Magistrate fails to drop charges in late MP case

A magistrate has declined to drop robbery with violence charges against former Kabete MP George Muchai murder suspects.

Milimani chief magistrate Lucas Onyina declined pleas by the suspects, namely Erick Muyera Isabwa alias Chairman, Raphael Kimani alias Butcher, Mustafa Kimani alias Musto, Stephen Asitiva Lipapo alias Chokori, Jane Wanjiru Kimani alias Shiro, Margaret Njeri alias Waciuri and Simon Wambugu Gichamba to put an end to the robbery with violence charges on grounds they do not exist in law after the High Court declared the same unconstitutional in 2016.

While declining to terminate the case, the magistrate said that the application sought by the accused persons is not merited since the court lacks jurisdiction to determine issues of constitutionality and violation of their rights.

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“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.

Non-existent charges

Further, Onyina also declined a request by the seven suspects to halt the trial pending the determination of another petition they have lodged in the High Court challenging their prosecution based on defective and non-existent charges.

In his decision, the magistrate concurred with state prosecutors Willy Momanyi and Kennedy Panyako that the trial court has no power to make orders of stay of proceedings before it.

The accused persons had sought to have the case dropped based on the September 2016 finding by a three judge bench of the High Court that five sections of the Penal Code penalising robbery with violence and attempted robbery with violence were unconstitutional in the famous case of Joseph Kaberia Kahinga and eleven others case.  

Led by Isabwa, the accused persons said that they were charged with robbery with violence contrary to section 296(2) of the Penal Code which has since been declare unconstitutional by judges Jessie Lessit, Stella Mutuku and Luka Kimaru.

They accused the Attorney General of 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 he had been granted by the court.

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.  

At the same time, the magistrate found the accused person had a case to answer for the charges of violently robbing the former MP, his two aides, and a driver in February 2015.

Onyina said after analysing evidence adduced by 36 witnesses, he found that the prosecution had established a prima facie case against all the accused persons. “I accordingly put all of them on their defence,” he said.