Drama unfolds in court over grilling of officer in MP Mukunji case

Court Proceedings in Kahawa Law Courts[KALONZO/X]

Drama unfolded at the Kahawa Law Courts on Wednesday as defence lawyers representing Manyatta MP John Mukunji, Inooro journalist James Mbochi, and boda boda rider Stanley Mbuthia opposed the State’s bid to nullify proceedings in a terrorism-related case linked to the July 7 protests.

The defence sought to cross-examine the investigating officer, Desterio Omukaga, a move that sparked a heated exchange after the prosecution argued that the court lacked jurisdiction to allow the process.

The three suspects were arrested during the Saba Saba demonstrations and are under investigation over allegations of protest financing.

These include claims of collecting and providing property for the commission of terrorist acts and conspiracy to commit a terrorist act.

Tensions escalated after prosecutors, led by State Counsel James Machira, staged a walkout in protest of the cross-examination.

The prosecution later filed a formal application seeking to have the cross-examination expunged from the court record, terming it an overreach by the defence.

Defence counsel Kibe Mungai insisted that the court’s jurisdiction had been properly invoked through a formal notice of motion supported by an affidavit.

He criticised the prosecution for contesting the court’s authority to allow cross-examination despite initiating the proceedings themselves.

Mungai argued that the Directorate of Public Prosecutions (DPP) and the police had effectively submitted to the court’s jurisdiction when they filed for the detention of the suspects.

“They are here because the prosecution and police have brought them here. This court’s jurisdiction has been asserted by the police and the DPP. Of course, we would have agreed not to try civilians in an anti-terrorist court, but that is not today’s issue. Since jurisdiction has been asserted, we are responding accordingly,” Mungai submitted.

“You cannot have your cake and eat it.”

According to the defence, the State could not seek to detain the suspects in court and later dispute the court’s powers when the defence exercised its right to respond.

The prosecution maintained that any proceedings following the cross-examination were without jurisdiction and should be struck out.

Machira likened the situation to principles similar to res judicata and functus officio, arguing the court had settled the matter earlier and could not revisit it.

“Anything that transpired after was without jurisdiction and therefore subject to expungement,” he said.

However, Magistrate Richard Koech ruled that the cross-examination had been conducted lawfully and could not be invalidated solely because the prosecution chose not to participate.

“The prosecution opted not to take part in the cross-examination, which was within their rights. However, the process proceeded. There’s no basis for expunging the proceedings taken,” Koech ruled.

He dismissed the application to strike out the testimony and allowed the case to proceed.

The proceedings are set to continue on July 10.

In a miscellaneous application dated July 8, the Directorate of Criminal Investigations had sought to detain the three suspects for 14 days at Muthaiga Police Station as investigations continue.