The inquest into the death of Rex Masai has been extended after the Milimani Principal Magistrate’s Court permitted eight more witnesses to testify, even though the Independent Policing Oversight Authority (IPOA) had already closed its case.
Milimani Principal Magistrate Geoffrey Onsaringo granted an application by the National Police Service (NPS) to summon six additional witnesses. He also allowed IPOA to call two further witnesses before the inquest concludes.
The court, however, declined an application to recall witness Doris Mukiri Mugambi for a third time. Magistrate Onsaringo ruled that recalling her again would amount to an abuse of the court process.
In his decision, the magistrate said the court was satisfied that the extra witnesses’ testimony was necessary to achieve a just determination of the inquest.
The six witnesses approved under the NPS application include: a representative from the Integrated Command, Control and Communication Centre (IC3); a representative from Absa Bank; a representative from Makau Casino; a representative from Bliss Hospital; a representative from International Life House; and representatives from the Kamukunji, Kilimani, Pangani and KICC police stations to produce the Arms Movement Registers.
The court also allowed IPOA to call two additional witnesses.
“The court hereby directs that summons do issue to the above-named officers to attend court and testify on a date to be fixed by this court,” Magistrate Onsaringo ordered.
He also directed that the parties should not file any further applications to recall witnesses. The magistrate added that the court would not permit additional witnesses unless the applicants demonstrate exceptional circumstances and the court finds that the evidence is necessary for the inquest’s just determination.
The NPS sought the additional testimony after IPOA investigator Justin Nyatete finished giving evidence, which had triggered calls to close the inquest proceedings.
NPS counsel argued that the inquest had exposed significant evidentiary gaps since it began and said IPOA had treated the proceedings “like a circus.” The NPS further maintained that the court has powers under Section 387 of the Criminal Procedure Code to call further witnesses to ensure that no relevant evidence remains unexplored.
The NPS argued that the court should receive all material evidence and said nothing should be left unexamined before the inquest concludes. It sought testimony from officers to produce Arms Movement Registers from the Kamukunji, Kilimani, Pangani, and KICC police stations.
The ODPP opposed the application. It told the court that the move represented a second attempt by the NPS to delay the proceedings by introducing fresh evidence at the late stage of the inquest.
Counsel for the DPP, Jalson Makori, said witness number 13 had already testified that information from IC3 showed the CCTV cameras were not functioning on the relevant dates. He argued that the application had not been filed in good faith.
The prosecution also submitted that Doris Mukiri Mugambi had already testified twice and that the remaining witnesses the NPS sought were not relevant to the issues before the court. It said the parties had already presented all available evidence and urged the magistrate to declare the proceedings closed.
IPOA likewise opposed the application, describing it as a tactic meant to stall the inquest. Its counsel argued that the matter had reached an advanced stage after substantial evidence had already been recorded.
The Independent Policing Oversight Authority also argued that the NPS was claiming gaps in evidence while the police service still had responsibility for preserving and producing some of the material at issue. It said the alleged gaps stemmed from the NPS’s own lack of cooperation and that the application aimed to extend the proceedings unnecessarily.
IPOA further told the court that it had already produced CCTV footage from Absa Bank and that the Arms Movement Register had already been tendered as evidence. It argued that requesting additional documents from other police stations was not necessary.
The Law Society of Kenya (LSK) opposed the application as well, saying the NPS had made a similar request in October last year.
“The introduction of new witnesses undermines the principle of expeditious conclusion of matters,” LSK counsel submitted.
In response, NPS counsel maintained that the application had merit in both fact and law. The NPS said there was no substitute for the truth and that IPOA had an obligation to obtain all relevant material from the police.
The NPS denied that it was using the application to delay the inquest. It insisted its objective was to ensure that all relevant evidence reaches the court before the inquest concludes.
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