The Director of Public Prosecutions is seeking to have fugitive Kevin Kang'ethe detained at the Industrial Area Remand Prison pending his extradition to the US over the alleged murder of his girlfriend Margaret Mbitu last year.
Prosecution counsel Vincent Monda urged Chief Magistrate Lucas Onyina to order that Mr Kang'ethe be remanded at Industrial Area Remand Prison for his safety.
Contrary to the defence lawyers' claims, the prosecution said it was not seeking to limit Mr Kangethe's access to legal counsel and assured the court that he would have access to his legal team while on remand.
Mr Monda urged the magistrate to grant the DPP's plea since the remand prison is a safe place to keep Mr Kang'ethe pending the extradition proceedings.
"I urge this court to make an order that Mr Kang'ethe be detained at the Industrial Area Medium remand prison to secure his attendance in court," urged Mr Monda.
He was re-arrested on Tuesday at the house of a relative in Ngong, Kajiado County.
"Once bitten, twice shy. We can't take that risk. We humbly ask the court to grant us the orders sought," Mr Monda said.
Mr Monda further said the conduct and character of Mr Kang'ethe to defy a court order that he remains at Muthaiga Police Station pending determination of extradition proceedings, has jeopardised his chances of securing freedom on bond.
Murder suspect Kevin Kang'ethe in court after a 5-day manhunt, captured in Ngong
However, the prosecution pointed out that if Mr Kang'ethe required medical attention, it should be provided in consultation with the government doctors attached to the Industrial Area Remand Prison.
Mr Monda also requested that visitations to Mr Kang'ethe, by either relatives or his lawyers, be made in the presence of the lead investigating officer Patrick Wachira.
"The presence of the investigating officer does not amount to violation of one's rights to privacy, but is to ensure the visitations are monitored by detectives to avoid a repeat of unlawful escape," he said.
But the defence team, led by Antony Kago and David Muthama, opposed the prosecution's application, saying Mr Kang'ethe had not been charged with any offence to warrant his detention.
"To detain Mr Kang'ethe at the prison remand is a violation of his rights since he has not been charged with any known offence in law," Mr Kago said.
The lawyer said that what is pending before the court is "a nation-to-nation request that is yet to be acceded to."
The defence team told the court that their client is only facing extradition proceedings, which are neither criminal nor civil.
On January 31, 2024, the DPP applied to have Mr Kang'ethe be detained at Muthaiga Police Station for 30 days pending extradition proceedings to hand over the fugitive to the US authorities to face murder charges.
Mr Kago said Principal Magistrate Zainabu Abdul granted the DPP's request to have Mr Kang'ethe detained at Muthaiga Police Station pending the extradition proceedings.
The defence lawyer said it therefore amounts to an illegality and a violation of his client's rights to vary the initial order that he remains in police custody.
Mr Kago urged the magistrate to decline the request by the DPP to detain Mr Kang'ethe at Industrial Area Medium remand prison and maintain the initial order to detain him at Muthaiga Police Station.
In a quick rebuttal, Mr Monda urged the magistrate to take judicial notice of the change of circumstances, given that Mr Kang'ethe escaped from police custody and the only safe and assured place is the prison custody.
Mr Monda said while the prosecution is yet to complete and file a written submission, the defence team is yet to furnish the DPP's office with a written replying affidavit.
