Judge says he will not quit developer, brewer land row

A judge has declined to disqualify himself from a land dispute pitting a housing development firm, Edermann Property Limited, against alcohol manufacturer London Distillers Kenya (LDK) and the State’s national environment tribunal.

Justice Charles Mbogo dismissed the request filed by the property developer urging him to recuse himself from the dispute that relates to environment pollution near a multi-billion shilling housing project in Athi River, Machakos County.

In the application supported by its managing director Zeyun Yang, the firm claimed that the judge, who sits at the Environment and Lands Court in Makueni, was biased.

To support his claim, the MD explained that the judge had set aside a conservatory order issued against the alcohol distiller in January last year over the alleged pollution and industrial emissions.

Mr Zeyun also said he was unsettled after overhearing lawyer of the alcohol distiller saying that he would talk to Justice Oscar Angote (of ELC Machakos) asking him to have a word with the Makueni court, ostensibly with a view to ensuring that the conservatory orders were set aside.

But justice Mbogo while dismissing the application found that the property firm had failed to prove any possibility of bias, predisposition or prejudgment.

“This court strongly denounces the Erdemann’s veiled intimidation in the form of unsubstantiated allegations which do no more than undermine the public confidence in this court but more importantly, undermine judicial independence,” said the judge, adding that his court was not part of the alleged telephone conversations involving lawyer for London Distillers.

“Erdemann did not provide substance to the said telephone conversation and it is thus suspicious how this court should find itself caught in the muddle that has been wildly put forward. I shall say no more of this,” said justice Mbogo.

The key issue in the court dispute is the wanton pollution arising from the discharge of untreated effluents from London Distillers factory into the surrounding environment and the ensuing inaction by the National Environment Management Authoruity (Nema).

Erdemann MD had also urged the judge to leave the case because he has since filed a petition dated June 29, 2020 to the Judicial Service Commission (JSC) requesting for investigations into the conduct of the judge.

He wants investigations to be conducted as to whether there were acts of collusion in contravention with the cardinal principles of propriety and professionalism under the Judicial Code of Conduct and Ethics.

Upon recusal, he wanted the file placed before the Principal Judge of the Environment and Land Court for further direction or reallocation to any other suitable and disinterested court.

But Justice Mbogo said it is questionable that he should recuse himself because of a complaint that is pending hearing before the JSC.