Nairobi — Former Head of the Civil Service Francis Muthaura on Thursday evening filed an application in The Hague seeking to have his case sent back to the Pre-Trial Chamber (PTC).
In the application, Muthaura's defence counsel argued that the prosecutor had concealed material evidence which would have seen his case dismissed at the onset. His defence lawyer Karim Khan explained that the prosecution presented new evidence in the pre-trial brief which had 'not been subject to judicial scrutiny by the chamber.
"The pre-trial brief contains new allegations that were not previously made against ambassador Muthaura. The pre-trial brief is based upon new and untested evidence obtained by the Office of the Prosecutor (OTP) post-confirmation. On any view, the case now advanced by the OTP has undergone a metamorphosis from that confirmed by the PTC in January 2012," he argued.
In his application, Karim asked the trial chamber to determine if it was proper to confirm the charges when the prosecution failed to disclose potentially exonerating evidence it had in its possession during the confirmation of charges hearings.
He also asked the chamber to decide if the trial should proceed after the OTP dropped the evidence and the witness who alleged that Muthaura attended the core planning meetings.
The lawyer accused the prosecutor of having misled the pre-trial chamber about evidence given by Witness number 4 to reach the conclusion of a common plan by Muthaura and co-accused Deputy Prime Minister Uhuru Kenyatta.
The evidence in question revolves around crimes committed in Naivasha and Nakuru in which they are accused to have coordinated that attacks in meetings held at Nairobi Club and State House, Nairobi.
Kenyatta on Tuesday also filed a similar application after witness number 4 recanted his evidence compelling the prosecution to drop also the evidence released during the confirmation of charges hearings in September 2011.
His defence counsel argued that his case should be referred back to the Pre-Trial Chamber to avoid a miscarriage of justice.
But even with these applications, the status conference scheduled for Thursday next week will go on but they are likely to delay the actual trial which can only proceed after the applications challenging their confirmation of their charges are ruled on.