Seven suspects accused of killing former Kabete MP George Muchai suffered a major blow after a magistrate yesterday declined to drop robbery with violence charges against them.

In a brief ruling Milimani Chief Magistrate Lucas Onyina declined an application by  Erick Muyera Isabwa alias Chairman, Raphael Kimani alias Butcher, Mustafa Kimani alias Musto, Stephen Asitiva Lipapo alias Chokori, Jane Wanjiru Kimani alias Shiro, Margaret Njeri alias Waciuri and Simon Wambugu Gichamba to terminate the robbery with violence charges on grounds they do not exist in law after the High Court declared the same unconstitutional in 2016.

Onyina said the application sought by the accused persons is not merited since the court lacks jurisdiction to determine issues of constitutionality and violation of their rights.

“Jurisdiction to determine the question of whether accused persons’ rights have been violated in that regard vests in the High Court and not in this court,” the magistrate ruled.

Further, the magistrate  declined a request by the seven suspects to halt the trial pending the determination of another petition they have lodged in the High Court challenging their prosecution based on defective and non-existent charges.

In his decision, the magistrate concurred with state prosecutors Willy Momanyi that the trial court has no power to make orders of stay of proceedings before it.

“This court attention has not been drawn to any authority to stay the criminal case pending before it. I am not aware of any such law for the court to make such orders. The application for a stay of proceedings therefore lacks merit for the same and has no legal basis,” Onyina ruled.

Unconstitutional case

The accused persons had sought to have the case dropped based on the September 2016 finding by a three judge bench of the High Court that five sections of the Penal Code penalizing Robbery with Violence and Attempted Robbery with Violence were unconstitutional in the famous case of Joseph Kaberia Kahinga and eleven others case. 

Led by Isabwa, the accused persons said that they were charged with robbery with violence contrary to section 296(2) of the penal code which has since been declared unconstitutional by justices Jessie Lessit, Stella Mutuku and Luka Kimaru.

They accuse the Attorney General of failing to amend Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code that the High Court declared unconstitutional within an 18 months period that he had been granted by the court.

“ Since March 2018, Robbery with Violence and Attempted Robbery with Violence have ceased to be offences in Kenya. And since only the law can define a crime and a penalty, Robbery with Violence and Attempted Robbery with Violence are not crimes in Kenya. Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code having ceased validity on March 15 2018,” the suspects contend.

They claimed that for the nine years and four months they have been on trial they have been subjected to unprecedented trial and the same has occasioned them great inconveniences, disturbance, mental anguish and torment. 

At the same time, the magistrate found the accused person had a case to answer for the charges of violently robbing former Kabete MP Muchai, his two aides, and a driver in February 2015.

The magistrate said after analyzing evidence adduced by 36 witnesses, he found that the prosecution had established a prima facie case against all the accused persons. “I accordingly put all of them on their defence,” said the magistrate.

The seven have denied nine counts of violent robbery. They are separately also accused of murdering Muchai, his two aides Samuel Kalikia and Samuel Matanta, and driver Stephen Wambugu on the night of February 6 and 7, 2015 on Kenyatta Avenue, Nairobi.