By ADEN KIPRUTO
The High Court has dismissed an application by former Nairobi Provincial Commissioner Davis Chelogoi seeking to have the magistrate handling his Sh1.3 billion land fraud case replaced, clearing the way for the long-running criminal trial to proceed to conclusion.
Sitting at the Milimani Law Courts, Justice Alexander Muteti directed that the matter proceed before the trial magistrate who has been handling it, while allowing Chelogoi to seek her recusal before the same court if he wishes.
“The matter will proceed in the subordinate court before the trial magistrate for conclusion, but the applicant can file an application for her recusal in the same court if he wishes to,” Justice Muteti directed.
The ruling gives the prosecution and the accused a clear path towards concluding a case that has been delayed by a series of applications filed before the High Court seeking various orders.
Chelogoi and his co-accused, Assistant Deputy Director in the Lands Administration Office Andrew Aseri Kirungu, are accused of conspiring to defraud businessmen Ashok Rupshi Shah and Hitenkumar Amritlal Raja of a 7.39-hectare parcel of land along Lower Kabete Road, Nairobi, valued at Sh1.3 billion.
The case had proceeded before Milimani Chief Magistrate Dolphina Alego, who heard evidence from more than 18 prosecution witnesses before ruling that the two accused persons had a case to answer and placing them on their defence.
As the first accused, Chelogoi was required to tender his sworn defence before Alego when he made a surprise application seeking her recusal from the proceedings.
Chelogoi claimed the magistrate was biased and should therefore not continue hearing the matter.
In her ruling, Alego said recusal of a judicial officer must be supported by sufficient grounds arising from surrounding facts or the appearance of bias.
She warned that unnecessary recusal applications could undermine the independence of the Judiciary and the decisional independence of judicial officers.
The magistrate declined to recuse herself, finding that Chelogoi’s application lacked merit and was intended to delay conclusion of a case that had already reached its tail-end.
The dispute subsequently escalated to the High Court.
Kirungu, on his part, urged the trial court to proceed with the case and determine it on its merits.
Chelogoi has previously petitioned the High Court twice seeking to have the criminal proceedings against him quashed. Judges Alexander Muteti and Oscar Angote dismissed the respective applications.
During the High Court proceedings, it emerged that the disputed property is registered under two parallel title deeds, one bearing Chelogoi’s name and another held by businessmen Rupshi Shah and Raja.
Justice Muteti also dismissed Chelogoi’s application seeking permission to institute judicial review proceedings against the Office of the Director of Public Prosecutions (ODPP) and the Directorate of Criminal Investigations (DCI).
The judge further dismissed an application seeking review of Alego’s decision directing that the criminal trial proceed to its logical conclusion.
After the case file was returned to the Chief Magistrate’s Court, Chelogoi, through his lawyer, applied for it to be transferred to Principal Magistrate Rose Ndombi to determine the matter.
State prosecutor Hillary Isiaho opposed the request and urged the court to return the file to Alego in line with directions previously issued by the High Court.
Isiaho argued that the accused persons should proceed with their defence before the magistrate who had heard the prosecution case.
In his ruling, Chief Magistrate Lucas Onyina noted that the trial had reached an advanced stage, with the prosecution having completed presentation of its evidence and the accused persons having been placed on their defence.
“The matter has reached the tail end since the prosecution has produced all the witnesses in support of their case and the accused put on their defence,” Onyina said.
He observed that an application seeking recusal of the trial magistrate could have been made before the hearing commenced rather than after the prosecution had called all its witnesses.
“I have noted that the accused persons are on their defence after the prosecution produced 18 witnesses to support their case,” Onyina said.
He consequently referred the file back to Alego for the trial to continue.
In his ruling delivered on August 17, 2026, Justice Muteti upheld the decision to have the case proceed before the trial magistrate and directed that the matter be concluded.
However, the judge gave Chelogoi liberty to make a fresh application for the recusal of the magistrate before the same court should he still wish to pursue the matter.
The decision effectively removes the latest hurdle standing in the way of the conclusion of the fraud case, although Chelogoi retains the option of pursuing recusal through the trial court.
Chelogoi and Kirungu were charged in 2023 with fraud-related offences arising from the disputed ownership and dealings involving the Lower Kabete Road property.
