A case where a Turkish businessman is charged with defiling three girls has been moved from Mombasa to Malindi.
Osman Elsek, who is free on bond, has denied defiling three girls aged below 16 years between February and October 2018.
Mr Elsek’s trial has now been transferred to Malindi law courts after the magistrate ruled that a fair trial would not be possible at Shanzu law courts in Mombasa. On Friday, Resident Magistrate David Odhiambo granted an application by State counsel, Eugene Wangila, for the transfer and rejected protests by defence lawyers.
Odhiambo also pulled out of the case and said the matter would now be placed before the chief magistrate to allocate a new magistrate.
The magistrate said it had been brought to the court’s attention that Elsek had friends at the Shanzu court which he helped renovate and that this might exert undue influence on the case.
“I will recuse myself from this matter for an independent arbiter to take over,” said Odhiambo in a brief ruling.
He upheld the State lawyer’s contention that the criminal procedure code allowed trials to be transferred to other courts under special circumstances.
Defense lawyers countered that the State was trying to move the case to Malindi to delay justice for their client.
The lawyers told the court that the girls their client is suspected to have defiled have been held incommunicado at an unknown place and that their parents have not seen or spoken to them for close to a month.
They also demanded an assessment and determination of the girl’s ages before the start of the trial.
Earlier, the State applied for the trial to be moved to Malindi arguing that Elsek, who has lived in Mombasa and Kilifi for years, also wielded immense influence at Shanzu having aided the renovation of the court in the recent past.
Some lawyers supporting the transfer also argued that witnesses for the prosecution and the girls could not testify freely at Shanzu.
But the defense, led by Lawyer Cliff Ombeta, accused the State of persecuting their client and delaying the trial. They also protested that the State had failed to supply their client with prosecution evidence to enable them prepare his defence.
“There is no reason to transfer this matter to Malindi,” said Ombeta.
The defence lawyers claimed that the prosecution had not given adequate reasons for not supplying any incriminating evidence it had against their client.
“The moment they deny us this fundamental right you can see the mischief the prosecution is playing here,” said Ombeta who claimed his client was being persecuted despite cooperating with the police and the court since his arrest and indictment.
Elsek has denied eight counts of child prostitution and two counts of performing an indecent act with three underage children at his Kikambala residence in Kilifi County last year.
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