Court allows Rose Mbithe, children to question David Ndetei over affidavit in Victoria Mutiso murder case

Court allows Rose Mbithe, children to question David Ndetei over affidavit in Victoria Mutiso murder case - Chris Mulwa and his mother Rose Mulwa Mbithe at Milimani Law Courts where they appeared over the murder of Dr Victoria Mutiso. (Photo: Carolyne Kubwa)

The three accused persons argued that cross-examining the professor was necessary to establish whether he personally made the statements contained in the affidavit and to test their credibility.

The High Court has allowed Rose Mbithe Mulwa and her two children to challenge the authenticity of an affidavit sworn by Professor David Ndetei opposing their release on bail in the murder case of Dr Victoria Mutiso.

Justice Alexander Muteti directed Ndetei to appear in court on Wednesday, where he will face questions from the defence over whether he personally swore the affidavit and whether its contents are truthful.

The application was made by Mbithe and her children, Angela and Chris Mulwa, who questioned how the document was prepared, arguing that Ndetei was reportedly admitted to a High Dependency Unit (HDU) at the time he allegedly swore it.

Through their lawyers, the three accused persons argued that cross-examining the professor was necessary to establish whether he personally made the statements contained in the affidavit and to test their credibility.

The prosecution opposed the application, arguing that the defence had missed the appropriate opportunity to raise the issue at this stage of the proceedings. Questions were also raised about Ndetei’s mental stability.

However, Justice Muteti allowed the request, finding that bringing Ndetei to court for questioning would not prejudice the prosecution.

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The judge’s decision gives the defence an opportunity to scrutinise evidence presented against their release on bail, particularly the circumstances surrounding the disputed affidavit.

In the affidavit, Ndetei had urged the court to deny his former wife and her two children bail, claiming that he feared for his life.

He told the court that he divorced Mbithe in 2001 and later married Dr Mutiso, whom he alleged had been threatened by his former wife and her children.

The professor’s opposition to their release on bail forms part of the proceedings in the murder case involving Dr Mutiso, whose death led to the prosecution of the three accused persons.

The Wednesday session is expected to focus on the circumstances under which the affidavit was sworn and the accuracy of the allegations it contains.

The cross-examination will allow the defence to question Ndetei directly, with the court expected to consider the answers in determining the weight to attach to the disputed document.

The bail dispute comes as the three accused persons continue to contest their detention as the murder proceedings move forward.

Their allegations concerning the affidavit remain matters to be tested in court, and the decision to allow cross-examination does not, by itself, determine whether the document is authentic or whether its contents are true.