Linturi wants attempted rape charge dropped, cites no evidence

Meru Senator Mithika Linturi has asked a Nairobi court to terminate a case in which he is accused of attempted rape of a woman.

Linturi said prosecution has failed to supply him with crucial evidence.

In his submissions, the senator, through his lawyer Muthomi Thiankolu, told Milimani chief magistrate Susan Shitubi that the prosecution has not supplied him with nude photographs and video taken at the scene of the alleged sexual crime.

In the charge sheet, Linturi is accused that on January 30,2021, at around 3am at Maiyan Villa’s hotel in Nanyuki, he intentionally and unlawfully attempted to rape a 36-old-woman.

"The law on the disclosure of exculpatory evidence may be distilled into the following interrelated legal propositions," Thiankolu said.

"That the prosecution must disclose not only the evidence it intends to adduce in support of the charges against an accused person, but also any evidence in its possession which it does not intend to rely on."

He submitted that non-disclosure of exculpatory evidence by the prosecution renders a trial unfair irrespective of the prosecution's motives for withholding it. 

The lawyer told the court that the disclosure of exculpatory evidence is an inviolable component of the right to a fair trial and the criminal justice system of an open and democratic society.

He faces another count of indecently touching the woman without her consent.

"Your honour, the state has deliberately and discriminatorily frustrated investigations into the senator's extortion complaint against the complainant and other prosecution witnesses," the lawyer said.

"Lituri's extortion complaint preceded and is inexorably linked to the sexual assault allegations set out in the charge sheet," he added. 

Thiankolu told the court that the police rushed to charge his client on account of a fabricated ex-post complaint to achieve the ulterior motive of persecuting him for his political affiliation.

Allegedly four men stormed into Linturi’s room, beat him up, stripped him naked and took nude pictures of him.

In supporting affidavit, Senator Lituri said the men further threatened to publish his photos online unless he gave them Sh1 million.

According to the documents, the intruders in his room told him the money they referred to as ‘kondoo’ was a penalty for Linturi’s action of entering into the couple’s room.

Thiankolu said Linturi pleaded with them that he didn't have any money but they insisted on being paid. "The kidnappers took Sh200,000 cash and directed Linturi to call his friends and raise the Sh800,000 balance" the letter reads.

It is alleged that Linturi was scared, trapped and desperate so he made frantic calls to his friends to raise the cash, but only managed to get Sh298,000.

They refused to take the money through Mpesa so Linturi begged them to allow him to go to withdraw the Sh800,000 from the KCB Nanyuki branch.

The lawyer said the legislator was allowed on condition that he leaves his bag, writes a cheque and signs an undertaking that he owes them the money.

However, immediately after he left the hotel, Linturi did not go to the bank, but proceeded to the police station and reported them for extortion. 

The senator claims the OCS filled a P3 form for him to facilitate treatment of the injuries he sustained from the beating.

After treatment, he was given a police escort back to the hotel. He claims they found the kidnappers still waiting for the balance.

Thiankolu said police arrested the alleged kidnappers and managed to recover the Sh200,000 cash and Sh800,000 cheque that Linturi had given them.

The lawyer further said a month later, the senator was informed that the DCI headquarters had taken over the case from Nanyuki police station, where he had initially made a report.

“The DCI has recently recommended the arrest and prosecution of our client for alleged sexual offences arising from the Maiyan Villa incident," he said.

However, he said this was happening "before concluding investigations into our client's kidnapping and extortion complaint."

The magistrate will deliver her ruling on August 31.

(edited by Amol Awuor)