Controversial preacher Paul Mackenzie has complained about the 191 murder charges he faces, describing them as oppressive. Mackenzie and his 29 co-accused were charged with the murder of 191 children in Kilifi's Shakahola Forest.
Through his lawyers, he asked the court to reduce the charges on the grounds that he was likely to suffer prejudice.
Mackenzie complained that the many charges did not comply with the law, which requires that no more than 12 counts be contained in a single charge sheet.
He further complained that the charge sheet was defective in several respects as it contravened the provisions of Section 134 of the Criminal Procedure Code (Cap. 75) Laws of Kenya.
"The number of counts in the charge sheet, 191, is oppressive and violates the constitutional rights of the accused," his lawyer James Mouko told the Malindi Court.
Suspected cult leader Mackenzie denies murder charges in Shakahola case
According to him, the numerous charges will subject the suspects to a delayed determination of the case and violate the principles of fair hearing as enshrined in Article 50 of the Constitution of Kenya and other constitutional provisions.
The murder suspects asked Justice Mugure Thande to defer their plea until their objections to the numerous charges are heard and determined.
But Principal Prosecution Counsel Victor Owiti told the court that the law allows an accused person to take a plea before raising a complaint on the charges against him.
"The court can deal with the preliminary objection to the charges after the suspect pleads to the charges. Not even the objection can stop the plea-taking. In the same breath, the court will only clothe itself with jurisdiction to handle the case once the plea is taken," the prosecutor said.
The judge overruled Mackenzie and directed the suspects to take a plea pending the hearing and determination of the preliminary objection he had filed against the charges.
The court was told that Mackenzie and the other suspects jointly murdered the children in a deadly fast that also led to the death of 429 people, followers of his Good News International Church.
The names of most of the children who died have not been released, although the state claims that 80 of the victims have been identified.
According to the charge sheet read in the Malindi High Court, Mackenzie and his group conspired to kill Nathan Mathu, Evabra Dito, Seth Ngala, Sifa Edison and 187 other children in Shakahola area of Kilifi County.
However, the suspects denied the charges when they appeared before Justice Thande.
"We have received the mental assessment report, all the suspects except Evans Kolombe are fit to stand trial. They can proceed to plead to the charges," Deputy Director of Public Prosecutions Victor Mule told the court.
The prosecutor also asked the court to allow the State one month to observe Mr Kolombe, who is still undergoing treatment.
"We will return to the court in a month's time with a report on the next cause of action. The recommendations we will make will depend on the outcome of the mental treatment the suspect is undergoing," the prosecutor said.
Mr Kolombe is one of the key suspects, said to be Mackenzie's right-hand man, who investigators claim was instrumental in enforcing the deadly fast.
He is paralysed and unable to walk. He is wheeled into the courtroom at every court session, usually carried in a vehicle used by officers from the Directorate of Criminal Investigation.
His lawyer said he was not aware of any mental challenge he might be suffering from other than being paralysed.
"Mr Kolombe was in good health at the time of his arrest, all this happened while he was in custody. All we know is that he is paralysed. We are not aware of any mental illness he may be suffering from," said Mr Mouko.
The prosecution also asked the court to defer the application for bond until the complaint by Mackenzie is heard.
The suspects' lawyers asked for time to file their documents in support of their application for reduction of the number of counts and for bail.
Meanwhile, the prosecution objected to an attempt to transfer Mackenzie from Shimo La Tewa Prison, where he is currently being held, to Malindi GK Prison, where his lawyer had proposed to meet him.
"Mackenzie is already serving 18 months imprisonment. It would be administratively difficult to transfer him to another prison. His advocate can meet him either in Shimo or here in court for any discussion," said Mr Owiti.
The prosecution team, which also included Mombasa Deputy Director of Public Prosecutions Peter Kiprop and Ngina Mutua, have indicated that they will oppose any attempt to release Mackenzie on bail.
Justice Thande directed all parties to file and exchange their documents before the two applications are heard.
The prosecution was also directed to supply Mackenzie and his group with all documentary evidence on which it intends to rely in the case.
At the same court session, Mary Kadzo Kahindi and Anne Anyoso, the only women charged with murder, pleaded with the court to direct the prison authorities to help them shave their heads.
Mr Makasembo lamented that his clients had tried to shave their heads but their pleas had fallen on deaf ears.
"They want to shave their hair but it has not been possible. We are asking for the intervention of the court," the lawyer said.
The prosecution, however, did not oppose this application.
The court also directed that all personal belongings taken from the suspects and kept in Kilifi prisons be returned to them.
