The Office of the Director of Public Prosecutions (ODPP) wants the High Court to dismiss a civil suit filed by former Kenya Defence Forces (KDF) Major Peter Mugure challenging the jurisdiction of the court in trying him for the murder of his family.
The former KDF officer is accused of killing his wife Joyce Syombua (31) and two children – Shanice Maua (10) and Prince Michael (5) in November 2019 at Laikipia Airbase.
In her reply to the suit presented before Nyeri Judge Justice Maureen Odero, Principal Prosecution Counsel Varoline Lubanga argues it was malicious for the accused to file the suit at the final stages of his trial.
“The prosecution has already called 23 witnesses and only two are remaining to close the case. Why would the petitioner wait this long before filing this petition? It is not like he is realising now that he is being tried before the High Court and not the Court Martial,” the ODPP said.
In the suit, the former major accuses the Attorney General, the ODPP, the Directorate of Criminal Investigations (DCI) and the Chief of Defence Forces of violating his constitutional rights.
He says that despite being a military personnel, he was arrested and investigated by civil police and he is being prosecuted by civilian prosecutors before the High Court.
He argues that he ought to have been arrested, investigated and prosecuted by the military before a court martial.
Mugure also wants the court to re-arrest Collins Pamba who was previously his co-accused, saying that he ought to be investigated as he misrepresented facts in his witness statements which formed the basis of his plea-bargain agreement.
Pamba was jailed for five years after being found guilty of the offence of accessory to murder. He confessed to assisting Mr Mugure place the bodies of his family in a gunny bag and buried them in a shallow grave in Makaburini area within Nanyuki.
But in her response, Prosecutor Lubanga said the accused had ample time to cross-examine Pamba.
“He should have used the opportunity to question him on the misrepresentations he says are in the document,” explained Lubanga.
According to the prosecution counsel, the High Court has jurisdiction to determine the murder suit because the accused committed the offence in private capacity.
Lubanga said the ex-military man planned and executed the murders as a civilian against fellow civilians thus, the military cannot investigate him as a military officer.
“The Kenya Defence Forces Act (KDFA) also limits the mandate of the Office of the Director of Military Prosecutions to the prosecutions in a court-martial, persons alleged to have committed offences under the Defence Forces Act,” the prosecutor said, adding that military police can only investigate service offences under the Act.
An affidavit presented before the court written by one of the investigating officers Mr Reuben Mwaniki shows that the military never attempted to secure the release of the accused.
“Instead, the military assisted our investigating team to access the scene and interview witnesses who were military officers,” Mr Mwaniki said in the court document.
The civil case became the second suit filed by the ex-military man since he began facing trial for the triple murder charges of his wife and two children.
In a different suit last year, Mr Mugure was awarded Sh2 million by the Employment and Labour Relations Court after finding that he was unlawfully fired from KDF.
In his judgment, Justice Onesmus Makau said the termination was unfair and unconstitutional as it did not meet the legal threshold.
This was after Mr Mugure told the court that he was fired after a disciplinary trial on November 18, 2019 at the Laikipia Airbase.
During the meeting, he said he was not psychologically ready to stand trial as he had just been arrested by civil police on allegations of killing his family.
In the judgment, Justice Makau declined to reinstate him, citing that three years had lapsed since his dismissal and that he failed to present evidence to demonstrate the practicability of his reinstatement.
