Ousted Imenti Central Mp Gideon Mwiti lost a third bid to quash a criminal trial in which he is charged with rape, assault…
Stage is now set for the sensational trial squarely before the Nairobi Chief Magistrate Francis Andayi who dismissed Mwiti’s objection to his prosecution on grounds of “defectiveness of a charge sheet.”
He had argued through his lawyer Dr John Khaminwa that offence particulars were defective, ambiguous, but the trial court shot him down stating the objection raised was “curable” in law.
Mwiti had argued that the charge had no material disclosure, deficient or otherwise silent on the actual ingredient of penetration, as in the exact narrative of the Sexual Offences Act!
And, that if the trial continues as it is, ” it may lead to a violation of his right to a fair trial.”
The magistrate ruled that in drafting a charge an officer may not necessarily write it “out word for word” but if it is reflective of the material disclosure of evidence then it carries the day.
Nevertheless, Andayi ruled that if on the other hand, the accused wanted the exact wording in the Act and for the avoidance of doubt then the prosecution has leeway to amend a charge at any stage as long as a trial remains alive in court.
Mwiti fought two losing battles at the High court and at the Court of Appeal since the trial began two years ago.
The MP is facing charges of rape, assault and intimidation.
Denies the charges
Andayi ruled that the issue of “forced consent” alluded to during the objection may be a card toss as counter evidence when the case is heard and determined.
The offence was allegedly committed at Tana Club along Woodvale Grove in Westlands, Nairobi, but he denies the charges.
Involuntary HIV test
The politician is charged alongside a medical practitioner “Dr” David Muchiri, who allegedly conducted an involuntary HIV test on the complainant, a former local TV sensation, whose identity cannot be revealed for legal reasons.
Dr Muchiri is charged with aiding and abetting the offence of rape and failing to prevent a felony.
According to the Sexual Offences Act, a person found guilty of rape charges faces imprisonment of a term which shall not be less than 10 years but which can be escalated life imprisonment.
The hearing date is set for December 7 2017.