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MP facing rape charge alleges evidence tampering in case

Imenti Central MP Gideon Mwiti has lodged a petition at the High Court in Nairobi seeking to have two lawyers barred from participating as co-prosecutors in a case in which he faces a rape charge.

The politician, 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Among the lawyers who were representing the complainant in the case was Mr Harun Ndumbi, who has since been replaced by Ms Teresia Omondi. The other is Mr Muciimi Wibaka.

“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.

Mr 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 Mr Mwiti wants conservatory orders granted against Mr Wibaka and Ms Omondi from taking an active and direct role in the prosecution of the case slated to be heard on May 22.

Mr Mwiti has denied a charge of rape and witness intimidation.

He is charged alongside a Mr David Mwangi, who is said to have been an accessory to the offence.

On Monday, 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.