A lobby group has asked a Nairobi court to suspend hearing of 4,088 ongoing sexual assault cases.

Sheria Mtaani, through lawyer Shadrack Wambui, wants the High Court to stop all trial courts handling sexual offences charges against suspects who do not have formal legal representation. 

According to court documents, the petitioner also wants the court to compel the Chief Justice either by himself, Chief Registrars or their agents, to assign advocates to the accused in cases that attract a maximum sentence of life imprisonment. 

The government should meet the costs of the legal representation where the accused cannot afford such fees, the petitioner further demands. 

“A declaration be hereby made that prosecution of persons accused of sexual offences that attract maximum imprisonment for life under Sections 3,4,5,8,10,20 and 26 of the Sexual Offences Act without an advocate of their choice or one assigned to them at the expense of the government would occasion substantial injustice to the suspects, and, therefore, inimical to their rights to a fair trial as per Article 25(c) and their rights to access justice under Article 8 of the Constitution,” says Wambui in court papers. 

Further, Wambui wants a declaration that as per the law, CJ David Maraga and AG Kihara Kariuki are obligated to inform accused persons that they face serious offence that would attract life imprisonment without the possibility of remission. 

This, he argues, would make preliminary on whether or not the accused would require a legal representation at the State expense. 

Wambui says there are over 3,000 cases of sexual offences pending hearing or determination, and despite the harsh and punitive punishment prescribed by the law, there is no certainty that  the suspects are represented by an advocate either at their cost or at the government’s expense.

Miscarriage of justice

“It is, therefore, imperative that the question of representation of the alleged sexual offenders, who upon conviction could be imprisoned for life is determined in priori to avoid a further miscarriage of justice,” adds the petitioner.

Sexual offences attracting life imprisonment include rape, attempted rape; sexual assault, defilement, gang rape, incest and deliberate transmission of HIV or any other life threatening disease.

According to Wambui, it is paramount in view of seriousness of the said offences, special consideration commensurate to that given to this group of alleged sexual offenders. 

He adds that with the harsher punishment of imprisonment for life or the punitive sentences meted to these group of sexual offenders upon conviction, care and circumspection must be exercised during the process of trial to avoid any procedural or substantive error in the proceedings.