- Milimani chief magistrate Lukas Onyina ruled that being a victim cannot just be a natural person as alleged by the defence lawyers.
- He said Mwenda through his lawyers should make a formal application detailing with evidence why advocates or LSK cannot represent in court.
A Nairobi court has allowed the Law Society(LSK) to be part of a case in which Brian Mwenda is charged with impersonating a High Court advocate.
In a ruling delivered on Thursday afternoon, Milimani chief magistrate Lukas Onyina ruled that being a victim cannot just be a natural person as alleged by the defence lawyers.
He said Mwenda through his lawyers should make a formal application detailing with evidence why advocates or LSK cannot represent in court.
"No evidence has been adduced in this court on advocates appearing for LSK or prosecution", Onyina said.
"I find that the objection raised is not well-founded and is not merited. It is rejected and the prayers declined," he ruled.
However, the prosecution and LSK have opposed to Mwenda’s release on bail stating that the matter is of public interest.
The prosecution says that Mwenda is a flight risk and if released he might abscond.
"The possible impact that it will have on the public if the accused is granted bail is huge with the seriousness of the offence," the prosecution said.
The court heard the Integrity and sanctity of law in society have a humongous bearing.
The arguments are still ongoing.
Mwenda was on Wednesday charged with making a fake certificate for admission to practice law as an Advocate.
He denied six counts of making a false document, uttering a false document and identity theft.
In the first count, he is charged with intent to deceive, knowingly and fraudulently making a false document namely a certificate of admission p.105/21249/22 in the name of Brian Mwenda N.
He allegedly purported it to be a certificate of Admission to practice as an Advocate of the High Court duly issued by the deputy registrar of the High Court.
Mwenda is said to have committed the offence between August 30, 2022 and March 3, 2023 at an unknown place within the country.
He faces another charge of fraudulently uttering a forged certificate of Admission in the name of Brian Mwenda N on March 3, 2023, at the law firm of Mwangi Kiai LLP Advocates offices in Westlands within Nairobi.
The accused was further charged with making a fake practising certificate for the year 2023 in the name of Brian Mwenda N purporting it to be a practising certificate issued by the chief registrar of the judiciary.
The court heard on October 9, at the law firm of Micheka Omwenga and company advocates offices, that the accused person forged a practising certificate for the year 2023.
Mwenda is also alleged that on August 14, 2023, at an unknown place, he fraudulently and dishonestly used Advocates Admission, a unique identifier, assigned to Brian Mwenda Ntwiga, an Advocate of the High Court, to access and use the Law Society of Kenya online advocates account belonging to Ntwiga purporting to be him.
The defence lawyers led by John Khaminwa and Danstan Omari had opposed the Law Society of Kenya president Eric Theuri to participate in the proceedings as victims.
Khaminwa argued that LSK should not be victims in the case as they would ask the President of LSK Eric Theuri and even the prosecution counsel to be either state witnesses or defence witnesses.
“As an individual who has witnessed the skills of the accused person, I think Brian is a sharp person,” the lawyer told the court.
However, the prosecution counsel J B Owiti told the court that the defence had placed nothing in court to persuade that he could be a witness in their case.
“No affidavit has been tabled in court on the same. I am immune from any criminal claims having served as a judicial officer for 11 years,” Owiti said.
President Eric Theuri said that the complainant in this matter is a statutory body known as LSK.
He added that LSK has an absolute right to determine who represents it be it in any proceedings in the court.
It does not fall on an accused person to determine whether the LSK should be a victim or not.
“What should not be lost in this proceedings is who is the complainant in this matter. The issue of saying any advocate is a potential witness it means the defence lawyers can be a witness too since we are all advocates,” said Theuri.