Three people accused in the murder case involving Dr Victoria Mutiso have asked the court to allow them to cross-examine Prof David Ndetei Mutiso over an affidavit opposing their release on bail.

The accused persons, led by Rose Mbithe Mulwa, are challenging the authenticity of the affidavit, which they say was allegedly sworn when Prof Ndetei was admitted to a High Dependency Unit (HDU).

In the affidavit filed last week, Prof Ndetei reportedly urged the court not to release his ex-wife, Rose, and her two children, Angela Mulwa and Chris Mulwa, on bail, citing fears for his safety.

He stated that despite divorcing Rose in 2001 and later marrying Dr Victoria Mutiso, his estranged former wife and her children allegedly continued to threaten him and his new wife.

Through their lawyers, the three accused persons questioned whether Prof Ndetei genuinely swore the affidavit and asked the court to allow them to question him about its contents.

The prosecution, represented by lawyer Makori, opposed the application, arguing that the defence had missed the appropriate opportunity to make the request at this stage of the proceedings.

RECOMMENDED ARTICLES:

• High Court Awards Justice Sankale Ole Kantai KSh2.5 Million Over Unlawful Arrest
• Court Withdraws Sh17.5 Million SHA Case Charges Against Former Boss Elijah Wachira
• Panga Boys Gang Members Jailed for Five Years Over Lamu School Break-In

The prosecution also argued that the defence could not dictate how the Independent Policing Oversight Authority (IPOA) should conduct its investigations, noting that the agency was not a party to the proceedings.

The court is expected to rule on the application on the 19th. The month and year were not specified in the account provided.

Accused Persons Seek Release on Cash Bail

Separately, the defence urged the court to release the three accused persons on lenient cash bail terms, arguing that they were not flight risks and had made no attempt to flee the court’s jurisdiction.

Defence lawyer Mbaluka told the court that the accused live in Karen and argued that the prosecution had not presented evidence showing they were likely to abscond if released.

The defence also raised concerns about their health, saying they had medical conditions requiring specialised treatment. Counsel further claimed that some of the conditions had been inflicted while the accused were in custody.

The lawyers asked the court to consider cash bail instead of bond, arguing that the accused persons’ constitutional right to bail under Article 49(1)(h) should be respected.

“The rule is granting of bail; denial is the exception. The prosecution must prove compelling reasons accompanied by evidence,” the defence argued.

Defence Disputes Claims of Witness Interference

The defence also challenged the prosecution’s concerns that releasing the accused could lead to interference with witnesses.

Counsel argued that no evidence had been presented to substantiate the allegations, maintaining that a mere apprehension of witness interference was insufficient to justify continued detention.

The lawyers said the prosecution had a constitutional obligation to demonstrate a real likelihood that the accused would intimidate or interfere with witnesses.

They further argued that investigators had already secured the material evidence they said they had recovered and could preserve and analyse it without keeping the accused in custody.

Court Issues Direction on Medical Treatment

In a separate application, the defence asked the court to order that the first, second and third accused persons be taken to Kenyatta National Hospital or Mbagathi Hospital for medical treatment.

However, the court directed that they receive treatment at the prison clinic.

It further ordered that if the officer in charge determined that they required additional medical attention, they should be escorted to a government health facility.

The court’s pending ruling on the application to cross-examine Prof Ndetei is expected to determine whether the defence will be allowed to question him over the disputed affidavit as the bail proceedings continue.