Twists and turns renders justice suspect

By Michael Oriedo

As darkness set in on the evening of September 25, 2005, the family of Chrispinus Dondo and Consolata Auma waited anxiously for their first-born daughter, Cynthia Oundo, to arrive home from work.

Ms Consolata Auma displays the portrait of her daughter. She is still pursuing justice after her daughter’s mysterious murder.[PHOTO:MICHAEL ORIEDO]

Then, staying in Nairobi’s Dandora Estate, she had promised to return home early, and the family had no doubt about it.

But a call they received some minutes after nine o’clock shattered their lives.

"The caller informed us that a young woman had been found murdered in a chemist in the area," narrates Auma. "He asked us to go and check if it was our daughter," she adds.

Auma rushed to the scene and found two police officers already there collecting evidence. One of them was taking photos of her daughter.

"The police asked me to board their vehicle, where they also placed the body. They also picked a woman who owned the chemist. She told the police that her son, who was with my daughter, had been rushed to hospital after he tried to commit suicide," she recounts. Auma was thereafter taken to Dandora Police Station where she recorded a statement.

"As we headed there, a female police officer showed me exhibits they had recovered from my daughter. These were a ladies’ bag, high-heeled shoes, black blouse, ID card, a wallet, neck-lace and a belt. They were in a green plastic bag," she says.

Suspect’s arrest

Days later, police arrested a suspect, Damiano Josiah Nyanya and locked him up at Buruburu Police Station.

According to a police post-mortem form from Dandora Police Station to City Mortuary reference number OB4/27/9/05, "The deceased was found dead with bruises around her neck and blood oozing from her mouth and nose.

It is believed she must have been poisoned or strangulated by her lover who also took a poisonous substance," an officer wrote.

A pathologist’s report from the City Mortuary shows that Oundo had bruises around her neck, a bruised left chest wall and had bled internally.

"I formed the opinion that the cause of the death was asphyxia due to strangulation," wrote the pathologist. The suspect was later taken to court. The trial, filed as Case No 2 of 2006, Republic Vs Damiano Josiah Nyanya, commenced on January 9, 2006, before Justice Mary Ang’awa.

The hearing was, thereafter, scheduled for June 7, 2007 before Justice Muga Apondi.

"My husband and I testified. An officer from Dandora Police Station and two other witnesses also testified," Auma recalls.

On February 28, 2008, the defence lawyer made an application that the rights of the accused had been violated under section 72(2) of the previous Constitution. Justice Apondi dismissed the case on April 15, 2008, and ordered the case proceed to its logical conclusion.

The lawyer of the accused challenged the ruling at the Court of Appeal, which later dismissed the case.

Two more witnesses were then expected to testify. The hearing was set for July 9, 2010, but later postponed to September 24, 2010.

"Every time a new date was set, we would travel from Budalangi in Busia County, where we had relocated, to Nairobi. Sometimes it was frustrating, we would come only to be told the case had been postponed," she says.

On September 29, Mrs Ogoma, a State Counsel, sought an adjournment on grounds that she did not have the two remaining witnesses.

Things go awry

"This is where things started to go awry. We did not understand why the prosecution said they did not have witnesses yet the two, a pathologist and a police officer, who had been transferred to Nyanza, had come several times in court but they had not testified," she says.

The trial was later adjourned and the hearing scheduled for November 12, 2010. It was later pushed to November 17, 2010.

On that day when the case came before the judge, the defence lawyer applied for the recall of the five witnesses who had testified.

He renewed the application seven days later.

"The prosecution did not resist the application. Justice Apondi then ordered that the case to restart," Justice Nicholas Ombija, who later took over the case writes in a summary of his ruling.

Justice denial

"We were heartbroken as a family. We felt that we were being denied justice. The case had already taken six years. We wrote a letter to the Attorney General and the Public Complaints Committee trying to inform them of the turn of events but we did not get any response," says Auma.

The case afterwards began afresh before Justice Ombija on April 11, 2011, after several adjournments.

The hearing was pushed to June 20. The judge’s summary of the ruling says that Mrs Ogoma told the court that the prosecution was not ready to proceed because of lack of exhibits and witnesses.

She thereafter requested that the prosecution be given up to June 23, to avail witnesses and exhibits. The hearing was adjourned to June 29.

"When that day came, a State counsel came in the place of Mrs Ogoma. She informed the court that witnesses and exhibits were unavailable," recounts Auma.

"We did not know why she told the judge we were unavailable yet we were in court. The exhibits that she said were unavailable, I had seen them with a police officer in a green plastic bag in April on the day the hearing was restarted," she adds.

Justice Ombija writes, "I adjourned the case when Ms Ngetich for the prosecution intimated to the court that the OCS Dandora Police Station, who was in court, informed her that the handing over of the exhibits had hit a snag."

"Most of the officers who had handled the file had been transferred and the investigating officer had committed suicide," he adds.

But Auma denies that the investigating officer committed suicide.

"He is in Homabay, Nyanza. He had come to court several times after his transfer but he never testified," she explains.

The defence informed the court that the State Counsel had failed to produce witnesses and exhibits and wanted the court to acquit the accused.

In his ruling on September 29, Justice Ombija writes: "The prosecution is not coming clearly to say that they are unable to proceed because they lack witnesses and exhibits. I take the responsibility to terminate these proceedings under section 206(i) of the criminal procedure code."

"This is not the kind of justice we expected from the court, especially now that we have a new Attorney General, Director of Public Prosecutions and Chief Justice. Does it mean that a poor person cannot get justice in our courts? How can crucial evidence disappear from a police station and those responsible get away with it? Why was the trial restarted?" she poses, as she appeals to the Director of Public Prosecutions and the Chief Justice to intervene.