Nyeri Magistrate Pauline Chesang at the Mavoko court. [Standard]

Nyeri Magistrate Pauline Chesang and four others accused of killing her husband Robert Chesang are out on Sh500,000 bail.

Justice George Odunga on Friday ordered the accused to deposit their passports in court.

They will also report to the Deputy Registrar monthly.

Chesang's family, however, opposed Pauline's release.

Through lawyer Vincent Kiptoon, they said, “Real prejudice will be occasioned if this court handles this matter and that will be a compromise to the rights of the victim. The alternative court in Machakos recused itself from hearing this matter upon the application of the first accused person on the grounds of tribal and ethnic background of the judge and the deceased."

The court dismissed calls to move the case from Machakos.

According to court papers filed by Chesang’s family through Kiptoon, fair administration of justice will not be achieved if the case is heard and determined in Machakos.

The late Robert Chesang and his wife Pauline Omung'alla in an undated photograph. [File, Standard]

Robert's family, in an application filed under a certificate of urgency, wants Odunga to recuse himself from handling the matter. 

Some of the issues raised by the family against the hearing and determination of the case by Odunga are the fact that the judge had earlier handled other cases involving Chesang’ and his wife, which in its submissions might prejudice the final outcome.

The family further argues that an alternative court within Machakos recused itself from hearing the matter upon the application by Pauline on grounds of ethnic background of the judge and Chesang’.

“We do not wish to be referred back to the same judge, neither do we wish to revisit the grounds laid then. But for the interest of justice and for fairness and for justice not only to be done, but seen to be done, we ask this court to transfer the matter to another court,” they said.

In a sworn affidavit, Chesang’s brother Nehemiah Chesang', said the lawyer, at some point, felt frustrated by the same court.

“The deceased did not get justice before this court when he was alive. It, therefore, goes without saying that the deceased will not get justice when he is dead before the same court,” he said.

In his affidavit, Chesang’s brother also appeared to advance a similar argument raised by Omungalla on the previous court.

“This court also comes from the same ethnic background with that of the first accused, and therefore, there is a reasonable apprehension that the court will not be impartial in determining this matter,” he said.

Chesang', 46, was shot dead through the window of his house in Moke Gardens Estate in Lukenya.

Preliminary investigations indicated that Chesang' had expressed fear for his life prior to his killing and remained indoors for two days.

A guard, who was on duty the day Chesang was killed, told police that two gunmen arrived at about 12.30pm and demanded to be led to Chesang’s house.

They knocked at his door and when the lawyer peeped through the window curtains, one of the gunmen opened fire killing him on the spot.