Two Italian nationals, Daniele Lo Coco and Massimo Nativi, facing charges of forgery and obtaining Sh. 32 million by false pretenses, have requested that Kilifi Chief Magistrate James Mwaniki recuse himself from hearing their case.
The request follows an order from the magistrate that the accused surrender their passports. The defense argued that the order was an attempt by the court to control their travel schedule without considering the court’s diary.
They further claimed that the magistrate’s actions had led to perceptions of bias, prompting them to seek recusal.
In their application, filed by defense lawyer Muthuri Kinyua, the accused acknowledged that the court had previously apologized for an error made on September 6, 2024.
They accepted the apology, but stated that issues of perceived bias had continued to arise at every stage of the proceedings, and they would request recusal again if new grounds emerged.
However, both the Office of the Director of Public Prosecutions (ODPP), represented by prosecutor Winnie Atieno, and the complainants’ lawyer, Ndegwa Njiiru, opposed the application.
Atieno described the recusal request as lacking merit and claimed it was not made in good faith. She noted that the case had already progressed significantly and that the defense could not keep seeking the recusal of the magistrate every time an order was made against them.
Njiiru echoed this view, calling the application frivolous and an attempt to engage in forum shopping. He stated that the defense should pursue an appeal or a court review if they believed there were grounds for the magistrate’s recusal.
Magistrate Mwaniki acknowledged the recusal application but ruled that the hearing would continue as planned, noting that a witness had already been stepped down twice. He set the next mention date for December 28, 2024.
The magistrate had previously ordered the accused to surrender their passports on November 21, after determining that they had arranged to leave the country just a day after the hearing ended, which he viewed as an attempt to bypass court proceedings by controlling their own travel schedule without knowing the next court date.
The two Italians are accused of defrauding two victims, Rita Nappo and Girola Fiorenzo, by pretending they had the ability to sublease villas in the Watamu area of Malindi.
They allegedly obtained Sh. 17 million from Nappo and Sh. 15 million from Fiorenzo, knowing that the villas were not available for sublease.
The case involves charges from two separate incidents, one occurring between August 30, 2018, and August 1, 2019, and the other between March 21, 2020, and February 24, 2021.
So far, two witnesses Nappo, who was defrauded of Sh. 17 million, and Cosmo Armeno, an Italian translator for the lease agreement—have testified in the case.
