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Catholic Priest on death row sues State, challenging confession law

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Incarcerated Catholic priest Guyo Waqo Malley is back in court seeking to outlaw a law which gave him away for the murder of a colleague working in Isiolo.

Father Guyo alongside Adan Ibrahim Mohammed, Mohammed Molu Bagajo, Roba Balla Bariche and Mahati Ali Halake are serving time at Kamiti Prison after they were sentenced to death in 2014 for the murder of Father Luigi Lucati.

Father Lucati was killed on July 14, 2005. Their jailing followed a confession by Isaack Abdi Mohammed on how the plot to eliminate Lucati was hatched, failed several times and finally succeeded.

During the trial, the court found the four planned and actively participated in the murder of the Italian priest.

Six years into their sentence, Guyo, Mulo, Roba and Halake have filed a new case before the High Court arguing that confession rules are not applicable to trials in Kenya and.

According to the four, the Out of Court Confessions Rules, 2009, were passed by Parliament without consultations and should therefore be declared unconstitutional.

Spilled the beans

Ali spilled the beans, giving away the convicted priest and his accomplices in a video confession before Justice Weldon Korir who was in 2005 serving as a magistrate in Isiolo.

In their new filing, the four say the confession law is against the right to an accused person to remain silent and not to be forced to self-incriminate.

“It is apparent that in the circumstances that the taking, recording or admission of out of court confessions would be a gross violation of an arrested or an accused person’s rights to remain silent and not to be compelled to make a confession,” they argue in their case filed before High Court judge Anthony Murima.

They argue that the rules are inconsistent with the Criminal Law Amendment Act 2003 and which spell out that confessions or any admission to guilt by an accused person cannot be used against such person unless it is admitted before a court.

The four want the court to declare that the confession by Ali was against their right, hence their trial and conviction was unfair.

“The petitioners pray for a declaration that the confession evidence relied upon to found the conviction of the petitioners should be excluded under Article 50(4) of the Constitution of Kenya, 2010 as the admission rendered their trial fatally unfair,” they argued adding that the High Court had earlier directed the Attorney General to relook the Evidence Act in a bid to make amendments.

The Director of Public Prosecutions Noordin Haji is however opposed to the case and wants the court to dismiss it. According to Haji, the new case amounts to re-opening the criminal trial and would amount to the judge supervising his colleague.

He said that they had initially challenged the admissibility of the confession before the trial court and which then High Court judge Jackton Ojwang (now retired) dismissed their application and ordered the criminal case to proceed.

After the court sentenced Waqo, Mulo, Roba and Halake to death in 2014, they filed an appeal challenging the verdict. The appeal has not yet been heard.

Father Lucati died when a bullet entered through the right side of the shoulder, tore through the neck, shattered his jaw bones, and exited on the left side of his chin.

Former government pathologist John Njue told the trial court that the killer bullet must have been fired from a powerful gun. The priest died from a single shot.

by Standard.co.ke


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Courts

Four children fight claims they were disowned by late MP

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Four children of former Keiyo North MP William Murgor yesterday fought allegations that they had been disowned by their father before his death.

While testifying before the High Court in Eldoret, Ambrose Kiplagat Murgor, one of the four children said to have been born out of wedlock, told the court their father never disowned him or any of his three siblings.

While being cross-examined before Justice Hellen Omondi, Mr Kiplagat said he was a biological child of the late MP, adding that the contrary claims were only made to lock him and his siblings out of the MP’s vast estate.

“My late father never disowned me or my siblings,” Kiplagat told the court.

He said he was born in 1970 at Murgor’s Kaptagat farm before they moved in 1976 to Chesigot farm in Elgeyo Marakwet County.

The four – Kiplagat, Oscar Murgor, Sharon Murgor and Faith Murgor – who are children of the former MP’s fourth wife Anna Kimoi, have told the court they were brought up with the other children.

“We were raised together with the other siblings from the different houses. I was in school with my two brothers, Collins and Kenneth, in the same primary school, all along living as brothers,” he added.

He told the court that he did not know the reasons as to why he and his brother Oscar did not get a share of their father’s farms like rest of his siblings.

Kiplagat added that his elder sister Enid Cheptanui filed the case against her step-brother Francis Murgor, Chemutai Murgor and Keiyo North MP Dr James Murgor for excluding them in the distribution of the Sh1.4 billion family estate.

While testifying in the succession dispute, James denied knowing Kiplagat and his three siblings Oscar, Sheila and Faith Murgor.

While James claimed to have only been familiar with them for a few years, Kiplagat on the other hand told the court the MP was well known to him and that he had even campaigned for him.

“I campaigned for him in three elections, and he always introduced me as his brother. When my mother was sick, I was in contact with the MP, who even helped in paying the hospital bill,”

by Stanardmedia.co.ke


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Courts

Willy Mutunga’s former wife loses bid to revive divorce suit

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Former Chief Justice Willy Mutunga’s ex-wife Beverle Michaele Lax (pictured) has lost a bid to revive a divorce appeal she filed against him in 2015.

