Preacher’s Murder Trial Faces Delay as Court Orders Reduced Charges

The court has rendered a ruling ordering the Director of Public Prosecution DPP to amend the charge sheet in which controversial preacher Paul Mackenzie and 30 others are charged with 191 counts to reduce them up to 12 counts.

In delivering the ruling, the Malindi High Court Judge Justice Mugure Thande stated that the court is aware that the decision to charge and the number of counts in a charge sheet or information lies with the DPP. 

Under Article 157 (1) of the constitution it has provided the DPP powers to institute and undertake criminal proceedings, take over and continue any criminal proceedings commenced in any court and discontinue any criminal proceedings at any stage before judgement is delivered.

The judge also stated that the expectations of Article 157 (11) of the constitution have not been met which requires the holder of the office to regard 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 and the act.”

The judge further said that although the DPP has the powers to determine the charge and the number of counts to be preferred against the accused persons, the court has the powers under Article 165 (d) (II) to interrogate the exercise by the DPP of his mandate in the matter and the power to intervene.

All the 31 accused persons in this matter have been charged with a total of 191 counts of murder contrary to section 203 of the penal code.

They were arraigned in court on February 6, 2024, for plea taking where they denied all the charges.

The subject of the ruling was a preliminary objection filed by four of the accused persons citing that the charge sheet is defective in several respects by contravening the provisions of section 134 of the criminal procedure code.

They also indicated that the number of counts in the charge sheet is oppressive and contrary to the constitutional rights of the accused persons,

“The number of charges complained of will subject the accused persons delayed determination of the case and in the contravention of the principles of fair hearing as is enshrined in article 50 of the constitution.”

In the accused person case, the charge sheet runs up to 298 pages and contains 191 charges of murder of known and unknown persons and is defective and overloaded.

On the charges of being defective, the accused submitted that the DPP must consider his mandate under Article 157 of the constitution to ensure that the criminal proceeding is not abused.

He must draw the charges against the accused which accord with the facts, reflect the offence and conform to the provisions of section 134 of the criminal procedure code.

They submitted that the charges are ambiguous, speculative and confusing that all charges the accused are facing do not indicate the specific date, month or year when the offences were committed,

“In some of the counts there are no names, age or gender of the victims to enable the accused come up with a proper defence.”

They further submitted that in the charge sheet, all counts refer to an unknown date between January 2021 and September 2023 at the Shakahola area within Malindi sub-county within Kilifi county where they jointly murdered unknown female, male and children of unknown sex.

The accused thus asserted that the ambiguity in the charge sheet would make it difficult to mount a defence.

They said that Article 137 of the criminal procedure code requires a charge be set in a manner to make it sufficiently clear to the accused the facts of the offence and the time it was committed.

The charges drawn with the unknown victims either by name, age or gender are prejudicial to them and thus contravene their right to a fair trial as guaranteed in the constitution.

The judge considered the prayers sought by the accused to reduce the number of charges citing that “having one very long trial will be extremely burdensome not only to the court but also to the prosecution as well as the defence and 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 manageable counts.”

Justice Thande further stated that for the interest of justice to be served, some charges be withdrawn where they may thereafter be revived should it be found necessary.

“I accordingly direct the prosecution to file an amended information with reduced counts not exceeding 12.”