Nairobi — Deputy Prime Minister Uhuru Kenyatta and former Civil Service chief Francis Muthaura have lost a bid seeking to have their cases moved from the International Criminal Court in The Hague to Kenya or Arusha.
The two had applied to the trial chamber which has now directed them to instead make the application to the ICC presidency.
Muthaura's request, asking the court to allow submissions from Kenyan and Tanzanian authorities to support the transfer wish, has also been rejected.
"The chamber rejects the request by the defense of Muthaura to invite submissions from the authorities in Kenya and/or Tanzania as to the prospect of holding the trial in either country," the trial chamber ruled.
In a ruling issued on Friday, the judges said their ruling was based on a provision in the Rome Statute that allows the court to sit anywhere if appropriate.
"The Court may sit elsewhere, whenever it considers it desirable, as provided in the Statute," the judges said, citing Article 3 (3) of the Statute.
"The chamber Rejects the request by the Kenyatta defense to change the place of the trial, without prejudice to the right of the defense, in accordance with Rule 100 of the Rules, to address its application to the Presidency, should it wish further to pursue the option of changing the place where the Court sits," the ICC.
If the defence considers re-applying to the presidency, the presidency will then seek the views of the trial chamber and make a decision if the cases should be moved to other countries but after consulting the state where the court may consider holding its sittings.
In May this year, Kenyatta's defence team requested the trial chamber to consider transferring their case to Kenya or Arusha on basis of high travel costs involved and the fact that the case will be heard nearer to the affected region.
Muthaura's defense team had also wanted the case to be heard at the International Criminal Tribunal for Rwanda (ICTR) in Arusha to "reduce disruption and strain that the trial would place on the accused persons and could additionally reduce costs relating to witness travel, reduce disruption to victims and ensure that the judicial process remains in, or in proximity to, the territory concerned."
Trials for the two and their co-accused Eldoret North MP William Ruto and Joshua arap Sang are set to begin in April next year.
The four are facing trials over their possible roles in organising or financing the post election violence of 2008, when more than 1300 people were killed and nearly half a million others displaced.