The Court of Appeal has pushed the hearing of an appeal by Gilbert Masengeli to next week, despite pleas by the acting Inspector-General of Police to hear his case urgently.
Justices Gatembu Kairu, Weldon Korir and Aggrey Muchelule directed the matter be handled next week following an application by the Law Society of Kenya (LSK) for more time to respond to the application.
Through his lawyer Cecil Miller, Mr Masengeli argued that he moved to court under a certificate of urgency because High Court judge Lawrence Mugambi granted him a grace period of up to September 20, failure to which the six months jail sentence would apply.
“We have considered the application by the LSK and are of the view that it is a reasonable request as they need sufficient time to file their response,” Justice Kairu said in the ruling.
The judges directed that both applications – one filed by Attorney-General Dorcas Oduor challenging Masengeli’s conviction and the one by the Masengeli – will be heard together.
In the application, Mr Masengeli said requiring him to appear before Justice Mugambi to escape a custodial sentence, yet he has challenged the entire decision, is not permissible as it may compromise the integrity and urgency of the intended appeal.
“The learned judge, having convicted (condemned) the applicant unheard, further denied him the right to mitigate despite protests from the applicant’s counsel,” Mr Miller said.
He added that the court “conveniently ignored” an affidavit explaining the police position on the missing brothers Jamil and Aslam Longton and activist Bob Micheni Njagi, and insisted on his personal attendance.
Mr Masengeli further said the court attendance did not require him to appear personally as he had sent the Deputy Inspector-General of police Eliud Langat to represent him and filed and tabled an affidavit of the Directorate of Criminal Investigations officer, Kitengela.
“That the superior court’s decision condemned me unheard, grossly violating my non-derogable right to fair trial as provided under Article 25 of the constitution,” he added.
He further said Justice Lawrence Mugambi’s decision may have been influenced by other considerations.
“Further, the applicant prays that the honourable court do hold that if the applicant is sent to jail, he would be unable to recover the time and freedom lost, in the event his appeal was successful after he had been imprisoned,” Mr Masengeli said in an affidavit.
