The prosecution of Turkish tycoon Osman Elsek, over the defilement of three minors and child prostitution, will start afresh after the High Court discovered irregularities that could lead to a miscarriage of justice, for both the victims and the foreigner.
Malindi High Court Judge Reuben Nyakundi has ruled that the entire trial process was marred with procedural irregularities and illegalities.
The court has faulted the trial process the foreigner was taken through, from the first time he was arraigned in Shanzu court, Mombasa and subsequent illegal transfer of the trial to Malindi court, Kilifi County.
“The power of transfer ought to have been exercised with due care and attention as the session Magistrate with jurisdiction could not possibly transfer the case to the Chief Magistrate at Malindi, which is superior in ranking to his court,” ruled Justice Nyakundi.
According to the judge, when it became necessary for the case to be transferred from Shanzu to Malindi, the petition for transfer was to be made before the High Court, in regard to the judiciary hierarchy.
The court also read malice in the manner in which the case has been prosecuted and ordered the same be transferred and tried where the alleged offence took place.
The Directorate of Public Prosecutions, the court noted, violated the law, when it failed to prosecute the case, where the offence is alleged to have taken place.
“The discretion exercised by that magistrate, without any extenuating circumstances attempts to vex, harass or oppress the accused and witnesses,” he said.
Mr Elsek is facing numerous sexual offences against three minors. He moved to the High Court to protest the conduct of the prosecution and the magistrate court in the matter. He complained of malicious prosecution by the state.
He is accused of sexually abusing the three minors, the offences he has denied committing in 2018 at his residence in Kikambala.
Most of the witnesses, in this case, have been declared hostile after recanting their testimonies, further dealing a blow to the prosecution’s case.
Malindi Magistrate Julie Oseko last year recused herself from the case after the foreigner protested her conduct in the matter. Her conduct, the foreigner alleged, had led to gaps in the court proceedings.
Mr Elsek has also protested the DPP’s move to withdraw criminal charges against one of the key witnesses in the case. The witness was facing a criminal case before another court, but the same was withdrawn last year, under unclear circumstances.
The foreigner wanted to use the proceedings in that matter to prove that the witness is a liar, whose testimony cannot be relied upon.
However, the directive that the case begins afresh, before a new magistrate, has come as a relief to the foreigner, who has questioned the conduct of the prosecution and the court in the case.
“In all these, the ends of justice in spite of the delay that may be occasioned would be served best, if the proceedings commence denovo in that other Court,” said Justice Nyakundi.
The DPP, however, protested that the trial is at an advanced stage and the remaining stretch is far much shorter, so the process should not be disturbed as it might prejudice a fair trial.
The court noted that the DPP has a statutory obligation to commence or institute any criminal proceedings within the local Courts, where the offence was committed unless there are exceptional circumstances that exist to surrender it.
