High Court judge Justice Weldon Korir has declined to stop murder charges against six officers implicated in the death of two Embu brothers.
Justice Korir in his ruling, said he cannot overturn a decision of a judge of the same jurisdiction.
However, Danstan Omari representing the officers withdraw the application from the High Court saying its purpose has been overtaken by events.
Danstan Omari had argued that the constitution under section 387 of the criminal procedure act mandates an inquest to be conducted if a person die in the custody of police.
"The plea is non -compliance with the Constitution, the fundamental question is if they take plea the application will be rendered uselessness," argued lawyer Omari.
The lawyer sort conservatory orders to stop plea taking scheduled for September 2, 2021 to allow the court to hear and determine issues raised by the officers.
But the DPP through his deputy Alexander Muteti opposed the application for conservatory orders saying the issues raised by the officers could only be delt by the trial court.
"Your honour justice Daniel Ogemba who has similar jurisdiction has already ordered the suspect to plead to charges ,you cannot interfere with his orders," said Alexander.
The six officers through Danstan Omari had asked court to exhume the bodies of the two brothers to conduct autopsy by their own pathologists saying the two committed suicide
"We have witnesses who have recorded statement that the two brothers committed suicide by jumping out of the speedy moving police vehicle," said lawyer Danstan Omari.
Through an application filed at the high court the officers wanted the court to stop the Director of Criminal Investigations, Director of Public Prosecution and Independent Policing Oversight Authority from commencing investigations into the death of the two brothers or charging them with the offence of murder.
They also wanted the court to order for conduction of an inquest in respect of the death two brothers namely Namely Benson Njiru Ndwiga and Emmanuel Mutura Ndwiga to establish the cause of their death.