NCIC wants Justice Wasilwa to recuse self from CEO's case over 'biasness'

National Cohesion and Integration Commission (NCIC) chairman Samuel Kobia when he appeared before Senate's Cohesion Committee at KICC, Nairobi on March 15, 2023. [Elvis Ogina ,Standard]

A state agency wants a judge to recuse herself from a case involving its suspended Chief Executive Officer.

In an application filed at the Employment and Labour Relation Court in Nakuru, the National Cohesion and Integration Commission (NCIC) chairperson, Dr Samuel Kobia, accuses Justice Hellen Wasilwa of being biased in a case filed by the suspended agency CEO Dr Skitter Wangeci.

Wangeci has challenged her suspension and planned investigations over an alleged criminal offence, gross misconduct, insubordination and violation of the commission policy.

She was suspended on April 5, 2023, as NCIC investigated her for allegedly forging her Appointment Letter and adding two more years to the three years she was contracted for.

Dr Kobia avers in his application that the way the judge has been conducting the proceedings, suggests that she is biased against the commission and favours Wangeci.

He says he is apprehensive that if Justice Wasilwa is allowed to continue handling the case, the commission would be treated unfairly and not be accorded justice.

The state agency claims that Wasilwa has not only a close relationship with Dr Wangeci, but with Wangeci's husband, who is Justice Kebira Ocharo of the ELRC court in Nairobi.

Kobia deposes that Judge Ocharo actively participated in discussions on an out-of-court settlement in April this year, which collapsed.

"The commission believes that Ocharo is exerting undue influence in the conduct of the matter and is influencing all the outcomes given by Wasilwa," the commission states.

The NCIC further avers that Wasilwa unreasonably stopped its commissioners from conducting any disciplinary proceedings against Wangeci.

NCIC notes that Wasilwa issued the above orders on February 20, 2023, a month before the commission started investigating Wangeci for forgery.

However, on May 30, 2023, the NCIC states that the judge erroneously interpreted her orders to mean that the commission was barred from conducting all disciplinary processes against Wangeci.

"The court only barred the commission from disciplinary processes concerning a show-cause letter dated November 10, 2020. The judge cannot claim the orders apply to a new disciplinary process," submits Kobia.

As a result of Wasilwa's interpretation, Wangeci has now filed a contempt case against six NCIC commissioners, including Kobia.
Kobia believes that Wasilwa has already pre-conceived the outcome of her ruling on the contempt case, and she may find them guilty and jail or fine them unfairly.

"The court may condemn NCIC commissioners unfairly if Judge Wasilwa continues to preside over the case. She should recuse herself and the matter placed before another court," the NCIC chair states.

Kobia further notes that it was weird and mischievous for Wangeci to file her case in Nakuru when her place of work is in Nairobi.

In response, Wangeci through her lawyer Ezra Makori, denies claims that she has a close relationship with Wasilwa, adding that no proof has been availed by NCIC.

She states that she filed the case in Nakuru to avoid a conflict of interest if her case was to be filed in Nairobi courts, where her husband presides as a judge.

"The allegations against Judge Ocharo have not been backed by evidence, and I deny that he was involved in out-of-court negotiations," she submits.

She wants Wasilwa to continue hearing the case and first deal with the contempt case against NCIC commissioners.

Wangeci first moved to court on February 20, 2023, after she was served with a show-cause letter on November 10, 2022, citing her for gross misconduct, insubordination and violation of NCIC policies.

She was accused of acting contrary to instructions that all senior staff were obliged to attend the retreat from October 9, 2022, to October 15, 2022.

"You are accused of recruiting three members of staff without approval and using NCIC's vehicle to Mombasa contrary to a decision made on October 8, 2022," read the show-cause letter filed in court.

She was also cited for failing to implement a Sh100 million budget, even after it was approved by the commission and refusing to provide staff and commissioners with calendars.

Wangeci allegedly failed to follow up on a Sh35 million grant promised to NCIC by the Common Market for Eastern and Southern Africa (COMESA).

"You also failed to follow up on projects discussed by the commission delegation to the USA," read the letter.

However, she denied the claims in a response letter to the commission dated November 30, 2022, and accused the commission of having a predetermined move to suspend her from work.

She added that the process of her termination was unfair as there were no investigations, and she was never served with proof to enable her to defend herself.

She attached her appointment letter, which stated that she had been employed for a term of five years from December 1, 2020.

The commission used the same letter to commence the investigation, insisting NCIC only hired Wangeci for a term of three years and not five.

The case will be mentioned on June 29.