- Issuing the orders on Tuesday, Senior Principal Magistrate Boaz Ombewa said there was nothing irregular about how their release on bond was suspended, as the defence had argued.
- The defence, led by Lawyer Danstan Omari, had raised an issue that the prosecution did not supply the Kiambu High Court with all the details of the case.
Police officers accused of abducting two Indian nationals and their taxi driver in 2022 have been detained in Kiambu Prison.
Issuing the orders on Tuesday, Senior Principal Magistrate Boaz Ombewa said there was nothing irregular about how their release on bond was suspended, as the defence had argued.
The defence, led by Lawyer Danstan Omari, had raised an issue that the prosecution did not supply the Kiambu High Court with all the details of the case when they applied for suspending the ruling that granted the officers bond.
They also argued that the detainment of the officers was infringing their rights, and especially their right to a fair trial.
Omari was also aggrieved by how the High Court orders were obtained, noting that only the judiciary and the state were involved in the process excluding the accused persons and their lawyers.
He added that the order has generated the actions that led to Tuesday's session, considering that the earlier agreement was for a pretrial on January 19, 2024.
"Only two arms of government, state and the Judiciary were present. That is a very serious attack on how criminal proceedings should be conducted. My good brother calls it arbitrary usage of raw power which is illegal in the modern democratic country under the Kenyan Constitution," he said.
He said despite this, the officers presented themselves before the court as a show of good faith.
The prosecution however said the defence was aware of the application that was made, saying the same was made through case progression issued through their emails.
"The order was of course issued ex-parte (from one party only). Legally, ex-parte since a certificate of urgency dated November 28, 2023 had been filed upon instructions by the DPP. It is not uncivil for a party to have brought ex-parte and that is what transpired," the state added.
The Magistrates also noted that the subsequent orders by his colleague at Kahawa Court, Principal Magistrate George Kiage for the mention and the officers to appear in court were also not irregular.
"In my view, this means that they (accused persons) are taken back to the position when they were before being granted bond," he said.
He also dismissed the defence's argument that the suspension of bond should only apply to the officers who had not been released before the High Court's orders.
The Magistrate said the same applied to all the suspects.
"It is my view that I have no jurisdiction to vary the High Court order. I do not agree that the stay order does not apply or does not affect the status of the accused persons out of bond," he said.
Ombewa however opined that an order of status quo - an order to maintain a situation - could have.
"As it is, the High Court Order affects all persons," he reiterated.
The officers in the case are drawn from various agencies including DCI's disbanded Special Service Unit (SSU), the National Intelligence Service (NIS) and the Kenya Wildlife Service (KWS)
They include Chief Inspector Peter Muthee Gachiku, James Kibosek Tanki, Joseph Kamau Mbugua, David Chepchieng Kinsei, Joseph Mwenda Mbaya, John Mwangi Kamau, Hillary Limo Kipchumba, Stephen Luseno Matunda, Simon Muhuga Gikenyo, Paul Njogu Muriithi, Boniface Otieno Mtulla, Elikana Njeru Mugendi, Fredrick Thuku Kamau, National Intelligence Service (NIS) officer John Wanjiku Macharia and senior Kenya Wildlife Service (KWS) officer Michael Kiplangat Bett.
They are suspected of abducting Mohamed Kidwai and Zulfiqar Khan and their driver Nicodemus Mwania Mwange along Southern Bypass near Ole Sereni Hotel on July 23, 2022.
The court sat on Tuesday for a mention following directions dated December 1, for the same by Kiage.
This was regarding the aforementioned orders by the High Court where Justice Dora Chepkwony suspended the ruling that had allowed the suspects to be released on bond terms.
The orders were issued on November 30, overruling the November 10, ruling.
Then, the officers had been released on either a Sh1 million cash bail or a bond of Sh3 million each.