Two magistrates accused of mispresenting decisions in Sh2.5m theft case
They are accused of making orders in open court that were not recorded in her court files.
Two court officials are in hot water for allegedly misrepresenting decisions in a case in which a city businesswoman is accused of stealing Sh2.5 million from her former boyfriend who lives overseas.
When Milimani Chief Magistrate Lucas Onyina asked for the case against Pheny Okwaro Owino to be reassigned to a new magistrate, defence lawyer Ochieng Oduor accused two senior principal magistrates of bias.
He accused one of the magistrates of making orders in open court that were not recorded in her court files.
"I wish to bring to the attention of this court that Senior Principal Magistrate Martha Nanzushi has been reading judgments in open court which are not in her certified court records," Ochieng told Onyina.
He also accused another magistrate, Esther Kimilu, of forcing the accused to repay money she allegedly received from her ex-boyfriend, Alfred Omondi Achar.
Protesting against the conduct of the two magistrates, Ochieng Oduor told Onyina that he had since lodged a complaint with the Judicial Service Commission (JSC) to have the two magistrates investigated and removed from the judiciary for alleged falsification of court records and bias.
"Your Honour, we have lodged a complaint with the JSC seeking the removal of the two magistrates for judicial misconduct, tampering with court records, falsification of records, bias, prejudice and lack of decisional independence," Oduor told Onyina.
In the letter received by the JSC on 9 June 2023 from Triple OK Law Advocates, the two judges were accused of bias and siding with the prosecution and the complainant, Alfred Omondi Achar, who is based in the United States of America.
For her part, Nanzushi is accused of issuing a ruling on 6 June 2023 stating that the theft case against Okwaro should be restarted, while in her court record she indicated that the matter would continue from where it was.
Okwaro had requested that the case be reopened and that Achar be recalled to testify in the case, but Nanzushi refused, according to her court record.
Okwaro's lawyer, Ochieng, also protested Nanzushi's conduct of calling a partner in his law firm, Muthoni Matu, on her personal mobile phone to inform her of the mention of the case.
"My partner Muthoni received a call from Nanzushi informing her to attend court on 9 June 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 in relation to her judgment of June 6,2023," Ochieng said.
"We believe that Nanzushi was mischievously attempting to correct or mitigate the court record after having delivered a different judgment from the one she read in open court. Nanzushi's conduct is not isolated but was influenced by her colleague, Hon. Esther Kimilu, who has since disqualified herself from the matter for serious reasons," Ochieng added.
Ms Kimilu disqualified herself from the case on the grounds that Okwaro felt she was biased after she openly told her to repay the Sh2.5 million she allegedly received from her foreign ex-boyfriend.
"During the proceedings on 4 May 2021, Ms Kimilu attempted to direct Okwaro to agree to a payment plan to repay the said sums which my client is alleged to have obtained under false pretences," Ochieng said.
He urged the court to stop acting judiciously by restoring public confidence in the court.
In the case, Okwaro claims that the complainant is her ex-boyfriend who used to give her money during their relationship and that the current prosecution is malicious because he used to give her money which he now claims is fraudulent.
"The complainant is my ex-boyfriend who resides in the US and the charges were maliciously brought against him because of gifts of money he gave me during our relationship," Okwaro said in her submissions to the JSC.
Achar, who has since testified in the case, told the court that his estranged girlfriend (Okwaro) used the money he sent her to buy properties for him for personal use.
In his response, State Prosecutor Anderson Gikunda said the issues raised by the accused lawyer were weighty and required that the matter be re-assigned to another magistrate for hearing and determination.
Achar, on his part, told the court that the accused's allegations can be adequately addressed by the High Court through an application for judicial review or appeal.
Onyina reserved his ruling on the matter until 10 July.
