by Stella Mwangi

The High Court in Nakuru has sentenced a former traffic police officer to 10 years in jail for the murder of former Ainamoi MP David Kimutai Too and a policewoman.

Justice David Maraga said Andrew Moeche Omwenga was considerably provoked by the deceased persons and acted in self-defence. Justice Maraga acquitted Moeche of murder and convicted him of the lesser charge of manslaughter.

The court found there was no evidence to suggest the accused had premeditated intention to kill either one of the deceased persons.

The judge ruled the prosecution had failed to prove there was malice aforethought in the commission of the twin murders.

"Where the accused raises the defences of self-defence and provocation, the burden is still on the prosecution to prove him guilty beyond reasonable doubt.

The prosecution had to prove he was not provoked or that he did not act in self-defence," he said.

Although the judge found the accused was justified in shooting the two as he thought his life was in danger since the deceased persons were armed with guns, Maraga said he had used excessive force.

"However, considering the fact that the suspect followed the deceased persons to West Indies Estate and that neither the deceased fired even one shot, I find he should have shot them on the arms or legs to disarm them and not on their heads, chests and abdomen," Maraga said.

He was delivering a judgement in a case where the former policeman had been charged that on January 31, last year in Eldoret town, he murdered the MP and a female companion, Eunice Chepkwony.

Maraga said due to the absence of further evidence from prosecution witnesses, he had restricted himself to making deductions from available circumstantial evidence.

In his deductions, he found there was a clear love affair between the deceased woman and the accused, as they were planning marriage.

Maraga noted the accused had received reports from another policeman on patrol that his girlfriend had been seen riding in a car with a man, prompting him to trail them to the scene of the murder.

He further said the deceased had confronted the accused while armed with two guns, forcing him to shoot.

He said police investigating the case had covered up the fact that the deceased policewoman had two guns at the time of the crime.

Maraga said it was clear from the evidence produced that Chepkwony had a pistol and a G3 rifle in her car, a fact that investigators had denied.

In mitigation, the accused’s lawyer Galdys Ndeda said her client was remorseful and asked the court to consider the circumstances under which the crime occurred.

While handing down the sentence, Maraga noted the accused had taken away two lives and as such, ruled he serves ten years imprisonment for each of the counts. He further ordered the sentences run concurrently.