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Judge Odunga quits case pitting Opposition against IEBC

By Paul Ogemba | Published Fri, February 17th 2017 at 00:00, Updated February 16th 2017 at 21:49 GMT +3

High Court Judge Justice George Odunga referred a case on the audit of the voter register to Justice Enock Chacha of the constitutional division. [Photo: File/Standard]

A judge has disqualified himself from hearing a dispute between the Opposition and the electoral commission over audit of the voter register.

Justice George Odunga ruled that although the grounds advanced by the Independent Electoral and Boundaries Commission seeking his disqualification were not sufficient; he acted on his own motion to transfer the case to Justice Enock Chacha of the constitutional division.

"A judge may on his own motion decide to refer a matter pending before him to another judge in the interest of justice. It is not always that a judge may only refer a matter to another judge upon claims of bias," he explained. The commission's bid to have the dispute referred to Chief Justice David Maraga to appoint a three judge-bench failed.

Odunga said the dispute did not raise weighty constitutional questions and did not involve interpretation of the Constitution to warrant a bench. He explained that referring the matter to the CJ would have lengthen its determination yet IEBC was working under strict timelines.

"This dispute revolves around procurement of tender for the audit of the voter register, which does not meet the threshold of matters to be heard by three judges," he ruled.

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IEBC wanted Odunga to quit the case on grounds that he would deliver a similar decision to the ballot papers case. In that matter, the judge quashed the Sh2.5 billion tender for the supply of ballot papers the commission had awarded to a Dubai-based company. He also directed IEBC to start the process afresh in compliance with the Constitution.

Odunga said if the case was to be heard by a different judge of similar jurisdiction and a different decision arrived at, there would be two conflicting decisions of the court and that the perception created would be that IEBC chose a judge who was sympathetic to its cause.

"If that were to happen the citizens of the country would be led to believe that justice depends on a particular judge rather than the rule of law," he said.

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