A Jomo Kenyatta International Airport (JKIA) magistrate’s court is expected to rule on May 9 whether it will hear a miscellaneous application by the Director of criminal Investigations DCI) seeking to detain five suspects for 30 days in connection with the murder of Kasipul MP Charles Were pending investigations.
When the matter came up for hearing Thursday, lawyers representing the suspects strongly objected to the application, arguing that the court lacked territorial jurisdiction to hear the matter.
“This court lacks territorial jurisdiction to entertain the application before it,” said lawyer Danstan Omari, appearing alongside Cliff Ombeta, Shadrack Wambui, and Sam Nyaberi.
“Jurisdiction is everything. Without it, this court cannot act.”
The suspects include director at the Lake Basin Authority board member Ebel Ochieng alias Dave Calo, the MP’s bodyguard and driver, Allan Ogola Omondi and walter Owino Awino, respectively, Edwin Oduor Odhiambo and Dennis Sewe Manyasi.
The lawyers argued that the correct forum for the application is the Kibera Law Courts, given that the alleged assassination occurred at the Ngong Road roundabout, an area under the Kilimani Police Station, which falls within the Kibera Sub-County.
“We are guided by Section 67 of the Criminal Procedure Code (CPC), which clearly outlines those matters must be filed within the local jurisdiction of where the offence took place,” said Wambui.
“Filing this matter at the JKIA Law Courts smacks of mischief. If not Kibera, the next proper forum is Milimani, not here.”
According to Omari, a court does not get jurisdiction by handling many matters. He argues that Jurisdiction is conferred by law, not by convenience.”
The defence team also said that the suspects’ rights were at risk if the matter continued at JKIA Law Courts.
“There’s no greater injustice than having a respondent dealt with in a court that lacks jurisdiction,” said Ombeta.
“These respondents are not accused persons yet, but their rights accrue from the moment of arrest. This court should not entertain this illegality.”
However, the prosecuting counsel Evelyn Onunga, told principal magistrate Irene Gichobi the court is well within its mandate to hear the application.
“This is not a trial, this is an application for detention orders. Jurisdiction becomes critical only when a suspect is formally charged,” argued Onunga.
“Under Section 36A(1) of the CPC, suspects must be presented in court within 24 hours, and police are permitted to bring them to the nearest available court.”
The prosecution further argued that multiple arrests were anticipated.
“Nothing bars the police from arraigning suspects at a convenient court during investigations. When the prosecution will make a decision to charge, the jurisdiction will be the high court which has unlimited jurisdiction,” said Onunga.
A lawyer representing the victim’s family backed the DPP’s application be heard.
“I support the DPP. Section 67 of the CPC does not apply at this stage because these individuals are respondents, not accused persons,” said Apollo Mboya.
“Sending them back with the police could result in violations of their constitutional rights under the 24-hour rule.”
Omari argued that “an attempt for the court to do an illegality is a serious issue that each court clothed with jurisdiction deals and protects itself”.
“This is an attack on democracy,” Omari states.
“Don’t be told that the respondents will suffer.”
The Police want to detain the suspects for further 30 working days to analyze CCTV footage, retrieve phone records, interview key witnesses, and conduct forensic tests.
They say the suspects were in communication before, during, and after the crime, and were near the scene.
Firearms and items matching witness descriptions were also recovered.
The police say more time is needed to complete investigations and possibly lay murder charges.
The suspects will be detained at Gigiri, Pangani, Kiambu and Embakasi police station, pending the ruling on May 9.
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