Second judge withdraws from Nakuru War Memorial Hospital case

Nakuru County askaris restrict patients from accessing the War Memorial Hospital on January 22, 2024. County employees raided the hospital on January 23, 2024, to effect a takeover. 

Photo credit: BONIFACE MWANGI|NATION

A second judge has recused himself from the Nakuru War Memorial Hospital case as police continue to face criticism for ignoring court orders.

Environment and Lands Court Judge Anthony Ombwayo has transferred the case to a court of similar jurisdiction in Nairobi, where it will now be heard.

The judge expressed disappointment with the police for failing to comply with his court's orders to return the hospital's management to its owners pending the determination of the case. 

Armed people took over the facility after police briefly handed over management of the hospital from the county government.

Justice Ombwayo reiterated that court orders must be obeyed and that no government procedure should override them.

He insisted that officials should always strive to uphold the rule of law.

"Court orders must be obeyed and the reasons being given to the court by the county police commander do not make sense at all," said Justice Ombwayo on Thursday.

He made the ruling during a mention of the case when Nakuru County Police Commander Samuel Ndanyi appeared in court virtually after being summoned. 

Ndanyi, who was summoned to explain why court orders to restore management of the hospital had not been complied with, claimed he was faced with a dilemma on how to disperse the goons who had taken over the facility from the county askaris as the facility is close to Nakuru State House, which is a protected area.

Ndanyi told the court that the police could not disperse the goons with tear gas or bullets because the hospital is close to the State House, a public hospital and a school.

“Creating chaos to disperse the crowd would have been catastrophic,” he said.

But Justice Ombwayo dismissed the claims, arguing that armed police could not be overpowered by the rowdy youths.

The judge's recusal comes barely 10 days after he took over the case from Justice Millicent Odeny, who transferred it after several of her orders were disobeyed. 

At least seven orders issued by the court on different occasions but relating to the same matter were deemed to have been disobeyed.

Odeny took up the case in October last year when the county government forcibly took over the management of the hospital.

She issued the first order on October 31, 2023, reversing the action of the county government. This order was disobeyed.

On November 2, 2023, she issued an order directing Nakuru East Sub-county Police Commander Martin Masika to assist the hospital management in gaining access to the facility. This was disregarded after the hospital reopened, only for the county to forcibly take control 10 days later.

The county's decision to disobey orders to remove its enforcement team from the hospital prompted the court to order the county police commander to facilitate the regaining of control by the hospital management. This was ignored.

Another order by the same judge on January 30 was ignored before she ordered Ndanyi to appear in court on February 1 to explain why he was unable to carry out the orders.

The judge then recused herself from the case, saying she was on leave. The matter was referred to Ombwayo, who has since withdrawn from the case.

Appearing in court on Thursday, Ndanyi said he had deployed police to the scene and visited the hospital on Wednesday, but they found a large padlock at the entrance and were unable to gain access to the facility.

“We do not know who is in possession of the hospital at the moment because the gate was locked and I was unable to access it,” he said.

The county police boss said the rowdy crowd made it difficult for him to carry out the orders, but he had officers stationed at the gate to man it.

This came as another director of the hospital, Malcolm Bell, and Nyandarua spokesman Steve Waiganjo were charged in court for their alleged involvement in the fraudulent acquisition of the hospital's lease extension.

The two were charged with 15 counts of forgery of signatures and preparation of illegal documents without authority.

They denied the charges and were released on Sh150,000 bail each.