Preacher Gilbert Deya on Thursday filed an application seeking to have his UK-based lawyer present when prosecution witnesses in the UK give their evidence in his child theft case.
Deya, who is facing five charges of child theft, wants the court to allow his lawyer on record to be present at the time of tendering evidence to avoid a miscarriage of justice.
"This matter has been slated for hearing in the United Kingdom, where the foreign-based witnesses will give their evidence on oath. The accused person since ab initio has been able to procure the services of Nigel Leskin, who has been securing the accused person's interest in the United Kingdom," the application reads.
His lawyer, John Swaka, says the accused person is in Kenya, which is within the court's jurisdiction.
Nairobi chief magistrate Francis Andayi had directed that six witnesses give their evidence in the UK through a video link.
Deya claims that if not given the opportunity to cross-examine the said witnesses, it will occasion a great loss on his part. The application will be mentioned on October 14 for directions.
In the case, Deya is charged with five counts of stealing five children, all aged under 14, between 2002 and 2004, on Mountain View Estate, Nairobi.
In March this year, Deya lost a bid to bar several remaining witnesses from testifying in the case. He wanted the court to close the prosecution case and leave the witnesses who were abroad out of the case.
However, Andayi declined to close the case and directed the prosecution to bring the remaining witnesses to court.
"I find it's only fair the prosecution be given another opportunity to present its case in full if they shall be able to," the court ruled.
The court said the prosecution had informed it that most of the said witnesses who were abroad were retired pensioners, meaning they must be elderly citizens.
However, the prosecution did not tell the court if the witnesses will testify physically or through video link.
Andayi said even if he closes the case now, the court will still have to make findings with the evidence available on whether to put him in his defence or not.
"There will be no dramatic acquittal of the accused person because the prosecution has failed to bring all witnesses," Andayi ruled.
