Shakahola: Why court advised DPP to cut number of charges

The High Court has advised that prosecuting controversial preacher Paul Mackenzie and his co-accused with 191 counts of murder is not in the public interest or the interest of the administration of justice.

Malindi High Court Judge Mugure Thande observed that it would be virtually impractical to manage this kind of trial, which is likely to be prolonged.

“The convolution of the matter will also be of unimaginable proportions. An overloaded charge will clearly occasion delay in the conclusion of the trial. This will lead to a violation of the right of the accused to a fair hearing as guaranteed under the law, and in particular, the right to an expedited hearing,” said the Judge.

While noting that the decision to charge and the number of counts in a charge sheet or information lies with the Office of the Director of Public Prosecution (ODPP), the judge argued that engaging in a lengthy trial, which is likely to lead to confusion of the prosecution case, will certainly not be in the public interest or justice.

Additionally, Justice Thande noted that the impracticality of managing such a trial and the inconvenience and embarrassment likely to be caused to the defence, the prosecution, and the court cannot be ignored or disregarded.

“Having one very long trial will be extremely burdensome not only to the court but also to the prosecution as well as the defence. The question that assails the mind of the court is, what will the judgment in a case with 31 accused persons facing 191 counts even look like?” the judge posed.

Therefore, the judge advised that the reasonable thing to do in the interests of all concerned is for the prosecution to withdraw some counts in the information and remain with a manageable number.
The judge noted that the withdrawn charges may be revived if necessary, adding the “interests of justice will be better served this way.”

While acknowledging the independence of ODPP, Justice Thande noted that the law requires the holder of that office to have regard for the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process in exercising the powers conferred by the Constitution.

“In the end, and in view of the foregoing, I do concur with the defence that the charge sheet containing 191 counts is clearly overloaded. I accordingly direct the ODPP to file an amended information with reduced counts not exceeding 12,” said the judge.

Justice Thande also observed that charging an accused person with many counts in one charge sheet is frowned upon because of the potential prejudice that may be occasioned by such, adding that overloading information militates against the public interest and the interests of justice.

“This court vividly recalls the length of time it took just to read out all the 191 charges during plea taking by the accused. It took two court assistants helping each other. One can only imagine how long it will take for evidence to be adduced against each of the 31 Accused, and recorded in respect of all the 191 charges,” said the judge.

However, the court okayed the state to prosecute Mackenzie and his group for murdering an unnamed person whose gender is also not known.

The law provides that a charge or information shall be sufficient if it contains a statement of the specific offence or offences facing an accused person and particulars as may be necessary for giving reasonable information as to the nature of the offence.

However, the ODPP team consisting of Deputy DPP Victor Mule, Mombasa Assistant DPP Peter Kiprop, Senior Principal Prosecution Counsel Ms Ngina Mutua, Principle Prosecution Counsels Victor Owiti, Betty Rubia and Joseph Mwangi affirmed that the information complained of is in line with the law and meets all the requirements.

“The information contains the respective statements of the specific offences with which the accused are charged. The particulars are as sufficient as necessary to give reasonable information as to the nature of the offence charged,” said Mule.

The prosecution contended that all the 191 counts contain a statement that each of the accused is charged with murder and the particulars which inform the accused of the victims and the period of the offence.
The prosecution also denied that the information contained in the charge sheet was overloaded.

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