National

By Nancy Gitonga | Oct. 23, 2024

 

Seven suspects in the murder of former Kabete MP George Muchai have secured orders from the High Court to halt the lower court from delivering a judgment in their robbery with violence trial.  

The suspects appeared before Milimani Chief Magistrate Lucas Onyina on Tuesday afternoon, for a judgment on whether they would be found guilty of 10 counts of violently robbing six victims, including two sisters, Gladys Waithera and Irene Muthoni, on the same night they allegedly murdered former Kabete MP George Muchai.  

However, before the magistrate could deliver his decision, the suspects, led by prime suspect Erick Muyera Isabwa, alias "Chairman," claimed that they had obtained orders from High Court Judge Alexander Muteti to postpone the judgment in the case.

The suspects revealed that they had challenged the trial court's decision to render a judgment in the case without allowing them to present their defenses.

Led by Isabwa, along with Raphael Kimani, Mustapha Kimani, Stephen Astiva, Jane Wanjiru, Margaret Njeri, and Simon Wambugu, they sought to halt the court's judgment, which was scheduled for October 22 at 2 PM.

This decision came after the suspects last month refused to present their defences for a fourth time, arguing the charges of robbery with violence against them do not exist in law, as the High Court had declared similar provisions unconstitutional in 2016. 

While fixing the judgment date trial magistrate Onyina last month ruled that while the case was coming for a defense hearing, the failure of the accused to tender defenses required him to proceed with judgment.

“The case was coming for a defence hearing but the accused persons have declined to tender defenses. I will deliver my judgment on October 22, 2024, at 2 pm,” Onyina directed on September 22, 2024.

The court's decision followed multiple applications from the defense team, led by lawyer Stephen Ongaro, who argued that the charges against the suspects are illegal and non-existent in law. 

The defense maintained that the trial magistrate's insistence on moving forward with the case, despite the absence of valid charges, violated the suspects' rights to a fair trial. 

Ongaro emphasized that compelling the suspects to present defenses for charges that no longer hold legal validity constituted a significant error of law.

However, the magistrate previously ruled that he lacked jurisdiction to determine constitutional issues related to the charges, which are meant to be addressed by the High Court.

"From the submissions filed by both sides, an issue of jurisdiction of this court to determine the question of constitutionality over a sentence to be imposed in a case relating to a charge of robbery with violence has risen as to whether the trial of an accused person on a charge of robbery with violence is unconstitutional. Jurisdiction to determine the question of whether accused persons' rights have been violated in that regard vests in the High Court and not in this court," the magistrate ruled.

Aggrieved by the trial court's decision, the suspects petitioned the High Court contending that their rights to a fair trial were violated when the magistrate declined to terminate the case or allow them to present their defenses.

They argue that compelling them to defend against charges declared unconstitutional is an error of law.

The suspects point to a 2016 ruling by a three-judge bench that declared sections of the Penal Code relating to robbery with violence unconstitutional.

"Based on the 2016 finding by a three-judge bench of the High Court that five sections of the Penal Code penalizing Robbery with Violence and Attempted Robbery with Violence were unconstitutional in the famous case of Joseph Kaberia Kahinga and eleven others case, our case should be terminated henceforth," the suspects argue.

Led by Isabwa, the accused persons argue that they were charged with robbery with violence contrary to section 296(2) of the penal code which has since been declared unconstitutional by Justices Jessie Lessit, Stella Mutuku and Luka Kimaru.  

 They accuse the Attorney General's 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 had been granted by the court.

" Since March 2018, Robbery with Violence and Attempted Robbery with Violence have ceased to be offences in Kenya. And since only the law can define a crime and a penalty, Robbery with Violence and Attempted Robbery with Violence are not crimes in Kenya. Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code having ceased validity on March 15 2018," the suspects contend.

They claimed that for the nine years and four months they have been on trial they have been subjected to unprecedented trial and the same has occasioned them great inconveniences, disturbance, mental anguish, and torment.  

The suspects have denied the 10 counts of robbery with violence charges involving six other victims.

The courts have since found that the seven have a case to answer after the prosecution presented 36 witnesses to prove its case.

The seven suspects also face murder charges over the killing of Muchai, his two bodyguards, and a driver at the High Court.