Mutiso Murder: Ndetei summoned over affidavit opposing bail for ex-wife, children

Rose Mbithe and her son had also questioned the mental fitness of her estranged husband, Prof David Ndetei, claiming he was not of sound mind. [File, Standard]

The High Court has summoned Prof David Ndetei, husband of murdered Victoria Mutiso, to appear in court on Wednesday for cross-examination over an affidavit opposing bail for his ex-wife Rose Mbithe and their two children.

Milimani High Court Judge Alexander Muteti on Monday allowed an application by Mbithe and her two children to question the professor over the authenticity of an affidavit he swore opposing their release on bail in the murder case and the truthfulness of its contents.

“This court therefore grants the request to reopen the bail application and summons the deponent (Prof David Ndetei) for cross-examination to establish the authenticity of the affidavit and the veracity of its contents. Prof Ndetei shall appear on October 21, 2026, at 10 am, and the cross-examination shall be limited to the already filed,” Justice Muteti ruled.

The affidavit sworn on October 5, 2026, was filed by the prosecution to oppose the release of the three accused persons, who are charged alongside four others in connection with Mutiso’s murder.

Prof Ndetei opposed the release of his estranged wife, Mbithe, and their two children, Chris and Angela, on bail, claiming they had threatened him and his late wife, Dr Mutiso, for years and could intimidate witnesses if freed.

In his affidavit, he told the court: “Because of the history between us, I have a genuine fear that, if released on bond, the accused persons, acting individually or together, will contact, intimidate, bribe or otherwise influence witnesses against me to affect the evidence given at the trial. I also fear for my own safety and that of my family.

Through their lawyer, Joel Mbaluka, Mbithe and her two children however questioned whether the affidavit had been properly sworn, arguing that Ndetei was allegedly indisposed and receiving treatment in the high-dependency unit at Nairobi Hospital at the time he was said to have signed it.

The defence also raised concerns about the authenticity of the document, suggesting it could be forged, fraudulent or misleading to the court.

Rose Mbithe and her son had also questioned the mental fitness of her estranged husband, Prof David Ndetei, claiming he was not of sound mind and was therefore incapable of swearing the affidavit opposing their release on bail.

However, Justice Muteti rejected the suggestion that Ndetei lacked the mental capacity to swear the affidavit, saying the defence had presented no evidence to support the claim.

“The accused persons have not presented any evidence that could persuade this court that he is a person of questionable sanity and as such, that allegation is totally rejected,” the judge ruled.

The judge, however, found that the separate allegation that the affidavit could be forged or fraudulent warranted further scrutiny through cross-examination.

“That in my view would be the only basis for this court allowing the deponent to be cross-examined but not on his mental status,” Justice Muteti said.

He noted that the affidavit was being relied upon to oppose bail and that its authenticity was therefore a critical issue in determining whether the accused persons should remain in custody.

“The allegations are serious and cannot be ignored, for they go to the root of the prosecution's case,” the judge said.

Justice Muteti said cross-examination would enable the court to establish whether Ndetei personally swore the affidavit and whether its contents were truthful.

“The interest of justice tilts in favour of allowing the deponent to take the stand and confirm the averments made in the affidavit,” he ruled.

The prosecution, through state counsel Jalson Makori, opposed reopening the bail proceedings, arguing that the defence had an opportunity to seek Ndetei’s attendance before the court reserved its ruling on the bail application but failed to do so.

The State maintained that the proceedings should not be reopened to accommodate a request that could have been made earlier.

However, the judge said the need to establish the truth outweighed the procedural objections, particularly because the accused persons had been in remand for more than two months as they awaited the determination of their bail application.

He said the court had a duty to ensure that evidence relied upon in judicial proceedings was credible and that allegations of possible fraud were not ignored.

“Court proceedings and all processes leading to a decision by a court must remain above board to avoid erosion of public confidence in the administration of justice,” Justice Muteti said.

The judge added that cross-examination could help the court test the contested affidavit without necessarily prejudicing the prosecution.

He consequently allowed the application to reopen the matter and ordered Ndetei to appear for cross-examination on Wednesday.

The judge further ordered the Independent Policing Oversight Authority (IPOA) to investigate claims that police officers tortured and harassed the seven suspects charged with the murder of Dr Victoria Mutiso during their arrest.

Further, the court ordered a prison facility to escort Chris Mulwa, who is said to be unwell, to Mbagathi Hospital for further treatment.