Several cases in the High Court might start afresh following the promotion of seven judges to the Court of Appeal.
Seven High Court judges were early this month promoted to the Court of Appeal, meaning they could drop hearing some cases that were before them.
One such case is that of Willie Kimani's murder. The case was before Justice Jessie Lessit who was promoted to the Court of Appeal and has subsequently been deployed to Mombasa and directed to report on July 1.
Lessit has been handling the matter since 2016 with only one more witness remaining before the prosecution closes its case.
Her posting to Mombasa was communicated by Chief Justice Martha Koome in a statement released on Monday.
Willie Kimani was a lawyer with the International Justice Mission in Nairobi. He was abducted alongside his client Josephat Mwenda and driver Joseph Muiruri as they left the Mavoko Law Courts after an appearance on June 23, 2016.
Today marks exactly five years since the incident.
The three were murdered and their bodies dumped in Ol Donyo Sabuk River in Machakos.
Four AP officers Fredrick Leliman, Stephen Cheburet, Sylvia Wanjiku and Leonard Mwangi and police informer Peter Ngugi were arrested and charged with the murder of the trio.
That case could have ended last year had the Covid-19 pandemic not disrupted hearings.
The prosecution was about to close the case, but the hearings were adjourned on several occasions owing to the pandemic.
The case was set to resume hearing in January this year but Justice Lessit was indisposed, leading to several adjournments.
So far, the judge has heard testimonies from 44 prosecution witnesses.
Lawyer Shadrack Wambui told the Star that Justice Lessit has now assumed an appellate court role, meaning she cannot hear matters that arise in the original jurisdiction or any fresh matters at the High Court.
“In as much as Justice Lessit has the institutional memory of the case and has been on top of the matter by trying to expedite it, her jurisdiction was taken away immediately she was sworn in as a judge of the Court of Appeal,” he said.
Wambui says it is expected that another judge will take up the matter and the accused will have the opportunity to decide for themselves whether the new judge will take over from where judge Lessit left or the matter begins afresh.
“The accused have a right to call for this matter to begin afresh on grounds that this court has not seen the demeanour of the witnesses that have already testified,” the lawyer said.
It is possible, though highly unlikely, that the accused can choose to proceed with a new judge from where Lessit left.
Wambui said the accused can ask for the case to start afresh even if that means more years of trial because justice is not a cloistered virtue.
“Justice must also be seen to be done, the concept of justice is shared by an accused person and the victim,” he said.
Wambui said the focus is now on the accused persons and that it does not matter whether the case has taken 10 years or five years. It is now their opportunity to decide whether the case begins afresh or not, he said.
“The most important consideration is whether by the time Justice Lessit was taking her oath to the Court of Appeal, the DPP had closed their case, which they had not,” Wambui said.
Defense lawyer Cliff Ombeta, who represents two of the five accused persons, said the instructions on how to proceed will come from his clients.
He said under Section 200, once a court has been transferred then the accused person has the option to decide if they want to start afresh and you must give reasons why.
“But that right only exists for the accused persons. This right does not exist for the other parties and they can only bring their sentiments as to why they want it to proceed from where it left or support the defense if they want it to start afresh too,” Ombeta said.
He said a new court must inform the accused that they have the option of starting afresh and it’s a compulsory explanation in every case.
If it had been a case where a judge was of the same level but taken to a different station, then you can always ask the judge to continue with the matter, he argued.
"But in this case, Justice Lessit is now a Court of Appeal judge and her jurisdiction is no longer in the High Court. It’s the accused persons who will decide whether they want to start afresh or proceed, but I'm yet to consult my clients on how they want the case to proceed,” Ombeta said.
But the defense lawyer admits that the case has so far made huge progress, with 44 witnesses having testified and that it might be difficult to get them back and start afresh.
“The biggest consideration here, if the case proceeds from it where it left, is the demeanour where we will always argue that the court always has a memory of each witness and how their demeanour was to see if they were honest or not,” Ombeta claimed.
He also argues that the issue of consistency also comes to play when a new judge takes over because the new court will not have a feel of the matter, especially where so many witnesses had already testified.
Should they decide to proceed from where Lessit left, then the new judge must have time to peruse the file, read the typed proceedings so that he or she gets a grasp of the matter.
“But the ball lies entirely with the client and what they would want then as defense lawyers we will just advise them on what to do and what we feel before we present that in court,” Ombeta said.
All the five accused persons are still in remand as they await the conclusion of the case. They were all denied bail by Justice Lessit.
Edited by P.O
