Imenti Central MP Gideon Mwiti at Milimani law courts where he was charged with rape, intimidation and indecent assault on April 2, 2015.
BY SAM ALFAN.
Imenti Central Member of Parliament Gideon Mwiti has filed a petition at the High Court in Nairobi seeking orders bar two lawyers from participating as co-prosecutors in a case in which he’s alleged of raping former TV journalists in his wetlands office in Nairobi.
Through his lawyer Dr John Khaminwa, said if the two advocates are allowed to join the DPP as co-prosecutors in the case, his rights to a fair and free trial may be prejudiced as they are also listed as prosecution witnesses.
Among the lawyers who were representing the complainant in the case was Muciimi Wibaka and Harun Ndumbi, who has since been replaced by Ms Teresia Omondi.
“They are advocates of the High Court and have applied that they have instructions from the complainant to join in prosecutorial capacities against the applicant,” Dr Khaminwa said.
“The party mandated under the Constitution to prosecute on behalf of the state is the DPP, who has the power to delegate and also has duties to be in full control of prosecutions.
“The victim can only send a lawyer to watch and not acting as prosecutor”, the lawyer told Justice Weldon Korir.
Mwiti said there can be only one prosecutor from the office of the Director of Public Prosecutions.
The MP further told the court that the victim’s lawyers have allegedly tampered with evidence, arguing that this is likely to reduce the chances of a fair trial and that the lawyers had recorded statements as witnesses in the case.
“There is no provision in law that allows the respondents being advocates acting for the complainant to take the active role in the prosecution of the criminal case,” Dr Khaminwa said.
The MP told the court that he is likely to suffer prejudice if the two lawyers are allowed to continue playing an active role as prosecutors in the case before the chief magistrate.
He is also challenging the constitutionality of the Sexual Offences Act to the effect that a sentence for a conviction is determined as a minimum period, which he says is in contravention of the separation of powers as the Legislature has encroached on the powers of the Judiciary.
The lawyer said the MP wants conservatory orders granted against Wibaka and Ms Omondi from taking an active and direct role in the prosecution of the case slated to be heard on May 22. Mwiti has denied a charge of rape and witness intimidation.
Earlier Nairobi Chief Magistrate Lucy Mbugua declined to cancel bail terms for Imenti Central Member of Parliament Gideon Mwiti for allegedly interfering with investigations in a rape case against him.
This was after Prosecutors on Wednesday asked a court to cancel the bail issued to Imenti Central MP Gideon Mwiti for allegedly interfering with investigations in a rape case against him.
The prosecution told the court that Mr Mwiti had also been intimidating witnesses set to testify in the case.
Mr Mwiti is out on a Sh100, 000 bonds. He is facing three charges of raping, intimidating and assaulting a woman in his Nairobi office.
The MP is alleged to have committed the offences on March 21 at Tana Club on Woodvale Grove in Westland’s, Nairobi.
The MP and his co-accused, Dr David Muchiri, on Wednesday appeared in court, where they were charged afresh.
The accused doctor has however been granted a cash bail of Sh50, 000 with the case set to be mentioned on April 8.
The MP was released on a Sh100, 000 cash bail on Thursday last week after he was charged with rape, intimidation and indecent assault.
While requesting bail, Mwiti’s lawyers said he was suffering from diabetes and was not strong enough for police custody.
Mwiti is alleged to have forcibly made a married woman take an HIV test before assaulting and raping her nearly two weeks ago.
The doctor who allegedly conducted the forcible HIV test, Mwangi Muchiri, was arrested and was charged at the Kibera Law Courts earlier.
Mwiti was released on a cash bail of Sh100, 000 pending trial.Khaminwa told the court that his client was suffering from diabetes.
The magistrate then ruled that there was nothing on record to show that Mr Mwiti would abscond if granted bail.
She, however, noted that allegations that there had been attempts to interfere with investigations reflected poorly on him.
Justice Korir certified the petition as urgent and directed the party to serve the DPP and the two lawyers for a response before the petition is heard on May 5.