EXPLAINER: Why suspects in same case may end up in seperate courts

In recent days, it has become increasingly common for suspects linked to the same criminal case to appear before different courts or at varying times.

While this may appear confusing to the public, the arrangement is often driven by procedural requirements, the nature of investigations, and legal distinctions among the suspects.

A notable example is the ongoing murder case of Kasipul MP Charles Ong’ondo Were.

Two suspects—Allan Omondi Ogola, the late MP’s former bodyguard, and Isaac Kuria alias Kush—were arraigned at the Milimani High Court, while three other suspects in the same case were presented before the Kibera Law Courts.

Similarly, in the case of the late teacher and blogger Albert Ojwang', multiple police officers were arraigned at the Milimani Law Courts, while two civilian suspects accused of assaulting Ojwang' appeared before the Kibera Law Courts.

These cases, handled under different timelines and venues, raise important questions about the reasons and legal justification behind this split-trial approach.

To unpack the growing practice, the Star spoke to Nairobi-based advocate Lempaa Suyianka, who explained that while split proceedings may be permissible during preliminary stages, they are not ideal when the matter proceeds to full trial.

“If witnesses and facts are the same, one court is likely to arrive at different findings from the other,” he cautioned as he emphasised the risk of inconsistent judicial outcomes.

According to Suyianka, the split is sometimes necessitated by jurisdictional limitations and the need to comply with constitutional requirements.

This is especially given the provision under Article 49(1) of the constitution that suspects must be brought before a court within 24 hours of arrest.

“If someone is arrested in Naivasha, for instance, and the 24-hour window is about to lapse, police may rush to file a miscellaneous application there to hold the suspect longer. At that point, they are not accused persons but arrested individuals under investigation,” he explains.

However, he makes a clear distinction between such custodial applications and the filing of formal charges.

“Once the suspects become accused persons and pleas are being taken, splitting them across courts, especially on the same set of facts, becomes problematic,” he says.

“That kind of administrative fragmentation can potentially embarrass the outcome of the matter.”

In the Ong’ondo Were case, for example, three suspects were first presented at the Kibera Law Courts before Justice Diana Kavedza, while other suspects, arrested at different stages, were arraigned in Milimani Law Courts.

The prosecution justified the arrangement by citing the proximity of the evidence trail.

“We are all over the place in terms of courts because that is where the evidence is leading us,” prosecutor Allen Mulama told the court during a bail hearing.

He added that the suspects were taken to Kibera due to the proximity of the alleged crimes to the crime scene.

However, he noted that the intention was to eventually merge the cases into a single trial once investigations progressed.

Suyianka acknowledges that such a stepwise approach can be allowed early on for case management, but added that unifying the proceedings is necessary to ensure judicial coherence.

“This was a split administrative handling of a murder case. As the process continues, all the suspects should be consolidated in a central court for trial,” he said.

He emphasised that while the courts may be different at first, the nature of the charges will ultimately guide whether the cases are tried together.

He also noted that a difference in charges may justify a split in rare instances.

“Suppose one person is charged with murder and another with robbery with violence in the same incident, that could lead to two separate trials, especially if the facts supporting each charge differ,” he said.

 “But, say, twenty people are facing the same charge, like murder or robbery with violence, then a split is legally unwarranted. They must face trial together.”

The growing number of such split trials underscores the complexity of Kenya’s criminal justice system, particularly in multi-suspect cases.

Section 135 of the Criminal Procedure Act, though it does not explicitly mention "split trials," provides clear guidance on how to join or separate accused persons or charges, which directly relates to this issue.

“Persons accused of the same offence committed in the course of the same transaction may be charged and tried together," it says.

While the prosecution may rely on logistical and evidentiary factors to justify initial separations, the courts will eventually have to consider legal fairness, efficiency and the integrity of the trial process.

Ultimately, Suyianka recommends that judicial officers should always be cautious in allowing split proceedings to progress too far.

“The law allows certain flexibilities, but justice must be seen to be uniform, especially where the facts are shared and the crime is singular,” he said.

As such, while the practice may persist during early phases, the expectation remains that suspects linked to the same offense will face a unified trial.