KALUMA: DISQUALIFICATION BY MAGISTRATE REJECTED.

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Homa Bay MP Peter Kaluma at Milimani Law court during the mention of his alleged land fraud case facing him on Wednesday 30/07/2014.

BY SAM ALFAN.

Milimani Chief Magistrate Hannah Ndung’u on Thursday declined to excuse herself from hearing the alleged land fraud case facing Homa Bay MP Peter Kaluma.This is after his defence Wednesday accused the magistrate of bias.
In her ruling, Chief Magistrate said there were no compelling reasons given by the defence in their application seeking her excusal from the matter apart to the alleged bias by the defence.
“Despite of my court taking the plea it doesn’t mean I will be the trial court”. Said the Magistrate in her ruling.
Kaluma on Wednesday asked Mrs Ndung’u to throw away the charges leveled against him saying the charges were defective.
The Homa Bay MP had appeared in court in the morning but declined to plead to nine counts of fraud in which he is accused of defrauding Deborah Achieng and Rene Johny Dierkx over a parcel of land situated in Karen, Nairobi.
State counsel Eddie Kadebe asked Kaluma to take his plea but he declined and through his lawyer he asked the court to make a determination since the prosecution had not tabled in court the High Court order issued by Justice Weldon Korir directing Kaluma to plead to the charges.
There was a heated exchange and altercation on Wednesday between the magistrate and Ndubi and at one time he asked the magistrate to record his submissions so that his protest can go on record.
Mrs Ndungu directed Kaluma to appear in court Wednesday in the afternoon to know whether he could plead to the charges or not.
In her ruling the magistrate directed Kaluma to plead to the nine counts of fraud charges but he declined.
Defence lawyer Harun Ndubi urged the magistrate to disqualify herself from the case accusing her of bias and ‘holding brief’ for the prosecution.
“It appears to the defence that the magistrate is clearly biased against the suspect despite our preliminary objection on the inadmissibility of the charges leveled against my client. The court cannot therefore proceed to give directions that seem to determine the outcome of this case.” Ndubi.

The lawyer further said that, “When the court demands that the suspect should take plea yet the defence has stated that the charge sheet has failed to have particular details then the court has failed to allow a fair trial and I ask the magistrate to disqualify herself from this matter,”
Ndubi said it was prejudicial for the magistrate to state that the MP had used his status to delay the case. Ndubi accused the prosecution of not supplying the defence with all the evidence that it seeks to rely on during trial. He said it was prejudicial for the chief magistrate to state that Kaluma has used his status to delay the case.
However the state counsel said the accused was at liberty to contest the effectiveness of the charges at any time once the accused takes his plea saying the ruling by the magistrate that the accused pleads to the charges was in good faith.
“It is still the prosecution’s position that the charges presented in court are correct and the averments by the defence lawyer are not properly before this court”. Said Ndubi.
The magistrate directed to appear in court on Monday for further directions.

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