Suspects in Dr. Victoria Mutiso murder case want husband cross-examined over affidavit

Suspects charged with the killing of Dr. Victoria Mutiso now want her ex-husband, Prof. David Ndetei, cross-examined over an affidavit he allegedly swore in the case.

In an affidavit filed last week, Prof. Ndetei urged the court not to grant bail to his ex-wife Rose Mbithe Mulwa and her two children, as he fears for his life.

Prof. Ndetei said that after divorcing Mbithe in 2001 and marrying Dr. Victoria Mutiso, his estranged wife and her two children continued to threaten him and his new wife.

The three accused persons - Rose Mbithe Mulwa, Angela Mulwa and Chris Mulwa - through their lawyers, have questioned the authenticity of the affidavit, arguing that Prof. Ndetei was reportedly admitted to the High Dependency Unit (HDU) at the time he is alleged to have sworn it.

The defence has applied to cross-examine Prof. Ndetei, with counsel arguing that they have doubts about whether the affidavit was genuinely made by him.

However, the prosecution opposed the application, arguing that the defence had missed the opportunity to make the request at this stage of the proceedings.

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

The court is expected to deliver its ruling on the application on the 19th.

Meanwhile, the defence urged the court to grant the three accused persons bail on lenient cash bail terms, arguing that they were not flight risks and had not attempted to flee the jurisdiction.

Lawyer Mbaluka told the court that the accused persons reside in Karen and that the prosecution had not presented evidence demonstrating that they were likely to abscond.

The defence further argued that the accused had medical conditions, some of which they claimed were inflicted while in custody, and required specialised medical attention.

Counsel asked the court to consider releasing the accused on bail rather than bond, insisting that the constitutional right to bail under Article 49(1)(h) of the Constitution should not be rendered meaningless.

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

On claims that the accused could interfere with witnesses, the defence maintained that the prosecution had not provided evidence to support the allegations.

Counsel argued that mere apprehension of witness interference was insufficient and that the prosecution had a constitutional obligation to demonstrate, on a factual basis, that there was a real likelihood of interference or harassment.

The defence also submitted that investigators had already secured the material evidence they claimed to have recovered and were therefore in a position to preserve and analyse it.

In a further application, the defence requested that the first, second and third accused persons be taken to Kenyatta National Hospital (KNH) or Mbagathi Hospital for treatment.

However, the court directed that the accused persons be treated at the prison clinic and that, should the officer in charge determine that further medical attention was necessary, they be escorted to a government health facility.