, NAIROBI, Kenya, Mar 16 – Defence lawyers in a case in which a Narok businessman and four others are accused of keeping military weapons have urged a Nairobi court to disallow the prosecution from responding to an application in which they want the criminal case referred to the High Court for constitutional interpretation.
Led by lawyer Pravin Bowry, the advocates asked Nairobi Chief Magistrate Gilbert Mutembei to rule that State Counsel Vincent Wohoro has no right to reply. Mr Bowry argued there is no right bestowed on the prosecution to respond to an application that raises constitutional issues.
“The matter of constitutionality is between the accused and the court. This court should decide whether the accused has made the application without being vexatious or frivolous,” he argued. “The AG has a right to reply only when a petition is presented.”
However Mr Wohoro asked the magistrate to disregard the application arguing there is no law barring the prosecution from responding to matters that have been brought before the court.
“It is a cardinal rule for the prosecution to reply in matters of fact and law raised before the court. The prosecution cannot be disallowed from rebutting adverse issues that have been raised,” he said.
Ismail Munir, his wife Nahid Tabasum, Sergeant Joseph Martim and two others have asked Mr Mutembei to refer the cases to the High Court because their fundamental rights have allegedly been violated.
They have argued that they are unlikely to get a fair trial before Mr Mutembei because several judicial and prosecutorial improprieties have been committed against them.
Among the issues that Mr Bowry complained of is the decision by police to conduct searches in Mr Munir’s premises in Embakasi and Narok where the weapons were recovered without a search warrant.
The magistrate reserved his ruling until March 30. He also declined to review his earlier orders denying Mr Munir bail until the matter is heard and determined. The magistrate said the suspect should follow proper procedure by appealing against the court’s decision on February 12.
Separately, a case in which five former detainees want Ambassador Bethuel Kiplagat barred from heading the Truth Justice and Reconciliation Commission (TJRC) failed to kick off as records of the matter before a three-judge bench were not in order.
Judges Roselyn Wendoh, Hannah Okwengu and John Mwera directed the applicants through lawyer Wanyiri Kihoro to put their records in order and appear before them tomorrow for the hearing of the case.
Njeru Kathangu, Koigi wa Wamwere, Moses Muhia, Kalembe Ndile and Otieno Mak\’ Onyango want Amb Kiplagat disqualify himself from heading the Commission alleging that he has been involved in committing some atrocities .
They say the Commission should be stopped from continuing with its work to save the country from civil war. The complainants believe Amb Kiplagat’s impartiality; integrity and credibility are in doubt and therefore unfit to head the TJRC.
They also say that the Commission’s Vice-chairperson Betty Murungi was appointed contrary to the Truth, Justice and Reconciliation Commissions Act