The Court of Appeal had initially dismissed Lax’s appeal against a High Court divorce ruling for her lawyer’s failure to pursue it.

She, however, went back, saying her lawyers never informed her that the case was coming up.

But Court of Appeal Judges Asike Makhandia, Jamilla Mohammed and Sankale ole Kantai found that her conduct, while the appeal was pending, did not persuade the court to intervene.

According to the judges, Lax filed a separate case to dissolve the same marriage at a San Mateo County Court in California, US, and never informed the Kenyan court about it.

The court observed that the High Court had finally dissolved the marriage, hence her appeal had been overtaken by events.

“We cannot fathom the reason(s) for this action. Be that as it may, it does again point to the applicant as a person without candour. What the applicant is seeking from this court is really the exercise of discretion,” the judges ruled.

The court found that if Lax was discussing with her lawyers about their pay, they must have informed her about the appeal.

Lax told the court that she came to learn about the dismissal of her case in November last year when she temporarily visited Kenya. She narrated that she only managed to peruse the file on January 24, 2020 and could not have attended court as she was unwell.

She said her then lawyers failed to inform her that if she did not pay their legal fees, they would not attend the court sessions.

“There is no doubt that the applicant was in constant communication with her counsel who were irksome in demanding their legal fees and we therefore find it difficult to believe that she was not informed of the hearing date,”  the judges ruled.

Mutunga opposed her application and told the court he filed a divorce case against Lax in 2009. According to him, the court gave its judgement on July 26, 2012.

Aggrieved with the High Court’s decision, Mutunga said his ex-wife filed an appeal on September 18, 2015, but the case did not proceed out of her delaying tactics.

He explained that when the case came up for hearing on November 18, 2015, Lax sought for Deputy Chief Justice Philomena Mwilu, who was then a Court of Appeal judge, to withdraw from the bench that was hearing the case.

By Standardmedia.co.ke


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Courts

Mombasa lawyer loses Sh20 million to ‘mganga hatari’

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A Mombasa lawyer charged with stealing Sh20 million from his client told a court the money was swindled by a mganga from Tanzania. Witchdoctor

Musa Ngare Aziz told Senior Principal Magistrate Francis Kyambia that he contracted a Mr Mohammed, a witch doctor, to help him sell red mercury reportedly valued at over Sh100 million. The mercury was purportedly in the possession of a woman identified as Sarah from Samburu.

Mohammed took Aziz through ritual including meeting with ‘invisible sheikhs’ in dark caves in Mombasa, besides other rituals in Tanzania to help in selling the mercury to increase his fortunes.

But it was the beginning of his financial drain, physical torture and death threats, said Aziz, who confessed to his parents after recovering from a road accident that, “I had been conned a lot of money mainly belonging to my clients.”

Aziz said a friend introduced him to Sarah as a client in need of legal services to sell mercury. Sarah in turn, introduced him to the mganga ostensibly after failing to find a buyer. Since the deal was purportedly worth Sh105 million, a lawyer was needed. Aziz was taken to a house in Kisauni belonging to a woman identified as Mama Agnes.

“I went to verify the mercury, Agnes poured it on a razor blade and it turned black and while my friend’s blue pen turned red,” Aziz told the court.

“However, Sarah claimed to have seen a snake in the mercury and was told by elders that only Mohamed could help because there was something bad halting the transaction, which needed cleansing,” Aziz narrated.

He added that he used his own and client’s money for Mohammed’s costly rituals for which he was brought before the court charged with stealing Sh20 million belonging to his client, Majid Rashid Abdalla, on diverse dates between October 6 and 27, 2015.

The police haven’t arrested Mohammed or the ‘invisible sheikhs’ as they apparently are afraid of venturing into the dark caves.

Aziz told the court that the invisible sheikhs asked for a bag, which disappeared but was returned full of cash equivalent to Sh105 million – the value of the mercury. The bag was then closed and keys handed to Aziz to open once the sheikhs secured a buyer for the mercury.

He said Mohamed had asked him and his team to bring with them Sh20,000 as entry fee into the cave and a big bag. He was told to place Sh300,000 in the four corners of the bag totalling Sh1.2 million.

He said that voices demanded the bag, which disappeared and when it returned, it was full of cash equivalent to Sh105 million.

The invisible sheikhs then demanded a second bag stashed with 1.5 million on each corner but when Aziz returned to the cave with the bag containing $60,000 (Sh6 million), the sheikhs were not impressed. They reportedly threatened and tortured Aziz, who was warned against going to work and was fined Sh100,000.

Every Thursday, Mohammed demanded Sh80,000 to feed the invisible sheikhs with camel meat. He gave Mohamed the cash directly or took it to the caves himself or through his friend. Aziz also catered for Mohamed’s travels from Tanzania and accommodation in Nyali during the entire duration of the rituals in Mombasa.

Aziz promised to reimburse the money in instalments. Hearing is set for Nov 25.

by Standardmedia.co.ke


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