MP Gideon Mwiti moves to High Court to bar victim's lawyers from rape case against him

NAIROBI: Imenti Central MP Gideon Mwiti has lodged a petition at the High Court seeking to bar the victim's lawyers from being enjoined in the rape case against him.

The MP claims that the lawyer Muciimi Mbaka for the victim is acting as co-prosecutors which action is contrary to the law.

Mr Mwiti wants the court to issue temporary orders barring the victim’s lawyers Muciimi Waibaka and Teresia Omondi from tendering evidence or submitting as co-prosecutors in the rape case.

Through his lawyers John Khaminwa and Henry Kurauka the MP also wants the criminal case stopped pending the hearing and determination of the application before the High Court.

"The party mandated under the constitution to prosecute on behalf of the state is the DPP who has the power to delegate and also has duties to be in full control of prosecutions," Mwiti says in the court papers.

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"The victim can only a send a lawyer to watch brief and not acting as prosecutor", the lawyers told Justice Weldon Korir.

 Mr Mwiti said there can be only one prosecutor from the office of the Director of Public Prosecution.

The MP further told court that the victim's lawyers have allegedly tampered with evidence which is likely to reduce chances of fair trial arguing that the lawyers having recorded statements as witnesses in the case.

"There is no provision in law that allows the respondents being advocates acting for the complainant to take the active role in the prosecution of the criminal case.

The MP told the court that he is likely to suffer prejudice if the two are allowed to continue playing an active role as prosecutors in the case before the chief magistrate.

He is also challenging the constitutionality of the Sexual Offences Act to the effect that a sentence for a conviction is determined as a minimum period which he says is in contravention of separation of powers for the Legislature has encroached on the powers of the Judiciary.

The judge certified the matter as urgent and directed that same   be served upon the DPP, Inspector General of Police for inter parties hearing on May 5.

 Mwiti is facing rape and intimidation charges after he was arraigned before resident Magistrate Edda Agade where he denied the three counts. The prosecution allege that on 21 March 2015 at Tana club in Westland the accused raped a married woman and at the same time intimidated the victim with intent to do sex.

The hearing of the case before the magistrate's court is set to begin on May 22.