Seven suspects linked to the murder of former Kabete MP George Muchai have received an unexpected blow after the court set the judgement date for October 22, 2024.
This come after the suspects, charged with robbery with violence and the murder of Muchai, his aides, and a driver, declined to tender their defence once again.
“The case was coming for a defence hearing but the accused persons have declined to tender defences. I will deliver my judgment on October 22, 2024, at 2 pm,” Milimani Chief Magistrate Lucas Onyina ruled.
The defence team, led by lawyer Stephen Ongaro had made multiple applications challenging the validity of the charges while seeking to have the accused persons discharged on claims the charges they face are illegal and non-existence in law.
Erick Muyera Isabwa alias Chairman, Raphael Kimani alias Butcher, Mustafa Kimani alias Musto, Stephen Asitiva Lipapo alias Chokori, Jane Wanjiru Kimani alias Shiro, Margaret Njeri alias Waciuri, and Simon Wambugu Gichamba, are charged with robbery with violence and murder of Muchai and his aides in February 2015.
The case has been a protracted legal battle, marked by the accused persons repeated requests to be freed, claiming that the charges against them are unconstitutional and therefore invalid.
They urged the court to terminate the charges as it was illegal for them to be called to give defences of non-existence and unconstitutional charges.
Ongaro, representing the accused persons, argued that the charges are illegal based on a 2016 High Court decision that declared robbery with violence charges unconstitutional.
He also referenced a 2021 ruling by Justice Anthony Mrima, which invalidated charges drawn up and filed by the police, asserting that these charges were also unconstitutional. Ongaro contended that the current charge sheet is defective, as it fails to meet the legal requirements for a valid charge.
He claimed that the legal framework for robbery with violence, particularly sections 295 and 296 of the Penal Code, does not exist in Kenyan law. Ongaro’s argument focused on the technical aspects of the law.
He pointed out that Section 295 of the Penal Code defines robbery but does not explicitly incorporate the elements of violence as described in Section 296.
According to the lawyer, there is no offence known as “robbery with violence” in Kenyan law, as Section 296(2) mandates the use of violence, which is not correctly reflected in the charge sheet.
Unconstitutional
The accused persons had sought to have the case dropped based on the September 2016 finding by a three judge bench of the High Court that argued that five sections of the Penal Code penalising robbery with violence and attempted robbery with violence were unconstitutional in the case of Joseph Kaberia Kahinga and 11 others.
Led by Isabwa, the accused said that they were charged with robbery with violence contrary to section 296(2) of the penal code which has since been declare unconstitutional by justices Jessie Lessit, Stella Mutuku and Luka Kimaru.
They accused the Attorney General of failure to amend Sections 295, 296(1), 296(2), 297(1) and 297(2) of the penal code that the High Court declared unconstitutional within 18 months period that he had been granted by the court.
“Since March 2018, robbery with violence and attempted robbery with violence have ceased to be offences in Kenya,’’ the accused persons argued.
