Court upholds Shakahola massacre trial adjournment

Suspects linked to the Shakahola massacre have suffered a blow after the High Court ruled that the cash crunch facing the Office of the Director of Public Prosecutions (ODPP) is a valid reason to adjourn their trial.

Justice Wendy Micheni ruled that a cash crunch is a novel ground for seeking an adjournment, but noted that the rules for granting such requests are not cast in stone.

She added that times change constantly and one should remain open-minded.

While issuing the ruling dated December 30, the judge agreed with the ODPP's submissions that, at times, justice hurried is justice buried.

“When judges, magistrates, or even prosecutors are pressured to make hasty decisions, they may overlook important evidence or aspects of the case or make mistakes. This can lead to wrongful convictions, acquittals of guilty persons, or other unjust outcomes,” said Justice Micheni.

Therefore, the judge noted that the courts ought to strive to find a balance between timeliness and thoroughness to avoid this trap.

Read: Revealed: How Paul Mackenzie, his army attempted to conceal Shakahola graves

“I agree with the ODPP that the directions given did not give them adequate time to prepare themselves and the witnesses and this greatly prejudiced their progress. I find that its application has merit,” said the judge.

Justice Micheni further directed both parties in the case to proceed with the trial with proper directions.

“If the cash crunch has not yet been resolved, the ODPP ought to have adequate time for the pretrial between the witnesses, the resident and remotely based prosecutors,” said the judge.

This ruling means that the trial of the Shakahola cases will only proceed if the ODPP resolves its cash crunch, which has impacted the smooth running of cases.

The ODPP moved to the High Court in November last year after the Tononoka Children’s Court declined to permit the ODPP to postpone the trial to February this year, to allow the office to address financial challenges that it said had adversely affected its prosecution of the case.

Read: Shakahola massacre: How Paul Mackenzie duped us

Senior prosecutors Peter Kiprop and Jami Yamina requested the High Court to halt the proceedings, where Mackenzie and 38 others are accused of offences related to child neglect, cruelty, and violation of children’s rights to basic education.

They also asked the court to call for and examine the record of the criminal case to satisfy itself as to the correctness, legality, and or propriety of the Children’s Court's ruling delivered in November, denying the prosecution its request for an adjournment.

The prosecution had sought for at least three weeks to try to sort out their in-house matter.

“The magistrate failed to consider relevant factors— including that the non-resident prosecutors in the conduct of the matter, and not just the witnesses, could not make it to court for pretrial-and trial in the case of the latter-was due to a reasonable explanation of financial challenges,” said Mr Kiprop.

The prosecutors also argued that despite the court's directions of September 26, that the virtual witnesses would attend court virtually from December 4 to 5, the magistrate reneged on the said directions that witnesses as listed would be required to attend physically on the week of November 25-28.

Read: No more courtroom banter as gravity of case hits Paul Mackenzie

The prosecutors also lamented that the trial court ordered a virtual video conference to proceed on November 21 and 22, where they were to prosecute the case in conjunction with a counsel who was neither resident to the Tononoka law courts nor conversant with the facts and proceedings in the case.

“The magistrate appointed another prosecutor not well versed and prepared to tackle the case to assist the virtual prosecutor without considering the competing needs of other cases and other courts in Shanzu where the prosecutor was to appear before,” said Mr Kiprop.

The defense, led by Lawrence Obonyo was, however, largely concerned that the ongoing back and forth between the state and the court could further delay the case, urging the court to strike a balance between the circumstances the ODPP finds itself in and the rights of the accused to a fair and expeditious trial.

It has also emerged that there are no rules or practice directions under section 63A of the Evidence Act or any law allowing for remote or virtual prosecution where the prosecutor appears online away from court.

Justice Micheni has acknowledged this, noting that there are no proper guidelines (Practice Directions) in that area regarding the virtual trial of criminal cases as the available regulations only cover civil cases.

“As pointed out above, there is a pressing need for clear practice directions regarding the procedure and process for handling virtual hearings, proceedings, production of evidence, and processing of transcriptions in criminal cases,” said the Judge.

Currently, the Judiciary has adopted various guidelines to align with advancements in technology as it dispenses justice.

They include the Practice Directions on Electronic Case Management which were gazetted in 2020 under the Civil Procedures Act, Practice Directions on Standardisation of Practice and Procedures in the High Court gazetted in 2022, the High Court of Kenya Practice Direction on Proceedings before the Commercial and Tax Division in Nairobi and Practice Directions for Virtual Court Sessions, gazetted in 2023.

According to the judge, the above guidelines and directions have a heavy leaning towards civil procedure.
“The criminal procedure varies significantly in various aspects such as how evidence is handled during virtual hearings. As much as we have pre-trial and disclosure of the evidence, the same is not filed in court in advance and it is important to set out the dos and don’ts. This needs the input of the ODPP,” said Justice Micheni.

She added that there is also a lack of proper guidelines on transcriptions in criminal cases since the proceedings are taken in the languages that the accused person best understands.

“Courts have had to improvise as we move along this digital journey. The Deputy Registrar to ensure that a copy of this ruling is availed to Chief Justice Martha Koome and the Registrar Automation for further action in liaison with the administration,” said the judge.

In this case, Kilifi preacher Paul Mackenzie and 38 others have been charged with 17 counts related to violating children’s rights, including the right to basic education.

The court has been told that Mackenzie and his group tortured children by slapping and whipping them while enforcing the deadly fast in Shakahola forest that claimed over 429 lives.

The children are aged six to 17 years.

Documents supplied to the court reveal that the children were deprived of food and subjected to physical abuse, including slapping, beating, and flogging with thorny sticks that tore into their skin, ultimately leading to their injuries and starvation.

According to the records, Mackenzie, Smart Deri Mwakalama alias Mzee Smart, Stephen Sanga Muye alias Steve alias Steve wa Mtwapa, and Evans Kolombe Sirya carried out the whipping.