Tempers flared in court on Thursday during hearing of a dispute pitting factions fighting for control of Nairobi Hospital. High Court Judge Nixon Sifuna had to ask all people, except lawyers, to leave the courtroom for them to hold a ‘conference’.
This was after several lawyers, who had lost applications and pleas to the judge for him to adjourn the matter, insisted on the case being pushed to another date.
When it became apparent that Justice Sifuna was determined to proceed with an application for contempt of court against three senior officials of the hospital, lawyer Peter Wanyama, for ousted chairman Barcley Onyambu, asked the judge to recuse himself from hearing the matter.
According to Mr Wanyama, the judge had exhibited bias against his client and should disqualify himself from hearing the case. “I want to make an oral application for recusal. You have no jurisdiction to hear the [contempt of court] application. You have made up your mind against my client,” Mr Wanyama submitted.
In a short ruling, Justice Sifuna said when an application for recusal of a judge is made, it must be heard first because “justice must not only be done but also seen to be done”. On July 9, Justice Sifuna directed Dr Onyambu, the hospital’s chief executive officer Felix Osano and Gilbert Nyamweya (company secretary) to appear before him, for the hearing of the contempt of court application.
Dr Job Obwaka, aligned to another group led by Herman Manyora, who was installed as the chairman through a special board meeting on June 30, want the three cited for contempt of court for disobeying a court order.
He said through lawyer Ochieng Oduol that the officials proceeded with a retreat in Naivasha, held on July 3 and 4, in defiance of a court order.
But in response, Dr Onyambu said the board of directors and staff members were already in Naivasha, when they were served with the court order, stopping the retreat.
Justice Sifuna pushed hearing of the case to August 22.
He added that the agenda was abandoned when they were served with the court order.
Mr Oduol wanted the contempt of court application heard first, as disobeying court orders had serious effects of undermining the rule of law.
“The court ordered the hearing of the contempt application and should be dealt with first. The applications (for adjournment) have not been made in good faith but an attempt to derail the hearing of the case,” Mr Oduol submitted.
The lawyer argued that the officials were changing advocates the last minute in a bid to stall the hearing of the contempt of court application.
Senior counsel Kiragu Kimani, for Mr Osano had asked the court to adjourn the matter to allow him file a response to the application, stating that contempt of court was a grave matter and the liberty of his client was at stake.
“In view of the principle that justice must not only be done but must be seen to be done, and the court required to be a neutral umpire, those grounds [for recusal] ought to be brought to court for determination,” judge Sifuna said.
The judge had earlier declined an application by two board members- Prof John Mwero and Eric Okeyo, to join the case, saying the contempt of court application was not against them.
The duo said that they wanted to state their position on the alleged special general meeting, which they are alleged to have attended.
It was their argument that they did not attend the meeting and the minutes tabled in court, in support of the case, were allegedly misleading.
They have also argued that the board members were notified about the meeting at around 8.30am, on June 30, and which was to start at 9am.
