In recent days, it has become increasingly common for suspects linked to the same criminal case to appear before different courts
or at varying times.
While this may appear confusing to the public, the
arrangement is often driven by procedural requirements, the nature of
investigations, and legal distinctions among the suspects.
A notable example is the ongoing murder case of Kasipul MP
Charles Ong’ondo Were.
Two suspects—Allan Omondi Ogola, the late MP’s former
bodyguard, and Isaac Kuria alias Kush—were arraigned at the Milimani High
Court, while three other suspects in the same case were presented before the
Kibera Law Courts.
Similarly, in the case of the late teacher and blogger
Albert Ojwang', multiple police officers were arraigned at the Milimani Law
Courts, while two civilian suspects accused of assaulting Ojwang' appeared
before the Kibera Law Courts.
These cases, handled under different timelines and venues,
raise important questions about the reasons and legal justification behind this
split-trial approach.
To unpack the growing practice, the Star spoke to
Nairobi-based advocate Lempaa Suyianka, who explained that while split
proceedings may be permissible during preliminary stages, they are not ideal
when the matter proceeds to full trial.
“If witnesses and facts are the same, one court is likely to
arrive at different findings from the other,” he cautioned as he emphasised the
risk of inconsistent judicial outcomes.
According to Suyianka, the split is sometimes necessitated
by jurisdictional limitations and the need to comply with constitutional
requirements.
This is especially given the provision under Article 49(1)
of the constitution that suspects must be brought before a court within 24
hours of arrest.
“If someone is arrested in Naivasha, for instance, and the
24-hour window is about to lapse, police may rush to file a miscellaneous
application there to hold the suspect longer. At that point, they are not
accused persons but arrested individuals under investigation,” he explains.
However, he makes a clear distinction between such custodial
applications and the filing of formal charges.
“Once the suspects become accused persons and pleas are
being taken, splitting them across courts, especially on the same set of facts,
becomes problematic,” he says.
“That kind of
administrative fragmentation can potentially embarrass the outcome of the
matter.”
In the Ong’ondo Were case, for example, three suspects were
first presented at the Kibera Law Courts before Justice Diana Kavedza, while
other suspects, arrested at different stages, were arraigned in Milimani Law Courts.
The prosecution justified the arrangement by citing the proximity
of the evidence trail.
“We are all over the place in terms of courts because that
is where the evidence is leading us,” prosecutor Allen Mulama told the court
during a bail hearing.
He added that the suspects were taken to Kibera due to the proximity
of the alleged crimes to the crime scene.
However, he noted that the intention was to eventually merge
the cases into a single trial once investigations progressed.
Suyianka acknowledges that such a stepwise approach can be
allowed early on for case management, but added that unifying the proceedings
is necessary to ensure judicial coherence.
“This was a split administrative handling of a murder case.
As the process continues, all the suspects should be consolidated in a central
court for trial,” he said.
He emphasised that while the courts may be different at
first, the nature of the charges will ultimately guide whether the cases are
tried together.
He also noted that a difference in charges may justify a split in rare instances.
“Suppose one person is charged with murder and another with
robbery with violence in the same incident, that could lead to two separate
trials, especially if the facts supporting each charge differ,” he said.
“But, say, twenty
people are facing the same charge, like murder or robbery with violence, then a
split is legally unwarranted. They must face trial together.”
The growing number of such split trials underscores the
complexity of Kenya’s criminal justice system, particularly in multi-suspect
cases.
Section 135 of the Criminal Procedure Act, though it does not explicitly mention "split trials," provides clear guidance on how to join or separate accused persons or charges, which directly relates to this issue.
“Persons accused of the same offence committed in the course of the same transaction may be charged and tried together," it says.
While the prosecution may rely on logistical and evidentiary
factors to justify initial separations, the courts will eventually have to
consider legal fairness, efficiency and the integrity of the trial process.
Ultimately, Suyianka recommends that judicial officers
should always be cautious in allowing split proceedings to progress too far.
“The law allows certain flexibilities, but justice must be
seen to be uniform, especially where the facts are shared and the crime is
singular,” he said.
As such, while the practice may persist during early phases,
the expectation remains that suspects linked to the same offense will face a
unified trial.
