DNA samples collected from one of the accused persons in lawyer Willie Kimani murder case will be retained as part of the prosecution’s crucial evidence, the court has ruled.
The defence had put a spirited fight last week to have DNA swabs that were analysed and positively matched with other samples collected at the suspected killing field shoved aside.
Trial judge Jessie Lessit, however, dismissed the bid.
Justice Lessit said the application by fifth accused, police informer, Peter Ngugi was premature.
“He can make the application at a later date,” the court ruled.
Ngugi, the fifth accused person in the high- profile murder case had sought to expunge that part of the evidence in the case arguing that he did not give the police consent to take his swabs.
He had argued that proper procedure was not followed when he was presented to the government chemist days before being charged with the murder of Willie Kimani, Josephat Mwenda and Joseph Muiruri.
Ngugi argued that the police failed to obtain his consent as required by law further citing Article 122 a & c of the Penal Code.
Suspects denied bail for the third time
Justice Lessit, further, dealt the defence a second blow by dismissing their bail application.
Police officers Fredrick Leliman, Stephen Cheburet, Sylvia Wanjiku, and Leonard Mwangi who are charged alongside Ngugi with the murder of Willie, Mwenda and Muiruri, through their lawyers had sought to be released on bail pending their trial.
This is the third time the accused were applying for bail – all the bids have been rejected.
The accused had used their health status as the newest ground while applying for bail. They had told the court that they had recently tested positive for Covid-19 while in remand and were thus highly likely to get sick again.
Further, the defence had argued that the trial has taken long to conclude.
To this, the Judge said, the defence was largely to blame for the case delay.
“I can say without hesitation that we should have completed this case latest in 2018 but are now seated in a cold tent with Covid-19 hovering all around us,” the Judge said.
She noted that the defence has been using delaying tactics to derail the trial which began in 2016.
“In 2017, we had 34 witnesses in the case; while in 2018 we only had two, excluding the one who testified in the trial within the trial,” Justice Lessit said.
The judge said it was clear there was a heightened effort to derail the case even as late as last week.
This was when the defence sought an adjournment after one of the lawyers – Cliff Ombeta – sent another lawyer to hold brief saying he was held up in a Mombasa court.
“Something changed in 2018…new tactics set in. I have no doubt they were meant to delay the trial,” Justice Lessit said.
In her ruling, the judge likened the actions of the defence team to a scenario given by President Uhuru Kenyatta during the launch of the Building Bridges Initiative report.
President Kenyatta, while addressing the Bomas gathering on October 26 said while he was running to finish the relay, his deputy William Ruto was heading the opposite direction.
“While we were all walking briskly towards the finish line of this trial in 2017, some of us, in 2018 started walking on their heels, like while wearing high heels. How fast can we walk?” the judge asked.
She said while the rest of “us are moving forward towards the finishing line, there are those who have decided to take the baton of the progress of this case backwards and the opposite direction.”
The judge said nothing would give her greater joy than granting the accused bail “but not at this stage”.
She said such a ruling could be construed to mean that the court was rewarding “indolence”.
Justice Lessit also allowed Prosecution Witness Number 44 to proceed with his testimony.
Nicholas Ole Sena, an investigator who probed the murders of Willie, Josephat and Joseph recalled how he collected exhibits at suspected killing field.
The officer said he was accompanied by other investigators when he collected exhibits at Oldonyo Sabuk, Soweto area and from the accused.
Other items produced in court include water bottles, two Maasai Shukas, police pocket phone and faeces retrieved from the field.