Magistrate recuses self after learning search order targeted long-time friend
The EACC had not disclosed the details of the subject of the application when seeking the search orders, and Ondieki granted them without being aware that the subject was Atambo, his long-time friend.
Principal Magistrate Charles Ondieki has recused himself from a bribery case involving Thika Chief Magistrate Stella Atambo, citing his close friendship with Atambo and her husband, Evans Achoki.
Thus is after the Ethics and Anti-Corruption Commission (EACC) obtained orders to search her house without disclosing the details of the subject of the application, and Ondieki granted them without being aware that the subject was Atambo, his long-time friend.
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Ondieki only learnt earlier today that the search orders were issued against Atambo, as the EACC detectives had withheld this information when making their application.
The magistrate stated that, until this morning, evidence of the true identity of the subject of the search order had not been available to the court. It was only confirmed by counsel representing Atambo in the original application, where the search orders had been granted.
"Today, having confirmed the true identity of the respondent in the original application (Atambo), and for reasons that will become apparent hereinafter, I find it necessary to state that I will not hear or determine the main prayer of this application, nor any other applications connected to this matter," stated Ondieki.
"Consider this: the applicant in the second application (Atambo) and her husband have been, and remain, not only close personal friends for approximately 17 years—dating back to 2008—but also family friends with close ties to my nuclear family."
He emphasised that the lack of full disclosure in the original application highlighted the importance of transparency and the necessity of providing all material facts, particularly the true identity of the subject of the search order.
Had the EACC fully disclosed the identity of the subject, Ondieki noted that, under the Judicial Service (Code of Conduct and Ethics) Regulations of 2020, he would not have determined the application in the first place. Instead, he said he would have recused himself and directed that the file be placed before the head of station for possible reassignment.
"Although it is a practice I found entrenched in this court, seemingly driven by a morbid fear of sabotage, henceforth, this court will not entertain similar applications unless the full identity of the subject of the search order is disclosed. The fear of sabotage should not override the rule of law, and more specifically, the obligation on the applicant (EACC) to provide full and frank disclosure of material facts," stated Ondieki.
Ondieki criticised the EACC for withholding details about the subject of its investigations. He argued that, while nondisclosure may serve as an internal administrative measure to prevent sabotage, it should not extend to the judiciary in the exercise of its judicial authority.
He stressed that judicial authority should benefit from complete disclosure of material facts to enable informed decision-making.
"Full disclosure of material facts extends beyond revealing the identity of the subject of the search; it also encompasses other key aspects that may significantly influence the course of an application before a judicial officer. For instance, invoking the doctrine of absurdities," said Ondieki.
"What if material facts are not fully disclosed, and it later emerges that the subject of the search order enjoys certain legal immunities that are inviolable? If the court, unaware of this fact, grants the search order, it would result in a fundamental misstep. This scenario highlights the need for the EACC to develop a better approach to addressing its concerns over sabotage."
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