High Court throws out MP’s bid to stop rape case
The high court in Nairobi has declined to stop Imenti Central MP Gideon Mwiti’s prosecution in a case in which he is charged with raping a married woman.
Justice Weldon Korir dealt a blow against a petition the politician lodged contesting the criminal case which had been temporarily suspended before the chief magistrate’s court.
The judge said that Mr Mwiti was best placed arguing his case before the trial court and that he was refraining from interfering with the prosecution.
“In my view, all the grounds raised by the petitioner can only be determined by the trial court where he will have an opportunity to defend himself. I cannot see any merit in the petition and as such none of the prayers sought can be granted,” Justice Korir ruled.
Mr Mwiti had claimed that evidence in the rape case had been tampered with and thus he may not get a fair hearing.
He alluded to a cloth which was allegedly torn at a police station to implicate him in the case.
His lawyer Dr John Khaminwa had told the judge that “tampering of the evidence could deny the client a right to fair adjudication of his case.”
“At this point this court is not able to determine the sufficiency of the evidence to be used against the petitioner and he should therefore stand trial,” Justice Korir said.
The judge disagreed with the petitioner’s allegations that the victim’s lawyers were not supposed to have participated in the investigations and the court proceedings when he took plea.
Mr Mwiti had also claimed that a team of lawyers representing the complainant had usurped the role of the DPP.
However, justice Korir argued; “The victim who is also the complainant in the case has a right to represented by an advocate of her choice. I do not find any wrongdoing in involving her lawyers in the investigations and trial so long as it is within the parameters of the Victims Protection Act.”
“The decision by the DPP to institute criminal charges against an accused person is discretionary and and cannot be directed or controlled by any person, not even this court….there is no doubt the office of the DPP is within the set limits,” the judge said.
Justice Korir further dismissed Mr Mwiti’s arguments that the Sexual Offences Act, that the prosecution intends to rely on was, unconstitutional and that Parliament had acted in excess of its powers in passing the legislation.
“Parliament is the organ with the powers to legislate and the judiciary’s role is to interpret and enforce the law. The courts have no power to question the wisdom of Parliament in enacting such an act,” judge Korir said.
Mr Mwiti’s trial returns to the criminal court’s early next year.