The High Court has declined a request by the Director of Public Prosecutions to transfer the murder trial of a former police boss, who was feted for bravery during the Westgate Mall terror attack, from Machakos to Milimani in Nairobi.
The DPP wanted the trial of Stephen Lelei, who is charged alongside his junior Fredrick Leliman with the killing of two people, to be conducted in Milimani for easier monitoring and quick delivery of justice.
In the application, the DPP indicated that there is another murder case involving Mr Leliman which is ongoing at Milimani and the transfer of the Machakos case would be convenient and meet the ends of justice.
The case at Milimani involves the 2016 murder of human rights lawyer Willie Kimani, his client and a taxi driver where Senior Sergeant Leliman is charged alongside four others.
In the Machakos case, Mr Lelei, a former OCS, and Mr Leliman are being tried for the murder of Jacob Mwenda and Elizabeth Nduku in 2016 in Mlolongo town.
When urging the court to transfer the case to Milimani, the DPP was of the view that the move will also make monitoring of the cases to be managed from one court and also from the same homicide division.
It was submitted by State counsel that both defence counsel for the accused are based in Nairobi and that the transfer would ease presentation of witnesses by the Independent Police Oversight Authority (IPOA).
The State counsel was quick to add that the purpose of the transfer was for convenience purposes and not for lack of faith in the court.
But Justice David Kemei ruled that the application lacked merit because the murder incident, for which the officers are being prosecuted in Machakos, took place within Mlolongo area. He said this means that witnesses are within reach and can be reached easily.
“It has been indicated that the Milimani case is at an advanced stage whereby all witnesses, except the investigating officer, have testified and thus any consolidation of that case and this one might not be meaningful and will not serve the cause of justice and expediency,” said the judge.
Justice Kemei found that the prosecution, in liaison with its homicide section in Nairobi, can comfortably handle the Machakos matter in Machakos.
“Suffice here to add that the prosecution has indicated that it has no problem with the court as it has faith in it. That being the case, then the prosecution’s request for a change of venue has no merit,” he ruled.
He added that the DPP’s application did not disclose sufficient justification for change of venue of the hearing of the murder case.
On their side, the two officers were opposed to the transfer with one of their lawyers saying the DPP was doing “forum shopping".
This typically refers to the act of handpicking a venue in which to try a case for purposes of gaining some unfair advantage or opportunity to throw the dice in one's favour.
