By PHILIP MUYANGA
Monday, December 14, 2009
State counsel Mr Alexander Muteti said the witness, a Greek national, has been traced and is a master of the ship that was attacked.
Mr Muteti who was seeking an adjournment of the hearing of the case told Mombasa chief magistrate Rosemelle Mutoka that attempts were being made to persuade the witness to attend court.
He said two other witnesses the investigation officer and a ballistic officer were unwell and had not been bonded respectively.
Defense counsel Mr Donald Muyundo opposed application for adjournment saying reasons advanced by the prosecution were not sufficient and do not take the court seriously.
“The witness from Greece is the complainant in this matter and should demonstrate some seriousness,” said Mr Muyundo.
He said the accused have been in custody for the last seven months and the prosecution was not in touch with its witness.
Mr Muyundo said the investigating officer should have been in court since he has also traveled from far to attend the case.
In her ruling Ms Mutoka said the application by the prosecution was unfortunate as there was a presumption that the witnesses’ attendance of court was an absolute must.
“A criminal trial must ensure that interests of all parties involved are taken into consideration,” said Ms Mutoka.
She added that indeed if the Greek national does not want to come to court then the court cannot be asked to adjourn the hearing as measures are used to persuade him to attend court.
The magistrate noted that it was not enough for the Investigating officer to merely state that he was sick since she needs to know what was ailing him and if there are any documents to support such claims.
“Indeed this investigation officer is presumptions of the court that he failed to bond the ballistic expert,” said Ms Mutoka.
She noted that the matter had been set for hearing yesterday and today but asked the prosecution to ensure that at least the investigation officer is present in court today to testify failure his evidence shall not be taken.
Ms Mutoka said the court will make a ruling in respect of the master of the ship and the ballistic expert and directed that the hearing of the case proceeds on Tuesday.
Source: Daily Nation