Why KDF official wants court martial restrained from hearing a case against him

By Kamau Muthoni

NAIROBI, KENYA: A senior Military officer wants the High Court to quash all the proceedings instituted against him in a court martial and that it is restrained from hearing the same on the grounds that it was not properly instituted last year.

Phinhas Mugo who appeared before High Court Judge Justice George Odunga is challenging the presence of the Director of Military Prosecution Brigadier K O Odindi citing that he is not competent to litigate the matters in the disciplined forces.

“Section 236(6) of the Kenya Defence Forces act is clear that the Director of Military Prosecution shall be a separate office from that of the defense forces or military and therefore there is no way that the court martial can allow a person holding two offices to prosecute in that court,” said Mugo though his lawyer Odera Were.

“Failure to adhere with the provisions of the law makes my prosecution illegal and the court martial is aiding an illegality by allowing unqualified  to prosecute cases before it having been provided with the documents to support my objections,” he said.

Mugo who serves as a senior private at the forces accused Odindi of lying to the court based at Moi Airbase that he only held one office whilst he acted as the Chief legal Officer and a Prosecution boss at the same time. He added that despite having disclosed this, the martial gave him a deaf ear.

In the case where the Chief of Defence Forces Julius Karangi is the fourth respondent, Mugo lamented that he would not be accorded a fair hearing citing that he was never issued with a case number in order to prevent him from challenging the same after the verdict is passed.

“The respondents are acting beyond their powers and have failed to listen to me and the way it is being handled is not proper as it seems respondents have taken up a decision and cannot listen to any preliminary point of law,” he said.

However this was opposed by the state who submitted that it did not find any harm in the validity of the proceedings in the court martial.

The court heard from state counsel Winnie Cheruiyot that Odindi is an advocate of the High Court and thus was warranted to prosecute the case against Mugo.