Revealed: Why State lost defilement case against MP Kiborek

Nakuru Chief Magistrate Bildad Ochieng granted the prosecution's application to withdraw the case under Section 87 (a) of the Criminal Procedure Code (CPC).

The section states that a case can be withdrawn at any stage, but it does not stop police from arresting them again if new evidence emerges.

The Nation has however learnt that the case was dogged by numerous delays and hiccups which thwarted the trial. Since the MP was arraigned on December 26, 2018, the case has never been heard.

From the delay in the supply of crucial documents between the parties, to lack of coordination between the police and the prosecution as well as transfer of judges, forced the withdrawal of the case.

A letter by Senior Assistant Director of Public Prosecutions Hassan Abdi to the Nakuru Chief Magistrates Court dated November 7, seen by The Nation gave instructions for the withdrawal of the matter.

The DPP cited lack of witnesses in the case as the cause for withdrawal.

Read: Why Mombasa court freed 23-year-old man convicted of rape

“The ODPP hereby directs the prosecutor handling the case to seek leave of the court to have the matter withdrawn under Section 87 (a) of both Criminal procedure code due to unavailability of witnesses," read the letter.

A further look through the court file indicated that the matter was handled by at least five magistrates since 2018.

On July 22, the minor’s family, through their lawyer Rabala and Company Advocates, wrote a letter to the judiciary complaining of the delay in the prosecution of the matter.

The family claimed that the matter which had come up for mention for more than 12 times had never been heard due to the numerous adjournments by the prosecution on what they said were unsubstantial reasons.

"The continual delaying tendency of the court for three and half years is not only prejudicial to the minor but a blatant show of disrespect to the girl-child who only seeks justice from this court," stated the family.

In response, the Nakuru Chief Magistrate through a letter dated September 6, 2022 said the delay was due to transfers of the magistrates.

Some of the magistrates who handled the matter include Eunice Kelly, Principal Magistrates Joe Omido, Bernard Mararo, Faith Munyi and Chief magistrate Elizabeth Usui as well as Edna Nyaloti.

The matter was taken over by Chief Magistrate Bildad Ochieng in August 2022, who placed it for hearing in January 2023.

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However, when it came up on January 17, the hearing could not proceed after it emerged that the prosecution did not have the police file.

The prosecution claimed the investigating officer had transferred and was yet to hand over the file. The case was adjourned.

On July 11, the prosecutor was indisposed. On October 9, Mr Kiborek through his lawyer Gordon Ogolla protested the continued delay after the prosecution claimed not to be ready.

The prosecution, while seeking adjournment claimed they were yet to receive the police file.

Mr Ogolla challenged the prosecution to withdraw the case if they were not ready to proceed.

"This matter has been in court since 2018 and there is no single day the prosecution has availed witnesses. It is embarrassing to see a file of 2018 in the cause list as the girl is being subjected to injustice," said Mr Ogolla.

In addition, there have been numerous applications filed by both families which contributed to the delay in the case.

This included an application by the State in which they sought to have samples extracted from Mr Kiborek for DNA test.

Another application by the family sought to have the case transferred to Nairobi after accusing the prosecution and the court of mishandling the matter.