OCS Talaam, Mukhwana lose bid to block Ojwang' murder trial

High Court Judge Lawrence Mugambi has declined a request by Central Police Station OCS Samson Talaam to halt his murder prosecution over the death of blogger Albert Ojwang’.

Instead, Justice Mugambi allowed a request by the Director of Public Prosecutions (DPP) and the Independent Policing Oversight Authority (Ipoa) to transfer the case to the High Court in Kibera, where an active murder trial against Talaam and Police Constable James Mukhwana is already ongoing.

Justice Mugambi ruled on Monday that the petition filed by Talaam and Mukhwana seeking to bar their prosecution and instead compel the State to open an inquest into Ojwang’s death, should be determined by the Kibera High Court to avoid conflicting decisions.

“The petitioners are already charged before the High Court in Kibera. Any orders issued by this court may run cross-purpose with the proceedings before the Kibera court. I thus direct that this file be transferred to the High Court in Kibera for further directions,” Justice Mugambi stated. 

He stressed the need to avoid jurisdictional conflicts, warning that continued litigation in two separate courts on the same matter would lead to contradictory outcomes. 

The ruling followed an oral application by the DPP and Ipoa to transfer the matter and ="https://www.standardmedia.co.ke/opinion/article/2001521720/fury-over-ojwangs-death-shows-kenya-wont-return-to-dark-days">oppose the conservatory orders sought< by the officers to suspend their prosecution.

State Counsel Jalson Makori, representing the DPP, argued that it was improper for the High Court to entertain a petition that effectively challenged a ruling by another judge of equal jurisdiction.

“There is no necessity for the State to file a formal application for transfer. The court can look at the petition on its face and see that it challenges a matter already within the jurisdiction of another High Court,” Makori submitted.

Makori stated that the petition stemmed from a miscellaneous application previously filed at the Chief Magistrate’s Court in Milimani, which had sought three weeks’ detention of the officers pending investigations.

That application, he noted, was now overtaken by events, as the two officers had already been formally charged and were being held on orders from the Kibera High Court until July 30. “This court is being invited to review a decision by another High Court of ="https://www.standardmedia.co.ke/national/article/2001522112/ipoa-summons-police-dig-eliud-lagat-over-blogger-ojwangs-death">concurrent jurisdiction<, specifically, Justice Diana Kavedza, who issued the detention orders pending bail ruling,” Makori said 

The DPP further stated that the request for conservatory orders was not only unnecessary but also legally untenable.

But the move to transfer the matter to Kibera was strongly opposed by Talaam’s legal team, led by lawyer Danstan Omari. Omari insisted that the Milimani High Court retained jurisdiction, as the petition was first filed there before the murder charge was instituted. “We came to this court because it supervises the lower court in Milimani Chief Magistrate’s Court, where our client was first arraigned under a miscellaneous application,” he submitted.

“The State, in a calculated attempt to frustrate the authority of this court, rushed to the Kibera High Court last week and charged our clients without disclosing this petition,” he added.

Omari insisted that a formal application for transfer should have been made and that the petition raised critical fundamental constitutional issues, which the Milimani High Court Constitutional and Human Rights Division should address.

He further questioned the DPP’s choice of forum, stating that the ="https://www.standardmedia.co.ke/article/2001521227/killed-by-police-death-of-blogger-in-cells-raises-questions-over-transparency">offence allegedly occurred at Central Police Station<, which falls under the jurisdiction of the Milimani Law Courts.

Both Talaam and Mukhwana will continue to be held until July 30, when the Kibera High Court is expected to give directions on their bail application.