Ozaki asked, “You still maintain there was a common plan although now it is not with Muthaura”/CFM
Presiding Judge Kuniko Ozaki pressed prosecution lawyer Sam Lowery to explain how Kenyatta individually constituted a common plan in the absence of his co-accused. Apart from Muthaura being exonerated, charges were not confirmed against former police chief Hussein Ali, who faced similar charges.
“This requires that each joint perpetrator is able to frustrate the commission of the crime by not performing his or her tasks. This means that the common plan could not have succeeded without the contribution of Muthaura or a common plan does not even exist without contribution of Muthaura,” Ozaki argued.
“The acts attributed to Kenyatta we are going to maintain that those acts are attributable to him. The acts that are overlapping between Muthaura and Kenyatta, we would indeed still attribute those to Kenyatta,” Prosecution lawyer Adesola Adeboyejo argued.
Ozaki asked, “You still maintain there was a common plan although now it is not with Muthaura?”
Adeboyejo said: “There is no legal basis why we cannot charge Kenyatta alone even though there was a common plan.”
The prosecution further argued that dropping charges against one co-perpetrator did not mean that charges against the other should also be dropped.
Ozaki asked the prosecution if it wanted to formerly amend the charges to do away with a common plan but the prosecution said it will not make such changes and that charges will remain as a common plan even after dropping charges against Kenyatta’s co-accused Muthaura.
The prosecution was further tasked to explain how Kenyatta’s plan was essential to carry out a common plan in which he is now the only accused. “Common plan means two people making several plans to a common plan.”
Kenyatta’s lawyer Stephen Kay argued; “a common plan to execute crime collapses once the co-perpetrator is withdrawn or shielded.”
He argued that the prosecution did not have enough evidence and that it also failed to listen to earlier warnings given by the defence teams on weak evidence.
He also claimed that prosecution was relying on ‘fraudulent’ witnesses 11 and 12 who gave evidence based on hearsay to support evidence given by witness number four who is no longer in the prosecution list.
Kay also claimed that there were inconsistencies in the evidence provided by other witnesses hence asked the court to refer Kenyatta’s case to the confirmation stage.
“This case was done in a complete rush. There have been significant errors in prosecution decision making. Prosecution has lost the backbone of the case,” Kay argued.
Due to lack of time as put by Ozaki, Kay was asked to make written submissions to support his arguments.
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