A magistrate has rejected a plea to free on a technicality seven suspects accused of killing former Kabete MP George Muchai nine years ago.
Instead, the magistrate ruled he would give a verdict on the robbery with violence charges despite the seven failing to defend themselves hoping to be acquitted on claims the charge sheet was defective.
It was a rude shock for the suspects who were waiting for a ruling on their application to declare charges filed against them unconstitutional only for the magistrate to rule he would give a judgment next month.
“Section 296(2) of the Criminal Procedure Code (CPC) is a nullity in law. It is unconstitutional and therefore there is no case upon which the suspects can be called upon to defend themselves. The only option for this court is to acquit them and let them go scot-free,” the defence lawyer Stephen Ongaro told the trial magistrate Lucas Onyina on Monday (September 16).
Mr Ongaro who urged Mr Onyina to free the suspects said “they have been detained for nine years on a flawed charge."
"The Director of Public Prosecution-DPP- has all through known the robbery with violent charges against the suspects are unconstitutional and illegal as they were drafted, signed and filed by the police.”
Quoting a decision of High Court Judge Antony Mrima, Mr Ongaro said all the police-generated charge sheets were declared illegal as they offend a ray of sections of the constitution.
He added that the charges filed against Eric Isabwa, Raphael Kimani, Mustapha Kimani, Stephen Astiva, Jane Wanjiru, Margaret Njeri and Simon Wambugu were pegged on Section 296(2) of the CPC which he said cannot stand on its own as it draws its legal basis from Section 295 of the Penal Code (PC), which criminalises violent robbery.
“On its own Section 296(2) of the CPC, under which the seven are charged, cannot stand independently. Therefore, the charges against the seven of killing Muchai, his two bodyguards Samuel Kailikia and Samuel Matanta, and his driver Stephen Wambugu on February 7, 2015, on Kenyatta Avenue, in Nairobi dies a natural death,” Mr Ongaro submitted.
Mr Ongaro said although the case was listed for defence hearing the suspects cannot be called upon to defend themselves as the charges fall by the wayside in the face of the Constitution and the High Court declaration on the legitimacy of Section 296(2) of the CPC.
Responding to the plea by the seven, prosecuting counsel Willy Momanyi said the charges were legally valid and constitutional.
Mr Momanyi said the application lacks merit as the 10 charges against them are within the legal threshold.
He added that the application was made too late in the day and could only be misconstrued to be a ploy by the accused and defence lawyers to delay the determination of the case that was commenced nine years ago.
In a bid to establish whether the accused were to defend themselves, Mr Onyina asked “Does this application mean that the accused have nothing to say in their defences.”
Mr Ongaro answered that there was nothing for the accused to defend against as the law had vindicated them.
"This case was coming for defence hearing but the accused persons have declined to tender defences.I will proceed to write my judgement based on the evidence that has been tendered. I will render my judgement on October 22,2024 at 2pm,"Mr Onyina stated.
Both the accused and the defence were thrown into a state of confusion by the dramatic twist of events.
Mr Onyina had earlier noted that there were previous similar applications the accused had made attacking the legality and validity of the charges.
The accused who have denied violently robbing the deceased are also facing a separate murder case of killing Muchai, his two bodyguards Samuel Kailikia and Samuel Matanta, and his driver Stephen Wambugu on February 7, 2015, on Kenyatta Avenue, in Nairobi.
The accused have also denied multiple charges of violently robbing Muchai’s sisters Gladys Waithera and Irene Muthoni.
The two sisters are also witnesses in the murder case where, Mr Onyina heard the robbery incident was heavily quoted in the murder trial.
The magistrate court has since found the seven have a case to answer after the prosecution presented 36 witnessed in its bid to prove its case against them.
