The Kenyatta defence filed its observations on the impact of the Prosecutor’s disclosure and investigations on their ability to prepare a defence for trial. The defence team felt that the Prosecutor’s actions forced them to unnecessarily expend enormous investigatory resources and time (due to the volume of disclosure). They also repeated the allegation that the Prosecutor’s case has fundamentally changed from what she presented to the Pre-Trial chamber. They accuse the Prosecutor of doing so in order to shore up her case following the withdrawal of OTP-4 (the witness who changed his story about key meetings Kenyatta and Muthaura were alleged to have attended).
One new allegation the defence complained about is of a meeting with an intermediary and Mungiki members alleged to have taken place at Marble Arch Hotel on Tom Mboya St. in Nairobi. The defence wants the Prosecutor to be clearer about the details of the meeting; defence investigators will need to gather relevant information.
The Defence team was also concerned about an older allegation, the ‘Nairobi Club’ meeting. They feel that the Prosecutor’s description of the meeting and the date on which it took place have become vague and unclear, making it difficult to challenge or answer this allegation.
The defence felt that the supposedly fresh allegations, inserted after ‘unbridled’ Prosecution investigations and disclosed at the last minute to the defence, infringed the fair trial rights of the accused. The Kenyatta defence also pointed to the list of witnesses (expanded after the confirmation proceedings) and the number of witnesses and documents still to be disclosed to them. As a result, they asked the court to vacate the trial date.
The Muthaura defence also wanted the trial date pushed forward, and made additional submissions (they already argued the same point at the Status Conference) to the court pointing out that certain audio recordings that needed to be translated before being disclosed to them are not yet available and are not likely to be available before the April trial date.