Lawyers representing Pastor Ezekiel Odero, who is under investigations over alleged connections to the killings in Shakahoola, Kilifi County, have accused the government of persecuting Christians.
They made the accusation in court on Thursday, while pleading for his 30 bank accounts and seven M-Pesa lines to be unfrozen.
A decision on whether the accounts will be unfrozen will be made on Friday, trial magistrate Ben Mark Ekhubi said.
He set the date after a charged hearing, at which the Director of Public Prosecutions (DPP), through state counsel James Gachoka, opposed the prayer by Pastor Ezekiel’s lawyers.
Lawyers Martina Suiga, Shadrack Wamboi, Danstan Omari,Samson Nyaberi and Cliff Ombeta argued that the freezing of the 30 accounts by the Directorate of Criminal Investigations (DCI) amounted to persecuting Christians.
“The freezing of the 30 bank accounts and seven M-Pesa lines by the DCI is not a punishment to Pastor Odero but the persecution of his five million followers. The government is persecuting Christians but they will persevere,” Mr Omari said, further describing the punishment as a "calculated move to completely demolish the Church".
Danstan Omari (right), one of Pastor Ezekiel Odero's lawyers, seeks a review of the orders to freeze his 30 bank accounts and seven M-Pesa lines.
Photo credit: Richard Munguti | Nation Media Group
Mr Omari further pleaded with the magistrate to allow their client’s request to review the May 8 freeze orders ex-parte - with one party in attendance.
He further told the magistrate he has jurisdiction to review the freeze and allow Pastor Ezekiel to withdraw between Sh50 million and Sh100 million to finance the church and the Kilifi International School, which has 3,000 students.
In response, State prosecutors James Gachoka and Virginia Kariuki opposed Pastor Ezekiel’s prayer, saying only the High Court can grant such a relief.
“This court lacks jurisdiction to review its own orders. It cannot sit as an appellate court to review its own orders. That power is vested upon the High Court only. Disallow Odero’s review plea,” Mr Gachoka urged the magistrate.
The DPP informed the magistrate that his court lacks capacity to vary its orders since it has limited constitutional powers to revisit its own directions.
"This court exhausted its powers on May 8. It became functus officio (lacking legal capacity) when it granted the freeze order to the DCI for 30 days, to investigate serious crimes including money laundering against Pastor Odero of New Life Prayer Center and Church,"said Mr Gachoka.
Arguing a preliminary objection to the televangelist’s fresh request, Mr Gachoka asked the court to dismiss the prayer for him to be allowed to withdraw Sh50 million for operational costs. He noted that the freeze orders will lapse after 30 days.
Mr Gachoka further told the court that if Pastor Ezekiel is aggrieved by the freeze orders, he can only seek redress at the High Court which has the capacity to revise the orders of the lower court and correct mistakes, if any.
"What Odero is seeking to do is appeal through the back door by circumventing the court orders of May 8,” he said, adding Section 362 of the Criminal Procedure Code allows an aggrieved party to seek a review of the offending subordinate court orders at the High court.
Magistrate Ben Mark Ekhubi, of the Milimani Law Courts in Nairobi.
Photo credit: Richard Munguti | Nation Media Group
The magistrate was also told that the DCI obtained the orders to undertake investigations into a suspected case of money laundering, whose investigations will be interfered with if the court allowed Pastor Ezekiel to argue his plea to have the freeze orders set aside.
Mr Gachoka said a review of the May 8 freeze orders would frustrate DCI in discharging its legal mandate to probe the accounts “in this complex matter which needs to be conducted in a quiet atmosphere”.
"That any access and withdrawal of monies, whether by a shilling or the Sh50 million, will highly prejudice the investigations and might tamper with the crucial evidence. This is a matter of great public interest and the court should allow DCI to complete investigations."
The prosecutor also urged the magistrate not to be swayed by the emotional submissions by the defence - that the freezing of the accounts amounted to the persecution of Christians by the government.
Magistrate Ekhubi said he would let the parties know whether he would deliver Friday’s ruling physically or virtually.
