A middle-aged man has petitioned the Judicial Service Commission to initiate the removal of a judge serving at Tononoka Children’s Court .
In a petition dated 3rd November 2024, Kennedy Ochieng Awuonda, a teacher by profession, wants the commission to take disciplinary action against Principal Magistrate Nelly Chipchirchir. A teacher has petitioned the Judicial Service Commission to investigate a magistrate at Tononoka Children’s Court over conflicting rulings in a child custody case.
This follows a child custody case number E373 of 2023 that he filed at the court seeking custody orders granting him the actual physical custody of a minor.
In the case, which took a contradicting and conflicting twist, Kennedy sought custody of the minor due to the toxic relationship he had with the mother, Pamela Juma Oduor, who was the defendant.
The judge issued two contradicting rulings, initially granting custody of the minor to Kennedy, only to review the decision later in favour of Pamela. “THAT I opted to litigate the foregoing custody dispute due to a toxic relationship between myself and the Defendant characterized by constant incidents of physical, mental, and psychological torture directed at both myself and the Subject Minors by the Defendant, which ultimately resulted in a separation between myself and the Defendant. The Defendant retained the actual/physical custody of the Subject Minors—a fact that saw the Defendant continue to subject the Subject Minors to neglect and suffering, thus necessitating my action,” he states in part of the petition.
Kennedy explains that after filing the case, Pamela made an application under a certificate of urgency through a Notice of Motion dated 7th September 2023, supported by an affidavit in which she accused him of completely neglecting the minor.
She urged the court to compel Kennedy to pay a monthly maintenance of Ksh 30,000, cover the minor's medical expenses, school fees, and other school-related costs.
She also sought orders restraining Kennedy from taking the minor and requested a warrant of arrest against him.
Kennedy filed a replying affidavit dated 31st October 2023, refuting Pamela's assertions and outlining his financial responsibilities toward the minor.
The court set the ruling date for 7th February 2024, which Kennedy missed due to technological challenges accessing the court session virtually.
He was later informed by Pamela’s lawyer that the ruling was out and discovered it was in his favour. “That on 9th February 2024, I got an unexpected phone call from a strange number 0720739681. Upon inquiry, the caller introduced himself as Amos. Even though I had not saved Amos' contacts, the name was familiar since the Defendant, upon inquiry by Hon. Nelly Chipchirchir whether she had a lawyer, had already told the Court that Amos would be her lawyer,” Kennedy narrates. “As instructed by Amos, I called him after reviewing the ruling. After noting that the ruling was in my favour, he expressed spontaneous disappointment with Hon. Nelly Chipchirchir and stated that he did not expect an unfavourable ruling for the defendant.” Amos would later reveal to Kennedy that he had a close relationship with the judge, to the extent that he assisted her with a vehicle to transport a body from Mombasa to her home county just a few days before the ruling date.
A few days later, Kennedy discovered that a new ruling had been uploaded onto the court’s online portal on Monday, 12th February 2024, presumably after Amos’ intervention.
Unlike the initial ruling, the subsequent ruling entirely favoured Pamela and imposed orders that would typically be given after the hearing of the original case on its merits. “That to the best of my belief, the sudden introduction of a new ruling dated and signed on 12th February 2024 after Amos’ intervention is a clear demonstration that the ruling of the Honourable Court was compromised in favour of the Defendant as a result of the need to return a favour arising from the close relationship between Amos and Hon. Nelly Chipchirchir.” Kennedy now claims that he was condemned unheard, violating his right to a fair trial under Article 50(1) of the Constitution of Kenya.
The orders required him to provide the minors’ medical cover, pay 100% of school fees in a relatively expensive school, cater for all school-related expenses such as CBC materials, stationery, transport, lunch, and breakfast, and make a monthly payment of Ksh 5,000 to Pamela, who is married and has children with another man.
He argues that the orders failed to consider that both he and Pamela are employed by the Teachers Service Commission and fall within the same job group with the same salary scale. “The orders did not consider that I have a family and personal bills to cater for. They made me the sole source of income for the defendant, who has other children in her current marriage and earns a higher salary than me.” Aggrieved by the new ruling, Kennedy applied for a review of the orders through a Notice of Motion dated 29th April 2024, supported by an affidavit of the same date, where he outlined his financial incapacity to comply with the extremely punitive court orders.
Despite demonstrating the urgency of the application, the court declined to certify it as urgent and did not issue the requested stay orders.
Pamela also failed to file her response as directed by the time the application was set for hearing, contrary to court orders.
On the hearing date, after Kennedy travelled from Nyanza to Mombasa while indisposed, the magistrate declined to preside over the application, citing fatigue.
Upon pursuing complaints of favouritism towards Pamela, the magistrate admitted that she was a friend to Amos, Pamela’s lawyer, and told Kennedy to file his complaints at the Tononoka Police Station. “While at the police station, I was arbitrarily arrested without being informed of any reason for my arrest. After my unlawful detention, the arresting officer kept giving briefings to the magistrate and confided in me that the only person who could successfully order my release was her, since the instructions for my arrest and detention came from her.” Kennedy states that all the issues he had raised in court were altered to appear as criminal in nature, and he was set to be arraigned on 10th September 2024 for criminal charges, only for the magistrate to visit the police station on that date.
He adds that the magistrate admitted that there were two conflicting rulings uploaded into the court’s portal.
He also decries the continued refusal to deliver a ruling on his application, which was initially set for 18th September 2024.
He now wants the commission to find the conduct of the magistrate in clear violation of the Judicial Service (Code of Conduct and Ethics) Regulations 2020 and Regulation 6, which prohibits judicial officers from engaging in activities amounting to abuse of office, such as ordering arbitrary arrests and detentions, contrary to Section 13 of the Leadership and Integrity Act No. 19 of 2012.
He also accuses the judge of violating Regulation 34, which mandates a judicial officer to exercise judicial authority independently, free from personal feelings, prejudice, or bias. View document