, NAIROBI, Kenya, Aug 26 – Lawyer Cliff Ombeta on Wednesday withdrew from Apostle James Ng’ang’a’s defence team in the case where he is facing charges for causing death by dangerous driving.
Ombeta accused Ng’ang’a of failing to pay him and for failing to give him instructions in the case.
“He only calls me on the mornings of his court appearances. I have won many cases but how can I win a case without instructions?” he posed.
“The ruling that’s been made in his favour today” he trumpeted, “is because of applications I made.”
Ombeta spoke outside the Limuru Law Courts after Senior Resident Magistrate Timothy Ole Tanchu declined to issue an order compelling Ng’ang’a to submit to blood testing.
Before Tanchu, Ombeta applied to withdraw as Ng’ang’a’s counsel on the grounds that he was afraid for his wellbeing.
He accused the public of stoning his vehicle on Friday when the court released Ng’ang’a on bond. “Today I had to use a taxi because they’ve marked my car.”
“I wouldn’t mind the damage to my car so much if the incentive was worth it,” he admitted later.
Other than allowing Ombeta to withdraw as Ng’ang’a’s counsel, Tanchu also granted the prosecution 14-days before they have to hand over witness statements to Ng’ang’a’s remaining Counsel Assa Nyakundi.
State Counsel Alloys Kemo told the court that Witness Protection Agency needed the time to go before the High Court for the necessary processing.
Nyakundi opposed their application arguing that his client posed no threat to anyone.
And while welcoming Tanchu’s finding that the trial court could not compel Ng’ang’a to self-incriminate by providing the police with a DNA sample, he disagreed with the finding that the police could have used, “reasonable force,” to extract the sample from Ng’ang’a prior to preferring formal charges.
Nyakundi said Section 122 (a) and (b) of the penal code, on which Tanchu relied, did not override the Constitution and Ng’ang’a would need to consent to the extraction of his body tissue for DNA testing regardless of whether it was before or after he was formally charged.
Tanchu had ruled that by compelling Ng’ang’a to give his blood to the police for testing, the court would be assisting the prosecution to make its case and therefore cease to be an impartial arbiter.
He also found, citing the findings of a superior court, that at the point formal charges are preferred, the assumption is that the police have all the evidence they require to prosecute.