Court orders Kethi Kilonzo’s case to go ahead
By By FRED MAKANA
| March 19th 2014
By FRED MAKANA
Nairobi, Kenya: The electoral offence trial of lawyer Kethi Kilonzo is set to proceed after a Magistrate Court yesterday ruled that it has no jurisdiction to stop the proceedings.
In her ruling, Chief Magistrate Hannah Ndungu said the prosecution cannot be compelled to produce documents that are not relevant to the case.
Instead, she asked Kethi’s defence team to contact the Independent Electoral and Boundaries Commission (IEBC) for the documents it seeks to use during the trial.
“This court can open a Pandora’s box if it rules that the prosecution must produce all documents sought by the defence. Similarly, the prosecution cannot be asked to give what is not relevant to this case,” Ndungu ruled.
Ndungu said it is the responsibility of the court to ensure the rights of the accused are not violated. She directed the case to proceed to trial but said the defence was at liberty to contest her ruling at the High Court.
However, Kethi’s lawyer immediately asked to be supplied with copies of the ruling and proceedings so as to lodge an appeal at the High Court. He said the defence was disatisified with the ruling and would wish to appeal. The Magistrate ordered the defence to be supplied with copies of the ruling.
In his submissions, Kethi’s lead counsel Fred Ojiambo accused the prosecution of disregarding a court order that was made on September 3 last year by Chief Magistrate Kiarie Waweru. He further alleged that the Director of Public Prosecution’s office has failed to respond to 11 requests they had made over the supply of all witness statements and exhibits it seeks to rely on during trial.
He requested the court to terminate the case completely or until the prosecution complies with the court order.
However, lawyer Stephen Mwenesi for the first accused opposed Ojiambo’s argument saying his client was ready to proceed with the case.
State Counsel Jacob Ondari strongly opposed the defence’s application arguing that the matter was not within the jurisdiction of the magistrate’s court. “The second accused has made an eloquent submission but before the wrong court. The defence says it seeks to rely on certain documents yet we do not have the said documents. Those documents are in IEBC’s custody,” Ondari stated.
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