A magistrate whose decision to release on bond a man charged with possession of ivory was overturned by the High Court has refused to quit the case.
Principal Magistrate Davis Karani on Thursday said there was no reason to disqualify himself from presiding over the case in which Mr Feisal Mohamed Ali has been charged alongside four other people with possession of ivory valued at Sh44 million.
Assistant Director of Public Prosecutions Alexander Muteti had sought for the disqualification of the magistrate saying he had a pre-determined mind set.
In his ruling, Mr Karani said the prosecution ought to “step its best foot” forward since the outcome of a case is determined by the evidence it presents in court.
Mr Karani noted that he passed the vetting by the Judges and Magistrates Vetting Board hence the integrity of the court cannot be comprised by the case.
The magistrate said cases are won or lost depending on the quality of evidence presented before court.
“The court tried to be as impartial as possible,” said Mr Karani adding that if it was not fair it would not have issued a warrant of arrest to compel a prosecution witness to attend court.
APPEAL DECISION
Following the decision by Mr Karani, senior prosecuting counsel Daniel Wamotsa applied for certified copies of the ruling in order to appeal the decision by the magistrate not to disqualify himself.
“I am instructed to apply for certified copies of the proceedings and ruling; we intend to appeal that ruling,” said Mr Wamotsa.
On August 26, Mr Justice Martin Muya allowed an application by the DPP seeking for a revision of the decision by Mr Karani to release Mr Ali on bond.
“It was improper for the trial magistrate to cloth himself with jurisdiction which had been ousted from him and purport to review orders of a judge,” said Mr Justice Muya.
He added that the order issued by the High Court were clear that the accused was to remain in custody unless contrary orders were issued by a higher court.
“These orders ousted the jurisdiction of the subordinate court from considering the issue of bond in respect to the sixth accused,” said Mr Justice Muya.
On the issue of whether Mr Karani violated his oath of office, the judge said he will not be doing justice by condemning him without giving him an opportunity to be heard.
Mr Ali has been charged alongside Mr Abdul Halim Sadiq, Ghalib Sadiq Kara, Praverz Noor Mohamed and Mr Abdulmajeed Ibrahim with being in possession of 314 pieces of ivory weighing 2,152 kilogrammes.
The offence is alleged to have been committed on June 5, 2015 at the business premises of Fuji Motors East Africa Limited situated along Tom Mboya Avenue, Tudor Estate, Mombasa.