Judge declines to withdraw from Nairobi Hospital leadership row

Professor Sifuna Nixon Wanyama during the Judicial Service Commission interview for Court of Appeal Judges on June, 24, 2019. [File, Standard] High Court Judge Nixon Sifuna has dismissed an application filed to have him withdraw from the Nairobi Hospital management battle. Prof Sifuna, in his ruling, held that the application-filed by ousted board chairman Dr Barcley Onyambu and a section of the board-lacked any substantive evidence to support claims of judicial bias. According to the judge, although Onyambu never attended a court session where the court was supposed to hear contempt proceedings against him, the hospital's secretary and the Chief Executive Officer (CEO), he alleged that there was a presence of five police officers who were meant to arrest them. Justice Sifuna said that the mere presence of the police in court could not be used to incriminate him, as he was neither involved in their deployment. He said that the application was a mere lamentation, engineered by sheer dislike, displeasure, or paranoia. "I find this application to be either a scheme for forum-shopping, or a tactic to bully, intimidate, frustrate, and blackmail me into abandoning my judicial duty, and hop into the woods. This being part of the occupational hazards of judicial office, I take it in my stride," said Justice Sifuna. Tensions flared in court when Onyambu's counsel, Peter Wanyama, engaged the judge in a prolonged verbal exchange. The atmosphere became increasingly combative after Wanyama insisted the judge recuse himself, citing perceived partiality, and objected to other parties being allowed to join the case. When the judge asked him to formally file the application for recusal, Wanyama declined, instead insisting on an oral application and demanding a 15-minute health break. When the judge declined the request, Wanyama protested, accusing the court of unfair treatment. When the judge asked senior lawyer Ochieng Oduol to address the court, Wanyama continued standing, insisting that his oral application for the judge's recusal must be heard first. "Mr Wanyama, make a formal application. Mr Oduol, continue," the judge said. Wanyama replied: "If you want to disrupt these proceedings, we will. You are being unfair." "Wanyama, sit down," directed Justice Sifuna. "I will not sit down. You have a duty to hear my application," he said. Senior advocate Oduol, prosecuting the contempt case, proceeded, but Wanyama again interjected, stating: "...There is no fire in the roof. You are paid by the taxpayer to hear us, and we are not happy about how you are treating us. I am making an application for your recusal." The judge had ordered the hospital's CEO, Felix Osano, the hospital's secretary, Gilbert Nyamweya, and embattled chairman, Onyambu, to appear in person for the contempt proceedings. Before the session commenced, lawyers representing board members Dr Agnes Gachoki, Prof John Mwero, and Eric Okeyo applied to be enjoined in the proceedings. Advocate Duncan O'Kubasu, appearing for Dr Gachoki, argued that the contempt proceedings affected board members directly, and they should be heard. He also sought to challenge earlier court orders barring Onyambu from chairing hospital affairs. Lawyers for Mwero and Okeyo made similar applications, citing a related suit in the Magistrates' Court challenging the decision to have Herman Manyora take over as the chair. Oduol strongly criticised Wanyama's courtroom conduct. He accused Wanyama of disrespecting the court, saying he was "shouting and addressing the court as if he was addressing villagers." Justice Sifuna attempted to defuse the moment with humour, remarking that he too was a villager, but Oduol stood firm, stating: "We are setting a dangerous precedent. We have young lawyers to mentor." Oduol urged the court to dismiss the applications, terming them delaying tactics. He said those summoned had shown no remorse, and instead responded with bravado. Justice Sifuna dismissed the enjoinment applications.

Judge declines to withdraw from Nairobi Hospital leadership row

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