The High Court has postponed its ruling on the bail application of Rose Mbithe and her two children after the defence filed a fresh application seeking to cross-examine Professor David Ndetei over an affidavit opposing their release.
Milimani High Court Judge Alexander Muteti on Friday 9, October, deferred the ruling, which had been scheduled for October 19, 2026, pending the determination of the application seeking to reopen the bail hearing and summon Ndetei, the husband of Dr Victoria Mutiso, for cross-examination.
Mbithe, her son Chris Mulwa and daughter Angela Mulwa, through their lawyer Joel Mbaluka, questioned Ndetei’s mental capacity to swear the affidavit relied upon by the prosecution in opposing their release on bail. The defence argued that the circumstances surrounding the preparation of the affidavit, as well as questions regarding Ndetei’s mental capacity, required clarification before the court could determine whether to grant the accused persons bail.
The application introduces a fresh hurdle in the proceedings, with the accused persons expected to remain in custody as the court considers the request before making a determination on bail.
The defence also asked the court to facilitate the escort of Mbithe and her children to the offices of the Independent Policing Oversight Authority (IPOA) to enable them to pursue complaints, including alleged assaults at their residence and at various police stations in Kilimani and Kileleshwa.
However, the prosecution opposed the application to summon Ndetei, arguing that the defence had previously been given an opportunity to seek his cross-examination but failed to pursue it within the period allowed by the court. State Counsel Jalson Makori told the court that the window for making the request had closed, urging the judge not to reopen the proceedings at this stage.
Makori further argued that the pre-bail reports ordered by the court could address some of the concerns raised by the defence, making the additional application unnecessary.
On the request involving IPOA, the prosecution argued that the authority was not a party to the proceedings and that the court should not issue directions on how it should conduct its investigations. In his directions, Justice Muteti said the court would first determine the fresh application before proceeding with the substantive bail ruling.
The matter is scheduled to proceed on October 19, 2026, when the court is expected to address the pending application.
