In the application filed under a certificate of urgency, Anthony says Grado Victor Mabachi of Victor Lee Advocates, who are his advocates, had told him Mr Odera and Justice Kasango are friends and it would be important for the case to be handled by another judge for fairness.
Upon discovering the office of the Chief Justice had assigned the file to Kasango, Anthony said his lawyers wrote a letter dated September 14 to Justice Martha Koome protesting the move. He said his advocates pointed out that Kasango had handled civil case No 308 of 2020 and there would inevitably be a recusal application filed, which would result in time being lost.
"In light of the foregoing and in the interests of the appearance of equity, fairness and impartiality being maintained, I am constrained to support the application dated 5th December 2022 and believe that the same should be allowed as prayed," says Anthony. Anthony says Kasango handled the civil case filed at the Milimani High Court's commercial division.
"In civil appeal number E471 of 2021 arising from this matter, Lady Justice Achode, who had handled the suit in the High Court, recused herself as soon as she was informed of that fact," says Anthony.
He says Achode took that action even though no application for her recusal had been filed.
Anthony says Justice Achode recused herself to ensure the proceedings in the Court of Appeal are not only fair but also seen to be fair. Nginyo died on February 24, 2020, leaving behind a vast estate that includes real estate, farming investments, bank deposits and government bonds. The late businessman's will is being contested by his family.
He owned land and buildings in Nairobi, Kiambu and Ngong valued at Sh3.2 billion. His most famous property is Nginyo Towers in Nairobi's Central Business District. He also owned a 120-acre farmland in Tigoni, Kiambu County, where he had grown coffee, tea and was also rearing livestock.
Nginyo was the founding chairman of The National Alliance (TNA) party on whose ticket Uhuru Kenyatta won the 2013 presidential election.
He is survived by his widow Margaret Wangari Nginyo and several children who have turned against each other in the fight to control the estate. The case will be heard on February 28, 2023.
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