Onyina reserved his ruling on the matter until July 10.
