Milimani High Court: Ombeta, Omari Withdraw Rose Mbithe Murder Case

• Lawyers Cliff Ombeta, Danstan Omari, and others withdrew from representing Rose Mbithe Ndetei and her two children in the Dr Victoria Nthunya Mutiso murder trial at Milimani High Court.
• The withdrawal, allowed by Justice Alexander Muteti, stemmed from concerns over documents allegedly filed without client consent and a letter from the accused alleging malicious prosecution.
• The accused expressed disappointment, noting their two months in custody and lack of direct communication with their legal team.
• Justice Muteti affirmed the accused's right to choose counsel and issued a stern warning about compliance with court orders, following previous virtual appearance refusals.
• The court ordered the Office of the Director of Public Prosecutions to file a supplementary affidavit within three days, with the next hearing scheduled for the following Tuesday.

Justice Alexander Muteti underscored the fundamental right of an accused person to have their best interests considered, emphasizing that they cannot be compelled to retain legal counsel unwilling to continue representation.

A significant development unfolded at the Milimani High Court on Tuesday as prominent Kenya criminal defence lawyers, including Cliff Ombeta and Danstan Omari, along with Samson Nyaberi and others, formally withdrew their legal representation for Rose Mbithe Ndetei and her two children, Chris Mulwa and Angela Mulwa. The team had been representing the first three accused in the murder trial of Dr Victoria Nthunya Mutiso. This dramatic exit occurred shortly after the trio, alongside co-accused Police Constable Elijah Kibelion Kimoi and Maritim Kimutai, entered pleas of not guilty to the murder charges.

The legal team informed Justice Alexander Muteti of their decision, citing concerns that certain documents had allegedly been filed without the explicit consent of their clients. Following their request, Justice Muteti granted the lawyers permission to cease acting for Mbithe, Chris Mulwa, and Angela Mulwa, leaving them to secure new legal representation. The accused, who have been in custody for approximately two months, expressed their dismay at the sudden departure of their counsel. Rose Mbithe Ndetei lamented the timing, stating that the lawyers were leaving them "at this point of need" and that crucial information had not been conveyed due to a lack of in-person meetings. She had hoped her chosen legal experts would accompany them throughout the proceedings.

Justice Alexander Muteti underscored the fundamental right of an accused person to have their best interests considered, emphasizing that they cannot be compelled to retain legal counsel unwilling to continue representation. He directly addressed Mbithe, affirming her right as an accused person to make decisions aligned with her perceived best interests. The lawyers' decision to withdraw was further contextualized by the court being informed of a letter, purportedly authored by the accused, which leveled accusations of malicious prosecution and decriminalisation against investigators. This letter had been circulated to various authorities, including the Office of the President.

During the proceedings, lawyer Cliff Ombeta explicitly conveyed his desire to be excused, stating, "I can not be in this game of playing... please let me get out of these proceedings." State Counsel Jalson Makori subsequently requested a 14-day period to formulate a response to the issues raised by the defence, particularly concerning the complaint against investigators. Justice Muteti issued a directive to the Office of the Director of Public Prosecutions, ordering them to file and serve a supplementary affidavit within three days. Concurrently, the first, second, and third accused persons were also granted permission to file their own supplementary affidavits. The application is now scheduled for further hearing next Tuesday at 10:15 am.

Beyond the immediate issue of legal representation, the accused raised serious allegations regarding their treatment while in custody. Angela Mulwa specifically claimed that her brother had been subjected to physical struggle with a tie, her mother had been beaten, and their co-accused, Police Constable Elijah Kibelion, was allegedly tortured to extract a confession implicating her brother, Chris, as the shooter. These claims contribute to the broader assertion of malicious prosecution that reportedly prompted the letter sent to various authorities.

In a separate but related matter, Justice Muteti issued a stern warning to all parties regarding compliance with court orders. This admonition followed an incident from the previous week's virtual proceedings, where Rose Mbithe Ndetei and Angela Mulwa had declined to appear remotely. The court had previously been compelled to order the physical production of all five suspects after the two refused to participate virtually. The judge emphatically stated that "Going forward court orders should be obeyed," reinforcing the judiciary's expectation of adherence to its directives. All five accused individuals were charged in connection with the murder on July 29.

This development highlights the critical importance for legal practitioners to maintain clear, documented communication and obtain explicit client consent for all court filings. It serves as a reminder of potential ethical pitfalls and the court's stance on an accused's right to representation versus a lawyer's right to withdraw, signaling that courts expect prompt action to secure new counsel.

Source: Original reporting via The Standard